Juveniles

Ohio Executes Gary Otte as State and Federal Courts Decline to Review Use of Death Penalty Against Those Under Age 21

Ohio executed Gary Otte on September 13 after both the United States Supreme Court and the Ohio Supreme Court declined to review his challenge to the constitutionality of applying the death penalty against people who were younger than age 21 at the time of the offense. Otte's lawyer, supervisory assistant federal public defender Carol Wright, said Otte exhibited "abnormal" chest and stomach movements when he was injected with the execution drug, midazolam, showing signs of struggling for air and what she described as "air hunger." Wright attempted to leave the witness room to reach a phone to alert a federal judge to possible problems with the execution, but prison officials delayed her exit for several minutes and it took several more minutes to reach the court. By that time, Otte's stomach movements had ceased and the court declined to intervene. Corrections spokesperson, JoEllen Smith, said the prison "followed proper security protocol, and once [Wright's] identity and intention was verified she was given permission to exit the room." Smith said the execution was "carried out in compliance with the execution policy and without complication." Otte had sought stays of execution from the state and federal courts, asking them to review his claim that his death sentence should be overturned because he was only 20 years old at the time he killed Robert Wasikowski and Sharon Kostura in 1992. Otte's lawyers cited an August 2017 decision by a Kentucky trial court that had found the brain development and maturation of individuals aged 18-20 to be similar in critical respects to that of adolescents under age 18, and had declared the death penalty unconstitutionally cruel and unusual for defendants under age 21. They argued that "[t]he current scientific understanding of adolescent development underscores [that] their moral culpability is reduced making them categorically exempt from the death penalty." The Kentucky trial court issued a second ruling on September 6 that barred prosecutors from seeking the death penalty against an 18-year-old defendant in another case. On Tuesday night, September 12, the United States Supreme Court declined to review the issue and denied a stay of execution. The Ohio Supreme Court followed suit on the morning of September 13. Otte was pronounced dead shortly before 11:00 a.m.

Kentucky Trial Judge Rules Death Penalty Unconstitutional For Offenders Younger Than Age 21

A Kentucky trial court has declared the death penalty unconstitutional when applied against defendants charged with offenses committed while they were younger than age 21. Fayette County Circuit Judge Ernesto Scorsone's ruling bars the Commonwealth's prosecutors from seeking the death penalty against Travis Bredhold (pictured), who was age 18 years and five months at the time of the 2013 murder and robbery of a gas station attendant. The decision extends the U.S. Supreme Court's 2005 ruling in Roper v. Simmons, which held that the Eighth Amendment proscription against cruel and unusual punishments prohibited states from using the death penalty against offenders who were younger than 18 when the crime occurred. Roper itself had extended the protections of Thompson v. Oklahoma, which had created an age 16 minimum for death eligibility. In issuing its decision, the Kentucky court credited new scientific research on brain development and behavior that, it said, shows that 18- to 21-year-olds "are categorically less culpable" for the same reasons the Roper court excluded teenagers under age 18 from the death penalty. Scarsone wrote that the new scientific evidence shows that the portions of the brains of 18- to 21-year-olds that govern impulse control and evaluation of risks and rewards are more like those of teens than adults, "making them unlikely to be deterred by knowledge of likelihood and severity of punishment." Additionally, like teens, 18- to 21-year-olds "remain susceptible to peer pressure and emotional influence, which exacerbates their existing immaturity when in groups or under stressful conditions." Scorsone also wrote that the character of 18- to 21-year-olds is not yet well formed, and that because of the flexibility of the young brain to change in response to experience, "they have a much better chance at rehabilitation than do adults.” The court evaluated changes in death-penalty practices nationwide since Roper was decided, finding what it called "a very clear national consensus trending toward restricting the death penalty" in cases involving offenders ages 18 to 20. Looking at states that have abolished the death penalty, imposed moratoria on executions, or have a "de facto prohibitions on the execution of offenders under [age] 21"—meaning they have carried no executions of such defendants in at least 15 years—the court found that there are currently 30 states that would not execute offenders aged 18 through 20. Given the new scientific evidence and the "consistent direction of change" away from the practice, Scarcone concluded that “the death penalty would be an unconstitutionally disproportionate punishment for crimes committed by individuals under 21 years of age." The court's decision also affects three other defendants whose death-penalty cases are pending before Scarcone. Commonwealth’s Attorney Lou Anna Red Corn has announced that she will appeal the ruling, calling it "contrary to the laws of Kentucky and the laws of the United States." There are currently 33 prisoners on Kentucky’s death row. The Commonwealth's last execution was in 2008.

