In Defense of the Injured: How Trauma-Informed Criminal Defense Can Reform Sentencing

Abstract

Justice O'Connor's oft-cited concurrence in California v. Brown declared that, "Evidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse." That principle has guided the Supreme Court's holdings that hardships including poverty, neglect, and exposure to violence are centrally relevant to capital and juvenile life without parole sentencing. In those contexts, when the harshest sentences available to adults and children, respectively, are at stake, defense advocates have persuaded the Court that serious adversity in their clients' backgrounds differentiated them from those who deserved the ultimate penalties. In capital cases, the Court has therefore held that defense lawyers are constitutionally obligated to investigate such adversity. Yet, the Court has never recognized a constitutional obligation of noncapital attorneys to investigate adult clients' backgrounds for the barest sentencing mitigation, even in cases where defendants face life without the possibility of parole.5 This article presents reasons why noncapital defense lawyers should do just that and builds on my prior writing explaining why individualized mitigation sentencing should not be reserved for capital defendants. First, the same moral obligation that the Supreme Court has recognized in its capital jurisprudence warrants sentences less than death for defendants who have suffered extreme lifetime adversity applies with equal force to noncapital defendants. Second, within our current sentencing framework, defense advocacy is the mechanism for bringing forth evidence supporting sentencing discounts, or leniency, for the societal injuries that defendants have experienced before they have victimized others. Third, in the years since the Court decided its seminal cases recognizing that serious, overwhelming adversity-trauma-is relevant to culpability, science has vindicated that intuition.