Academic journal article Journal of Criminal Law and Criminology

Reduced Culpability without Reduced Punishment: A Case for Why Lead Poisoning Should Be Considered a Mitigating Factor in Criminal Sentencing

Academic journal article Journal of Criminal Law and Criminology

Reduced Culpability without Reduced Punishment: A Case for Why Lead Poisoning Should Be Considered a Mitigating Factor in Criminal Sentencing

Article excerpt


The ongoing water crisis in Flint, Michigan, following the discovery of lead in the city's water supply in 2015, is evidence that dangerous amounts of lead persist in urban environments. Despite decades of efforts to remove the toxic metal from homes, soil, and water, cities throughout the United States continue to have serious lead contamination, especially in homes and soil. (1) Lead contamination is so common that the Centers for Disease Control and Prevention (CDC) estimates that approximately 500,000 children ages one through five who live in the United States have blood lead levels greater than 5 ug/dL, the quantity that triggers concern from medical professionals and poses a risk of danger to children. Lead is a neurotoxin, and the detrimental effects of lead exposure on developing children are well documented by researchers who have found that the presence of lead in the body may damage organs and cause serious behavioral disorders and intellectual disabilities. (4) Even small quantities of lead can cause learning disabilities, low intelligence quotient (IQ), and anti-social behaviors. (5) Though doctors do not become concerned until blood lead levels reach 5 ug/dL, the CDC claims that there is no safe blood lead concentration. (6)

Environmental and public health organizations have been the primary responders to concerns about lead exposure and have focused on lead poisoning prevention. (7) However, the neurological damage caused by lead implicates the criminal justice system as well. Many studies have linked low IQ and behavioral disorders to an increased risk of criminal behavior. (8) Thus, individuals poisoned by toxic lead exposure are more likely to become involved in the criminal justice system than individuals without blood lead levels that result in neurological damage. (9)

Because the deterrence and retribution goals of criminal law rely on the premise that people make decisions of their own free will, and therefore can be held responsible for their actions, criminal law has been hesitant to give legal effect to mental or behavioral impairments. (10) However, this Comment argues that the law should account for the role that lead poisoning may play in the behavior of a criminal defendant. Specifically, lead poisoning should mitigate punishment in the sentencing stage of criminal cases to reflect the lesser culpability of offenders acting with diminished capacity.

The Flint water crisis began in April 2014 when the city switched its water supply source to the Flint River in order to save money." Although residents almost immediately started complaining about the smell and color of the water, residents did not discover the high content of lead until the city tested the water in February 2015. (12) Despite the Environmental Protection Agency's concerns about the lead levels, city officials told residents they could "relax." (13) After additional testing of Flint's water supply and children's blood lead levels in September 2015, the city switched back to its previous water supplier in Detroit. (14) The investigation into Flint's contaminated water supply continues today, and safety concerns about the drinking water are not yet fully resolved. (15)

Following the Flint water crisis, the prevalence of lead poisoning has been recognized nationwide in the media. (16) Given society's present interest in addressing the high costs of mass incarceration in the United States, the impact lead poisoning may have on the criminal justice system has received particular attention. Carimah Townes of published a provocative article titled How the Flint Water Crisis Could Send an Entire Generation to Prison, which addressed the link between lead exposure and delinquency, and the risks the city's water contamination presents to Flint's children. (17) The title may exaggerate the impact of the Flint crisis, as data shows that just 4% of children living in Flint tested for lead showed elevated blood lead levels, (18) but the article reflects the sentiment that the criminal justice system should give serious consideration to the role lead plays in criminal behavior. …

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