Protecting Especially Vulnerable Defendants from the Death Penalty

Robert Dunham 0:01

Hello and welcome to Discussions with DPIC. I’m Robert Dunham, the Former Executive Director of the Death Penalty Information Center from March 2015 until the end of January of this year. Our guest today is Karen Steele, a former Portland Public Defender and a criminal defense lawyer in Oregon with close to three decades of experience in capital and other complex criminal defense cases. Miss Steele has represented numerous defendants in cases involving neurodevelopmental impairments, such as fetal alcohol disorders and other brain development issues, and has served as consulting counsel to the government of Mexico on cases in which police and prosecutors have denied foreign nationals their rights to consular assistance. She is currently involved in impact litigation across the country on the use of the death penalty against late adolescent offenders and is the co author of a recent article in the Journal of Pediatric Neuropsychology on the nature of the US Supreme Court’s constitutional ban on the use of the death penalty against juveniles, and its implications for late adolescent offenders. Karen Steele, thank you for joining us on Discussions with DPIC.

Karen Steele 1:03

I’m pleased to be here. Thank you,

Robert Dunham 1:04

I want to talk with you about your work with late adolescent offenders who are facing capital charges, or who have already been sentenced to death. But before we go there, there seems to be a theme in the cases that you’ve handled, involving especially vulnerable classes of clients, such as foreign nationals and those with more developmental impairments, or who are not yet developmentally mature. What drew you to specialize in representing these mostly vulnerable groups, and particularly, those with neurodevelopmental and neurobehavioral issues?

Karen Steele 1:36

I would say instead of what drew me, I would say that the clients themselves drew me to their cases. First, with regards to the consular advice and the Mexican national issue — I had clients who were in in that position. And that caused me to reach out to the Mexican consulate here in Portland, and start working with them and closely and ultimately, in Oregon, we developed language that we thought was better than what was being used to advise clients of their consular rights. With fetal alcohol spectrum disorder, I was approached by a woman and she said, do you know about fetal alcohol spectrum disorder because my son has it, and he’s in great trouble? And I said, I don’t know, but I can learn, and so I did. And likewise, with regards to late adolescent defendants in capital cases, I currently have a client who was 18 years plus 30 days old and it was through my representation of him that I learned about the issues, and surprise, surprise, a lot of the issues with fetal alcohol spectrum disorder, overlap with or mimic or are parallel to those issues with late adolescent prisoners and clients.

Robert Dunham 2:53

I find that fascinating. And can you explain for our audience what those similarities are?

Karen Steele 2:57

Well, for instance, with fetal alcohol spectrum disorder, that disorder, that condition is marked by problems that show up as deficiencies in the how the prefrontal cortex is working — the function of the brain itself, it’s structural in the brain. And that’s from birth and how the person develops, but it also is functional. And so what you see with people with fetal alcohol spectrum disorders, is an inability to foresee consequences to engage in abstract reasoning, complex decision-making, impulsivity, being influenced by persons around you. And interestingly enough, some of those same issues go on with adolescence and late adolescence, because the prefrontal cortex is one of the last areas of the brain to develop. So what we see in late adolescence, and when I’m using that term, that’s actually a scientific term, which is something I learned in the course of reading about all this stuff. Late adolescents are persons who are 18, 19, and 20 years of age. And for those people, much like a 17 year old, their behavior is still marked by immaturity. They have an underdeveloped sense of responsibility. They are impulsive, they’re very susceptible to influences, both outside influences and internal pressures. They have an unformed what’s called an unformed character, meaning they have the opportunity to develop further. And so some of the behaviors that we see in late adolescence are things that the person is, is pretty much at least if we look at these, these folks as a class, these are things that are going to be outgrown. One of the things that we know very, very well and is very well established within this area of research is is that aging out phenomenon.

