Two Sides of the Same Coin: Reconciling the Comparable Culpability of Juveniles and the Intellectually Disabled in US Death Penalty Jurisprudence

AuthorLauren A Koster
PositionJ.D. Candidate 2019, Boston College Law School; BA 2012, Yale University
Pages100-122
© 2019 Lauren Koster and Dublin University Law Society
TWO SIDES OF THE SAME COIN: RECONCILING
THE COMPARABLE CULPABILITY OF JUVENILES
AND THE INTELLECTUALLY DISABLED IN US
DEATH PENALTY JURISPRUDENCE
LAUREN A KOSTER*
Introduction
A young man in Virginia has, for as long as his family recalls, struggled with
what most of us consider the simplest of tasks.
1
By the age of eighteen, he
can only read simple children’s books.
2
He has failed at least two grade
levels.
3
He cannot cook for himself or play a classic board game.
4
But this
eighteen-year-old can be ‘convicted of abduction, armed robbery, and
capital murder,’ even though he claims that he did not pullthe trigger.
5
When
the jury finds his testimony less coherent than that of his accomplice as to
who was holding the gun, he receives the death penalty.
6
* J.D. Candidate 2019, Boston College Law School; BA 2012, Yale University. The author
thanks James P Dowden and his Death Penalty seminar at BC Law for sparking her interest in
this topic. The author would also like to thank Adam Elebert and the editorial board of the
TCLR for their careful editing. Any errors or omissions are the author’s own.
1
Maria Glod, ‘Va. Killer Isn’t Retarded, Jury Says; Execution Set’ The Washington Post
(Washington, 6 August 2005)
05/08/05/AR2005080501306_pf.html> accessed 13 February 2019. As noted by the Death
Penalty Information Center (‘DPIC’), ‘the American Association on Mental Retardation
changed its name to the American Association on Intellectual and Developmental Disabilities
in 2007’ but the meanings of the outdated term and current terms are the same. ‘Intellectual
Disability and the Death Penalty’ (Death Penalty Information Center)
accessed 13 February
2019. Consequently, I have endeavoured to use ‘intellectual disability’ and ‘intellectually
disabled’ rather than ‘mental retardation’ and ‘mentally retarded’ unless I am directly quoting
a source.
2
Allan L Patenaude and Megan Reynolds, ‘Capital Punishment and Juveniles’ in Barbara Sims
and Pamela Preston (eds), Handbook of Juvenile Justice: Theory and Practice (CRC Press
2006) 531; Glod (n 1).
3
Atkins v Commonwealth 534 S E 2d 312 (VA 2000) 323.
4
Glod (n 1).
5
Atkins v Virginia 536 US 304 (2002) 307. In this article, capital murder refers to the crime of
murder ‘for which the death penalty may be imposed.’ ‘Offence’, Black’s Law Dictionary (10th
edn 2014).
6
Atkins v Virginia (n 3) 307, 309.
2019] Two Sides of the Same Coin
101
Compare this tale to that of a young man in Missouri with poor grades,
several missed days of school, and a penchant for marijuana and alcohol.
7
He grew up amidst bitterly divorced parents and an emotionally and
physically abusive, alcoholic stepfather.
8
Nine months before his eighteenth
birthday, he committed capital murder by throwing a woman off a bridge.
9
He had plotted with his teenage friends to kill someone after burglarising the
victim for drug money.
10
This young man deliberately killed and killed with
confidence, believing that as a juvenile, he would ‘get away with’ the
crime.
11
The young man described in the first scenario may be put to death
while the young man in the second scenario may not.
12
Both made grave
decisions that lacked maturity, reasoning, and good judgment. In order to
understand why these two drastically different outcomes coexist in the
American legal system, this article examines the legal treatment of juveniles
and those with intellectual disabilities in the context of their eligibility for
the death penalty in the US. Part I sets out important definitions necessary
to understand this comparative jurisprudence and uses those definitions to
examine the facts of the cases presented in the introduction’s vignettes. Part
II describes the legal underpinnings of the seminal US cases on the death
penalty for juveniles and the intellectually disabled, before comparing the
reasoning of the US Supreme Court in these two categories of cases. Part III
advocates for new legal criteria for death penalty eligibility based on
scientific advancement and state-level approaches so that two similar
distinctions of culpabilityjuvenile status and intellectual disabilityare
harmonised in the American legal system. This article does not, however,
discuss the merits or demerits of the death penalty generally.
7
State v Simmons 955 S.W.2d 752 (MO 1997) 183.
8
See Petition for a Commutation of, or Reprieve of, a Sentence of Death (20 April 2 002) 2-9
https://www.americanbar.org/content/dam/aba/publishing/criminal_justice_section_newslette
r/crimjust_juvjus_simmonsclemency.authcheckdam.pdf> accessed 13 February 2019.
9
Roper v Simmons 543 US 551 (2005) 556.
10
State v Simmons (n 7) 169; Paul Raeburn, ‘Too Immature for the Death Penalty?’ New York
Times Magazine (New York, 17 October 2004) accessed 13
February 2019.
11
Roper (n 9) 556.
12
ibid 578-79. See also Glod (n 1).
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102
I. Background and Definitions
A) Definitions of ‘Juvenile’ and ‘Intellectual Disability’
No uniform definition of ‘juvenile’ exists in the US legal system. All states
recognise as juveniles those who are fifteen years and younger when
determining whether a ‘juvenile court has original jurisdiction over an
individual for law-abiding [behaviour],’ though most set the bar at age
seventeen.
13
This limit is known as the ‘upper age of jurisdiction.’
14
Typically, the term denotes someone not yet eighteen years of age, which is
how this term should be understood in this article unless otherwise noted.
15
The US Supreme Court has recognised the American Association on
Intellectual and Developmental Disabilities (‘AAIDD’) as the standard-
bearer for defining intellectual disability and providing the clinical
diagnostic tools to measure it.
16
An ‘intellectual disability is
(characterised) by significant limitations in both intellectual functioning and
in adaptive behavior, which covers many everyday social and practical
skills.’ Additionally, the disability must present itself ‘before the age of
18.’
17
Intellectual functioning is ‘general mental capacity, such as learning,
reasoning, problem solving, and so on’, which is measured with an IQ test.
18
IQ test scores of 75 or below are indicative of a level of limited functioning
present in those with intellectual disabilities.
19
The second component of
intellectual disabilityadaptive behaviour—is the collection of
conceptual, social, and practical skills that are learned and performed by
people in their everyday lives.
20
Many examples of these skills are learned
at a very young age.
21
For instance, literacy is a conceptual skill, ‘the ability
to follow rules’ is a social skill, and personal care is a practical skill.
22
13
Sarah Hockenberry and Charles Puzzanchera, Juvenile Court Statistics 2014’ (National
Center for Juvenile Justice, April 2017) 103
accessed 13 February 2019.
14
ibid.
15
18 U.S.C. § 3051 (2012); ‘Juvenile’, Black’s Law Dictionary (10th edn 2014).
16
Moore v Texas 137 S Ct 1039 (2017) 1045.
17
‘Definition of Intellectual Disability’ (AAIDD) accessed 13
February 2019.
18
ibid.
19
ibid.
20
ibid.
21
ibid.
22
ibid.
2019] Two Sides of the Same Coin
103
B) Definitions Applied
The first offender portrayed in the introduction to this article describes Daryl
Renard Atkins of the US Supreme Court case Atkins v Virginia.
23
He is
intellectually disabled and has been since before his eighteenth birthday.
24
Atkins’s defence presented the testimony of Dr Evan Nelson, who
administered an IQ test to Atkins, and found his IQ score to be 59 well
within the range for mild intellectual disability set by the AAIDD standard.
25
The prosecution presented opposing testimony from Dr Stanton Samenow,
who did not complete an IQ test with Atkins, but asked him a series of
questions and examined Atkins’s past academic performance before
determining that Atkins was not suffering from an intellectual disability.
26
In direct opposition to the defence’s theory, the prosecution attributed
Daryl Atkins’s poor performance to ‘drug abuse, laziness, and a bad
attitude,’ relying partly on the testimony of one of Atkins’s teachers.
27
Atkins’s school records further indicated that his teachers believed his poor
performance stemmed from a lack of effort and did not represent his full
potential.
28
Subsequently, the jury found that Atkins was not intellectually
disabled and reapplied the death penalty.
29
Atkins’s sentence was later
commuted to life in prison due to prosecutorial misconduct.
30
By contrast, the offender in the second scenario reflects Christopher
Simmons of the US Supreme Court case of Roper v Simmons.
31
As a juvenile
offender, he could not face the death penalty merely because he happened to
commit his crime at the ‘right’ age.
32
Simmons suffered a very challenging
childhood that likely contributed to his delinquency. His stepfather Bob
Hayes was often intoxicated when supervising Simmons as a young boy and
would give the child ‘small amounts of alcohol’ for his own amusement.
33
23
Atkins v Virginia (n 5).
24
ibid 308.
25
ibid 308-09.
26
ibid 309.
27
Glod (n 1).
28
Atkins v Commonwealth (n 3) 319.
29
Glod (n 1).
