Kentucky Supreme Court Hears Arguments on Raising Death-Penalty Eligibility Age

The Kentucky Supreme Court has heard oral argu­ment and will soon decide whether sub­ject­ing youth­ful offend­ers under age 21 to the death penal­ty vio­lates the con­sti­tu­tion­al pro­hi­bi­tion against cru­el and unusu­al pun­ish­ment. On September 19, 2019, the Court heard argu­ment in the government’s appeals of two cap­i­tal cas­es in which a tri­al judge barred coun­ty pros­e­cu­tors from seek­ing the death penal­ty because the defen­dants charged with the mur­ders were younger than age 21 when the killings took place. 

In August 2017, Fayette County Circuit Judge Ernesto Scorsone pro­hib­it­ed pros­e­cu­tors from seek­ing the death penal­ty against Travis Bredhold (pic­tured), who was 18 years and five months old at the time he is alleged to have killed a gas sta­tion atten­dant. In 2005, the U.S. Supreme Court ruled in Roper v. Simmons that it was uncon­sti­tu­tion­al to impose the death penal­ty on offend­ers younger than age 18 when the crime occurred. Citing new neu­ro­science research that por­tions of the brain respon­si­ble for impulse con­trol and risk eval­u­a­tion are still devel­op­ing in 18- to 21-year-olds, Scorsone found that the death penal­ty ​“would be an uncon­sti­tu­tion­al­ly dis­pro­por­tion­ate pun­ish­ment for crimes com­mit­ted by indi­vid­u­als under 21 years of age” for the same rea­sons the Supreme Court had barred it for offend­ers under 18. Scorsone said the unde­vel­oped brains of 18- to 21-year-olds ​“ma[de] them unlike­ly to be deterred by knowl­edge of like­li­hood and sever­i­ty of pun­ish­ment” and the flex­i­bil­i­ty of their young brains gave them ​“a much bet­ter chance at reha­bil­i­ta­tion than … adults.” 

Scorsone issued a sim­i­lar rul­ing in the cas­es of Efrain Diaz Jr. and Justin D. Smith, who are accused of killing a University of Kentucky stu­dent in 2015. Diaz was 20 and Smith was 18 at the time of that killing. Prosecutors then appealed Scorsone’s deci­sions to the commonwealth’s high court. 

Matthew Krygiel, an assis­tant state attor­ney gen­er­al, argued on behalf of the state that a cat­e­gor­i­cal ban is unnec­es­sary, and that juries should con­sid­er the defen­dants’ age and matu­ri­ty on an indi­vid­ual basis. ​“It’s com­plete­ly con­sis­tent to say that some­one in that 18 to 20 range is impetu­ous or lacks judge­ment while also believ­ing that a per­son who com­mits inten­tion­al mur­der — at least some­times — can be equal­ly as cul­pa­ble as an adult,” he said. 

Timothy Arnold, a pub­lic defend­er who argued on behalf of the defen­dants, said that recent brain research has left us with a ​“com­plete­ly dif­fer­ent under­stand­ing of the sci­ence” of brain devel­op­ment than when Roper was decid­ed. ​“In 2005 we thought the prob­lem with juve­nile mis­be­hav­ior was sim­ply that the brakes were defec­tive,” Arnold explained. ​“And now we know they have their foot on the gas, and they are floor­ing it between the ages of 18 and 20.” Arnold also not­ed that a person’s behav­ior dur­ing late ado­les­cence does not nec­es­sar­i­ly pre­dict his or her future behav­ior. ​“During this peri­od there remains height­ened plas­tic­i­ty with­in the brain and a gen­er­al inabil­i­ty to pre­dict future crim­i­nal­i­ty because the brain is still devel­op­ing,” Arnold said.