In the Supreme Court of the United States · /05/2016-05-24_livingarrangemnet-final.pdf. . . 13 Margo Gardner & Laurence Steinberg, Peer Influence on Risk Taking, Risk Preference,

No. 19-1054

In the Supreme Court of the United States__________________

CHRISTA PIKE,Petitioner,

v.

GLORIA GROSS, WARDEN,Respondent.

__________________

On Petition for Writ of Certiorari to the United StatesCourt of Appeals for the Sixth Circuit

__________________

BRIEF OF THE NATIONAL ASSOCIATION FORPUBLIC DEFENSE, THE CHILDREN’S LAWCENTER, INC. AND THE INSTITUTE FOR

COMPASSION IN JUSTICE AS AMICI CURIAE INSUPPORT OF PETITIONER

__________________ACENA M. BECK

Executive DirectorTHE CHILDREN’S LAW CENTER, INC.1002 Russell St.Covington, KY 41011(859) [email protected]

REBECCA BALLARD DILORETO

Executive DirectorTHE INSTITUTE FOR COMPASSION

IN JUSTICE

P.O. Box 911131Lexington, KY 40591(859) [email protected]

JENNIFER M. KINSLEY

Counsel of Record AMY E. HALBROOK

SALMON P. CHASE

COLLEGE OF LAW

Nunn Hall, Nunn DriveHighland Heights, KY 41099(859) [email protected]@nku.edu

Counsel for Amici Curiae

March 26, 2020Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

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TABLE OF CONTENTS

INTERESTS OF AMICI CURIAE . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. EMERGING ADULTS ARE A DISTINCTCLASS BECAUSE OF THEIR UNIQUEDEVELOPMENTAL STATUS . . . . . . . . . . . . 6

II. EMERGING ADULTS ARE A DISTINCTCLASS BECAUSE OF THEIR UNIQUELEGAL AND SOCIAL STATUS . . . . . . . . . . 10

A. Emerging Adults are Frequently SubjectDifferent Legal Standards Than Adults 21 and Over . . . . . . . . . . . . . . . . . . . . . . . 10

B. Emerging Adults Are Frequently Subjectto Different Cultural Norms than OlderAdults . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

III. THIS COURT’S TWO-PART EXEMPTIONANALYSIS REQUIRES A CATEGORICALEXEMPTION. . . . . . . . . . . . . . . . . . . . . . . . . 15

A. National Consensus Exists AgainstExecution of 18-Year-Olds Based onInfrequency of the Practice . . . . . . . . . . . 15

B. The Death Penalty is a DisproportionatePenalty When Imposed on 18-Year-OldsBecause it Serves No LegitimatePenological Purpose . . . . . . . . . . . . . . . . . 19

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IV. A CATEGORICAL EXEMPTION ISPROPER RATHER THAN ARGUINGMITIGATION ON A CASE-BY-CASEBASIS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

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TABLE OF AUTHORITIES

CASES

Atkins v. Virginia, 536 U.S. 304 (2002). . . . . . . . . . . . . . . . 3, 4, 20, 22

Commonwealth v. Diaz, No. 15-CR-00584-001 (Fayette Circuit Court). . . 6

Com. v. Smith, No. 15-CR099584-002 (Fayette Circuit Court) . . 6

Graham v. Florida, 560 U.S. 48 (2010). . . . . . . . . . . . . . . . . . . . passim

Lockett v. Ohio, 438 U.S. 586 (1978). . . . . . . . . . . . . . . . . . . . . . . . 9

Miller v. Alabama, 567 U.S. 460 (2012). . . . . . . . . . . . . . . . . . . 4, 6, 21

Moore v. Texas, 137 S. Ct. 1039, 197 L. Ed. 2d 416 (2017) . . . . 6, 9

Penry v. Lynaugh, 492 U.S. 302 (1989). . . . . . . . . . . . . . . . . . . . . . . . 4

Roper v. Simmons, 543 U.S. 551 (2005). . . . . . . . . . . . . . . . . . . passim

Stanford v. Kentucky, 492 U.S. 361 (1989). . . . . . . . . . . . . . . . . . . . . . . . 4

Thompson v. Okla., 487 U.S. 815 (1988). . . . . . . . . . . . . . . . . 20, 21, 22

Trop v. Dulles, 356 U.S. 86 (1958). . . . . . . . . . . . . . . . . . . . . . . . . 3

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CONSTITUTION AND STATUTES

U.S. Const. amend. VIII. . . . . . . . . . . . . . . . . . passim

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . 1, 23, 24

10 U.S.C. § 6911 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

18 U.S.C. § 922(b)(1),(b)(2),(c)(1) . . . . . . . . . . . . . . . 10

18 U.S.C. § 5031 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

21 U.S.C. § 387f(d)(3)(A)(ii) . . . . . . . . . . . . . . . . . . . 10

23 U.S.C.S § 158. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

42 U.S.C. § 6751(8)(A)-(8)(B)(i)(III) . . . . . . . . . . . . . 10

42 U.S.C. 300gg-14. . . . . . . . . . . . . . . . . . . . . . . . . . 10

VT. STAT. ANN. tit. 33, § 5201. . . . . . . . . . . . . . . 11, 12

OTHER AUTHORITIES

ABA Resolution 111: Death Penalty Due ProcessReview Project Session of Civil Rights and SocialJustice, Report to the House of Delegates, (Feb.5, 2018), https://www.americanbar.org/groups/committees/death_penalty_representation/resources/dp-policy/late-adolescent-death-penalty-resolution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 21

Jeffrey J. Arnett, Does Emerging Adulthood TheoryApply Across Social Classes? National Data on aPersistent Question, (2015), http://www.jeffreyarnett. com/emergingadulthoodsocialclass2016.pdf. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