Robert Dunham 5:04

In 1988, the US Supreme Court ruled in a case called Thompson versus Oklahoma, that it was unconstitutional to apply the death penalty against children who were younger than age 16. At the time, the offense for which they’re charged was committed. Less than one year later, the court had the opportunity to address how that affects 17 year olds, in a case called Stanford versus Kentucky, and by a five to four vote, the same court pretty much there’s one one justice difference, said that it was not unconstitutional to use the death penalty against 17 year olds who were charged with committing murders. The court, that hung around for a while as as the as the law, and in 2001, the Court declined to revisit the issue. But then, in Roper versus Simmons in 2005, the court takes up the issue again, and it declares the death penalty unconstitutional if imposed upon offenders who were younger than age 18. Would you explain what happened in those cases? And why the court decided what it did? What was different in 2005, than what was in 1988?

Karen Steele 6:23

Well, interestingly enough, 1988 and that Stanford case that would that coincided with Penry versus Lynaugh out of Texas. And in that case, there was an intellectual disability component. And interestingly enough, both Stanford and Penry denied relief in Stanford on the age issue, and in Penry on the intellectual disability issue. And I think what we saw after Henry was shortly after that, we had Atkins versus Virginia, which provided protection for those persons who were charged capitally, who also had intellectual disability. It was after Atkins, then that we come to Roper. I think during that time period, what we see at least in the scientific community, is there is a ramping up of research, empirical research, in all sorts of different areas. Not only social science areas, but also neuro-psychology areas, neuro neuroscientific areas, I guess, is what we call them today. And there was a ramping up because scientists, as the technology advanced, scientists were able to do more research more quickly and we started getting longitudinal research, we started getting better datasets, because we were able to do more. And what you find is the court and living from Stanford, where it’s still talking about the basic behavioral characteristics of youth in Stanford, as you mentioned, under age 16. And we get to Roper and the court is still talking about the same behavioral characteristics in Roper, but this time, the question is, what does that mean, for purposes of a 17 year old? In Roper, there was reliance on some of the scientific research that was being published at the time. And yet, the court still still hung around and said, well, this is something every parent knows. So the courts relying really pretty heavily, in my opinion, in Roper, on the colloquial understanding of adolescent behavior, I think it’s a combination of evolving standards within the court system, as well as evolution within the scientific community.

Robert Dunham 8:43

And you mentioned longitudinal studies, that is studies that follow the same individual or classes of individual over a course of years. How does that relate to what we’re seeing now, with the arguments that late adolescence should be exempted from the death penalty? I mean, here we are, it’s now 2023. But what’s happened that makes it so that now we’re seeing this argument that the death penalty should not be applied to those under age 21? When before everybody was looking at age 18?

Karen Steele 9:12

Well, we have more data and we have data in different groups of people. Back at the time of Stanford, and even at the time of Roper, the scientific community was doing was focusing its research and their their dollars, so to speak, their time and their dollars on younger age groups of children. So they started out with very young children, they expanded up into adolescence and by the time of Roper, they were they were doing some research that covered 16,17, 18 year olds a little bit older than that. Primarily, the dollars and the time and the funding was going to younger age groups. Once we get beyond Roper because of the technological advances, the scientific community was able to expand beyond that. And so all of a sudden, we now have pretty darn good data. We have a robust data set, where scientists are able to tell us that, for instance, the functioning of 18, 19, and 20 year olds, at least in those areas of the brain that subserve issues that relate to culpability or culpability-diminishing behavioral characteristics, we find that 18, 19, and 20 year olds are materially indistinguishable from a 17 year old. We’re all able to tell that because we have more data now we have data as to that late adolescent class.

Robert Dunham 10:40

So for late adolescence to just really key sections of the brain that act like juveniles?

Karen Steele 10:46

Absolutely, and in a manner that the Court has held to be culpability diminishing.

Robert Dunham 10:51

One of the things that I found interesting both reading the article and looking at general discussions on this issue. There’s so many of the offenses, so many of the murders that are in the death penalty system that involve really significant stresses — there’s something going on at the time, that triggers whatever portion of the brain it is that responds to stress. I’d like to talk about the way the late adolescent brain handles that versus an adult versus a juvenile, because that is a key aspect of so many of these crimes.

