Document Category: Theories of Punishment

This brief argues against mandating regular drug or alcohol testing as a probation condition for a client who does not have a history of substance abuse related to their offense. It is written citing MCL 771.3(11), which requires probation conditions to be tailored to the individual’s assessed risks and needs, but can be easily adapted to other jurisdictions with similar probation statutes. The brief argues that mandatory testing is counterproductive to this client’s rehabilitation because it (1) makes it more difficult for probationers to obtain and maintain employment, (2) is extremely onerous and invasive, (3) places unnecessary financial burden on probationers, and (4) is not shown by research to improve recidivism outcomes. Defenders can use this brief to urge the court to strike mandated testing from their client’s probation requirements in favor of an individualized supervision strategy that is less invasive and truly aimed at supporting successful reintegration.

This draft motion argues for diversion to restorative justice (RJ) programming in lieu of imposing a traditional probation sentence. Section I (p. 1-3) explains the basic tenets of restorative justice, citing research showing restorative justice is more effective at reducing recidivism than conventional court processes. Section II (p. 3-6) argues that restorative justice works even in the absence of victim participation, citing research that use of victim surrogates may even increase its efficacy. Section III (p. 6-7) provides research-based support for restorative justice as an effective and appropriate tool for rehabilitating perpetrators of violent and bias-based harm (countering the narrative that restorative justice should be limited to nonviolent crime).

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 Amicus Brief, filed by the Juvenile Law Center; Center for Law, Brain, and Behavior, the Sentencing Project; and the Children’s Policy and Law Initiative of Indiana argues that long term-of-year sentences imposed on juveniles are tantamount to life without parole and are therefore unconstitutional.  Pages 8-11 discuss the neuroscience behind the development of the prefrontal cortex and explain how brain science shows that adolescents’ long-term planning skills, emotional regulation abilities, impulse control, ability to evaluate risk and reward, and susceptibility to peer pressure are all still developing into a person’s twenties.  Pages 12-13 discuss how these characteristics are transient and show that youth with antisocial tendencies, violent behaviors, and impaired empathy often improve significantly in their mid-twenties.  Pages 13-15 discuss the connection between trauma and brain development, explaining how youth who are chronically traumatized and left alone often have documented difficulty with emotional regulation traceable to inhibited brain development.  The research relied on in this amicus brief could be useful to defenders representing anyone under the age of twenty-five to argue for mitigation in sentencing.

Cites research showing that the length of a sentence does not contribute to general deterrence, rather, deterrence is linked to the risk/certainty of detection: “there is no reliable evidence that appreciably longer periods of incarceration for violent crimes have a general deterrent effect on the population.” Particularly when looking at gun crimes and sentencing enhancements, “there is little reliable evidence “of a general deterrent effect of lengthy sentencing enhancements that impose additional years of incarceration for crimes committed with a firearm.”” Further incorporates research demonstrating that longer periods of incarceration increase the rate of recidivism.

p. 16 – 28 cite to research on the deterrent effect of particular sentences, with studies concluding that “general deterrence is primarily a function of the certainty of punishment, not its severity.”

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