Recognizing Significant Environmental Deprivation as a Mitigating Factor in the Federal Sentencing System: Some Lessons from Commonwealth Jurisdictions

The environment in which an individual lives inevitably influences the life they lead. Although many social scientists, legal scholars, and judges accept that severe environmental deprivation can reduce culpability for criminal offending, sentencing outcomes in the federal system often fail to reflect this. This occurs because deprivation is not consistently recognized as a mitigating factor in non-capital cases.Over the past fifty years, scholars have mounted a sustained effort to develop a mitigating factor that recognizes environmental deprivation experienced by defendants. On the whole, these efforts have been unsuccessful at the federal level, and have failed to gain traction among courts or legislatures. Somewhat surprisingly, none of the voluminous scholarship looks beyond the United States. This is unfortunate.Over the past two decades, legislatures and courts in Canada, Australia, and New Zealand have successfully developed the mitigating factor that scholars have long been seeking. Each of these jurisdictions has developed a regime for obtaining valuable information about a defendant’s background and presenting it to the sentencing judge. If the judge considers that the defendant’s experience of severe environmental deprivation reduced their culpability, their sentence will be reduced accordingly.The experiences of these Commonwealth jurisdictions are instructive and may help pave the way toward judicial or legislative recognition of severe environmental deprivation as a mitigating factor in the United States. Observing it operating successfully overseas may provide legitimacy to this mitigating factor and also assuage concerns that it might open the floodgates or undermine the criminal justice system.With reference to the experiences in these Commonwealth jurisdictions, this article proposes a framework for obtaining information about a defendant’s background and provides a legally defined standard for determining when a sentencing reduction will be appropriate.