Karen Steele 11:26

Absolutely. Late adolescence brains’ are not fully formed, they’re still making the connections, they’re still gathering social experience to understand how to deal with stressful situations. And one of the primary researchers in the field, Dr. Lauren Steinberg, speaks of hot and cold cognition. So hot cognition might be a situation like you’re talking about, that is extremely stressful, it is happening fast. There are other stressors going on in the late adolescence. And because of the way the person’s brain is formed at that point in time, they are, they don’t have the sufficient connections, they don’t have this is sufficient experience to try to navigate through and reason through that situation. And instead, like we said earlier, are going to be more prone to react impulsively, not being able to think through things. And I think it’s important to know that, especially for this class, we also see and in these cases, we also see significant numbers of people who are traumatized by earlier experiences, and who have other things going on. And that can only add to or aggregate with the problems that the person is going to have navigating through an individual situation like a criminal incident, resulting in a murder.

Robert Dunham 12:57

When the court talks about age and its relationship to capital punishment, one of the issues that I think is a dominant issue from a social perspective, tends to be omitted from that — and that’s the question of race. Because we’ve seen this, across the board, that with vulnerable classes of defendants, the death penalty is disproportionately sought and disproportionately imposed upon defendants of color. We’ve seen this with the data on intellectual disability, we’ve seen it in the way states use the death penalty for rape and for other crimes that didn’t involve the death of an individual. And it seems to be the case as well, when it comes to juvenile and late adolescent defendants. Professor Victor Strieb was one of the leading scholars on the use of death penalty against juveniles and he found that the time that Roper was decided, there were 71 people on death row for juvenile crimes. Two thirds of them were defendants of color. 81% of the victims were adults. And we know that when it comes to murders committed by juveniles, it’s usually against other juveniles, and more than two thirds of the victims were white, and half of them were women. There’s clear racial dimensions to that. How do you explain that?

Karen Steele 14:22

What you’ve just related on Proffesor Strieb’s findings has only gotten worse, since Roper. Today we see about 15% of those who are sentenced to death, about 15% come from the late adolescent class. But what we also see is now about close to 80% are prisoners of color. So it’s, it’s, it’s gotten worse instead of getting better. I ascribe that to the persistent problems of race in our society as well as every single step within the criminal court system.

Robert Dunham 15:01

So police disproportionately make arrests in murders involving white victims, they disproportionately arrest defendants of color and then each step along the way just seems to get worse.

Karen Steele 15:13

And I think we back it up to the school to prison pipeline even because there are numerous studies that that demonstrate that race has influences to disadvantageous effect, how children of race are dealt with in school settings, and in disciplinary settings. Interestingly enough, there is a case going on right now in Arizona, that’s challenging the death penalty based on a state constitutional provision, pretty similar to the Eighth Amendment cruel and unusual punishment clause, but at a state constitutional level. And they have brought together all sorts of data over the years, both unique to Arizona, but also across the country. And even there are things even such as disproportionate impact against persons of color in forensic pathology decisions and and how police interact on the streets with persons. So it really goes through the entire spectrum of our society, especially those parts that lead into the criminal court system.

Robert Dunham 16:24

You know, one of the really interesting issues that came up in the case in Texas, Buck versus Davis, where there was mental health, within quotation marks mental health evidenced that African Americans are more dangerous by virtue of being African Americans. And basically, that’s that’s the, the historic racist stereotype within the United States. That concept of being scared of African Americans, because they’re black, and particularly young, black, African American, well, young African Americans, there’s a concept called Adultification, and I know that that, that you discuss that in your article. But when I was reading the data, what struck me is the difference in the way that different racial groups are treated during the period in which it was constitutional, to execute juveniles. The data shows that African American juveniles, were most likely to be sentenced to death if they’re black than if they were Latino than if they were white and you had that same pattern, basically, across the board. But the percentages narrowed as the defendants got older, black defendants as in the late adolescent class, were still more likely to be sentenced to death than anybody else, but it got closer with with Latinos. And with Latinos, the rate at which they were sentenced to death was the same if they were juveniles as it was when they were late adolescence, but that was not the case with with the black kids. So it looked to me like you have whatever’s going on, black kids were perceived as more dangerous earlier and that stuck all the way through the system. And with with Latino defendants, they were perceived as more dangerous when they were young, that we were the white defendants. They were as they got older, they were they became a larger portion of the defendants who were sentenced to death. So you didn’t have the adult vacation process with them. Have you thought about the racial dimension of this argument in your challenges to the use of the death penalty against particularly African Americans in the late adolescent class?

