A Kentucky Circuit Judge ruled last week that it is unconstitutional to sentence to death a defendant who is under the age of 21. He issued his decision after attorneys for Travis Bredhold, who is accused of killing a gas station attendant when he was just over the age of 18, asked him to exclude the death penalty when he goes to trial.
“Retribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity,” Kentucky Circuit Judge Ernest Scorsone wrote in his decision.
“This was a gutsy ruling by the judge,” Joanne Lynch, Bredhold’s attorney, said in a phone interview. “And he made the right call. It was really surprising because the law is still Roper v. Simmons (the 2005 U.S. Supreme Court decision that found that defendants under the age of 18 were too immature to be executed), but because the science has advanced so much, and we were in front of a judge who is smart and thoughtful, it was the right call at this time.”
Bredhold was 18 years and five months old when he was arrested for the robbery and murder of a gas station attendant in 2013. After prosecutors indicated they would seek the death penalty in his case, defense attorneys asked the judge to exclude that option on the grounds that it is unconstitutional because of his age at the time of the alleged crime. They argued that just as the U.S. Supreme Court found that defendants under the age of 18 were too immature to be eligible for the death penalty in Roper, scientific studies have shown that those same developmental limitations are present in those younger than 21.
The judge agreed. “As the Supreme Court in Roper heavily relied on scientific studies to come to its conclusion, so will this court,” Scorsone wrote. He pointed to research by psychologist Laurence Steinberg, who recently testified in another Kentucky death penalty case against defendants under the age of 21. “[His] report cited multiple recent studies supporting the conclusion that individuals under 21 years of age are categorically less culpable in the same ways that the court in Roper decided individuals under 18 were less culpable.” And he noted that other studies have shown that younger adults are more likely to underestimate the seriousness of risks involved in a situation, are more likely to engage in thrill-seeking experiences, and are less capable of controlling their impulses and considering the consequences of their actions. “If the science in 2005 mandated the ruling in Roper, the science in 2017 mandates this ruling,” he wrote.
And just as the U.S. Supreme Court found that “a national consensus” had developed against executing intellectually disabled defendants in Atkins v. Virginia (2002), Scorsone found that it is “clear that the national consensus is growing more and more opposed to the death penalty, as applied to defendants 18 to 21.”
“I was thrilled for Travis,” says Lynch. “I was thrilled that the court saw that it would be unjust, in addition to being unconstitutional, to make this young man, who was 18 at the time, face the death penalty. The death penalty isn’t meant for people like Travis Bredhold. If you’re going to have a death penalty you shouldn’t have it for young people who come from backgrounds where there is physical abuse, and extreme neglect, people who never had the benefit of support and nurturing that could lead to being a mature adult human being at the age of 18.”
The prosecutor has announced that she will appeal the decision. If she does, Lynch says that although standard procedure would send the case to the Kentucky Court of Appeals, it is possible the Kentucky Supreme Court will step in and take up the issue.