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Jeffrey J. Arnett, Emerging Adulthood, NOBAT e x t b o o k S e r i e s ( 2 0 1 8 ) ( e b o o k ) ,http://noba.to/3vtfyajs . . . . . . . . . . . . . . . . . . . . . 14

Christian Bealieu & Catherine Lebel, LongitudinalDevelopment of Human Brain Wiring Continuesfrom Childhood Into Adulthood, 27 Journal ofNeuroscience 21 (2011) . . . . . . . . . . . . . . . . . . . . . 7

Blume, John H. and Freedman, Hannah and Vann,Lindsey and Hritz, Amelia, Death by Numbers:Why Evolving Standards Compel ExtendingRoper’s Categorical Ban Against ExecutingJuveniles From 18 to 21 (February 25, 2019)Texas Law Review, Forthcoming . . . . . . . . . . . . 17

Graham Bradley & Karen Wildman, PsychologicalPredictors of Emerging Adults’ Risk andReckless Behaviors, 31 Journal of Youth &Adolescence, 253 (2002) . . . . . . . . . . . . . . . . . . . 21

Clark County Prosecuting Attorney, Indiana, U.S.Executions Since 1976, http://clarkprosecutor.org/html/death/esexecute.htm. . . . . . . . . . . 18, 19

Cornell Legal Studies Research Paper No. 19-17,available at SSRN: https://ssrn.com/abstract=3341438 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Death Penalty Information Center, Death Penaltyin Flux, https://deathpenaltyinfo.org/death-penalty-flux . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Death Penalty Information Center, Death Penaltyon Hold in Most of the Country, (July 30, 2014),https://deathpenaltyinfo.org/node/5829 . . . . . . . 16

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Death Penalty Information Center, ExecutionDatabase, https://deathpenaltyinfo.org/views-executions . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Death Penalty Information Center, Execution List2014, https://deathpenaltyinfo.org/execution-list-2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18






Death Penalty Information Center, Execution List2020, https://deathpenaltyinfo.org/execution-list-2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Death Penalty Information Center, States With andWithout the Death Penalty, https://deathpenaltyinfo.org/state-and-federal-info/state-by-state . . 16

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John J. Donohue & Justin Wolters, Uses andAbuses of Empirical Evidence in the DeathPenalty Debate, 58 Stan. L. Rev. 791 (2005) . . . 21

Nico U.F. Dosenbach et al., Prediction of IndividualBrain Maturity Using fMRI, 329 (5997) Science1358 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Federal Student Aid, U.S. Department ofEducation, Dependency Status (2018),https://studentaid.ed.gov/sa/fafsa/filling-out/dependency . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Richard Fry, For the First Time in Modern Era,Living with Parents Edges Out Other LivingArrangements for 18-to-34-Year Olds (Pew Research Center, 2016), http://assets.pewresearch.org/wp-content/uploads/sites/3/2016/05/2016-05-24_livingarrangemnet-final.pdf . . . 13

Margo Gardner & Laurence Steinberg, PeerInfluence on Risk Taking, Risk Preference, andRisky Decision Making in Adolescence andAdulthood: An Experimental Study, 41 Dev.Psychol. 625 (2005) . . . . . . . . . . . . . . . . . . . . . . . . 8

Kentucky Coalition to Abolish the Death Penalty,U n f a i r , B r o k e n , a n d A r b i t r a r y ,http://kcadp.org/why-abolish-the-death-penalty-in-kentucky/unfair-broken-abitrary/ . . . . . . 16, 17

Kathryn Monahan et al., Juvenile Justice Policyand Practice: A Developmental Perspective, 44Crime & Just. 577 (2015) . . . . . . . . . . . . . . . . . . . 8

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NAACP Legal Defense Fund, Death RowUSA Quarterly Reports, http://naacpldf/death-row-usa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Heather Perkins, Using What We Know AboutYoung Adults to Inform State Justice SystemPolicies, (Sep. 14, 2017), https://knowledgecenter.csg.org/kc/content/using-what-we-know-about-young-adults-inform-state-justice-system-policies . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 13

Vincent Schiraldi et al., Community-BasedResponses to Justice-Involved Young Adults,New Thinking in Community Corrections(National Institute of Justice, Washington,D.C.), Sept. 2015 . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Vincent Schiraldi & Bruce Western, Why 21 year-old offenders should be tried in family court,Wash. Post (Oct. 2, 2015), https://www.washington post.com/opinions/time-to-raise-the-juvenile-age-limit/2015/10/02/948e317c-6862-11e5-9ef3-fde182507eac_story.html?utm_term=.82fc4353830d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Elizabeth S. Scott et al., Young Adulthood as aTransitional Legal Category: Science, SocialChange, and Justice Policy, 85 Fordham L. Rev.641 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

E.R. Sowell et al., Mapping Continued BrainGrowth and Gray Matter Density Reduction inDorsal Frontal Cortex: Inverse RelationshipsDuring Post-Adolescent Brain Maturation, 21Journal of Neuroscience (2001) . . . . . . . . . . . . . . 7

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Laurence Steinberg et al., Age Differences in FutureOrientation and Delay Discounting, 80 ChildDev. 28 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

U.S. Census Bureau, Census Historical MaritalStatus Tables, Table MS-2 Estimated MedianAge at First Marriage, by Sex: 1890 to Present(Nov. 2017), https://www.census.gov/data/tables/time-series/demo/families/marital.html . . . . 13

U.S. Dep’t of Justice, Office of Justice Programs,National Institute of Justice, Young Offenders: What Happens and What Should Happen, Doc.No. NCJ 242653 (Feb. 2014). . . . . . . . . . . . . . . . 11

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INTERESTS OF AMICI CURIAE1

National Association for Public Defense (NAPD) isa national organization that brings together more than15,000 practitioner members practicing in all fifty (50)states. NAPD members specialize in the defense ofconstitutional rights, particularly the rights of indigentclients, and NAPD members represent young peopleagainst whom the death penalty is sought. As such,NAPD members have a direct and substantial interestin the issue of whether individuals aged eighteen at thetime of their offense are ineligible to be sentenced tothe death penalty. NAPD members have expertise inEighth Amendment and Fourteenth Amendmentjurisprudence and are able to provide insight intorelevant law and research not fully addressed by theparties.

