Document Category: Mitigation

This brief argues that mandatory life without parole sentences are unconstitutional for people up to age 20 because late adolescents experience significant brain, behavioral, and psychological change similar to adolescents. The brief details brain development occurring from age 18-20 (pp. 3-12), explains how late adolescents are more vulnerable to risk taking and peer influence than adults (pp. 13-16), demonstrates that the brains and decision-making abilities of late adolescents are virtually indistinguishable from children under age 18 (pp. 17-21), describes how adversity slows neurocognitive development (pp. 21-35), and applies Michigan’s four-factor test for determining if punishment is cruel or unusual to 18 to 20 year olds (pp. 25-31).

This draft sentencing argument is one-page long and relies on three studies to demonstrate that when young people (including people up to age 24) are exposed to violence (gun-related or not), it substantially increases the likelihood that  they will later carry guns because they are afraid and feel they need the gun for self-protection and to protect their loved ones.  This data could also be used to argue in pre-trial release hearings that youth charged with firearms-related offenses are not necessarily dangerous.

Amicus brief, filed by a coalition of gender justice organizations, explains how sexual and gender-based trauma has profound adverse impacts on mental health, leaving survivors vulnerable to PTSD, depression, anxiety, emotional numbness, substance use, and revictimization (pp. 3, 5, 7, 13–15). Childhood sexual abuse increases susceptibility to these harms and can disrupt brain development (pp. 9–11). Trauma is cumulative—repeated exposure intensifies risk (pp. 11–12). The brief highlights that sex workers are at significantly higher risk of sexual violence (p. 15). Mitigation evidence related to gender-based trauma is crucial to countering social biases and prejudices of decision makers (pp. 20, 23, 25–26). While the brief focuses on capital sentencing, defenders can also rely on its research to support requests for gender and sexual violence experts and for sentencing mitigation.

This sentencing memorandum marshals empirical research about the typical profile and risk assessment of someone convicted of possessing child pornography, along with research related to the client’s age and the impact of incarceration on recidivism/deterrence, to argue that the client is not dangerous or likely to reoffend. These arguments could also be used pretrial in a bond argument.

Pgs. 26-27: An older person will suffer greater punishment from incarceration than the average person incarcerated

Pgs. 29-30: The empirical evidence shows no relationship between sentence length and general/specific deterrence

Pgs. 31-33, 46, 51-52: Empirical research shows that first-time child pornography possession offenders have a very low risk of sexual recidivism and the consumption of child pornography alone does not seem to represent a risk factor for committing contact sex offenses

Pgs. 33-34: Marriage reduces recidivism as does employment, education and family ties/responsibilities

Pgs. 33, 51: Recidivism (including for child sex offenders) declines with age, and only a very few child sex offenders recidivate after age 60

Pgs. 22-23, 47: Because of the ease of accessing child porn on the internet, there is no evidence that the number of images possessed bears on the likelihood that an offender is “dangerous” or more likely to engage in contact sex crimes

Pgs. 21, 47-50: Harsher punishment for child porn consumption will not reduce the flow of child porn on the internet because there is no empirical evidence to support the assumption that children are abused for the sole purpose of creating child pornography for dissemination (i.e., the consumption of child porn alone has no “market effect”)

Pgs. 52-53: Collects research discussing the criminogenic effects of prison