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March 21, 2019

"Death by Numbers: Why Evolving Standards Compel Extending Roper’s Categorical Ban Against Executing Juveniles From 18 to 21"

The title of this post is the title of this notable new paper authored by John Blume, Hannah Freedman, Lindsey Vann and Amelia Hritz.  Here is its abstract:

Nearly fifteen years ago, the Supreme Court held in Roper v. Simmons that the Eighth Amendment prohibits the execution of people who were under 18 at the time of their offenses. The Court justified the line it drew based on legislative enactments, jury verdicts, and neuroscience.  In the intervening years, however, much has changed in juvenile sentencing jurisprudence, the legal treatment of young people, and neuroscience.  These changes beg the question: Why 18?  Is the bright-line rule that the Court announced in Roper still constitutionally valid or do the changes since 2005 now point to a new cutoff at 21?

To answer those questions, this Article considers post-Roper developments in the relevant domains to make the case that the 18-year-old constitutional line should be extended to age 21.  It does so by applying the Supreme Court’s evolving-standards-of-decency methodology.  Specifically, the Article examines all death sentences and executions imposed in the United States post-Roper and looks at the current state of neuroscientific research that the Court found compelling when it decided Roper.

Two predominant trends emerge.  First, there is a national consensus against executing people under 21.  This consensus comports with what new developments in neuroscience have made clear: people under 21 have brains that look and behave like the brains of younger teenagers, not like adult brains.  Second, young people of color are disproportionately sentenced to die — even more so than adult capital defendants.  The role of race is amplified when the victim is white.  These trends confirm that the logic that compelled the Court to ban executions of people under 18 extends to people under 21.

March 21, 2019 at 08:34 AM | Permalink


We have one of these cases pending in Fayette Circuit Court in Lexington, Kentucky, Commonwealth v. Travis Bredhold. Bredhold is white, not black. In December 2015, at the age of 18 years, 5 months, Bredhold killed a gas station - convenience store clerk (53 years old, with a wife and 2 children) in cold blood during an armed robbery. The Clerk had opened the cash register at gun point and was giving Bredhold the money when he was shot and killed. Bredhold then walked behind the counter to pick up the money and left the Clerk on the floor, to bleed to death. There is reportedly a security camera video of the entire crime for prosecutors to show the jury. Under Kentucky law, killing someone during an armed robbery is an aggravating factor that justifies the death penalty. There are only 33 people on death row in Kentucky, which has executed only 5 people since 1953. Based upon a psychiatric evaluation by state DOC psychiatrists (at KCPC), Judge Ernesto Scorsone (a former State Senator, before becoming a Circuit Judge) took the death penalty off the table in this case, and the Commonwealth is now appealing that issue before trial. The psych report says that Bredhold's mind functions like that of a 14 year old, not that of an adult. Bredhold and his twin brother (who was already in state prison at the time Bredhold killed he Clerk) had been raised in Kentucky's foster care system. He had had serious behavioral and disciplinary problems in the public school system, so he had been sent to and graduated from Fayette County's alternative high school, the Martin Luther King Academy. Not counting his trip to KCPC for his psych eval., Bredhold is now the longest serving inmate at the Fayette County Detention Center. If you Google Travis Bredhold's name, you can read all of the details, including Judge Scorsone's Order about the death penalty being inapplicable in this case, at the Death Penalty Information Center's web site. Bredhold was also a member of the gang, the Dirty White Boys at the time of the robbery and murder. He was arrested within days at the largest mall, Fayette Mall, a few days before Christmas of 2015. He had over $600 cash (the proceeds from the robbery) in his pocket, along with a .380 pistol. He was spending the money at the Mall to buy Christmas presents for his family and friends.

Posted by: Jim Gormley | Mar 21, 2019 9:13:17 AM

I checked a newspaper article after I posted my comment above. My memory of the date for the robbery and murder was incorrect. The crimes actually occurred in December 2013, not December 2015, as I wrote above. Thus, Travis Bredholt has now been a pre-trial detainee at the Fayette County Detention Center for more than 5 years (including the months he spent at KCPC, getting his psych eval).

Posted by: James Gormley | Mar 21, 2019 9:20:15 AM

When I began reading the academic article attached to Professor Doug Berman's post above, I discovered that Judge Scorsone's 2017 Order taking the death penalty off the table in the Travis Bredhold case is referred to in footnote #11 to the article.

Posted by: Jim Gormley | Mar 21, 2019 9:29:08 AM

So if you cant execute persons until 21 because of their mental fragility ...I sure hope those supporters also advocate for not allowing these same underdeveloped persons to vote since they can form logical thoughts and be responsible for their actions. Liberal logic say lower the age to vote to 16; and raise the age for executions to 21. Liberalism IS truly a mental disorder

Posted by: DeanO | Mar 22, 2019 1:52:20 PM

I think there is a logical flaw in the use of sentencing data in this case. Most states, probably reflecting the natural tendencies of juries, include youth as a mitigating factor. If we tell jurors that they should rarely impose the death penalty on young offenders, it should not be a surprise that the number of death sentences imposed on young offenders is small.

I know that I have personally been involved in several cases as a prosecutor in which the possibility of seeking the death sentence against a 20 year-old was considered. In the vast majority, the conclusion was that there was not enough evidence in aggravation to overcome the mitigating factor. So the law already gives some protection to the 20 year-old murderer.

If a mitigating factor is working the way that it should, death sentences for offenders who clearly have that mitigating factor (as several mitigating factors require the jury to decide what conflicting evidence is true) should be rarer than death sentences for offenders with no mitigating factors. To use the fact that a mitigating factor is working the way that it should as justification for making that mitigating factor a categorical constitutional rule would discourage states from officially recognizing mitigating factors in their statutes and instructions. That seems to be a bad idea both practically and legally.

Posted by: tmm | Mar 25, 2019 10:30:30 AM

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