by Mark Wilson

On August 1, 2017, a Kentucky trial court judge declared the state’s death penalty statute unconstitutional when applied to defendants who were younger than 21 years of age at the time they committed the crime.

In 2005, the U.S. Supreme Court issued its decision in Roper v. Simmons, 543 U.S. 551 (2005), which imposed a categorical ban against executing defendants who were under 18 years old when they committed their offense. The ruling was based largely on the robust body of juvenile brain development research offered by a wide range of experts.

Five years later, the Supreme Court in Graham v. Florida, 560 U.S. 48 (2010), followed Roper and drew again on the juvenile brain development research to impose a categorical ban against life imprisonment without the possibility of parole sentences for juveniles who do not personally commit a homicide. At that time, the Supreme Court observed that juvenile brain development research had grown even more robust in the five years since Roper was decided. The Court again drew upon that research in the context of juveniles and ruled in 2012 and 2016 that mandatory life-without-parole sentences violate the Eighth Amendment’s ban on cruel and unusual punishment. The judge or jury must have the opportunity to consider mitigating circumstances before the harshest possible sentence for juveniles may be imposed. Miller v. Alabama, 567 U.S. 460 (2012); Montgomery v. Louisiana,136 S. Ct. 718 (2016); Tatum v. Arizona,137 S. Ct. 11 (2016). 

This fall, the high court will answer the question that it expressly declined to address in Miller: Does the Eighth Amendment categorically prohibit life-without-parole sentences for juvenile offenders? That is the specific question before the U.S. Supreme Court in Sarah Marie Johnson v. Idaho, No. 17-236 (Cert. Petition filed Aug. 10. 2017). Johnson was 16 years old at the time she killed her parents; she was convicted of murder and sentenced to life-without-parole. She had a history of clinical depression, never had committed a violent act prior to the killings, and was considered amendable to rehabilitation by mental health professionals who examined her.

The U.S. Supreme Court is not alone in recognizing that adolescents are not deserving of America’s harshest punishments. Kentucky recently became the latest jurisdiction to reach much more progressive and humane beliefs about adolescent offenders than we have seen in decades.

Travis Bredhold was indicted for a December 9, 2013 murder that he committed when he was 18 years, five months old. Prosecutors sought the death penalty. Bredhold filed a pretrial motion, seeking to declare Kentucky’s death penalty statute unconstitutional because it permits capital punishment for defendants under 21 years old. He argued that sentencing him to death would violate the Eighth Amendment under Roper.

During a July 17, 2017 hearing, Fayette Circuit Court Judge Ernesto Scorsone heard testimony from none other than leading adolescent development expert Dr. Laurence Steinberg, who was a key expert in Roper. “[I]f a different version of Roper were heard today, knowing what we know now, one could’ve made the very same arguments about eighteen (18), nineteen (19), and twenty (20) year olds that were made about sixteen (16) and seventeen (17) year olds in Roper,” Dr. Steinberg testified. He also supplemented his testimony with a report that further detailed the structural and functional changes responsible for these differences between adolescents and adults.

Of course, the prosecution argued that Kentucky’s death penalty statute was constitutional. Prosecutors also argued that there was no national consensus against executing individuals under 21 years old.

On August 1, 2017, Judge Scorsone issued an extensively researched and well-reasoned 12-page order, declaring Kentucky’s death penalty statute “unconstitutional insofar as it permits capital punishment for offenders under twenty-one (21) at the time of their offense.”

Judge Scorsone first rejected the prosecution’s contention that there is not a national consensus against executing offenders younger than 21 years old.

“Since Roper, six (6) states have abolished the death penalty, making a total of nineteen (19) states and the District of Columbia without a death penalty statute,” Judge Scorsone observed. “Additionally, the governors of four (4) states have imposed moratoria on executions in the last five (5) years. Of the states that do have a death penalty statute and no governor-imposed moratoria, seven (7) have de facto prohibitions on the execution of offenders under twenty-one (21) years of age, including Kentucky.” These statistics led Judge Scorsone to find that “there are currently thirty states in which a defendant who was under the age of twenty-one (21) at the time of their offense would not be executed—ten (10) of which have made their prohibition on the death penalty official since the decision in Roper in 2005.”

He also noted that between 2011 and 2016, only nine of the 31 states with a death penalty have executed defendants who were under 21 years old at the time of their offense. “Those nine (9) states have executed a total of thirty-three (33) defendants under the age of twenty-one (21) since 2011—nineteen (19) of which have been in Texas alone,” Judge Scorsone observed.

This and other data trends led Judge Scorsone to conclude, contrary to the Commonwealth’s assertion, that “there is a very clear national consensus trending toward restricting the death penalty, especially in the case where defendants are eighteen (18) to twenty-one (21) years of age.”

Judge Scorsone then found that the death penalty is a disproportionate punishment for offenders under 21 years old, declaring “If the science in 2005 mandated the ruling in Roper, the science in 2017 mandates this ruling.”

Applying the extensive juvenile brain development research to Bredhold, Judge Scorsone noted that one doctor found that Bredhold “operates at a level at least four years below that of his peers.” He added that “Bredhold fits right into the group experiencing the ‘maturational imbalance,’ during which his system for sensation-seeking, impulsivity, and susceptibility to peer pressure was fully developed, while his system for planning and impulse control lagged behind, unable to override those impulses.”

Judge Scorsone announced that “this Court is adhering to a bright-line rule as promoted by Roper” in categorically barring the death penalty for offenders under 21 years old. “Given the national trend toward restricting the use of the death penalty for young offenders, and given the recent studies by the scientific community, the death penalty would be an unconstitutionally disproportionate punishment for crimes committed by individuals under twenty-one (21) years old,” Judge Scorsone concluded.

See: Commonwealth v. Bredhold, No. 14-CR-161 (Fayette Co. Aug. 1, 2017). 

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