AuthorBagaric, Mirko

INTRODUCTION 2 I. THE CURRENT APPROACH TO ABSENCE OF GUIDANCE AS A YOUTH IN SENTENCING IN THE UNITED STATES 5 A. Federal Jurisdiction 8 B. California 12 C. Texas 15 D. New York 18 E. Florida 21 F. Summary of the U.S. Approach 23 II. REASONS FOR TREATING CHILDHOOD PHYSICAL AND SEXUAL ABUSE (BUT NOT THE CONCEPT OF CHILDHOOD NEGLECT) AS A MITIGATING FACTOR 24 A. Childhood Neglect is an Obscure Concept 24 B. Childhood Physical and Sexual Abuse Can Be Defined for the Purpose of Mitigation, and Research Substantiates the Link Between Children's Experience of Sexual and Physical Abuse and Their Subsequent Criminal Offending 26 1. Defining Sexual Abuse and Physical Abuse 26 2. Research Concerning the Link Between Childhood Abuse and Criminal Offending 28 3. Possible Reasons for the Link Between Child Abuse and Adolescent and Adult Criminal Offending 33 4. Discussion of Studies Investigating Whether Childhood Sexual Abuse and Physical Abuse Have Specific and Different Effects From One Another on Subsequent Offending 35 III. CHILDHOOD PHYSICAL AND SEXUAL ABUSE AS A MITIGATING FACTOR COHERES WITH THE CRIMINAL LAW FRAMEWORK 38 A. Diminished Culpability and Sentencing Mitigation for Childhood Physical and Sexual Abuse 38 B. A Discount for Traumatized Offenders Will Not Increase Crime 41 C. Reducing Penalties for Traumatized Offenders Will Not Reduce Community Safety if the Objective of Rehabilitation Is Also Pursued 44 IV. CASE STUDY: FEMALE OFFENDERS AND AFRICAN AMERICAN OFFENDERS 50 A. Female Offenders 50 B. African American Offenders 55 CONCLUSION 58 INTRODUCTION

The misfortune of having experienced childhood neglect can significantly increase the likelihood that the victim will commit criminal acts as an adult. (1) Nevertheless, the United States Sentencing Commission Guidelines ("Federal Sentencing Guidelines" or "Guidelines") expressly declare that lack of guidance as a youth is not a consideration that can reduce penalty. (2) Approximately half of the federal judges recognize that this is an ostensibly flawed approach. (3) A survey of federal judges showed that 49% of them believe that a neglected upbringing should be a factor that can operate to reduce penalty severity.

An examination of the rationale and justification for the criminal law and sentencing, and of the impact of experiencing childhood neglect, exposes a potentially profound incoherency in the manner in which sentencing courts deal with offenders who have not had appropriate guidance as youths. A key consideration that underpins the criminal law and sentencing is culpability. In order for individuals to be culpable for their behavior, they need to be responsible for it, which assumes a capacity to make decisions that do not violate the criminal law. Adverse childhood experiences that delay or interfere with the development of sound cognitive or emotional judgment militate against the capacity for individuals to make prudent choices. From a normative perspective, a strong argument can be made for imposing lighter penalties on offenders from neglected backgrounds. However, pragmatically, this is not readily tenable. Such a discount would risk making the law too obscure. Moreover, conferring a discount for a neglected background might be seen as conferring a license to certain offenders to commit more crime.

In this Article, we explore the appropriate approach to dealing with neglected upbringings in the sentencing calculus. We argue that a neglected upbringing of itself should not be a mitigating factor, principally because it would make the law too indeterminate. There is no even approximate measure of what constitutes an appropriate level of guidance as a youth. However, empirical data does show that young people who have inadequate guidance experience disproportionately high levels of extreme adverse events, including being subjected to sexual or physical abuse. (4) Such events are tangible in nature and substantial empirical evidence has established that victims of childhood sexual or physical abuse have a significantly increased risk of offending in later life. The reasons for this are not clear, but we examine a number of different theories that have been postulated to explain this link between victims' childhood abuse and subsequent criminal offending, including: "Social Control Theory"; "Social Learning Theory"; and "General Strain or Social-Psychological Strain Theory." (5)

Irrespective of which explanation is most sound, the inescapable reality is that abused children, for reasons not of their own making, can be more likely to commit crimes in their adulthood than those who have not experienced maltreatment. It follows that a strong argument can be mounted in support of the view that such offenders should be treated more leniently at the sentencing stage. We argue that childhood trauma stemming from physical or sexual abuse reduces the culpability of victims who subsequently offend and should therefore be reflected in the form of a sentencing discount for those offenders. We suggest that the nature of the discount should be in the order of 25%.

