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December 8, 2012

Should history of concussions always be a critical concern at sentencing?

Healthscan13aThe question in the title of this post is prompted by this notable story out of Florida covered by NBC Sports concerning the state sentencing of former NFL player (and OSU Buckeye) David Boston.  The piece is headlined "David Boston gets six months in jail, concussions cited at sentencing," and here are the details:

Former NFL wide receiver David Boston was sentenced to six months in prison today for punching a woman last year, but the sentence could have been much more severe, as prosecutors were seeking to put Boston behind bars for four years.

So why did the judge give Boston a more lenient sentence?  In part, because Boston blamed concussions suffered in football for his actions off the field, and the judge found Boston’s claims convincing.

According to the Sun Sentinel, a psychiatrist testified at Friday’s sentencing hearing that Boston had at least four concussions from playing football, and Circuit Judge Charles Burton said he agreed to impose less jail time than prosecutors were seeking because of evidence that Boston suffers from a brain disorder [more on Boston's crime and sentencing can be found in this Sun Sentinel piece].  Boston said in court that he is suing the NFL over head trauma he suffered on the field.

With thousands of former players now suing the NFL for brain damage they say they suffered during their playing days, this surely won’t be the last time we hear of a player blaming brain damage after being convicted of a crime.  The 34-year-old Boston, a once-promising Pro Bowler who has had several off-field problems, pleaded guilty last month to felony aggravated battery in connection with last year’s incident.

Effective capital defense attorneys have a long history of investigating and presenting evidence of a defendant's traumatic brian injury at the penalty phase of a death penalty case.  But I suspect that relatively few defense attorneys in non-capital cases have a habit of even considering whether their clients might have a history of concussions.

I am not surprised (but still impressed) that the attorney and judge involved in a former NFL's player's sentencing gave considerable attention to a history of concussions.  But statistics indicate that hundreds of thousands of high-school and college athletes suffer concussions every years, and I doubt many criminal defense attorneys even think to ask about a criminal defendant's teenage sports experiences when developing a record of mitigating evidence for sentencing.  Indeed, I fear that, unless and until formal sentencing law in some way were to require judges to consider this "silent epidemic,"  very few defendants with a history of concussions will be able to get the same kind of sentencing benefit as former NFL players like David Boston.

December 8, 2012 at 02:05 PM | Permalink


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After 2 years, there is little chance of any more recovery from a dementia caused by a traumatic head injury. Crimes proven to stem from such dementias indicate permanent tendencies, and dangerousness. Therefore concussions should become aggravating factors if two years have passed.

If two years have not passed, cognitive rehabilitation can still place.


The Defense Department considers that treatment to be unproven, refuses to provide it for our warriors. I would reserve judgement to a case by case basis, rather than comparisons between large groups. A treatment is 99% worthless in a large sample. In the 1% of cases in which it is effective, it is 100% effective.

Posted by: Supremacy Claus | Dec 9, 2012 8:07:07 AM

Now that a woman has been punched by the defendant, should all her subsequent crimes get mitigation? This is ridiculous.

Posted by: Supremacy Claus | Dec 9, 2012 8:14:21 AM

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