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April 12, 2022

"Trauma and Blameworthiness in the Criminal Legal System"

The title of this post is the title of this new paper authored by Rachael Liebert now available via SSRN.  Here is its abstract:

Violence can result in trauma, but so too can trauma lead to violence.  Neuroscience offers an increasingly sophisticated understanding of the biology of behavior, including the nexus between trauma and criminal behavior.  Yet the criminal legal system consistently fails to account for the traumatic backgrounds of many people charged with crimes. Instead, people who experience trauma as a result of community violence, along with so many others, are ignored or ridiculed when they argue that their traumatic experiences should mitigate their blameworthiness.  Military veterans, on the other hand, provide a unique example of a class of people for whom judges, prosecutors, and other actors in the criminal legal system recognize that context and circumstances matter — that even when someone is criminally responsible for a wrongdoing, their traumatic experiences may mitigate their blameworthiness.

In this article, I explore why we treat trauma as a reason for leniency for some people but not for others, and whether it is morally justifiable for us to approach criminal behavior as situational (a result of environmental circumstances) for certain groups, while insisting that it is characterological (the result of individual character traits) for others. Offering a novel perspective on the issue, I contend that what distinguishes military veterans from defendants for whom trauma and other environmental factors are routinely disregarded is not a difference in the kind or degree of the impact of their circumstances, but rather cognitive assumptions about who is and is not a criminal.  These assumptions in turn lead to a false dichotomy between people whose criminal behavior we deem characterological, and therefore fully morally blameworthy, and people whose criminal behavior we accept as situational, and therefore less blameworthy. I situate the roots of these categorizations in structural racism and show how this dichotomous thinking perpetuates racial injustice.

April 12, 2022 at 02:10 PM | Permalink


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