Brooklyn Law Review


Steven Zeidman


Despite the theoretical right to be heard at different junctures in the criminal legal system, in practice, the right is unsecured for many accused and convicted of various offenses. Criminal defendants are rarely heard at trial, upon sentencing, or at parole board interviews to determine eligibility for release. Consequently, these individuals are not able to offer explanations for their behavior. This is particularly harmful given the role that “severe environmental deprivation” or, sometimes controversially referred to as “rotten social background,” plays in criminal behavior. Research now indicates that societal shortcomings, including a lack of healthcare, education, and employment opportunities, combined with hyperaggressive policing and draconian sentencing for law violations, play a significant role in criminality. In other words, individual traits are not the driver of criminal behavior. Yet, the inability of those involved in the system to share evidence of their social background, and the refusal of actors in the system to view these factors as significantly mitigating, if not excusing, means that the problem is only swept under the rug. This essay aims to expose the explicit and implicit silencing of criminal defendants and the concomitant erasure of societal fault in criminal behavior and thus, in mass incarceration.