When Mitigation Becomes Aggravation: The Danger of Over-Reliance on Scientific Evidence in Sex Offender Sentencing Hearings

• In Event: Advances in Sexual Offense Policy Research: Civil Commitments and Judicial Decision-Making

Abstract

As more and more forms of novel scientific evidence are introduced by attorneys on behalf of their clients during the sentencing phase of sex offender civil commitment hearings, advocates for these individuals must recognize the ways in which this evidence is interpreted. Generally, the client introduces novel scientific evidence, specifically neuroimaging, in order to serve as a mitigating factor, indicating non-dangerousness. An expert called on behalf of the client will seek to prove that neuroimaging, along with psychological tests and myriad other factors, indicate that the offender in question is not in need of commitment, but rather that he can be treated and supervised in the community. This type of evidence, however, may have the opposite effect in some cases. Research on novel scientific technology as mitigation evidence indicates that judges and juries may still remain distrustful of the evidence, viewing it as an aggravating factor in their determination of dangerousness due to their skepticism. Compounded with the high levels of stigma and bias faced by sex offenders already, it is prudent that attorneys representing this population have a better understanding of when, and how, it may be appropriate to introduce this type of evidence.

Author

• Alison J. Lynch, Disability Rights New York