The Children’s Law Center, Inc. (CLC) is a non-profit organization committed to the protection andenhancement of the legal rights of children. CLCstrives to accomplish this mission through variousmeans, including providing legal representation foryouth and advocating for systemic and societal change.For thirty years, CLC has worked in many settings,including the fields of special education, custody, and

1 Counsel of Record for Amici authored this brief together withnamed counsel from Salmon P. Chase College of Law, Children’sLaw Center and the Institute for Compassion in Justice. Nomonetary contributions were made to fund the submission of thebrief. Counsel for Amici provided notice to Counsel of Record ofintent to file this Brief on March 12, 2020. Counsel for Petitionerconsents to the filing of the amicus brief. Counsel for Respondentis not opposed to the filing of the amicus brief.

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juvenile justice, to ensure that youths are treatedhumanely, provided access to legal services, andrepresented by counsel. CLC has worked on issuesacross a broad spectrum of issues in the areas ofjuvenile justice and civil rights laws. This participationalso persists in the ongoing discussion related to theimposition of the death penalty on young adults acrossthe country. Due to this commitment in theseparticular areas of the law, CLC has a substantialinterest in the foregoing case.

The Institute for Compassion in Justice (ICJ) is anonprofit civil rights law firm devoted to buildingcapacity for creative and sustaining legal andcommunity-based advocacy for young people and theirfamilies in Kentucky because all children and youngadults deserve to be treated justly. ICJ believes that, inorder to serve young people well, justice can only beachieved when the law acts with compassion andresponds intelligently to the realities of youthfulimmaturity for those persons between the ages of birthand twenty-five years. Children and young adultsdeserve respect, protection and compassionatetreatment in order to be held appropriately accountablefor their actions in a balanced system of justice. ICJdefends young adults in capital cases in state andfederal court. ICJ has partnered several times in thepast with other nonprofit organizations and theindigent defense system to submit amici briefs onissues pertaining to justice for children and youngadults.

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SUMMARY OF THE ARGUMENT

This Brief will assist the Court by demonstratingthat (1) emerging adults are a distinct class because oftheir unique developmental status; (2) emerging adultsare a distinct class because of their unique legal andcultural status; (3) a categorical exemption iswarranted because (a) a national consensus against theexecution of 18-year-olds exists based on theinfrequency of the practice; and (b) the practice ofexecuting 18-year-olds is disproportionate because itserves no penological purpose; and (4) a categoricalexemption is warranted.

ARGUMENT

The Eighth Amendment requires courts to assess achallenged sentencing practice in light of the “evolvingstandards of decency that mark the progress of amaturing society.” Trop v. Dulles, 356 U.S. 86, 100-01(1958). To determine evolving standards of decency,courts are to consider objective criteria and their ownindependent judgment. Atkins v. Virginia, 536 U.S.304, 311-12 (2002). A court may exempt a class ofoffenders from a punishment if it finds a nationalconsensus against the practice and it independentlydetermines that the punishment is disproportionate tothe level of culpability of the class members. Roper v.Simmons, 543 U.S. 551, 564 (2005).

After considering national trends and newly-discovered developmental data, this Court declared thedeath penalty unconstitutional as applied to thementally disabled in 2002, see Atkins, 536 U.S. at 304,and youths seventeen and under, in 2005, see Roper,

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543 U.S. at 577. In deciding those cases, the Courtoverruled cases of significant precedent: Penry v.Lynaugh, 492 U.S. 302 (1989)(holding that theexecution of individuals deemed mentally retarded waspermissible) and Stanford v. Kentucky, 492 U.S. 361(1989)(holding that the execution of individuals undereighteen years of age was permissible.)

In Atkins, this Court found a national consensusagainst the practice of executing such individuals andthat members of each class were categorically lessculpable than traditional adult offenders. Atkins, 536U.S. at 316; Roper, 543 U.S. at 571. Five years afterRoper, this Court categorically exempted youths 17 andunder from life incarceration without the possibility ofparole (Juvenile Life Without the Possibility of Parole,“JLWOP”) sentences for non-homicide crimes. Grahamv. Florida, 560 U.S. 48, 50 (2010). In Graham thisCourt found a national consensus against JLWOP fornon-homicide crimes where the practice was rarelyimposed even where statutorily allowed, with one stateimposing a “significant majority” (77 of 123 or 62.6%)of JLWOP sentences and ten others imposing theremainder (46 of 123 or 37.39%). Id. at 64. In Miller v.Alabama this Court categorically exempted youths 17and under from mandatory JLWOP sentences,emphasizing that youths presented greater possibilityof rehabilitation than adults. Miller v. Alabama, 567U.S. 460, 471 (2012) (citing Roper, 543 U.S. at 570). The Miller Court grounded its decision “not only oncommon sense . . . but on science and social science”that demonstrated fundamental differences betweenyouths and adults. Id. at 471.

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This evolution in the law is consistent with thenature of the Eighth Amendment. It is also consistentwith national trends and norms. In 2018, theAmerican Bar Association adopted a resolution urgingeach jurisdiction that imposes the death penalty toprohibit its imposition on any individual who is twenty-one or younger at the time of the offense. See ABAResolution 111: Death Penalty Due Process ReviewProject Session of Civil Rights and Social Justice,Report to the House of Delegates, (Feb. 5, 2018),https://www.americanbar.org/groups/committees/death_penalty_representation/resources/dp-policy/late-adolescent-death-penalty-resolution (last visited March25, 2020).

