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November 17, 2012

"Neuroscience, PTSD, and Sentencing Mitigation"

The title of this post is the title of this notable new article by Professor Betsy Grey just published in the October 2012 issue of the Cardozo Law Review. Here is how the piece's introduction starts and ends:

Recent years have seen an increasing acceptance of a link between Post Traumatic Stress Disorder (PTSD) and criminal behavior, both in the general populace and in the criminal justice system. The link appears to be most widely accepted in the case of military combat veterans.  Lawyers and scholars have called for use of PTSD related to military service both as a defense to criminal charges and as an argument for reducing the sentences of convicted military veterans.  Courts are generally more hospitable to military veteran PTSD claims at sentencing than as a defense at trial....

This Article proceeds in four parts.  Part I discusses the anxiety disorder of PTSD, highlighting legislative and judicial developments, as well as the federal sentencing guidelines, concerning the use of PTSD in criminal sentencing proceedings involving veterans and battered women.  It looks at these two areas against a backdrop in which courts generally hesitate to give weight to PTSD mitigating evidence.  In Part II, this Article reviews different theoretical justifications of mitigation use in sentencing and how those justifications apply in the context of PTSD.  Part III examines advances in neuroscience research that have begun to shed light on the biological basis of the harm suffered when an individual is exposed to extreme stress and explores whether those advances justify changes in our thinking about PTSD mitigation.  In conclusion, the Article suggests that advances in neuroscience research may cause lawmakers and judges to clarify policies on the use of PTSD in sentencing and proposes other limiting principles that should be considered.  In our efforts to recognize PTSD as a mitigating factor, we should identify whether we are concerned with the source of the traumatic event (e.g., from one’s military or combat service), or simply that the defendant has manifested PTSD symptoms.  Addressing this question may lead to a more principled and consistent approach to the use of this evidence in sentencing.

November 17, 2012 at 12:49 PM | Permalink


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The central feature of PTSD is excessive avoidance. The central feature of criminality is excessive boldness, and the lack of compassion for victims, just consideration for one's base desires. Such anxiety and avoidance is likely to reduce crime.

Far from being a mitigating factor PTSD should be considered an aggravating factor. The person had to overcome a great deal of anxiety and to leap from fear to bold victimization.

Anti-anxiety and anti-PTSD substances such as alcohol, are associated with a great deal of crime. Half the murderers and half the murder victims are legally drunk. Yet it is settled law, intoxication may not be used as a defense or an excuse.

The lawyer who has read about PTSD knows about this yet still chooses to use PTSD as a mitigating factor. We are in the Twilight Zone again.

Posted by: Supremacy Claus | Nov 17, 2012 5:12:45 PM

Most trauma victims do not get PTSD from their trauma, but rather a lesson from their trauma. That avoidance central feature of the disorder is a benefit. It serves to prevent future exposure to the same risk, as an enhanced memory is recorded in association with trauma.

The vast majority of PTSD patients have associated psychiatric problems, such as substance abuse, including caffeine, mood disorders, and other major conditions. Substance abuse cannot be used as an excuse.

Posted by: Supremacy Claus | Nov 18, 2012 1:10:55 AM

The heart of her article is on page 84-85. She nails it when she says that PTSD is tool. The fact is that courts are looking for ways to be sympathetic to certain categories of people (vets, women) because courts know that the public is sympathetic to those groups and it wants said public to sympathetic to the courts. PTSD is just the excuse, just the fig leaf, that gets the courts where they want to go.

The problem is that if there was ever a fair and balanced application of PTSD in the courts the courts would quickly abandon the application of it because the only reason the courts every accepted PTSD in the first place was precisely to be unfair and imbalanced.

Posted by: Daniel | Nov 18, 2012 2:15:00 PM

If one can make $3500 a month, tax free, for having a condition with subjective symptoms, that cannot be verified nor ruled out by an objective test, would one be motivated to report such symptoms? Is it surprising that the incidence of PTSD has increased? Now add this lawyer coddling of the PTSD patient for serious crime.

I am aware of the anatomical difference if one has PTSD.


These differences are confounded by the heavy drinking done by this population. And alcohol shrinks the brain.

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