Neuroscience Experts: Brain Science Shows Texas’ Use of Future Dangerousness to Sentence Those Under 21 to Death is Unreliable, Unconstitutional

Three pro­fes­sion­al orga­ni­za­tions and eight prac­ti­tion­ers in the fields of neu­ro­science and neu­ropsy­chol­o­gy have joined a Texas death-row pris­on­er in chal­leng­ing the con­sti­tu­tion­al­i­ty of the state’s use of ​“future dan­ger­ous­ness” find­ings to impose the death penal­ty on defen­dants who were younger than age 21 at the time of their offense. Their brief, filed in the U.S. Supreme Court on June 19, 2020, argues based on “[t]he great weight of sci­en­tif­ic evi­dence” that pre­dic­tions of whether an offend­er under age 21 will be a future dan­ger to soci­ety ​“are inher­ent­ly unre­li­able” and should not be per­mit­ted in deci­sions of whether a young offend­er should live or die.

The neu­ro­science pro­fes­sion­als include the American Academy of Pediatric Neuropsychology, the Center for Law, Brain and Behavior at Massachusetts General Hospital, and the Society for Adolescent Health and Medicine, as well eight lead­ing experts in brain research and ado­les­cent behav­ior. Their brief sup­ports a peti­tion filed by Billy Joe Wardlow (pic­tured) on June 10 that asks the Supreme Court to review whether Texas may con­tin­ue to car­ry out death sen­tences ​“for which future dan­ger­ous­ness is or was used to deter­mine death eli­gi­bil­i­ty” in cas­es in which the defen­dant was younger than age 21 when the crime was committed. 

Texas has sched­uled Wardlow’s exe­cu­tion for July 8 and he has asked the Supreme Court to grant him a stay so it can con­sid­er his petition.

Wardlow was sen­tenced to death in 1995 for the mur­der of Carl Cole two years ear­li­er. At the time of the killing, Wardlow was 18 years old. According to Wardlow’s Supreme Court peti­tion, “[t]he only aggra­vat­ing fac­tor in the Texas death penal­ty statute at that time was that the defen­dant would like­ly be dan­ger­ous in the future. The jury found that Billy would be.” 

Experts have long main­tained that future dan­ger­ous­ness can­not be reli­ably deter­mined, and mul­ti­ple stud­ies have con­firmed that such pre­dic­tions are unreliable.

The U.S. Supreme Court ruled in 2005 that the use of the death penal­ty against juve­nile offend­ers age 17 or younger is cru­el and unusu­al pun­ish­ment pro­hib­it­ed by the Eighth Amendment. Wardlow’s peti­tion argues that ​“sci­en­tif­ic research has estab­lished that the brains of young peo­ple between 18 and 20 years old are func­tion­al­ly indis­tin­guish­able from the brains of 17 year-olds in the ways that are rel­e­vant to Eighth Amendment moral cul­pa­bil­i­ty.” Like the brains of juve­nile offend­ers, he says, ​“the brains of peo­ple under 21 are still devel­op­ing [and] the char­ac­ter of these young peo­ple … is not ful­ly formed.” As a result, he argues, ​“the Texas death penal­ty statute, which makes the pre­dic­tion of future dan­ger­ous­ness the deter­mi­nant of eli­gi­bil­i­ty for a death sen­tence, is uncon­sti­tu­tion­al with respect to peo­ple who were under 21 years old at the time of their crimes.”

Richard Burr, Wardlow’s attor­ney, describes him as the ​“liv­ing embod­i­ment of what hap­pens when your brain gets more mature.” Supporters have described him as a ​“peace-mak­er” with ​“this way of empathiz­ing with peo­ple, espe­cial­ly when they are hurting.”

The neu­ro­science experts’ brief says that new research in the field of brain sci­ence has ​“made vis­i­ble the dif­fer­ences between the devel­op­ing brain and the adult brain as nev­er before, effect­ing a par­a­digm shift in the way the behav­ior of emerg­ing adults is under­stood in the sci­en­tif­ic com­mu­ni­ty. Well-estab­lished, peer-reviewed research, as well as our col­lec­tive pro­fes­sion­al expe­ri­ence, demon­strate that it is sci­en­tif­i­cal­ly impos­si­ble reli­ably to pre­dict the future dan­ger­ous­ness of an offend­er who com­mits a crime while under the age of 21.” 

They espe­cial­ly empha­size that ado­les­cents and young adults with devel­op­ing brains are prone to impul­siv­i­ty and risk-tak­ing, mak­ing pre­dic­tions of future dan­ger­ous­ness par­tic­u­lar­ly unre­li­able. ​“Neither an 18-year-old cap­i­tal defendant’s offense con­duct nor his pri­or crim­i­nal his­to­ry can reli­ably pre­dict future dan­ger­ous­ness because even youth who com­mit vio­lent and repeat­ed crime are over­whelm­ing­ly like­ly to grow out of it,” their brief states. ​“Predictions of future vio­lence in the case of an 18-year-old are inher­ent­ly unre­li­able and will lead to many more false pos­i­tives than accurate predictions.”

Texas requires juries to find that an indi­vid­ual pos­es a con­tin­u­ing threat to soci­ety as a pre­req­ui­site to impos­ing the death penal­ty, a find­ing that requires a pre­dic­tion of a defendant’s future dan­ger­ous­ness. As a result, Wardlow’s peti­tion could poten­tial­ly affect 44 oth­er Texas death-row pris­on­ers who, like him, were under 21 at the time of their crimes. On June 5, 58 mem­bers of the Texas leg­is­la­ture wrote a let­ter to the Texas Board of Pardons and Paroles advis­ing the board that ​“experts in the fields of neu­ro­science, psy­chi­a­try, crim­i­nol­o­gy, and foren­sic test­ing for future dan­ger­ous­ness and psy­chopa­thy … [have argued] that estab­lished research defin­i­tive­ly proves Mr. Wardlow’s cen­tral con­tention, that it is not sci­en­tif­i­cal­ly pos­si­ble to reli­ably pre­dict future dan­ger­ous­ness in the case of an 18-year-old.” They advised the board that the leg­is­la­ture intends to take up the issue in its next leg­isla­tive ses­sion, after its sched­uled pub­lic hear­ing in April was post­poned as a result of the COVID-19 pandemic.

Other death-row pris­on­ers and cap­i­tal defen­dants have more broad­ly chal­lenged the con­sti­tu­tion­al­i­ty of death sen­tences for those younger than age 21 at the time of the offense. The Kentucky Supreme Court reversed a tri­al court rul­ing that had barred the cap­i­tal pros­e­cu­tion of three defen­dants who were younger than 21 at the time of their crimes. Without address­ing the mer­its of their claim, the court said the men did not have stand­ing to bring the chal­lenge because they had not yet been sen­tenced to death. In 2019, the U.S. Supreme Court declined to hear a peti­tion from Alabama pris­on­er Michael Samra, who was 19 when he was sen­tenced to death.