Karen Steele 18:42

I think we would be remiss if we did not do that, just because the data is so striking as you’ve related. The adultification phenomenon is fascinating. My client, the prisoner who’s 18 years plus 30 days or was at the time of the incident, he’s white. But basically, as he sat there because of Roper, at least during his last sentencing proceeding, as he sat there, he was looked at and viewed as an adult, without any of the mitigating culpability, diminishing characteristics that are associated with youth, things that we know that a youth has no control over just because of how their brain is developing. Late adolescents are outwardly viewed as more mature than they really are, than what’s really going on in their brains. In that respect, there’s a parallel between those clients and my clients with fetal alcohol spectrum disorder because we’re talking about invisible things that reduce culpability, but are not yet visible to our eyes. Black youth are disadvantaged because they are perceived as more mature and black late adolescents, they are perceived as more mature than even white late adolescents. — at least that’s what the data appears to to be leading us towards that conclusion. A similar phenomenon with Hispanic group, which, you know, astoundingly moved up to about 25% of those within the late adolescent class who were sentenced to death between Roper and today, so that that really grew. Blacks are still more than 50% and it appears to me that the question that is in front of us is what might explain this. Frank Baumgartner, one of my co authors, he’s done a lot of studying on his or started doing a lot of studying on this issue and he has not been able to find any reasonable legal reason or justification for this disparity. And what that leaves us with are things like this adultification phenomenon, and how it is disadvantaging persons of color, especially blacks. It also leaves us with all sorts of other biases that our system brings to bear upon persons of color. So far, no one has come up with any legitimate or legally justifiable reasons to explain the phenomenon.

Robert Dunham 21:20

When you look at the various different things that happen in the course of death penalty trials, you can begin to see how all sorts of factors that the system regards as race neutral, are actually racially loaded. So I’m thinking, you know, we have, we have this phenomenon of adultification, where where folks, especially white folks, and especially fearful white males, are ascribing dangerousness to black kids based on what they look like. And they may not even be conscious that they are doing this it’s part of an implicit bias. But in death penalty cases, a trial starts off, the jury selection starts off by excluding jurors who have philosophical or moral objections to the death penalty, which takes out, disproportionately, African American jurors, Latino jurors, women and and white jurors who believe in a merciful God. And so you then are you getting a more homogenous jury, more white, more male, more vengeful, evangelical in their, in their religious beliefs. And all the data from all the jury studies shows that that group of jurors is least likely to believe that evidence presented by black defendants is mitigating. And they’re more likely to believe that the prosecution’s evidence is aggravating, and that makes them more likely to impose death sentences. That strikes me with the data that you found as possibly one of the major contributors to to the racial discrepancies that we see in these case outcomes.

Karen Steele 23:06

No question about that. And I think when we start adding other aspects of the criminal court system, like we talked about before going from the street investigation to forensic pathology decisions, one study, again cited by this Arizona Capitol team, who’s doing the challenge currently, one study even said that death penalty lawyers and law students are prejudiced against clients of color, and we can take that all the way through to who is being executed. Again. Well, we find according to the data, and we have more data than we ever did before. But what we find is that persons of color are more vulnerable to actually being executed. And persons of color are less likely to obtain relief, for instance, from parole boards, or governor commutations. So it goes all the way through our system. It’s not simply getting a death sentence, but it’s also carries beyond that to whether or not it’s actually carried out.

Robert Dunham 24:11

And we see exactly the same type of racial disparities, although the numbers are huge by comparison to the death penalty in circumstances in which individuals, kids got sentenced to life without parole,

Karen Steele 24:24

A similar battle with regards to what we’re doing now in the death penalty context with late adolescent class clients. But as similar battle is going on with juveniles sentenced to life without parole, and also late adolescents who have been sentenced to life without parole, and they’re also relying very heavily on the science and the data that we now have.

