'In the Wasteland of Your Mind': Criminology, Scientific Discoveries and the Criminal Process

Virginia Journal of Criminal Law, Forthcoming

NYLS Legal Studies Research Paper

61 Pages Posted: 3 Feb 2016  

Michael L. Perlin

New York Law School

Alison J. Lynch

Disability Rights New York

Date Written: February 2, 2016

Abstract

This paper addresses a remarkably-underconsidered topic: the potential impact of scientific discoveries and an increased understanding of the biology of human behavior on sentencing decisions in the criminal justice system, specifically, the way that sentencing has the capacity to rely on scientific evidence (such as brain imaging) as a mitigating factor (or perhaps, in the mind of some, as an aggravating factor) in determining punishment.

Such a new method of evaluating criminality, we argue, can be beneficial not only for the defendant, but also for the attorneys and judge involved in the case. If used properly, it may help to provide a more truly objective set of factors that contribute to an individual’s particular offending patterns, rather than continuing reliance on sentencing schemes that are swayed by societal bias and prejudice. However, it can become problematic if a legal system relies too heavily on untested theories, and even more problematic in cases in which science does not support legal conclusions. Scientific discovery moves faster than the law, and it is critical to make sure that the legal system is given an opportunity to catch up, rather than risk allowing “junk science” to influence how a defendant is treated.

In this paper, we first examine criminal sentencing procedures, and discuss how a criminological view of a defendant’s offending behavior can work to mitigate harshly inappropriate sentences; in this context, we consider how Federal Sentencing Guidelines cases consider the significance of mental disability in sentencing decisions, especially in the aftermath of the Supreme Court’s decision in United States v. Booker. Then we review recent work on the biological bases of certain criminal behaviors and how it can be captured through brain imaging. Next, we consider how the use of such evidence continues to expand in the criminal trial process. Following this, we look at how the school of therapeutic jurisprudence can better inform how the legal system incorporates such evidence. Finally, we offer our recommendations for ensuring that scientific evidence is introduced appropriately in the legal system.

Keywords: Sentencing, criminology, Federal Sentencing Guidelines, therapeutic jurisprudence, mental disability, biology, human behavior, sanism, neuroscience, neuroimaging

Suggested Citation

Perlin, Michael L. and Lynch, Alison J., 'In the Wasteland of Your Mind': Criminology, Scientific Discoveries and the Criminal Process (February 2, 2016). Virginia Journal of Criminal Law, Forthcoming; NYLS Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=2726611 or http://dx.doi.org/10.2139/ssrn.2726611

Michael L. Perlin (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States
212-431-2183 (Phone)

HOME PAGE: http://www.nyls.edu/bios/perlin.html

Alison J. Lynch

Disability Rights New York ( email )

25 Chapel St
Suite 1005
Brooklyn, NY 11201
United States

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