STUDIES: Raising the Age of Those Eligible for the Death Penalty Would Likely Reduce Racial Disparities

Professor Craig Haney (pic­tured) of the University of California, Santa Cruz, Professor Frank Baumgartner of the University of North Carolina at Chapel Hill, and Karen Steele, a crim­i­nal defense attor­ney in Oregon, exam­ined age and race data from near­ly 9,000 death sen­tences imposed in the U.S. from 1972 to 2021. They found that the racial dis­par­i­ties that plague the death penal­ty were more pro­nounced in cas­es involv­ing juve­nile and late ado­les­cent defen­dants. Building on the find­ings of a 2022 study by Baumgartner, the authors found that, ​“Late ado­les­cent class mem­bers of Color have been sen­tenced to death in far greater num­bers than their White coun­ter­parts.” In par­tic­u­lar, after the U.S. Supreme Court banned the death penal­ty for those under 18 at the time of their crime in Roper v. Simmons (2005), near­ly four out of every five death sen­tences imposed on those aged 18 – 20 at the time of their crime were imposed on per­sons of color. 

The authors stat­ed: ​“It is dif­fi­cult to envi­sion a plau­si­ble expla­na­tion for this pat­tern of results that is based on the objec­tive char­ac­ter­is­tics of the crimes or the defen­dants in ques­tion. Instead, it seems clear that deci­sion-mak­ers at key stages of a cap­i­tal case — pros­e­cu­tors and jurors — are more like­ly to per­ceive crimes com­mit­ted by young per­sons of Color as more heinous or oth­er­wise more deserv­ing of the death penal­ty, or to believe that young per­sons of Color are some­how and for some rea­son less like­ly to be reha­bil­i­tat­ed, or are oth­er­wise sim­ply more cul­pa­ble for their actions.” 

In line with a 2022 res­o­lu­tion by the American Psychological Association strong­ly sup­port­ing a ban on the death penal­ty for those under 21, the study not­ed that late ado­les­cents (age 18 – 20) have sim­i­lar capac­i­ties and lev­els of matu­ri­ty in a vari­ety of areas, includ­ing their abil­i­ty to ​“cog­ni­tive­ly process infor­ma­tion, reg­u­late and con­trol emo­tion­al reac­tions, avoid undue risk-tak­ing, and block out atten­tion­al inter­fer­ence, peer influ­ences, and stress.” The Supreme Court took into account juve­niles’ ongo­ing neu­ro­log­i­cal devel­op­ment in exclud­ing them from the death penal­ty. The authors rec­om­mend­ed extend­ing that age exclu­sion: ​“Applying the log­ic of Roper, mem­bers of this group, too, should be con­sid­ered not only as less cul­pa­ble than adults but also less sus­cep­ti­ble to what­ev­er deter­rent val­ue the death penal­ty might have. Subjecting the late ado­les­cent class to cap­i­tal pun­ish­ment thus fails to fur­ther the peno­log­i­cal goals of ret­ri­bu­tion and deter­rence on which the Court has relied.”

The authors con­clud­ed that, in con­junc­tion with the racial dis­par­i­ties that are height­ened in sen­tenc­ing of late ado­les­cents, this presents a strong rea­son to extend the min­i­mum age for death sen­tences to 21. ​“In this way, the exten­sion of a Roper-like exclu­sion to the late ado­les­cent class would not only be sci­en­tif­i­cal­ly jus­ti­fied but also have the salu­tary effect of reduc­ing the dis­pro­por­tion­ate impo­si­tion of cap­i­tal pun­ish­ment on young per­sons of Color.”