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.