Kentucky could become the first death-penalty state in the nation to ban capital punishment for defendants who were between 18 and 21 years old at the time of their crimes.
Attorney General Andy Beshear's office will ask the Kentucky Supreme Court Thursday to reverse a Fayette circuit judge’s rulings that the death penalty is unconstitutional for offenders in that age group because their brains are still developing and they lack the maturity to control their impulses and assess risks.
Judge Ernesto Scorsone, who was known as a progressive during 24 years in the Kentucky House and Senate, also cited "evolving standards of decency."
The U.S. Supreme Court cited the same factors in 2005 in a landmark ruling, Roper vs. Simmons, banning the death penalty for capital crimes committed by those under 18.
But prosecutors say there is no national consensus against executing those who were between 18 and 21 when they committed murders. Of the 29 states that allow the death penalty, none ban it for that age group, according to the Death Penalty Information Center.
Scorsone blocked the death penalty for three men charged in two murders in Lexington.
Travis Bredhold was 18 years and 5 months old when he was charged with the fatal shooting of Marathon gas station attendant Mukeshbhai Patel, an Indian immigrant, during a robbery in 2013.
Justin Smith was also 18 years and 5 months old, while Efrain Diaz Jr., was 20 years and 7 months old, when they allegedly murdered Jonathan Kreuger, a University of Kentucky student and a photographer for the Kentucky Kernel, the campus newspaper, also during a robbery.
All three defendants are incarcerated at the Fayette County jail awaiting trial.
Krueger’s parents, who live in Perrysburg, Ohio, declined to comment on whether they would like their son’s alleged killers to be eligible for the death penalty.
But a spokesman for Patel’s widow, Hina, who doesn’t speak English, said she wants to see Scorsone’s rulings reversed.
“She lost her husband and her two children lost their father,” said Jack Shah. “The family is still devastated. She doesn’t want this person ever to be on the loose.”
The American Bar Association last year adopted a resolution urging all states with the death penalty not to impose it on offenders younger than 21 because “individuals in late adolescence, in light of their ongoing neurological development, are not among the worst offenders for whom the death penalty should be reserved.”
Scorsone cited recent biological and psychological studies showing that individuals in their late teens and early 20s are less mature than their older counterparts in their ability to assess risks, exercise self-control and appreciate the consequences of their actions.
Although scientists once thought the brain stopped growing at about age 10, magnetic resonance imaging and other technology has shown that it continues to develop into the 20s, assistant public advocates Timothy Arnold and Brandon Jewell note in their briefs.
But Assistant Attorney General Jason Moore said in his brief that 18 is the age at which young people are given the right to vote, to marry without parental consent, to enter into contracts, to sue and be sued and to join the armed forces.
"This is true despite the fact a person’s brain continues to mature for some period of years past that age," Moore said.
He also said the science Scorsone relied on is "simply not new.”
In an email, Fayette Commonwealth’s Attorney Lou Anna Red Corn said every state and federal court that has been asked to extend the U.S. Supreme Court's 2005 ruling to offenders over age 18 has rejected that argument.
She said that includes Florida, Ohio and California, as well as a federal court in New York and the U.S. 6th Circuit Court of Appeals.
But Arnold and Jewell say that none of those courts addressed the matter head-on and that some of the rulings were based on procedural issues.
"Society has long known that people under 21 are not as responsible as older adults," Arnold said in an email. "That’s why 21 is the minimum age to drink, carry a handgun, etc. Now, very recent scientific advancements have demonstrated why that is — the brains of people under 21 act much more like teenagers than adults whenever they are in emotionally charged circumstances."
Arnold said this is the first time any court at this level has been able to consider "this new science, and we believe the Kentucky Supreme Court will conclude that Judge Scorsone was correct — that individuals in this age group are categorically less culpable than older adults."
While no state with the death penalty has banned it for older adolescents, Judge Scorsone found an emerging consensus against it based in part on the states that ban the death penalty altogether (there are 21) and the four in which governors have imposed moratoriums.
He also noted that seven additional states have not executed offenders for crimes under 21 in the past 15 years. Kentucky is among them, he said.
Scorsone ruled that imposing the death penalty "on an adolescent under 21 is cruel and unusual punishment."
Louisville attorney Aaron Bentley, chair of the Kentucky Coalition to Abolish the Death Penalty, said: "Just last year the Kentucky Supreme Court ruled that Kentucky’s method of determining if someone is intellectually disabled was unconstitutional and risked executing intellectually disabled people. Now it has the opportunity to acknowledge to the scientific community’s findings that the brain simply is not fully developed until they are at least age 21."
"No state should be executing anyone," he said, "but until that time comes, surely those without the mental capacity to understand the consequences of their actions should not be subject to the death penalty."
But Katherine Nichols, whose brother, Jim Duckett, was murdered in Shelbyville 11 years ago, has a different perspective. Nichols, a victim advocate for Kentuckians' Voice for Crime Victims, asked, "Does anybody consider the victim's brain development when they were murdered?"
The case was scheduled to be argued in Somerset at the Center for Rural Development. The court likely will likely rule in several months.
Krueger was 22 and a junior when he walking home with a friend on Lexington’s East Maxwell Street and saw a van driving the wrong way on the one-way street and tried to signal that to the driver. The van stopped and several people got out armed with shotguns and demanded their money.
Krueger’s friend escaped, But Krueger was found unresponsive with gunshot wounds.
A third defendant, a juvenile, also was charged with his murder, but he is ineligible for the death penalty.
Patel, 51, had emigrated from India about 10 years before he was fatally shot, in search of a better life, Shah said at the time.
He lived with his wife and sons, then 15 and 18, as well as his sister and his elderly parents.
Bredhold was arrested on the day of the shooting at the Fayette Mall, where police found him with a .380 caliber handgun and $568.77 in cash.
Source: Louisville Courier Journal, Andrew Wolfson, September 18, 2019
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde