"Sentencing Enhancement and the Crime Victim's Brain"

The title of this post is the title of this interesting new article now available via SSRN authored by Francis X. Shen. Here is the abstract:

Criminal offenders who inflict serious bodily injury to another in the course of criminal conduct are typically sentenced more harshly than those who do not cause such injuries. But what if the harm caused is “mental” or “psychological” and not “physical”?  Should the sentencing enhancement still apply? Federal and state courts are already wrestling with this issue, and modern neuroscience offers new challenges to courts’ analyses.  This Article thus tackles the question: In light of current neuroscientific knowledge, when and how should sentencing enhancements for bodily injury include mental injuries?

The Article argues that classification of “mental” as wholly distinct from “physical” is problematic in light of modern neuroscientific understanding of the relationship between mind and brain.  There is no successful justification for treating mental injuries as categorically distinct from other physical injuries.  There is, however, good reason for law to treat mental injuries as a unique type of physical injury.  Enhancement of criminal penalties for mental injuries must pay special care to the causal connection between the offender’s act and the victim’s injury.  Moreover, it is law, not science, that must be the ultimate arbiter of what constitutes a sufficiently bad mental harm to justify a harsher criminal sentence, and of what evidence is sufficient to prove the mental injury.