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Excerpted From: Avi Muller, From Aces to Fetal Trauma: How Slippery Is the Slope of Discretionary Sentencing Factors?, 51 Seton Hall Law Review 1389 (2021) (Comment) (278 Footnotes) (Full Document)


We often ignore sentencings. Television shows and movies with trials end with either an acquittal or a finding of guilt. In the latter instance, the viewer seldom glimpses what comes after--the sentencing. For defendants, however, this is one of the most important days in their lives. For judges, it is one of the most essential functions they serve, and the processes by which it plays out are crucial. After all, a sentencing often results in the removal of a defendant's liberty.

Scholars and judges argue whether sentencing should be a strict process governed by bright-line rules or a more fluid, human process in the hands of each judge. Within the latter system, a major sub-issue is what judges should and should not consider in imposing a sentence. Some factors do not even pose a question; for example, we would not want judges to consider a defendant's clothing in determining whether and how long to imprison a defendant. But it is generally accepted that a judge should be able to consider a defendant's remorse and acceptance of responsibility. This conversation implicates questions related to the goals of sentencing-- rehabilitation, deterrence, incapacitation, and retribution well as philosophical questions of free will, culpability, and determinism.

These questions become even more complicated with the introduction of science. Science and law have a complicated relationship. Lawyers often try to introduce scientific research into the legal process with mixed results. But “scientists do not assert that they know what is immutably 'true'--they are committed to searching for new, temporary, theories to explain, as best they can, phenomena.” Much of this scientific evidence comes in as part of the criminal adjudication process. Although much of it is used during trial-- e.g., DNA evidence to prove identity; diagnoses to support an insanity defense--it has also been used to support an increase or decrease in a defendant's sentence--e.g., mental illness to preclude the imposition of the death sentence.

Accepting the current system as it is--a system with advisory rules that leaves some discretion with the judge Comment examines how judges use scientific evidence at sentencing and argues whether and to what extent judges should consider a defendant's experience of fetal trauma. While sentencing schemes differ from state to state, this Comment will focus on the federal sentencing system. Part II of this Comment will discuss the history of sentencing in the United States and examine the Federal Sentencing Guidelines (the “Guidelines”) and how they work today. Part III details the role of behavioral science research in the legal system in general and at sentencing. Specifically, it will analyze the research on Adverse Childhood Experiences (ACEs) and criminal behavior and examine how judges use ACEs at sentencing. Part IV discusses the current research on fetal trauma and how, if at all, it connects fetal traumatic experience to criminal behavior. Finally, Part V applies the research on fetal trauma to the current sentencing scheme and compares this to the research and use of ACEs to argue whether judges should be considering fetal trauma to the same extent or even at all. In sum, this Comment will argue that judges, although perhaps justified in their exercise of discretion at sentencing, should stop short of considering a defendant's traumatic experience while in utero.

[. . .]

Case law, standards, public morals and values, and even the Guidelines all suggest that a sentencing judge could consider evidence of a defendant's traumatic experience during gestation. But judges should not. There are not enough longitudinal, observational studies on people who experienced fetal trauma and their disposition to violent or criminal behavior. Yet even in a world brimming with such research, there is so much opportunity for trauma to a fetus--from substance abuse to socioeconomic stressors to physical trauma--that a judge would be hard-pressed to draw the line between what degree of fetal trauma should be considered and what should not. Furthermore, research indicates that since these changes are epigenetic, positive experiences during childhood might repair any prenatal changes from trauma--and those that are irreparable manifest as observable or diagnosable issues in adults and are discernible at sentencing. Courts should avoid the world of genetic heritability, stop at considering ACEs, and look no further into a defendant's past.

J.D. Candidate, 2021, Seton Hall University School of Law; B.A., Queens College, City University of New York.

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