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

54 Pages Posted: 24 Aug 2018  

Mirko Bagaric

Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School

Gabrielle Wolf

Deakin Law School

Peter Isham

Northwestern University, School of Law, Students

Date Written: August 14, 2018

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.

Keywords: sentencing, mitigating considerations, childhood sexual and violent abuse

JEL Classification: K14

Suggested Citation

Bagaric, Mirko and Wolf, Gabrielle and Isham, Peter, Trauma and Sentencing: The Case for Mitigating Penalty for Childhood Physical and Sexual Abuse (August 14, 2018). Stanford Law & Policy Review, Vol. 30, No. 1, Forthcoming . Available at SSRN: https://ssrn.com/abstract=3230725

Mirko Bagaric (Contact Author)

Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School ( email )

Hawthorn
Hawthorn
Burwood, Victoria 3000
Australia

Gabrielle Wolf

Deakin Law School ( email )

221 Burwood Highway
Burwood
Victoria 3125
Australia

Peter Isham

Northwestern University, School of Law, Students

Evanston, IL 60208
United States

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