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August 4, 2017

Kentucky judge rules death penalty unconstitutional for all offenders under 21 years old

As reported in this local article, headlined "Fayette judge rules death penalty unconstitutional for man under 21," a Kentucky judge reached a significant constitutional conclusion this week. Here are the basic details:

The death penalty is unconstitutional for a defendant who was younger than 21 at the time of his offense, Fayette Circuit Judge Ernesto Scorsone ruled earlier this week. Scorsone issued an order declaring the death penalty unconstitutional in the case of 21-year-old Travis Bredhold. He was 18 years and five months old when he was charged in 2013 with murder and robbery in the fatal shooting of Marathon gas station attendant Mukeshbhai Patel.

Fayette County Commonwealth’s Attorney Lou Anna Red Corn said in a statement Friday that she will appeal Scorsone’s order “because it is contrary to the laws of Kentucky and the laws of the United States.” Red Corn said two other cases eligible for the death penalty and pending before Scorsone will be affected by his ruling.... Red Corn’s statement said the judge’s ruling “will result in delays” in all three cases.

In a 2005 decision, the U.S. Supreme Court ruled that the execution of people who were younger than 18 at the time of their crimes violated the federal constitutional guarantee against cruel and unusual punishments.

Bredhold’s defense team asked Scorsone to extend that exclusion to people 21 and younger. Prosecutors argued that the death penalty is constitutional and argued that there is no national consensus with respect to offenders under 21.

Scorsone disagreed. “Contrary to the commonwealth’s assertion, it appears there is a very clear national consensus trending toward restricting the death penalty, especially in cases where defendants are 18 to 21 years of age,” Scorsone wrote.

The judge also cited research showing that 18- to 21-year-olds are less culpable for the same reasons that the U.S. Supreme Court found teens under 18 to be. The age group lacks maturity to control their impulses and fully consider risks, making them unlikely to be deterred by knowledge of likelihood and severity of punishment, the judge wrote. In addition, they are susceptible to peer pressure and emotional influence. And their character is not yet well formed, “meaning that they have a much better chance at rehabilitation than do adults,” the judge wrote.

“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 21 years of age,” Scorsone wrote.

An individual evaluation that Bredhold “operates at a level at least four years below that of his peers” further supports the exclusion of the death penalty for Bredhold, the judge concluded.

I cannot yet find a copy of Judge Scorsone's opinion, but I am looking forward to finding it and seeing what he cites to support the assertion that there is a national trend toward restricting application of the death penalty "especially in cases where defendants are 18 to 21 years of age.” I know a lot of death penalty opponents are eager to see Roper extended to older offenders, but I am not aware of any legislation in any state that has precluded those age 18 or older from the reach of the death penalty.

UPDATE:  I just found the full opinion in this case via the Death Penalty Information Center's website, and the court relies heavily on the overall decline of executions and death sentences in recent years to make the "objective" case that application of the death penalty to defendants aged 18 to 21 are in decline. 

August 4, 2017 at 05:29 PM | Permalink

Comments

I am intimately familiar with this heinous case, and have been following it since December 2013, when Bredhold shot and killed a 52-year old married, Indian gas station/convenience store clerk during an armed robbery. There is a security camera video of Bredhold committing the crimes, which the prosecution will play for the jury. The clerk was cooperating and had opened the cash register to give Bredhold the money, when Bredhold shot him in cold blood, took the money and left him to die. Bredhold was arrested a few days later, shopping for Christmas presents at a large in-door mall, with the stolen cash (about $650) in his pocket, along with a .380 pistol. Lexington police officers at the Mall took Bredhold down so fast that he never even got to touch the pistol in his pocket. At the time the crimes were committed, Bredhold's Facebook page indicated that he thought he was a kind of gangster. His main Facebook picture was of an AK-47 with an 80-round drum magazine, which the case Detective says the police found in his apartment when it was searched. Another picture on Bredhold's Facebook page showed a matte black pistol grip shotgun surrounded by stacks of $100 bills. He was identified to the police from a picture placed on T.V. by his former foster parents. He was a member of a Louisville street gang, the "Dirty white Boys", and his identical twin brother was already serving a sentence in state prison at the time he killed the store clerk. I have spoken with the homicide detective who investigated the case. One of Bredhold's public defenders is a friend of mine too. I will get you a copy of Judge Scorsone's Order tomorrow and fax or e-mail it to you. Judge Scorsone is a former Ky. state Senator and is a middle of the road to liberal leaning Judge, who is highly respected among criminal lawyers here.

Posted by: Jim Gormley | Aug 4, 2017 5:49:56 PM

The opinion ends with a reference that the defendant himself was found to operate at an age of at most a 14 year old. That might be used as a means to limit things on appeal.

