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.