Friday, August 18, 2017

Do brain-science advancements, death-penalty debates point to need for third path on young adults and crime?

Our latest "Reasonably Suspicious" podcast segment, Death and Texas, has sparked a number of lively, behind-the-scenes discussions, so I thought I'd pull it out as a stand-alone and provide links to a number of related, relevant resources. The topic: A ruling out of Kentucky finding that execution of defendants who committed their crimes before they were 21 years old violates the Eighth Amendment to the US Constitution, building on the holding in Roper v. Simmons. A majority of cases so situated come from Texas in recent years. You can listen to the full (5 minute) discussion here.

For context, here's the ruling by the Kentucky judge under discussion and some relevant media coverage.

Among states, Connecticut is considering extending the juvenile justice system all the way to age 21 because of similar considerations about youthful brain development.

In the podcast, I mentioned my pal Vincent Schiraldi's work suggesting the need for an alternative justice system for young adults. Here's what to my knowledge is sort of his "big paper" on the topic with Bruce Western and Kendra Bradner. See also this paper presaging the reform suggestions in Connecticut.

For more background: Here's a survey from last year of 10 state and local initiatives on these themes. And here's a law review article discussing the ideas of "extended adolescence" raised by Schiraldi's work and others.

Find a transcript of this excerpt below the jump:

Transcript, "Reasonably Suspicious" podcast from Just Liberty; conversation between JL Policy Director Scott Henson and Texas Defender Service Executive Director Amanda Marzullo on the implications for the justice system of brain science showing youthful brain development into the mid-20s.

Scott Henson: Next up, our newly re-named segment on capital punishment, now titled "Death and Texas." Today's topic: a court case out of Kentucky with particular significance from many Texas death penalty cases.

Mandy Marzullo: So, this, obviously, as you said in your lead-up, is a non-Texas case with big implications for the lone star state. So, essentially, a Kentucky judge ruled that it violates the eighth amendment to execute individuals who are 21 at the time of their offense, or 21 and under. So, this is an extension of the famous US Supreme Court case; Roper v. Simmons, where the Supreme Court said that individuals who are juveniles at the time of their murder are ineligible for the death penalty. So, what the court basically said is the majority of jurisdictions in the US do not execute individuals who are in the age group for their offense and so, that takes into account states that are non-death states and then it looked at states such as Utah and a bunch of others that have the death penalty, but have not executed someone within this age bracket for a long period of time. And then pointed out that Texas is really the big outlier here. 19 out of 33 executions within the past five years are out of Texas.

Scott Henson: Right. So, it really sounds like it's almost a primarily Texas issue and a few other states have a handful of cases. Even though this case was out of Kentucky, the reason I agreed that we should talk about it was that, gosh, this is actually a Texas thing. What I thought of as I read this case was some work by a friend of mine named Vinny Schiraldi, who is at Harvard and did some work here in Texas 15 years ago on some decarceration type issues. But these days, Vinny has been promoting an idea that people 18 to 25 years old should have a third judicial system, in a way. A third system to deal with them because they have different issues from juveniles, yet they're not adults and the brain science says that their brains aren't fully developed. And, indeed, that was the main thing that this judge found convincing was the overwhelming consensus among neuroscientists that your brain development was continuing all the way to your mid 20s and that the types of cognitive decision making that we're expecting from 18 to 21 year olds, treating them as adults is really not realistic based on what science understands we should expect from them. So, I think that 18 to 21, 21 I thought, given Vinny wanting it to go to 25 and the brain science says it changes into the mid 20s. I almost wondered why 21, although I'm sure that's because that what the plaintiffs had requested, that's part of the discussion of this particular case.

Mandy Marzullo: I think there was also some evidence introduced that the distinction between an 18 year old and a 21 year old, in terms of how cooked their brains are, is almost indistinguishable. Your brain continues to develop until you're in your mid 20s, in particular the functions that deal with cognitive reasoning and impulse control, but that they are particularly underdeveloped when you're 21.

Scott Henson: That's right. The judge did say that 18 to 21 year olds' brains are more like 15 or 16 year old brains then they ar 24, 25.

Mandy Marzullo: Exactly.

Scott Henson: So, that is probably why that distinction, but it does make you think "Wow, you can make this argument, even for more," potentially, and you've mentioned to me once that almost all of the death penalty cases are these fairly young folks. I mean, there aren't a lot of 40 year olds committing crimes that send them to death row. It is usually young people, so …

Mandy Marzullo: It is often. Well, I would say just a lot of violent crime, just in general, is perpetrated by this age group.

Scott Henson: That's right.

Mandy Marzullo: And there are a lot of reasons that go into in, but then there are a lot of reasons to believe that we might need to have more tailored sentencing, like your friend has said. Another thing that they point out in the decision is that criminal behavior at a young age is a poor predictor of your threat to society going on.

Scott Henson: That's right. The judge cited a study that said that 90% of serious juvenile defenders age out of crime as adults and don't commit serious crimes as an adult. And so, I thought that the science that the judge relied upon was very very interesting and really has implications well beyond the death penalty and, certainly, beyond Kentucky.

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