Each of this Court’s above-mentioned cases heldthat a categorical exemption to a permanent penaltywas appropriate. A categorical exemption is alsoproper in Ms. Pike’s case. Data shows that capitalpunishment is imposed upon individuals sentenced atage eighteen at a frequency similar to the imposition ofJLWOP for non-homicide crimes in Graham. Graham,560 U.S. at 64-66. Eighteen-year-olds are frequentlytreated differently than older adults, both under thelaw and within the culture. Recent developmentalresearch indicates that, like the youths in Roper, 18-year-olds are less culpable than older adult offenders. Applying newly-available developmental data to the 18-year-old population, it becomes clear that the deathpenalty does not serve a legitimate penological purposebecause 18-year-olds suffer from a legally comparablelack of development to youths 17 and under.

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I. EMERGING ADULTS ARE A DISTINCTCLASS BECAUSE OF THEIR UNIQUEDEVELOPMENTAL STATUS

In addition to the line of adolescent developmentcases following Roper, the Court recently re-examinedthe limitations on a government’s power to executeindividuals with intellectual disabilities in Moore v.Texas, 137 S. Ct. 1039, 1048–49, 197 L. Ed. 2d 416(2017). The Moore Court determined that, whenanalyzing the Eighth Amendment, courts are not atliberty to ignore the medical community’s currentdiagnostic framework. 137 S. Ct. at 1043. A logicalextension of Moore requires that, when a sentencingcourt considers the imposition of the most severesanctions on 18-year-olds, it must apply the medicalcommunity’s current diagnostic framework. Id.

A Kentucky trial court heard testimony from Dr.Laurence Steinberg in Commonwealth v. Diaz, No. 15-CR-00584-001 (Fayette Circuit Court), and Com. v.Smith, No. 15-CR099584-002 (Fayette Circuit Court)during a hearing on a challenge to Kentucky’s DeathPenalty statute. (VR 7/17/17, 8:33:13-9:31;32). ThisCourt has previously cited and relied on Dr. Steinberg’sresearch on youth development. See Roper, 543 U.S. at569, 570, 573; Miller, 567 U.S. at 471. Dr. Steinbergtestified in Diaz and Smith that “if a different versionof Roper were heard today, knowing what we knownow, one could’ve made the very same arguments abouteighteen, nineteen, and twenty year-olds that weremade about sixteen and seventeen year-olds in Roper.” (VR 7/17/17, 9:02:32-50.)

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Empirical research now demonstrates that thedevelopmental and neurological traits of youths arealso present in young adults. “Recent advances inbehavior and neuroscience research confirm that braindevelopment continues well into a person’s twenties,meaning that young adults have more psychologicalsimilarities to children than to older adults.” VincentSchiraldi et al., Community-Based Responses toJustice-Involved Young Adults, New Thinking inCommunity Corrections (National Institute of Justice,Washington, D.C.), Sept. 2015, at 1,3.

Magnetic Resonance Imaging of the brain (MRIs)have informed scientists over the past decade thatyoung adulthood is a time of dramatic change in basicthinking structures apparent in scientifically reliableimages of the brain. See E.R. Sowell et al., MappingContinued Brain Growth and Gray Matter DensityReduction in Dorsal Frontal Cortex: InverseRelationships During Post-Adolescent BrainMaturation, 21 Journal of Neuroscience 8819 (2001). New research into neurodevelopment shows thatprofound development continues to occur into the mid-twenties. See Christian Bealieu & Catherine Lebel,Longitudinal Development of Human Brain WiringContinues from Childhood Into Adulthood, 27 Journalof Neuroscience 21 (2011). The National Institute ofHealth tracked more than 5,000 children intoadulthood and found their brains did not fully matureuntil they were at least 25 years old. Nico U.F.Dosenbach et al., Prediction of Individual BrainMaturity Using fMRI, 329 (5997) Science 1358, 1358-59(2010).

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“Young adults are more similar to adolescents thanfully mature adults in important ways. They are moresusceptible to peer pressure, less future-oriented andmore volatile in emotionally charged settings.” VincentSchiraldi & Bruce Western, Why 21 year-old offendersshould be tried in family court, Wash. Post (Oct. 2,2015), https://www.washingtonpost.com/opinions/time-to-raise-the-juvenile-age-limit/2015/10/02/948e317c-6862-11e5-9ef3-fde182507eac_story.html?utm_term=.82fc4353830d. Like juveniles, 18-year-olds’ cognitivematurity is not fully developed; the prefrontal cortex,an area of the brain that helps maintain impulsecontrol and influences decision-making, continues todevelop until a person is at least 21. KathrynMonahan et al., Juvenile Justice Policy and Practice: ADevelopmental Perspective, 44 Crime & Just. 577, 582(2015). Young adults 18-20 are more likely thanjuveniles to engage in risk-taking behaviors. LaurenceSteinberg et al., Age Differences in Future Orientationand Delay Discounting, 80 Child Dev. 28, 35 (2009). Inaddition, young adults are more likely to take risks inthe presence of their peers than either youngeradolescents or older adults. Margo Gardner & LaurenceSteinberg, Peer Influence on Risk Taking, RiskPreference, and Risky Decision Making in Adolescenceand Adulthood: An Experimental Study, 41 Dev.Psychol. 625, 632, 634 (2005). Two of this Court’sconcerns in Roper—maturity and peer influence—applywith equal measure to 18-year-olds; in the case of peerpressure, an 18-year-old is actually at a higher risk.