It is pertinent to emphasize at the outset that implementation of our proposal will not compromise community safety because we recommend that the childhood trauma discount be applied only in circumstances where either: (i) the offender has committed a crime that is neither violent nor sexual and there is no risk of him or her committing such an offense in the foreseeable future; or (ii) the offender has committed a sexual or violent crime, but there is evidence confirming that the offender has high prospects of rehabilitation. Importantly, there is now emerging information regarding measures that can be taken to reduce the likelihood of recidivism. (6) Implementing these measures in conjunction with a sentencing discount for offenders who were traumatized as youths will ensure that sentencing is more normatively sound, while in fact enhancing community safety.

If implemented, a key outcome of our recommendation could be that a significant number of female and African American offenders will receive reduced penalties, but there will be no consequent reduction in community safety. Studies have found a connection between the experience of childhood abuse by females and African Americans, in particular, and their subsequent offending. In addition, the number of female offenders who are incarcerated is growing and a notable proportion of them have reported that they were victims of childhood abuse. African Americans' experience of such childhood trauma is higher overall than for other groups in the U.S., and they are grossly overrepresented in prisons and jails. (7)

The reform proposals and recommendations in this Article are significant and overdue, and relate to an under-researched area of sentencing law. The link between childhood sexual and physical abuse and offending as an adult has been well documented in psychological and social sciences literature. However, as yet, it has not informed sentencing practice and policy because these streams of knowledge have not merged. This Article bridges this gap by providing a clear explanation of the research into the criminogenic impact of childhood sexual and physical trauma, and aligning this knowledge with doctrinally and jurisprudentially sound sentencing principles.

In the next part of the Article, we discuss the current approach to childhood neglect in sentencing in the United States. It emerges that there is a large degree of inconsistency between the manner in which offenders who were abused as children are dealt with at the sentencing stage. Some jurisdictions, such as federal courts, generally provide no discount for such trauma, whereas others, such as New York, confer a penalty discount on the basis of childhood neglect. However, in all the jurisdictions discussed in this Article (the federal jurisdiction and four largest U.S. states: California, Texas, New York and Florida), there is considerable uncertainty regarding the rationale, applicability, and scope of a proposed discount on the basis of childhood abuse.

In Part II of the Article, we explain why the concept of childhood neglect should not mitigate penalty, but childhood physical abuse and sexual abuse should do so. This is followed by a discussion of studies that have confirmed the link between childhood sexual and physical abuse and criminal offending as an adult. Part III of the Article includes a detailed consideration and rebuttal of possible arguments against mitigating the severity of sanctions where offenders have been subjected to childhood sexual and violent abuse. Part IV examines the impact that our reform proposal could have on two cohorts of offenders: females generally and African Americans. As noted above, a penalty discount of the nature we suggest would go some way to ameliorating the disproportionately severe impact of the criminal justice system on these cohorts. The reform proposals in this Article are summarized in the concluding remarks.


    Before detailing the current approach to childhood neglect in the sentencing calculus, we provide a brief overview of the American criminal sentencing system. This will contextualize the discussion that follows.

    While different sentencing systems exist at both the U.S. federal and state levels, (8) there are overarching and important similarities between them, such as their respective objectives. Shared sentencing goals include community protection (also known as incapacitation), general deterrence, specific deterrence, rehabilitation, and retribution. (9) Although different jurisdictions prioritize different objectives, the most prominent one in the past few decades has been community protection. (10) Community protection emerges most clearly via strict prescriptive sentencing laws--with fixed, minimum, or presumptive penalties...

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