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March 21, 2015

"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.

March 21, 2015 at 11:13 PM | Permalink


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Because the mind is seated in the brain, the Supremacy may be arrested for hurting the feelings of lawyers and judges. After all, every corrective remark is received by, stored in changed neuronal connections by, and alters the brains of lawyers. Is that what this article is proposing?

A police officer scared me, with bright lights, a siren, and his hand on a taser, now to mention unkind words. My PTSD now makes me drive more slowly. Do I now have an injury in fact and a Section 1983 claim? Should this claim be mitigated by his doing this for my "welfare?"

How about arresting my teacher who said I did a problem wrongly, and traumatized my already anxiety ridden, overly sensitive brain? I just saw my dreams of going to law school sunk by my fourth grade teacher saying, I do not know lawyer math, and must practice more workbook problems. Should I have a cause of action for the brain changes induced by my fear of ruining my chances of going to law school? These are far more painful, long lasting, and traumatic than any slap across the face she could have given me.

Posted by: Supremacy Claus | Mar 22, 2015 2:08:57 AM

This ditz indoctrinated at Harvard Law School forgot to mention something. The sole tool of the lawyer is punishment and traumatizing the brains of the entire population. Why did he forget that little item? He is a lawyer dumbass, that's why.

Posted by: Supremacy Claus | Mar 22, 2015 9:36:48 AM

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