Robert Dunham 24:47

Your article argues this racial data is an additional reason why the death penalty should be struck down for the late adolescent class. Can you tell us a bit about that?

Karen Steele 24:58

Absolutely. As a general matter, the proposition is that arbitrarily drawing the line at age 18, or 17 and 364 days misses too much, in terms of the same culpability diminishing characteristics that the court has already relied on to exempt the under 18 class from eligibility for capital punishment. So it misses too much. But what you’ve what you’ve referenced the data on race and ethnicity, that demonstrates to us that those within the late adolescent class who are persons of color are being disproportionately impacted, even far beyond and we’ve talked about some of the numbers. That means for us that those persons, persons of color who happened to fall in the late adolescent class, it’s sort of like this balloon where you squeeze one end, and the balloon doesn’t get smaller, but the air flows to another part that you’re not squeezing, right. So you can the balloon is the same, the impact is bad, it’s disadvantageous for these folks. And if we can continue to press towards extending the categorical exemption to the death penalty for those in the late adolescent class, that won’t solve all of the problems within the criminal court system, but it gets a very it touches and alleviates an issue in which these persons who are uniquely disadvantaged and vulnerable, at least they won’t be they won’t be harmed.

Robert Dunham 26:37

Looking forward. What do you think needs to happen legally, for those under 21 to be excluded from executions? And I’m thinking both at the state and the federal level? And how likely do you think it is for that to happen?

Karen Steele 26:53

Well, a couple of years ago, our US Supreme Court membership changed dramatically. And the current membership of the court, although they haven’t yet ruled on issues like this, my guess would be they would be not nearly as receptive to a position like Roper, for instance, or extending ropers protections. Given that it appears to me that it’s much more promising to focus on challenges at the state level, state constitutional provisions, for instance, like they’re doing in Arizona, and I should make clear that Arizona challenge is not with regards to a late adolescent, to late adolescent clients, but it is with regards to persons or clients of color, I’d say the first thing is state constitutional challenges. Most states have some sort of a corollary to the cruel and unusual punishment clause. Some states have an equal protection clause or many states do some states have a due process clause, some states don’t like Oregon does not. But those kinds of challenges should prove fruitful. I would expect that pressing state legislatures to enact protections for people within this class that 18, 19, and 20 year olds would be helpful, because as you said, part of the US Supreme Court’s analysis has focused on what are the legislature, legislators doing at the state levels, is this something that society as a whole is recognizing? We tend to measure whether society as a whole is recognizing something as true by what’s going on in the individual legislatures. We can also really promote, foster and support and continue with empirical research, because that’s what’s gotten us to this point. So far, we progressed just because the science has been able to advance so we know more now than we ever did before. And then there’s the really hard work of working towards racial justice in our country and start addressing some of the various systemic things that we’ve talked about within our society, eventually, that should flow through to the court system.

Robert Dunham 29:15

Well, we’ve talked about some pretty big issues. Is there anything else that you’d like to share with our listeners,

Karen Steele 29:21

I want to give a shout out to the states who have abolished slavery provisions within their state constitutions. Some of them had done it before last year’s elections. There were a few states that added to that and it seems to me that words matter, and changing something like a provision within a state constitution might not get you there overnight, it’s not like a light switch. But because words matter, I think it’s important for us to recognize those incremental changes because I think that’s ultimately where we’re going to get relief both with regards to the late adolescent class, as well as the death penalty in general.

Robert Dunham 30:05

Karen Steele, thank you so much for joining us on Discussions with the DPIC.

Karen Steele 30:08

Thank you.

Robert Dunham 30:09

To our listeners, this will be my last episode hosting this podcast. I’d like to thank each of you for your support over the past eight years, and for tuning in to hear about the issues we’ve covered. To learn more about the death penalty, visit DPIC website at deathpenaltyinfo.org. And to make sure you never miss an episode of this podcast, subscribe to Discussions with DPIC on your podcast app of choice.