In criminal cases, defendants have raised PTSD as a defense to criminal charges and as a
mitigating factor154 at sentencing.155 The common defense claims relying on PTSD in criminal
( 1) dissociative/flashback-related violence, where the subject acts defensively in
response to what is essentially a delusional re-enactment of a prior traumatic
event; ( 2) combat addiction/sensation-seeking syndrome, where the subject has
become dependent on the adrenalinized rush of combat and seeks, deliberately or
unconsciously, to recreate that stimulation through dangerous and aggressive
behavior; ( 3) mood disorder-associated violence which can range from manic
agitation to suicidal depression; and ( 4) sleep disorder-associated violence which
may involve either a lowered threshold to violence caused by insomnia and
impaired sleep cycles, or, alternatively, the presence of specific parasomnias,
such as sleepwalking or REM sleep behavior disorder.156
Regarding adult criminal sentencing and PTSD, Professor Grey, from the Center for Law,
Science and Innovation at Arizona State University, argues that there are two major theories
applied in adult criminal court: retribution and consequentialism.157 “Retribution distributes
punishment according to the blameworthiness of the offender; in particular, the more harm a
defendant causes or the more culpable his mental state, the more punishment ought to be
imposed.”158 “Consequentialism, on the other hand, distributes punishment on the basis of the
consequences that punishment is likely to yield—that is, based on what is most likely to prevent
future crimes.”159 As retribution focuses on culpability, PTSD is an argument for mitigation in
sentencing based on the original act, similar to the defenses of insanity or duress.160
Consequentialism, where the goal is to reduce recidivism and increase public safety, focuses on
the desired post-sentencing outcome.161 Under consequentialism, PTSD should be addressed in
sentencing if addressing it would “produce better results—that is, better predictions about future
offending and better treatment to promote rehabilitation.”162
Given this recognition of trauma by adult civil and criminal courts, the consequentialist
argument is most applicable when incorporating child trauma into juvenile court sentencing. The
juvenile justice system was founded on the principle that children are fundamentally different
from adults.163 In contrast to the adult criminal justice system, the juvenile justice system is
based on rehabilitation and an understanding that youth are still learning and malleable.164 By
such reasoning, sentencing in juvenile court can embrace a consequentialist approach. It would
aim to reduce recidivism and increase public safety through offering treatment to a traumatized
154 “A mitigating sentencing factor is a reason for a judge to impose a lower than average sentence.” Grey, supra note 150, at 77.
155 Id. at 61.
156 Miller, supra note 137, at 357-58.
157 Grey, supra note 150, at 77.
159 Id. at 78. Consequentialism would include incapacitation, deterrence and rehabilitation, which the Graham Court discussed
separately. See Graham v. Florida, 560 U.S. 48, 50 (2010).
160 Grey, supra note 150, at 79. Historically, some courts would only allow this defense to those defendants who served in the military
or who suffered from Battered Women Syndrome, though there is no clinical basis for limiting PTSD to these particular “events.” Id.
161 Id. at 83-84.
162 Id. at 84.
163 DOUGLAS E. ABRAMS & SARAH H. RAMSEY, CHILDREN AND THE LAW: DOCTRINE, POLICY AND PRACTICE 978 (4th ed. 2010).