Academic journal article Washington International Law Journal

The Criminal Mind: Neuroscientific Evidence as a Mitigating Factor in Sentencing in New South Wales, Australia

Academic journal article Washington International Law Journal

The Criminal Mind: Neuroscientific Evidence as a Mitigating Factor in Sentencing in New South Wales, Australia

Article excerpt


On June 4, 2011 at 1:30 a.m. in New South Wales, Australia, 35-yearold Taskin Aslan approached the complainant as she walked toward a hotel.1 Aslan put his arm around her shoulders and forced her toward the entrance of a nearby church.2 He then sexually assaulted the complainant.3

Aslan's alcoholic father abused him as a child.4 He began using drugs and alcohol at age twelve, and had a lengthy criminal history by the age of eighteen.5 In his mid-twenties, Aslan was involved in two motor vehicle accidents, after which neurological assessments revealed brain damage.6 Soon after the accidents, a clinical neuropsychologist reported that Aslan's dysfunction in executive control,7 including inhibition difficulties, was consistent with post-concussional disorder associated with traumatic brain injury.8 In 2012, psychiatrist, Dr. Allnutt, reported that Aslan possibly suffered ongoing cognitive difficulties as a consequence of his head injury, such as impulsivity and poor judgment.9 The Court of Criminal Appeal affirmed the District Court's holding that Aslan's brain injury did not directly influence the commission of the 2011 offense and upheld the aggregated sentence of a non-parole period of six years10 for one count of indecent assault, one of attempted sexual intercourse without consent, and two of sexual intercourse without consent.11

Modern brain science, including neuroimaging technologies and advanced neurological assessments as reflected in Mr. Aslan's case, has materialized on the legal scene primarily over the last decade due to the emerging12 field of Law and Neuroscience known as "Neurolaw."13 In Law and Neuroscience, Professor of Law and Biology at Vanderbilt University and Director of the MacArthur Foundation on Law and Neuroscience, Owen Jones, attributes the rise of Neurolaw to two factors: the nature of the legal system and advancements in cognitive neuroscience.14 Criminal law in particular largely revolves around the defendant's state of mind because it requires both a bad act and a culpable state of mind.15 It raises questions such as, what were the intentions of the alleged offender? Is the defendant morally responsible? Did the defendant have the capacity to act differently?16 Many relevant inquiries concerning the culpability of the defendant therefore require, to varying degrees, an analysis of the defendant's cognitive abilities,17 an assessment of which may suggest, for example, that the defendant has impaired impulse control.18

Technological developments related to brain imaging make available objective, reliable information about the structural and functional aspects of the brain that may aid judges and juries in understanding a defendant's state of mind.19 Namely, cognitive neuroscience may speak to two aspects of criminal responsibility: intention and sanity.20 However, as Professor Jones asserts, the legal system must find a way to interpret neuroscientific evidence in a way that is appropriate because "[Neuroscience] is one of those things that holds both promise and terror for the legal system."21

Professor Jones' concerns about the nebulous future of neuroscience in the courtroom contribute to an understanding of why sentencing judges in New South Wales, Australia are not using neurological evidence of offenders' cognitive impairments to substantially mitigate their sentences, even though they have the discretionary power to do so. The Law School at the University of Sydney in Australia and Sydney's Macquarie University created an Australian Neurolaw Database in 2015, which contains case law involving the use of neuroscientific evidence in sentencing.22 Many of the criminal law-related cases maintained in the Database were decided in New South Wales, a southeastern state in Australia, which is where I focus my analysis.

In Part II of my comment, I will give a brief overview of Australia's judiciary and discuss Australia's sentencing regime with an emphasis on New South Wales. …

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