Juveniles

New Neuroscience Research Suggests Age Limit for Death-Penalty Eligibility May be Too Low

When the U.S. Supreme Court banned the death penalty for juvenile offenders in 2005 in Roper v. Simmons, Justice Anthony Kennedy's opinion for the Court acknowledged the inherent arbitrariness in selecting an age cutoff. "The qualities that distinguish juveniles from adults do not disappear when an individual turns 18," he wrote. "However, a line must be drawn." New neuroscience research suggests that the age-18 line may be too low. The court's opinion in Roper found that a national consensus had developed against subjecting juveniles to the death penalty based upon behavioral evidence that juveniles are less able to understand the consequences of their actions, more susceptible to peer pressure, and less able to control their impulses. One word missing from the Roper court's analysis of the age-18 death-penalty cutoff: "brain." An August 12, 2018 article for The Marshall Project by Beth Schwartzapfel explores the judicial system's response to new neurological research on brain development and whether 18 is the most appropriate age of eligibility for the harshest sentences, including the death penalty and mandatory life without parole. Brain research now clearly demonstrates that those portions of the brain that regulate impulse control and decision-making do not fully mature until well into a person's 20s, and defense lawyers have begun to argue that the same limitations on extreme punishments applicable to juveniles should apply to youthful offenders in “late adolescence,” between the ages of 18 and 21. Brain research by Temple University psychology professor Laurence Steinberg (pictured), a national expert in adolescent brain development, found that impulsive thrill-seeking and the need for immediate gratification peaks in late adolescence around age 19, before declining through an individual's 20s. In a 2017 case in which a Kentucky trial judge declared the death penalty unconstitutional for defendants charged with committing a crime before age 21, Steinberg testified, "Knowing what we know now, one could’ve made the very same arguments about 18-, 19- and 20-year-olds that were made about 16- and 17-year-olds in Roper." Judge Ernesto Scorsone agreed, writing, "If the science in 2005 mandated the ruling in Roper, the science in 2017 mandates this ruling." On February 5, the American Bar Association House of Delegates voted overwhelmingly to adopt a resolution calling for an end to the death penalty for offenders who were 21 or younger at the time of the crime. According to a report accompanying the resolution, "there is a growing medical consensus that key areas of the brain relevant to decision-making and judgment continue to develop into the early twenties." In September 2017, the U.S. Supreme Court declined to review Ohio death-row prisoner Gary Otte's claim that the death sentence was unconstitutionally imposed in his case because he was only 20 years old at the time of the offense. Otte was executed September 13, 2017.

Former Prosecutors Say Intellectually Disabled Louisiana Man Entitled to New Trial After Exculpatory Evidence Withheld

Forty-four former state and federal prosecutors and Department of Justice officials—including former U.S. Attorney General Michael Mukasey—have asked the U.S. Supreme Court to grant a new trial to Corey Williams (pictured), saying that Caddo Parish, Louisiana prosecutors violated their duty to ensure that “justice shall be done” by withholding exculpatory evidence in a murder case that sent an intellectually disabled teenager to death row. Williams’s petition alleges that police and prosecutors knew that Williams had been framed by the actual killers, that police coerced him to falsely confess, and that the prosecution deliberately withheld witness statements given to police that could have helped Williams prove he had been framed. No physical evidence linked Williams to the 1998 robbery and murder of Jarvis Griffin, who was delivering a pizza to a Shreveport home. Several witnesses said they saw Gabriel Logan, Nathan Logan, and Chris Moore (nicknamed “Rapist”) steal money and pizza from Griffin, while the sixteen-year-old Williams was simply standing outside at the time. The victim’s blood was found on Gabriel Logan’s sweatshirt; Nathan Logan’s fingerprints were found on the empty clip of the murder weapon; and Moore was in possession of some of the proceeds of the robbery. Only Moore claimed to have seen Williams commit the killing. Williams, who had intellectual disability caused by severe lead poisoning from regularly eating dirt and paint chips as a young child and who as a teenager still repeatedly urinated himself, initially told police he had nothing to do with the killing. But after six hours of police interrogation, Williams confessed to the murder. After detectives presented the older men with Williams’s confession, their stories changed to corroborate it. At trial, Caddo Parish prosecutor Hugo Holland presented the confession and Moore’s testimony as evidence of WIlliams’s guilt. Then, having withheld from the defense police statements that implicated his witnesses in framing Williams, Holland ridiculed the defense claim that Williams had been framed, calling it “the biggest set of circumstances concerning a conspiracy since John Kennedy was killed in 1963.” The prosecutors’ amicus brief in support of Williams states that “[t]he prosecutor’s goal is not only to strive for a fair trial, but also to protect public safety by ensuring that innocent persons are not convicted while the guilty remain free.” It stresses that this is a case in which, “[h]ad the statements not been withheld, there is a reasonable probability that the verdict would have been different.” Ben Cohen, Williams’s longtime lawyer, said that “[w]hat the prosecutor and the police did is outrageous. They knew Williams was innocent and they just went forward anyway.... They don’t think his life matters.” Eleven men have been exonerated from Louisiana's death row since the 1970s, including the Caddo Parish exonerations of Glen Ford and Rodricus Crawford. All eleven cases involved police and/or prosecutorial misconduct. Holland himself has been implicated in withholding witness statements in another capital prosecution showing the defendant had not participated in the killing. Holland was forced to resign his position as an assistant district attorney for Caddo Parish in 2012 after he and another prosecutor were caught falsifying federal forms in an attempt to obtain a cache of M-16 rifles for themselves through a Pentagon program that offers surplus military gear to police departments. Williams was released from death row after the U.S. Supreme Court decided Atkins v. Virginia, barring the death penalty for persons with intellectual disability, and is currently serving a life sentence.

