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Should the Minimum Age for the Death Penalty be Bumped Up to 21?

The American Bar Association (“ABA”) overwhelmingly adopted a resolution earlier this year for an end to the death penalty for offenders who were younger than 21 when they committed their crime. The ABA cited a growing medical consensus that brain development relevant to decision-making and judgment continues to develop well into a person’s early 20s.

The U.S. Supreme Court recognized in Roper v. Simmons, 543 U.S. 551 (2005), that “the qualities that distinguish juveniles from adults do not disappear when an individual turns 18.” Nevertheless, the Court said “a line must be drawn,” arbitrarily holding that age 18 is that line. The Court’s decision removed 72 prisoners from death rows whose crimes were committed before they were 18.

But Kentucky trial judge Ernesto Scorsone, disagreed, holding in 2017 that Kentucky’s death penalty law was unconstitutional for defendants who committed their crime before age 21. “Knowing what we know now, one could’ve made the very same arguments about 18-, 19-, and 20-year-olds that were made about 16- and 17-year-olds in Roper,” he said. “If the science in 2005 mandated the ruling in Roper, the science in 2017 mandates this ruling.”

An August 2018 article by Beth Schwartzapfel for The Marshall Project noted that research now clearly demonstrates that the brain’s impulse control and decision-making functions do not mature until well into a person’s 20s.

In Miller v. Alabama, 567 U.S. 460 (2012), the U.S. Supreme Court cited developments in psychology and brain science to hold that life without parole for juveniles was unconstitutional. “Youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole,” the Court said. Experts are now pushing for the same consideration for imposing the death penalty on offenders who committed their crimes before their 21st birthday. 


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