It is now established medical practice to recognize18-year-olds as having different psychological andbehavioral attributes than other adults. See Elizabeth

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S. Scott et al., Young Adulthood as a TransitionalLegal Category: Science, Social Change, and JusticePolicy, 85 Fordham L. Rev. 641, 644 (2016). Thesescientific advances meet the standards of admissibilityin a criminal trial and, in particular, in the penaltyphase of a death penalty case and thus must beaccepted by courts of law whose task it is to apply thestandards of decency required by the EighthAmendment. See Lockett v. Ohio, 438 U.S. 586, 604(1978) (“[I]n capital cases the fundamental respect forhumanity underlying the Eighth Amendment . . .requires consideration of the character and record ofthe individual offender and the circumstances of theparticular offense as a constitutionally indispensablepart of the process of inflicting the penalty of death.”)That holding rested “on the predicate that the penaltyof death is qualitatively different” from any othersentence. Id. In line with Moore and in keeping withthe long-standing principles of Lockett, a trial court’sfailure to take into consideration the scientificcommunity’s perspective on the youthfulness of youngadults in determining whether the death penaltyshould be applied merits reversal. In the instant case,it should be held categorically unconstitutional becauseof the developmental similarities between juveniles andeighteen-year-olds.

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II. EMERGING ADULTS ARE A DISTINCTCLASS BECAUSE OF THEIR UNIQUELEGAL AND SOCIAL STATUS

A. Emerging Adults are Frequently SubjectDifferent Legal Standards Than Adults 21 and Over

In Roper this Court considered where states drewthe line between youth and adulthood when assigningadult responsibilities. Roper, 543 U.S. at 574. Considering new developmental data, manyjurisdictions have raised the age for exercising adultrights until twenty-one. For example, after followingmany states and municipalities, Congress raised theage for tobacco purchase from 18 to 21 in 2019 with theTobacco to 21 Act. 21 U.S.C. § 387f(d)(3)(A)(ii). TheNational Minimum Drinking Age Act requires youngadults to be age 21 to purchase alcohol. 23 U.S.C.S.§ 158. The federal government prohibits youths under21 from purchasing handguns (see 18 U.S.C.§ 922(b)(1),(b)(2),(c)(1)). The military requires parentalconsent for 18-20-year-olds to enlist as an aviationcadet. 10 U.S.C. § 6911. The federal government alsoallows young people to remain in foster care until theirtwenty-first birthday. Fostering Connections to Successand Increasing Adoption Act of 2008 § 201(a), 42 U.S.C.§ 6751(8)(A)-(8)(B)(i)(III)(2016) (defining a child eligiblefor foster care as an individual who “has not attained18,19, or 20 years of age”). The Patient Protection andAffordable Care Act § 1001, 42 U.S.C. 300gg-14 (2016)extended youths’ ability to receive parents’ health carecoverage to age 26. Each of these provisions is aimedat ensuring protection for vulnerable young adults.

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In 2014, the U.S. Department of Justicerecommended in a report that the age of juvenile courtjurisdiction should be raised to twenty-one due to thefact that “young adult offenders are, in some ways,more similar to juveniles than adults.” U.S. Dep’t ofJustice, Office of Justice Programs, National Instituteof Justice, Young Offenders: What Happens and WhatShould Happen, Doc. No. NCJ 242653, at 2 (Feb. 2014). This is consistent with the federal definition of ajuvenile in court proceedings: (defining juvenile as “aperson who is under 18 years of age, or for purposes ofproceedings and disposition because of an act ofjuvenile delinquency, a person who is under 21 years ofage”). See 18 U.S.C. § 5031.

In addition to youth-protection efforts generally, inrecent years, several states have adopted provisionsthat allow certain protections for young adults in thecriminal justice system. Florida, for example, set anupper age of 18 for juvenile court jurisdiction, but alsoan extended age of 21; this allows a juvenile whocommits a delinquent act at seventeen to remain undersupervision of the juvenile court until 21 fordispositional purposes. Heather Perkins, Using WhatWe Know About Young Adults to Inform State JusticeSystem Policies, (Sep. 14, 2017), https://knowledgecenter.csg.org/kc/content/using-what-we-know-about-young-adults-inform-state-justice-system-policies. As of 2015,thirty-five states had extended jurisdiction to age 20,and six had set the age between 21 and 24. Id.

As an alternative, other jurisdictions havedesignated a category of “youthful offenders” under thecriminal law. See, e.g. VT. STAT. ANN. tit. 33, § 5201

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(2019) (“A State’s Attorney may commence aproceeding in the Family Division of the Superior Courtconcerning a child who is alleged to have committed anoffense after attaining 14 years of age but not 22 yearsof age that could otherwise be filed in the CriminalDivision.”). In some jurisdictions, youthful offendercategories allow emerging adult cases to be heard injuvenile or family court. Perkins, Using What WeKnow About Young Adults to Inform State JusticeSystem Policies. Several jurisdictions have taken thisa step further and created specialized facilities, courts,and probation to accommodate the population; forexample, San Francisco has developed a specialty courtthat only deals with cases involving defendants ageseighteen to twenty-five. Id. The court collaborateswith the district attorney’s office, public defender’soffice, adult probation, youth services, public healthofficials, and local law enforcement. Id. TheTransitional Age Youth Unit within San Francisco’sAdult Probation Department provides eighteen totwenty-five-year-olds on probation with programmingspecifically geared toward the cognitive-behavioralchallenges they face. Id. Connecticut has developed aYoung Adult Offender program, a specializedcorrectional unit for young adults ages eighteen totwenty-five, with the focus being on youthdevelopment, mental health, and de-escalation ofconflict. In partnership with the Vera Institute ofJustice, the Connecticut Department of Correctionprovides emerging-adult-specific training to correctionsofficers, counselors, and others that will staff the unit.

Id. The program model focuses on education,employment and family engagement, and involves

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assigning mentors to small cohorts of emerging adults. Id.

These new legal developments, coupled withcultural norms and scientific data, support adeclaration that the death penalty is inappropriatewhen imposed on an 18-year-old.

B. Emerging Adults Are FrequentlySubject to Different Cultural Normsthan Older Adults

As the scientific understanding of adolescentdevelopment has evolved with advances in braindevelopment science, as reflected in Roper and itsprogeny, American cultural norms have also evolved toreflect a better understanding of adolescence. Ananalysis of census data from 2014 indicates that peopleaged 18-20 are more likely to be living with theirparents than alone or with a partner for the first timein the modern era. Richard Fry, For the First Time inModern Era, Living with Parents Edges Out OtherLiving Arrangements for 18-to-34-Year Olds (PewResearch Center, 2016), http://assets.pewresearch.org/wp-content/uploads/sites/3/2016/05/2016-05-24_livingarrangemnet-final.pdf (last visited June 19, 2018). In1960, the average age at a first marriage was 20 forwomen and 23 for men; in 2017, it had climbed to 27.4for women and 29.5 for men. U.S. Census Bureau,Census Historical Marital Status Tables, Table MS-2Estimated Median Age at First Marriage, by Sex: 1890to Present (Nov. 2017), https://www.census.gov/data/tables/time-series/demo/families/marital.html (last visitedJune 19, 2018). In addition to deferring independentliving and marriage, a 2012 study from The National

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Center for Education Statistics found that seventypercent of young people in the United States nowpursue education and training beyond secondaryschool, which has implications for independence.Jeffrey J. Arnett, Emerging Adulthood, NOBATextbook Series (2018) (ebook), http://noba.to/3vtfyajs(last visited June 19, 2018). An individual is dependenton his or her parents for educational financial aidpurposes until age twenty-four. Federal Student Aid,U.S. Department of Education, Dependency Status(2018), https://studentaid.ed.gov/sa/fafsa/filling-out/dependency (last visited June 19, 2018).

Individuals aged 18-20—once considered fulladults—are treated in recent academic literature as notfully adult. Jeffrey J. Arnett, an expert in emergingadulthood, describes the emerging adult population as“no longer adolescents, but not yet adults, on the wayto adulthood, but not there yet.” Jeffrey J. Arnett, DoesEmerging Adulthood Theory Apply Across SocialClasses? National Data on a Persistent Question,(2015), http://www.jeffreyarnett.com/emergingadulthoodsocialclass2016.pdf. Arnett provides fivecharacteristics of emerging adulthood thatdistinguishes it from other stages of adulthood: (1) theage of identity explorations; (2) the age of instability;(3) the self- focused age; (4) the age of feeling in-between; and (5) the age of possibilities. Id. Arnettdescribes emerging adults as being self-focused, andengaged in a process of identity development. Id.

The qualities of emerging adults can be easilycompared to those used to describe juveniles in Roper,where this Court found that juveniles lack maturity

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and have an underdeveloped sense of responsibility.Roper, 543 U.S. at 569. Roper describes youths’ traitsas transitory because “the character of a juvenile is notas well formed as that of an adult.” Id. at 570. Thecharacteristics of teens described in Roper—whichmeant juveniles could not be considered “the worstoffenders”—are comparable to the characteristics ofemerging adults, and are consistent with thecharacteristics used to distinguish emerging adulthoodfrom other stages of adulthood. Cultural norms andacademic research indicate that individuals in theirlate teens and early twenties are regarded differentlyas a group—and more like adolescents—now than inyears past.

III. THIS COURT’S TWO-PART EXEMPTIONANALYSIS REQUIRES A CATEGORICALEXEMPTION

A. National Consensus Exists AgainstExecution of 18-Year-Olds Based onInfrequency of the Practice

In Roper, this Court indicated that the sufficientobjective indicia of a national consensus were (1) therejection of the juvenile death penalty in a majority ofStates; (2) the infrequency of its use in the States thatstill have the death penalty; and (3) the trend towardsabolishing the practice. Id. Building on the reasoningin Roper, this Court in Graham v. Florida found anational consensus against JLWOP for non-homicidecrimes where eleven jurisdictions imposed the penaltywith one state imposing a “significant majority” (77 of123) of the sentences. Graham, 560 U.S. at 64. ThisCourt in Graham considered both the number of

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offenders who were sentenced to JLWOP and the“frequency of the practice in proportion to theopportunities for its imposition.” Id. at 66. At the timeGraham was decided, six states had abolished lifewithout parole sentences for juvenile offenders whilethirty-seven states and the District of Columbia stillallowed them. Id. at 49. Seven states permittedJLWOP sentences, but limited the sentences tohomicide crimes only. Id. Eleven states imposed lifewithout parole sentences on non-homicide offenders,with Florida imposing 77 of the 123 sentences (62.6%). Id. at 64.

Death penalty rates have declined for the entirepopulation. Currently, twenty-two states and theDistrict of Columbia have abolished the death penalty. Death Penalty Information Center, States With andWithout the Death Penalty, https://deathpenaltyinfo.org/state-and-federal-info/state-by-state (last visitedMarch 25, 2020). The governors of three additionalstates (Colorado, Oregon and Pennsylvania) haveimposed explicit moratoria on executions. Id. Elevenadditional states have not carried out executions inover five years. Death Penalty Information Center,Death Penalty on Hold in Most of the Country, (July 30,2014), https://deathpenaltyinfo.org/node/5829. Of statesthat do allow the death penalty and have no explicitmoratoria, eight have de facto moratoria. DeathPenalty Information Center, Death Penalty in Flux,https://deathpenaltyinfo.org/death-penalty-flux (lastvisited June 19, 2018). In addition, execution is highlylocalized as only three percent of the nation’s 3,066counties account for fifty percent of death sentences.Kentucky Coalition to Abolish the Death Penalty,

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Unfair, Broken, and Arbitrary, http://kcadp.org/why-abolish-the-death-penalty-in-kentucky/unfair-broken-abitrary/ (last visited June 19, 2018).

