Sentencing Enhancement and the Crime Victim's Brain

41 Pages Posted: 18 Mar 2015 Last revised: 7 Jul 2017

See all articles by Francis X. Shen

Francis X. Shen

University of Minnesota Law School; MGH Center for Law, Brain & Behavior

Date Written: December 1, 2014


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.

Keywords: neurolaw, law, neuroscience, crime victim, brain, sentencing, enhancement, punishment, guidelines, criminal law, bodily injury, mental, physical

Suggested Citation

Shen, Francis X., Sentencing Enhancement and the Crime Victim's Brain (December 1, 2014). 46 Loyola University Chicago Law Journal 405 (2014), Available at SSRN:

Francis X. Shen (Contact Author)

University of Minnesota Law School ( email )

Minneapolis, MN
United States

MGH Center for Law, Brain & Behavior ( email )

55 Fruit Street
Boston, MA 02114
United States

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