Posted by: Joe | Aug 4, 2017 6:11:54 PM

The death penalty should be declared unconstitutional for all those under age 100 years old.

This guy deserves the Italian death penalty in prison.

Posted by: David Behar | Aug 4, 2017 10:06:38 PM

More BS DP stuff from lawless judges.

Posted by: federalist | Aug 5, 2017 7:39:56 AM

Hey federalist, do you think D.C. circuit 8A ruling in Blackwater case also the product of "lawless judges"?

Posted by: Doug B. | Aug 5, 2017 8:09:00 AM

If I place myself in the position of an organization seeking the abolishment of the death penalty I am now scouring papers and arrest records for anyone who committed a murder at age 21 and x months old. Obvious argument is that 21 is an arbitrary line and that it's not fair someone only a couple months older can be put to death. The age should be ... Uhh, 23? 25? It needs to be just slightly higher so my client won't receive the death penalty but not so high, at least in this case, as to rule out the death penalty for older defendants.

If I win then a new floor is set and now I start looking for someone just a couple months older then that floor. I'm playing the long-game here, and if I'm a member of an organization that continues to attract new members then we have nothing but time.

Posted by: Sean | Aug 5, 2017 1:42:34 PM

If I place myself in the position of anyone making a legal argument, I would look at the current line and push against it, try to take it further using the overall arguments that won the last time. So, e.g., if a certain type of religious exercise is acceptable in a government body, I would try to push further, go a step further.

So, Sean's argument really can be done all over the place. So, someone says the current age of 18 is too high. So, where to draw the line? 16? Why 16? Lines are drawn in law. Arguments are made around the line. This includes lines regarding maturity, both of rights and burdens. There are organizations for anything under the sun. Plus, the government has a good group of lawyers to made claims too.

Posted by: Joe | Aug 5, 2017 3:05:19 PM

The 8th Amendment case law is a joke. Completely unprincipled.

Posted by: jast | Aug 5, 2017 3:08:36 PM

"The age group lacks maturity to control their impulses and fully consider risks, making them unlikely to be deterred by knowledge of likelihood and severity of punishment, the judge wrote. In addition, they are susceptible to peer pressure and emotional influence. And their character is not yet well formed, “meaning that they have a much better chance at rehabilitation than do adults,” the judge wrote."

This is garbage.

Adolescents commit fewer violent crimes than adults.

They become adults, and markedly worsen, so their rehab potential is the least of all.

Their character is established by age 3, and will never change.

If they cannot be influenced by the possibility of punishment, they need far more punishment than others.

Is the lawyer profession not the stupidest group of people in our country?

Posted by: David Behar | Aug 5, 2017 7:01:48 PM

This result was so predictable after Atkins/Roper.

Posted by: flop | Aug 6, 2017 8:16:24 AM

In Kentucky, will this go straight to their Supreme Court?

I have trouble seeing this ruling standing, but (particularly if the Kentucky Supreme Court sides with the defendant) it has cert grant written all over it.

Posted by: tmm | Aug 6, 2017 12:17:15 PM

I'll go one further...than ;;;I have trouble seeing this ruling standing. I'll guarantee it will be overturned if not by KYSC or SCOTUS. Any liberal wanna put $$$ against me?

Posted by: deanO | Aug 7, 2017 7:38:43 AM

A first year law student could pick this case apart in 30 minutes. WOW what a junk science ruling. This Judge is full of it. Nonsense reasoning like cherry picking text from 8th amendment referring to the 14th but not rationalizing the biggest piece "Without due process of law"; 14th: nor shall any State deprive any person of life, liberty, or property, without due process of law. So its clear a state can kill you with due process. And then the yahoo judge picks 21 out of one study from one wacky lefty researcher. Junk science.

Posted by: deanO | Aug 7, 2017 8:22:44 AM

Why stop at law school? Online legal analysis shows that is an unnecessary requirement to find fault with state and federal judicial rulings.

BTW, killing with due process includes finding certain categories of people cannot be killed. It is quite possible that the overall system in place can be found so problematic that due process is realistically possible, at least except in most narrowest cases. But, that isn't even necessary in this case. Nor, was "one study" the basis of his ruling.

Posted by: Joe | Aug 8, 2017 11:05:21 AM

Why stop at law school? Online legal analysis shows that is an unnecessary requirement to find fault with state and federal judicial rulings.

BTW, killing with due process includes finding certain categories of people cannot be killed. It is quite possible that the overall system in place can be found so problematic that due process is realistically not possible, at least except in most narrowest cases. But, that isn't even necessary in this case. Nor, was "one study" the basis of his ruling.

Posted by: Joe | Aug 8, 2017 11:07:05 AM

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