Capital sentences are imposed on 18-year-olds at arate similar to youths sentenced to JLWOP for non-homicide crimes in Graham. Graham, 560 U.S. at 64-66. Between 2005 (when Roper was decided) and 2017,sixteen (16) states imposed capital sentences on fifty-four (54) individuals who were 18 at the time of theoffense. See Blume, John H. and Freedman, Hannahand Vann, Lindsey and Hritz, Amelia, Death byNumbers: Why Evolving Standards Compel ExtendingRoper’s Categorical Ban Against Executing JuvenilesFrom 18 to 21 (February 25, 2019) (data set on file withthe article’s authors) Texas Law Review, Forthcoming;Cornell Legal Studies Research Paper No. 19-17,available at SSRN: https://ssrn.com/abstract=3341438(last visited March 25, 2020); see also Death PenaltyInformation Center, Execution Database ,https://deathpenaltyinfo.org/views-executions (lastvisited March 25, 2020); NAACP Legal Defense Fund,D e a t h R o w U S A Q u a r t e r l y R e p o r t s ,http://naacpldf/death-row-usa (last visited March 25,2020). Fourteen (14) of those sentences have since beenvacated. Id. Sixty-one (61) percent of the sentencescame from just four states: Alabama (11.11%),California (22.22%), Florida (16.66%), and Texas(11.11%). Id. No death sentences were imposed on 18-year-olds in 2018 or 2019. Only two death sentenceswere imposed on 18-year-olds in 2017. Id. No deathsentences were imposed on 18-year-olds in 2016. Id. The peak was 2007, when death sentences wereimposed eight times on 18-year-olds, and there has

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been a steady decline since, with an average of justunder three (2.91) between 2008 and 2020. Id.

Eighteen-year-olds are also executed less frequentlythan older adults. Between January 1, 2005 andMarch 25, 2020, ten states executed 29 individuals whowere 18 at the time of sentencing, with approximately65.5% percent of those executions coming from onestate alone: Texas. Clark County ProsecutingAttorney, Indiana, U.S. Executions Since 1976,http://clarkprosecutor.org/html/death/esexecute.htm(last visited March 25, 2020); Death PenaltyInformation Center, Execution List 2014,https://deathpenaltyinfo.org/execution-list-2014 (lastvisited March 25, 2020); Death Penalty InformationCenter, Execution List 2015, https://deathpenaltyinfo.org/execution-list-2015 (last visited March 25, 2020);Death Penalty Information Center, Execution List2016, https://deathpenaltyinfo.org/execution-list-2016(last visited March 25, 2020); Death PenaltyInformation Center, Execution List 2017,https://deathpenaltyinfo.org/execution-list-2017 (lastvisited March 25, 2020); Death Penalty InformationCenter, Execution List 2018, https://deathpenaltyinfo.org/execution-list-2018 (last visited March 25, 2020);Death Penalty Information Center, Execution List2019, https://deathpenaltyinfo.org/execution-list-2019(last visited March 25, 2020); Death PenaltyInformation Center, Execution List 2020,https://deathpenaltyinfo.org/execution-list-2020 (lastvisited March 25, 2020).

Applying the reasoning in Graham, a nationalconsensus against execution of 18-year-olds is

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evidenced by the infrequency of its practice. This Courtin Graham found a national consensus based oninfrequency where JLWOP sentences had beenimposed for non-homicide crimes one hundred twenty-three times by eleven states with one state (Florida)imposing a “significant majority” of the sentences (77of 123). Graham, 560 U.S. at 64. In the years sinceRoper, the death penalty has been imposed on 18-year-olds in ten states with one state (Texas) imposing asignificant majority of the sentences (19 of 29 or65.52%). Clark County Prosecuting Attorney, Indiana,U.S. Executions Since 1976, http://clarkprosecutor.org/html/death/esexecute.htm (last visited March 25,2020). The instant numbers and those considered inGraham are significantly similar when considering the“frequency of the practice in proportion to theopportunities for its imposition.” Graham, 560 U.S. at66.

B. The Death Penalty is a DisproportionatePenalty When Imposed on 18-Year-OldsBecause it Serves No LegitimatePenological Purpose

Roper outlines two penological justifications for thedeath penalty as applied to those eligible: deterrenceand retribution. Roper, 543 U.S. at 571-72. Both ofthese goals are proportional to the level of culpabilityof the offending class in question. Id. If neither goal isserved by the imposition of death onto a certain class,then the punishment is disproportional to the offenderof the crime and should be barred. Id. These two goalsserve the purpose of punishing those offenders who

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most greatly deserve the punishment and help to keepfuture crimes from occurring.

Developments in both national trends andneuroscience have led to the abolition of the deathpenalty for those under the age of eighteen and forthose who are considered mentally disabled. See Roper,543 U.S. 551 (2005); see also Atkins v. Virginia, 536U.S. 304 (2002). These classes of people, juveniles andthe mentally disabled, are not culpable enough toreceive the worst kinds of punishment under the law.Atkins, 536 U.S. at 318-20. Following from this Court’sdecision in Thompson, this Court determined that thebehavior of an immature juvenile is less morallyculpable than that of an adult. Thompson, 487 U.S. at834-36. Roper extended the categorical protectionrecognized in Thompson to all minors, and held thatminors under the age of eighteen are less culpable fortheir crimes due to their lack of brain development.Roper, 543 U.S. at 571-72. In addressing thepenological purposes of the death penalty, JusticeKennedy remarked, “[o]nce the diminished culpabilityof juveniles is recognized, it is evident that thepenological justifications for the death penalty apply tothem with lesser force than to adults.” Id. at 571. Ifthis same diminished capacity can be shown for thoseaged eighteen to twenty, then this same result mustalso apply.

