The state’s highest court heard arguments Thursday that will determine whether two men accused in the murder of a University of Kentucky student could face a death sentence if convicted.
The issue is the legality of imposing the death penalty on people who are between the ages of 18 and 21 when they commit a crime that is eligible for a death sentence.
The arguments Thursday arose from a 2017 decision by Fayette Circuit Judge Ernesto Scorsone, who ruled that it would be unconstitutional to impose a death sentence on someone less than 21 years old.
The U.S. Supreme Court barred the death penalty for crimes committed under age 18 in a 2005 decision.
Scorsone said research conducted since then on brain development showed that 18- to 21-year-olds should be considered less culpable for crimes for the same reasons the federal high court said people under 18 were.
Research has shown that people in their late teens and early 20s are more likely to underestimate the seriousness of risks; are less able than older people to control their impulses and consider the consequences of their actions; and are susceptible to peer pressure and emotional influence, Scorsone said.
The death penalty “would be an unconstitutionally disproportionate punishment for crimes committed by individuals under 21 years of age,” Scorsone ruled.
Prosecutors appealed in an effort to reinstate the potential of a death penalty in cases involving suspects in that age range.
The cases at issue before the state Supreme Court involve three people charged in two homicides in Lexington.
In one case, Efrain Diaz Jr. and Justin D. Smith are charged in the murder of UK student Jonathan Krueger.
Krueger and a friend, Aaron Gillette, were walking home on East Maxwell Street in April 2015 when two men got out of a van and confronted them to rob them, according to the court file.
Gillette resisted and tried to defend himself and someone fired shots, according to the state’s appeal. Gillette was able to get away, but Krueger died as a result of gunshot wounds.
There was a third person charged in the case, Roman Gonzalez Jr., but prosecutors could not seek a death sentence against him because he was 17 at the time.
Diaz was 20 at the time and Smith was 18. They told police they believed Gonzalez shot Krueger.
The other case involves Travis Bredhold, who was five months past age 18 when he allegedly robbed, shot and killed gas station attendant Mukeshbhai Patel in 2013 at a Marathon station on Alexandria Drive.
Video showed that Patel was getting money from the register as Bredhold demanded, but he shot Patel anyway, according to the state’s appeal motion.
State prosecutors and public defenders filed written briefs in the cases, but also sought to argue the issues in person to the Supreme Court.
That’s what happened Thursday. The court normally sits in Frankfort, but heard arguments in Somerset as part of the effort to improve awareness and understanding of its work.
Matthew Krygiel, an assistant state attorney general, argued that Scorsone “abused his power” in moving the ban on death sentences up to age 21.
Brain development continues after age 21, but people 18 to 21 have developed enough capacity to be held liable for capital crimes, Krygiel said.
“They know right from wrong,” he said.
Justices should not uphold a blanket ban on the death penalty for 18- to-21-year-olds, Krygiel said. Defense attorneys should be allowed to argue in individual cases that the penalty shouldn’t be applied to someone as a result of relative immaturity or development.
Maturity is fluid, he argued. Some people in the age group at issue may lack judgment, but some could be considered criminally liable the same as an adult.
Krygiel also said no other state has barred the death penalty for 18- to 21-year-olds.
He said there are two people on Kentucky’s Death Row for crimes they committed while over 18 but under 21.
They are Ronnie Lee Bowling, convicted of shooting and killing two service station attendants in Laurel County during robberies in 1989, and Karu Gene White, convicted of beating three elderly people to death in 1979 while robbing a store in Breathitt County.
Timothy G. Arnold, a director at the state Department of Public Advocacy, argued Thursday that Scorsone’s decision was correct and should be upheld.
Arnold said scientific evidence shows that people 18 to 21 are more likely to engage in risky behavior and lack proper control over those impulses.
The thinking at one time was that adolescent brains didn’t have good brakes on risky behavior, but research has developed to show it’s actually like they have their “foot on the gas” Arnold said.
“That is a significant scientific change,” he said.
The trend nationwide has been away from death sentences for offenders under 21, Arnold said.
Arnold said Scorsone’s decision should be upheld unless it was clearly erroneous. The decision was supported by good evidence and was sound, Arnold said.
The cases against Bredhold, Diaz and Smith have been on hold during the appeal of Scorsone’e ruling.
It could be several months before the Supreme Court decides the issue.