REDUCED CULPABILITY WITHOUT REDUCED PUNISHMENT: A CASE FOR WHY LEAD POISONING SHOULD BE CONSIDERED A MITIGATING FACTOR IN CRIMINAL SENTENCING.

• Author: Kittilstad, Eleanor

INTRODUCTION

The ongoing water crisis in Flint, Michigan, following the discovery of lead in the city's water supply in 2015, is evidence that dangerous amounts of lead persist in urban environments. Despite decades of efforts to remove the toxic metal from homes, soil, and water, cities throughout the United States continue to have serious lead contamination, especially in homes and soil. (1) Lead contamination is so common that the Centers for Disease Control and Prevention (CDC) estimates that approximately 500,000 children ages one through five who live in the United States have blood lead levels greater than 5 ug/dL, the quantity that triggers concern from medical professionals and poses a risk of danger to children. Lead is a neurotoxin, and the detrimental effects of lead exposure on developing children are well documented by researchers who have found that the presence of lead in the body may damage organs and cause serious behavioral disorders and intellectual disabilities. (4) Even small quantities of lead can cause learning disabilities, low intelligence quotient (IQ), and anti-social behaviors. (5) Though doctors do not become concerned until blood lead levels reach 5 ug/dL, the CDC claims that there is no safe blood lead concentration. (6)

Environmental and public health organizations have been the primary responders to concerns about lead exposure and have focused on lead poisoning prevention. (7) However, the neurological damage caused by lead implicates the criminal justice system as well. Many studies have linked low IQ and behavioral disorders to an increased risk of criminal behavior. (8) Thus, individuals poisoned by toxic lead exposure are more likely to become involved in the criminal justice system than individuals without blood lead levels that result in neurological damage. (9)

Because the deterrence and retribution goals of criminal law rely on the premise that people make decisions of their own free will, and therefore can be held responsible for their actions, criminal law has been hesitant to give legal effect to mental or behavioral impairments. (10) However, this Comment argues that the law should account for the role that lead poisoning may play in the behavior of a criminal defendant. Specifically, lead poisoning should mitigate punishment in the sentencing stage of criminal cases to reflect the lesser culpability of offenders acting with diminished capacity.

The Flint water crisis began in April 2014 when the city switched its water supply source to the Flint River in order to save money." Although residents almost immediately started complaining about the smell and color of the water, residents did not discover the high content of lead until the city tested the water in February 2015. (12) Despite the Environmental Protection Agency's concerns about the lead levels, city officials told residents they could "relax." (13) After additional testing of Flint's water supply and children's blood lead levels in September 2015, the city switched back to its previous water supplier in Detroit. (14) The investigation into Flint's contaminated water supply continues today, and safety concerns about the drinking water are not yet fully resolved. (15)

Following the Flint water crisis, the prevalence of lead poisoning has been recognized nationwide in the media. (16) Given society's present interest in addressing the high costs of mass incarceration in the United States, the impact lead poisoning may have on the criminal justice system has received particular attention. Carimah Townes of ThinkProgress.org published a provocative article titled How the Flint Water Crisis Could Send an Entire Generation to Prison, which addressed the link between lead exposure and delinquency, and the risks the city's water contamination presents to Flint's children. (17) The title may exaggerate the impact of the Flint crisis, as data shows that just 4% of children living in Flint tested for lead showed elevated blood lead levels, (18) but the article reflects the sentiment that the criminal justice system should give serious consideration to the role lead plays in criminal behavior. (19) Though criminal law does not currently afford much, if any, weight to lead poisoning, the attention given to lead contamination in homes and water systems nationwide in reaction to Flint's disaster presents a timely opportunity to consider the role lead poisoning should play as a mitigating factor in sentencing. (20)

This Comment explores many reasons why lead poisoning should mitigate criminal punishment. Following this section's overview of the re-emergence of lead poisoning concerns and previous scholarship on criminal law's consideration of lead poisoning, Part II surveys the medical and environmental studies that link lead to adverse health consequences, with emphasis on studies that examine the behavioral and intellectual damage lead causes. Of particular importance to criminal law is the data that directly links lead poisoning to criminal behavior and increased likelihood of an individual's involvement with the criminal justice system. (21) These studies are numerous and suggest that the relationship between lead poisoning and delinquency is well supported and generally uncontested by researchers. Next, Part III presents data on the continued presence of lead in urban communities and the ongoing lead removal efforts throughout the United States. This data shows that lead remains a serious problem in many cities and affects a significant number of children every year.

Part IV calls on states to develop sentencing schemes that compel courts to consider evidence of neurological damage caused by lead exposure. This would be supported by the Supreme Court's increasing reliance on neuroscience in determining the criminal responsibility of juvenile offenders, as well as its recognition of the importance of mitigating factors, including lead poisoning, in the sentencing stage of capital cases. (22) This part will show that extending consideration of lead poisoning as a mitigating factor to noncapital cases is appropriate and justified under both retributive and utilitarian theories of punishment. (23)

The sentencing schemes in some states currently preclude lead poisoning as a mitigating factor, while other states' schemes suggest that diminished intellectual capacity, which is just one consequence of lead poisoning, may be considered. (24) However, consideration of all the effects of lead poisoning, including aggression and impulsivity, does not seem to be explicitly authorized by state sentencing schemes. (25) Moreover, it is not clear in practice how often defense attorneys investigate claims of lead poisoning or raise them to the court. A sentencing scheme that explicitly accounts for lead poisoning would put defense attorneys and courts on notice to investigate childhood lead poisoning, thereby ensuring that such evidence is fairly accounted for in determining the criminal responsibility and appropriate punishment for individuals affected by lead exposure.

Consideration of lead poisoning in criminal law is not a novel proposal. Consistent with the well-established practice of considering an offender's exposure to neurotoxins during the sentencing stage of death penalty eligible cases, at least one scholar has contemplated the use of lead poisoning as a criminal defense in lesser offenses. In 1993, Professor Deborah Denno raised the possibility of allowing defendants to present lead poisoning evidence as a complete defense to a charged crime. (26) Denno relied on the "Biosocial Study" that tracked the criminal history of 487 black male children born at Philadelphia's Pennsylvania Hospital between 1959 and 1962, which concluded that lead poisoning was one of three factors that significantly increased the risk of school disciplinary problems and involvement in the criminal justice system. (27) Though Denno argued that the study's link between lead exposure and criminal behavior so strongly implicated our understanding of criminal responsibility that lead poisoning could be presented as a criminal defense, she ultimately rejected the proposition that it necessarily should be in the interest of fairness. (28)

Denno considered lead to be an external or environmental factor, noting that "it remains to be considered the extent to which some environmental forces, such as lead poisoning, produce internal disorders, such as neurodevelopmental delay... ." (29) She also expressed concern for defendants whose defense attorneys were unfamiliar with the effects of lead poisoning. (30) Thus, Denno concluded that while lead poisoning should be considered in determining whether a criminal defendant has an insanity defense, individuals with less serious disorders, such as lead poisoning that causes damage not amounting to insanity, have a level of criminal responsibility similar to that of sane individuals.

The proposition that evidence of neurotoxic damage, including damage from lead poisoning, may support a complete defense was also put forth in a comment by Charell Arnold that explored the success of such defenses. (32) The comment suggested that because a neurotoxin defense is essentially a defensd of diminished capacity, there are three ways in which lead poisoning could operate as a defense: negation of mens rea, the defense of automatism, and involuntary intoxication from exposure to neurotoxins. (33) However, Arnold notes how difficult it is to mount a neurotoxin poisoning defense. (34) For example, Arnold contrasts a case in which uranium poisoning caused the defendant such severe brain damage that defense counsel was able to mount a successful insanity defense (35) to a case in which the defense failed because carbon monoxide poisoning had only temporary effects and the defendant had no way to prove he was poisoned during the commission of his offense. (36)

In addition to considering its use as a criminal...