As decided in Roper, the retribution rationaleagainst an offender is only proportional when theoffender is fully capable of understanding his or heractions. Id. Those under the age of eighteen have adiminished capacity, meaning that they lack the full

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understanding and consequences of their actions. Id. It is precisely because of this diminished capacity thatthose under the age of eighteen are excluded fromreceiving the death penalty. Id. This was alsorecognized in Roper’s progeny decisions, Graham v.Florida and Miller v. Alabama. Current neurosciencesupports the conclusion that people aged eighteen totwenty suffer from the same lack of development asthose under the age of eighteen. See generally ABAResolution 111. People aged 18-20 are less capable ofweighting long-term consequences and exhibit moresusceptibility to peer influence than those 21-and-over.See, e.g., Graham Bradley & Karen Wildman,Psychological Predictors of Emerging Adults’ Risk andReckless Behaviors, 31 Journal of Youth &Adolescence, 253, 253-54, 260 (2002). Individuals inthis age group also exhibit more impulsiveness thanthose over the age of twenty. See Miller v. Alabama,567 U.S. 460, 472 (2012); Graham v. Florida, 560 U.S.48, 68 (2010). This diminished capacity necessarilymeans that 18-year-olds cannot be considered the“worst of the worst” offenders to which the deathpenalty may be imposed.

The imposition of the death penalty on 18-year-oldsdoes not promote the penological purpose of deterrence.There is no consensus as to whether capitalpunishment has a deterrent effect on the generalpopulation. John J. Donohue & Justin Wolters, Usesand Abuses of Empirical Evidence in the Death PenaltyDebate, 58 Stan. L. Rev. 791, 843 (2005). Even if itwere proven that the death penalty had a deterrenteffect on some adults, this Court in Thompson, infra,observed that the diminished culpability of juveniles

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makes them less susceptible to its effects. Thompsonv. Okla., 487 U.S. 815 (1988). As their brains are stilldeveloping, youths cannot perform the appropriatecost-benefit analysis necessary to understand the fullconsequences of their actions. Id. at 837. The cognitiveand behavioral capacities that reduce moral culpabilityalso “make it less likely that they can process theinformation of the possibility of execution as a penaltyand, as a result, control their conduct based upon thatinformation.” Atkins, 536 U.S. at 320. Given thereduced capacity to comprehend the possibility ofexecution as a consequence, capital punishment doesnot serve the penological purpose of deterrence for 18-year-olds.

IV. A CATEGORICAL EXEMPTION IS PROPERRATHER THAN ARGUING MITIGATIONON A CASE-BY-CASE BASIS

Courts give significant leeway as to the types ofmitigating evidence permitted in the sentencing phaseof a death penalty case. A jury may, however, beunable to properly assess youth as a mitigating factorwhen “the brutality or cold-blooded nature of anyparticular crime would overpower mitigatingarguments based on youth as a matter of course.” SeeRoper, 543 U.S. at 572-73. See also Atkins, 536 U.S. at320-21; Graham, 560 US. at 77-78. This would beespecially true in a case like the one at hand, where noevidence was introduced about youth as a mitigatorand no argument presented on the inappropriatenessof such a sentence for a young person who was eighteenyears of age at the time of the offense. A case-by-caseapproach exposes an offender to the death penalty by

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a subjective decision and places a tremendouslydifficult responsibility on trial court judges todifferentiate between offenders who are trulyincorrigible and those who have the ability to change.Graham, 560 U.S. at 77. In addition, young people havea difficult time trusting counsel, controllingimpulsivity, and weighing long-term consequences, allof which increases the risk of ineffectiverepresentation. Id. at 78. A categorical approachminimizes the risk of a case being skewed by animmature defendant who understands neither theproceedings of the case nor the consequences of his orher decisions. Id. at 78-79, or an ill-informed defensecounsel. Adherence to a bright-line rule, rather thanconsidering mitigation on a case-by-case basis isappropriate, efficient, and best ensures fairness for 18-year-olds.

A categorical exemption is supported by both theEighth Amendment and the Fourteenth Amendment. Current scientific data, discussed in Section I, supra,indicates that the scientific community believes thatindividuals’ brains—and consequently, their maturity,susceptibility to peer influence, and capacity tochange—continues into the mid-twenties. There is nocognitive developmental difference between a normal17-year-old brain and a normal 18-year-old brain.Therefore, there is no rational basis to distinguishbetween 17-year-olds and 18-year-olds for deathpenalty purposes. Even if the State may serve thelegitimate penological purposes of deterrence andretribution when imposing the death penalty on olderadults, those purposes are not met when applied to 18-year-olds (see Section III(B), supra.) As such, in

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addition to violating the Eighth Amendment, imposingthe death penalty on 18-year-olds violates theFourteenth Amendment’s Equal Protection Clause.

CONCLUSION

Based upon the foregoing, the Court must find thatthe death penalty is unconstitutional when imposed on18-year-olds.

Respectfully Submitted,

ACENA M. BECK

Executive DirectorTHE CHILDREN’S LAW CENTER, INC.1002 Russell St.Covington, KY 41011(859) [email protected]

REBECCA BALLARD DILORETO

Executive DirectorTHE INSTITUTE FOR COMPASSION

IN JUSTICE

P.O. Box 911131Lexington, KY 40591(859) [email protected]

JENNIFER M. KINSLEY

Counsel of Record AMY E. HALBROOK*SALMON P. CHASE

COLLEGE OF LAW

Nunn Hall, Nunn DriveHighland Heights, KY 41099(859) [email protected]@nku.edu

*Admitted in Kentucky andinactive in Illinois

Counsel for Amici Curiae

Documents

In the Supreme Court of the United States · /05/2016-05-24_livingarrangemnet-final.pdf. . . 13 Margo Gardner & Laurence Steinberg, Peer Influence on Risk Taking, Risk Preference,