Kentucky Attorneys Argue to Expand Juvenile Death Penalty Exemption, Citing Neurological Studies

Defense attorneys for Travis Bredhold, a Kentucky defendant facing the death penalty for a murder committed when he was 18 years old, are asking a judge to extend the death-penalty exemption for juvenile offenders to those younger than age 21. In 2005, the U.S. Supreme Court (pictured) ruled in Roper v. Simmons that the death penalty was unconstitutionally cruel and unusual punishment when applied to offenders who were under age 18 at the time of the crime. The Court held at that time that a national consensus had evolved against such executions and that the death penalty was a disproportionate punishment for juvenile offenders. In reaching that determination, the Court said that neither retribution nor deterrence provided adequate justification for imposing the death penalty. Justice Kennedy wrote for the majority, "Retribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity." Joanne Lynch, an attorney for Bredhold, told Fayette Circuit Judge Ernesto Scorsone that research indicates that brain maturation continues beyond the age of 18, and the juvenile exemption should be extended, "because people under the age of 21 are almost completely like people under the age of 18. You really don’t mature until you are in your mid-20s." According to Temple University psychology professor Laurence Steinberg, a process called myelination continues into a person's twenties, affecting their ability to plan ahead, analyze risks and rewards, and make complex decisions. In a 2014 paper, Hollis Whitson cited both neurological evidence of the immaturity of late-adolescent brains, as well as examples of how the law differentiates people under 21, including liquor laws, inheritance laws, and eligibility for commerical drivers' licenses. She also found that death sentences for those aged 18-20 were disproportionately applied to racial minorities. From 2000 through 2015, 142 prisoners were executed in the United States for offenses committed before age 21: 87 (61.3%) were black or Latino.

INTERNATIONAL: Human Rights Group, Reprieve Issues Report on Global Executions in 2016

Despite a sharp drop in executions, the United States ranked sixth among the world's executioners in 2016 behind only China, Iran, Saudi Arabia, Iraq, and Pakistan, according to a report by the British-based international human rights group, Reprieve. Maya Foa, a director of Reprieve, said "[i]t is alarming that countries with close links to the UK and [European Union] continue to occupy the ranks of the world's most prolific executioners in 2016." Questions of innocence, execution of juvenile offenders, and use of the death penalty for non-lethal drug offenses were among the top worldwide problems in the administration of the death penalty cited by Reprieve in the report. "[W]e have found children on death row, innocent people hanged, drugs offences dealt with as capital crimes, and torture used to extract false confessions," Foa said. "Countries that oppose executions must do more in 2017 to ensure that their overseas security assistance does not contribute to others states use of the death penalty.” Reprieve's analysis of global executions in 2016 found that China continues to carry out the most executions of any country, though the exact number is a state secret. Nearly half of the more than 500 prisoners executed in Iran were killed for committing drug offenses. In Saudi Arabia, those executed included juvenile offenders and political protestors. The ongoing armed conflict in Iraq made information on the country's executions difficult to obtain. Pakistan lifted a moratorium on executions in 2014, ostensibly in response to terrorism. But Reprieve found that 94% of those executed had nothing to do with terrorism. The Pakistan Supreme Court found in 2016 that two men who had been hanged were innocent. The Reprieve report also raised concerns about Egypt's high rate of death sentencing -- more than 1,800 people have been sentenced to death in that country in the last three years.

