In August 2017, Fayette County Circuit Judge Ernesto Scorsone conducted a hearing concerning the range of punishments that a young man charged in a murder might face at trial. After hearing recent research findings and noting that “there are currently 30 states in which a defendant under the age of twenty-one at the time of their offense would not be executed,” he determined that “the death penalty would be a disproportionate punishment for crimes committed by individuals under 21 years of age” and therefore “Kentucky’s death penalty statute is unconstitutional insofar as it permits capital punishment for offenders under twenty-one (21) at the time of their offense.”
The ruling does not mean that young offenders should not face serious consequences, just not execution.
The judge’s decision was grounded in a thriving body of research that includes a capacity to visually record brain activity while varying the tasks and emotional stress to which subjects are exposed. Hard data also shows that myelination, the coating of neurons that improves mental efficiency is still underway in young adults. The prefrontal cortex, the last area to undergo myelination, is critical to the exercise of judgment and emotional control. Younger adults remain highly vulnerable to peer pressure and while they can perform reasoning tasks as well as adults in their mid and upper twenties, under stress (fear, anger, threat) the brains of 20 year-olds function more like those of 16 and 17 year-olds. Developing brains are also more amenable to rehabilitation A number of states and re-entry programs concentrate significant rehabilitative resources on young offender with striking success
In 2005, earlier data from developmental and brain research led the Supreme Court of the United States, in Roper v. Simmons, to outlaw the death penalty for youth under the age of 18. As a psychologist and member of a committee that helped rewrite Kentucky’s juvenile statutes in 1978, I have followed developing brain research closely. I remember the first time I told my wife that men did not reach neurological maturity until about 25 and women several years earlier. She marveled at how we waste money researching the obvious. Statisticians who track auto accidents and recommend higher insurance rates for males under 25 might roll their eyes as well.
While we grant many adult functions to youth at 18, we restrict the sale of alcohol below age 21. At least 320 localities prohibit tobacco sales under age 21, including five states. Because mental maturity can be further encumbered in youth who experience early and chronic adversity, many youth are clearly not prepared for adult responsibility at age 18. Accordingly, a majority of states authorize extension of foster care until age 21. (Kentucky offers transitional living support up to 21).
While in the Navy, I saw young servicemen on shore leave who were far from home, drinking, and vulnerable to conflicts with locals or other servicemen. I thanked God they weren’t carrying firearms. In my psychology career, I’ve evaluated or counseled a dozen young people charged with homicide—almost all male. Tragic shootings were not planned. They were impulsive reactions to situations usually entered foolishly. Few youth had prior felony convictions that would have made it illegal to carry a firearm. Typically, they were not in touch with their positive potential, long stymied by circumstances. They are seriously sobered and chastened as they face shattered hopes, trial and prison. Where restorative justice is in practice, they are usually remorseful.
The government appealed Judge Scorsone’s decision to the Kentucky Supreme Court, where oral arguments will be heard this Sept. 19 in Somerset. I fervently hope the Kentucky Supreme Court justices find the wisdom to attend to the both the science and the serious potential for changing young lives. I hope they place Kentucky among the majority of states that does not execute these young adults.
T. Kerby Neill is a retired child psychologist, community volunteer, and board member of the Central Kentucky Council for Peace and Justice.