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August 26, 2018

"Trauma and Sentencing: The Case for Mitigating Penalty for Childhood Physical and Sexual Abuse"

The title of this post is the title of this new paper available via SSRN authored by Mirko Bagaric, Gabrielle Wolf and Peter Isham. Here is its abstract:

People who lack guidance when they are young have an increased risk of committing crimes.  The nurturing that many people receive during their formative years can play a key role in the development of appropriate values and behavior.  Yet there is a reluctance to acknowledge the diminished culpability of offenders who have lacked appropriate guidance during their childhood because it is feared that doing so might be perceived as justifying criminal behavior and hence leading to more crime.  The Federal Sentencing Guidelines expressly state that lack of guidance as a youth should not be a mitigating sentencing consideration.  Despite this, approximately half of all federal judges believe that it should reduce the harshness of the penalty that is imposed on offenders. 

In this Article, we examine whether lack of guidance as a youth should serve to reduce the severity of criminal sanctions.  In doing so, we also discuss the position in Australia where an offender’s neglected upbringing can mitigate his or her penalty.  We conclude that a neglected youth should not of itself mitigate penalty because this would make sentencing law too obscure and uncertain.  There is not even an approximate line that can be drawn to demarcate the boundaries between appropriate and inadequate guidance as a youth. 

However, experiences that are commonly associated with being neglected during childhood and often profoundly set back the mental and/or emotional state of children, namely being subjected to physical or sexual abuse, are more concrete in nature and should be a mitigating factor in sentencing.  Empirical evidence demonstrates that people who are subjected to such trauma in their childhood years have an increased risk of subsequently engaging in harmful behavior, such as criminal activity.  Further, relatively clear criteria can be established to demarcate the scope and application of these experiences during childhood for sentencing purposes.  Reforming the law to make childhood sexual and physical abuse a mitigating consideration would improve the doctrinal coherency of the law and may have the incidental benefit of reducing sentences for female offenders generally and for offenders from socio-economically deprived backgrounds, including African Americans.  This reform could be implemented in a manner that does not compromise community safety, provided that it is complemented by targeted, effective rehabilitative measures.

August 26, 2018 at 11:09 AM | Permalink


"Empirical evidence demonstrates that people who are subjected to such trauma in their childhood years have an increased risk of subsequently engaging in harmful behavior, such as criminal activity. "

The problem with this approach is that it is subject to strong self-selection and reporting bias. Either one of two things happens. Either we limit sentencing relief only to those children whose abuse has been reported to the authorities, thereby leaving those victimized children whose abuse was not reported doubly victimized or we accept all self-reports of childhood abuse as valid leaving the system wide open to fraud and gaming.

So in my view the reason we don't let childhood upbringing influence sentencing is not because as a matter of fact childhood experiences don't influence adult behaviors, it is because all the other options are worse.

Posted by: Daniel | Aug 26, 2018 12:09:09 PM

No. No. No.

Prior victimization can obviously sometimes be mitigating, but it also should be aggravating sometimes---they ought to f'in know better.

Posted by: federalist | Aug 26, 2018 4:37:24 PM

Interesting, good concept. Just one should consider bunch of issues, have to do with evidences. One needs to prove all this. One should dig far back to childhood incidents, and bring forward evidences. Not that simple. And more, if the defendant was abused, then there is an alleged aggressor far back then. Now, the issue of his privacy, or presumption of innocence or his personal reputation, would have to be considered. He may object all this. Claiming falsity of course.


Posted by: El roam | Aug 27, 2018 7:37:59 AM

please explain, federalist, how/when prior victimization should be considered aggravating. Are you saying it could be appropriate and justified to give an offender a LONGER prison sentence based SOLELY on evidence that offender was previously subject to childhood physical or sexual abuse?

Posted by: Doug B | Aug 27, 2018 12:34:12 PM

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