BOOKS: One Woman's Journey After Her Sister's Murder

Jeanne Bishop has written a new book about her life and spiritual journey after her sister was murdered in Illinois in 1990. Change of Heart: Justice, Mercy, and Making Peace with My Sister's Killer tells Bishop's personal story of grief, loss, and of her eventual efforts to confront and reconcile with her sister's killer. She also addresses larger issues of capital punishment, life sentences for juvenile offenders, and restorative justice. Former Illinois Governor George Ryan said of the book, "When I commuted the death sentences of everyone on Illinois's death row, I expressed the hope that we could open our hearts and provide something for victims' families other than the hope of revenge. I quoted Abraham Lincoln: 'I have always found that mercy bears richer fruits than strict justice.' Jeanne Bishop's compelling book tells the story of how devotion to her faith took her face-to-face with her sister's killer .... She reminds us of a core truth: that our criminal justice system cannot be just without mercy."

Neuroscience Research Indicates Susceptibility to Influence in Younger Defendants

A growing body of research into adolescent brain development indicates that the brains of even those over the age of 18 continue to physically change in ways related to culpability for criminal offenses. The Supreme Court referred to such scientific evidence regarding those under the age of 18 when it struck down the death penalty for juveniles in 2005 (Roper v. Simmons) and when it recently limited life without parole sentences for juveniles. According to Laurence Steinberg (pictured), a professor of psychology at Temple University, the brain continues a process called myelination into a person's twenties. That process affects planning ahead, weighing risks and rewards, and making complex decisions. This research may yield mitigating evidence for younger defendants, including accused Boston marathon bomber Dzhokhar Tsarnaev. Steinberg's research shows that someone like Tsarnaev, who was 19 at the time of the bombing, may not have the same understanding of his actions as an older adult would. Young adults are particularly susceptible to the influence of peers. “What we know is that this is an age when people are hypersensitive to what other people think of them. It’s also an age when people are trying to figure out who they are, and one way is by identifying with a group. There probably are similarities between the dynamics here and dynamics of antisocial or delinquent gangs. Older, more powerful young adults persuading younger adolescents to do their bidding for them,” Steinberg said. 

NEW STATEMENTS: The Death Penalty Is Incompatible with Human Dignity

On July 19 Prof. Charles Ogletree of Harvard University Law School wrote in the Washington Post about the future of the death penalty in the U.S. Noting that the U.S. Supreme Court recently affirmed (Hall v. Florida) that executing defendants with intellectual disabilities serves “no legitimate penological purpose,” Prof. Ogletree said this reasoning could be applied to the whole death penalty: "The overwhelming majority of those facing execution today have what the court termed in Hall to be diminished culpability. Severe functional deficits are the rule, not the exception, among the individuals who populate the nation’s death rows." He cited a study published in the Hastings Law Journal that found that "the social histories of 100 people executed during 2012 and 2013 showed that the vast majority of executed offenders suffered from one or more significant cognitive and behavioral deficits," such as mental illness, youthful brain development, or abuse during childhood. He concluded that when you examine capital punishment more closely, "what you find is that the practice of the death penalty and the commitment to human dignity are not compatible." Read the op-ed below.

STUDIES: Raising the Minimum Age for Death Sentences

The theory of the modern death penalty is that it is to be reserved for the "worst of the worst" offenders. In 2005 the U.S. Supreme Court determined (Roper v. Simmons) that those under age 18 at the time of their crime were less culpable than older defendants and should be excluded from the possibility of execution. However, a recent paper by Hollis Whitson (l.) argued that scientific research on older adolescents implied that the Court's analysis should also apply to those under 21. Whitson cited neuroscience research showing, "that older adolescents (including 18-20 year-olds) differ from adults in ways that both diminish their culpability and impair the reliability of the sentencing process." Moreover, youths under 21 are treated as minors by numerous state and federal statutes, including liquor laws, inheritance laws, and eligibility for commercial drivers' licenses. Another problem highlighted in the paper is that minority youth suffer from the application of this punishment more than white youths. From 2000 to 2014, 60% of those executed for crimes committed by 18-20 year-olds were racial minorities, while only 40% were white. For defendants aged 21 and older, the reverse was true: 40% of those executed were minorities, while 60% were white.

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