New Polls in Two Florida Counties that Heavily Use the Death Penalty Find Voters Prefer Life Sentences Instead

Recently released poll results from two Florida counties that have heavily used the death penalty suggest that voters actually prefer life-sentencing options instead. Polls conducted by North Carolina-based Public Policy Polling on January 22-23, 2018, indicate that three-quarters of Miami-Dade County respondents preferred some form of life imprisonment rather than the death penalty as the punishment for people convicted of murder, and two-thirds of Pinellas County respondents preferred one of the life-sentencing options. The margin was more than 3 to 1 in Miami-Dade (75% to 21%) and more than 2 to 1 in Pinellas (68% to 30%). Of Miami-Dade respondents who chose a life-sentencing option, a plurality (40%) preferred life without parole, plus restitution; 18% preferred life with the possibility of parole after 40 years; and 17% preferred life without possibility of parole. In Pinellas, 48% preferred life without parole plus restitution; 12% preferred life without parole; and 8% chose life with parole eligibility after 40 years. Sixty-eight percent of Miami-Dade respondents said they would support a decision by their local prosecutor to reduce or eliminate the use of the death penalty, compared to 25% who opposed. In Pinellas, 64% said they would support reducing or eliminating the use of the death penalty, as opposed to 32% against. Pinellas/Pasco State Attorney Bernie McCabe reportedly has filed notice that he will seek the death penalty in 15 pending cases and six re-sentences, with nine death-penalty trials already scheduled for 2018. Floridians for Alternatives to the Death Penalty released the Pinellas County poll on February 27 and the Miami-Dade poll on March 1. The organization's director, Mark Elliott, said “[t]he survey results make clear that the state attorney’s office is ignoring the will of the overwhelming majority of Pinellas County constituents who prefer life sentences for those convicted of murder." Elliott also said that "[e]xpensive death penalty trials do nothing to prevent violent crime, protect law enforcement, or help victims’ families in meaningful ways, and mistakes are also all-too-common.” DPIC reported in 2013 that both Miami-Dade and Pinellas were among the 2% of counties that accounted for more than half of all death-row prisoners and executions in the United States. Both were among the Fair Punishment Project's list of 16 outlier counties that imposed five or more death sentences between 2010 and 2015—more than 99.5% of all counties in the country.

American Bar Association Resolution: Ban Death Penalty for Offenders Age 21 or Younger

On February 5, the American Bar Association (ABA) House of Delegates voted overwhelmingly to adopt a resolution calling for an end to the death penalty for offenders who were 21 or younger at the time of the crime. According to a report accompanying the resolution, "there is a growing medical consensus that key areas of the brain relevant to decision-making and judgment continue to develop into the early twenties." The ABA first opposed applying the death penalty against defendants younger than age 18 in a resolution adopted in 1983. In 1988, in Thompson v. Oklahoma, the U.S. Supreme Court cited that ABA resolution as part of the evidence that "it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense." Seventeen years later, in Roper v. Simmons (2005), the Court extended the prohibition against executing juveniles to include all defendants under age 18 when the offense occurred. The ABA's report says "[t]he ABA has been – and should continue to be – a leader in supporting developmentally appropriate and evidence-based solutions for the treatment of young people in our criminal justice system, including with respect to the imposition of the death penalty." It cites recent litigation challenging the death penalty for defendants under 21, including a ruling by a Kentucky trial court that said “the death penalty would be an unconstitutionally disproportionate punishment for crimes committed by individuals under 21 years of age." The report also highlights new research on the development of the adolescent brain and legislative trends affording juvenile status or similar protections to people in their early twenties. The report concludes, "this policy proposes a practical limitation based on age that is supported by science, tracks many other areas of our civil and criminal law, and will succeed in making the administration of the death penalty fairer and more proportional to both the crimes and the offenders."

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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.

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