30
Donna St. George, ‘Death Sentence Commuted in Va. Case’ (Washington Post 18 January
2008)
72_pf.html> accessed 13 February 2019. Prosecutorial misconduct is ‘a prosecutor’s improper
or illegal act (or failure to act)’ that can result in sentence adjustments or even dismissed
convictions. ‘Prosecutorial misconduct’, Black’s Law Dictionary (10th edn 2014). In Atkins’s
case, the prosecutor impermissibly withheld evidence. St. George (n 30).
31
Roper (n 9).
32
ibid 578.
33
Petition for a Commutation of, or Reprieve of, a Sentence of Death (n 8) 8, 9.
Trinity College Law Review [Vol 22
104
When Simmons committed murder, he was failing out of high school with a
grade point average (‘GPA’) of roughly 0.85.
34
II. The Impact of Evolving Standards of Decency on the
Deterrent and Retributive Theories of the Death Penalty
The current seminal US Supreme Court cases regarding the death penalty
for the intellectually disabled and juveniles are relatively recentoccurring
within the last two decades—and reflect American society’s ‘evolving
standards of decency.’
35
The Court, overturning two of its decisions from
1989, reversed its stance on sentencing to death the intellectually disabled
in as few as thirteen years and juveniles in as few as sixteen years. In Atkins,
the Court re-evaluated its holding in Penry v Lynaugh, which allowed the
application of the death penalty to those with intellectual disabilities.
36
When
deciding Roper, the Court revisited the narrowed applicability of the death
penalty to ‘a juvenile offender who was older than fifteen but younger than
eighteen when he committed a capital crime’ and thus overturned its
previous ruling in Stanford v Kentucky, which upheld the death penalty for
those ‘who murder at 16 or 17 years of age.’
37
In US criminal jurisprudence, four theories or justifications exist for
meting out the punishment: deterrence, retribution, incapacitation, and
rehabilitation.
38
This article centres on the two theories that the US legal
system finds persuasive when imposing the death penalty: deterrence and
retribution.
39
According to Black’s Law Dictionary, deterrence is ‘the act or
process of discouraging certain (behaviour), particularly by fear’ whereas
retribution is punishment that is ‘justly deserved.’
40
This Part explores the
shifting acceptability of the death penalty for the intellectually disabled and
juveniles through the Supreme Court’s application of its evolving standards
of decency analysis. It also considers the impact of that analysis on the
theories of punishment that are used to justify the death penalty. Finally, it
engages in a comparative analysis of the court’s reasoning in these two
different categories of cases. Section A discusses the seminal cases on the
34
ibid 11. For reference, a standard GPA calculation is capped at 4.00, representing an A,
whereas the lowest grade, F, is a 0.00 while the next letter grade, D, is a 1.00.
35
Atkins v Virginia (n 5) 321; Roper (n 9) 587 (Stevens and Ginsburg JJ concurring).
36
492 US 302 (1989) 340.
37
492 US 361 (1989) 380.
38
Paula Kim, Note, Psychopathy, Genes, and the Criminal Justice System, (2014) 15 Columbia
Science & Technology Law Review 375, 397-98.
39
Gregg v Georgia 428 US 153 (1976) 183.
40
Black’s Law Dictionary (10th edn 2014).
2019] Two Sides of the Same Coin
105
death penalty in the realm of intellectual disability. Section B examines the
seminal case in the juvenile context. Section C analyses how the two
distinctions are closely intertwined yet have been treated differently by the
Court.
A) The Definitional Problem of Abolishing the Death Penalty for the
Intellectually Disabled
Three US Supreme Court cases define the current state of American death
penalty jurisprudence for the intellectually disabled. The first, Atkins v
Virginia in 2002, abolished the death penalty as unconstitutional for those
with intellectual disabilities under the US Constitution’s Eighth Amendment
prohibition on cruel and unusual punishment.
41
Twice since then, the Court
has been required to respond to this abolition by refining states’ approaches
to defining ‘intellectually disabled’ when carrying out the Atkins mandate.
42
This need for ongoing refinement stems from the Court leaving the task of
defining ‘intellectually disabled’ to the states when it abolished the death
penalty for the intellectually disabled in Atkins.
43
In Atkins, the Supreme Court held that the use of the death penalty on
an intellectually disabled offender did not reflect ‘evolving standards of
decency’ under the Eighth Amendment because of the shifting viewpoints
of state legislatures.
44
This decision overturned the Court’s antithetical
holding in Penry in which the Court found that American society had not
yet rejected the application of the death penalty to those with intellectual
disabilities.
45
Between Penry and Atkins, nineteen additional states had
enacted, or made significant steps toward enacting, legislation that
prevented the execution of the intellectually disabled.
46
The Court reasoned
that ‘it is not so much the number of these States that is significant, but the
consistency of the direction of change.’
47
In addition to acknowledging state
legislatures’ increasing opposition to imposing the death penalty on
intellectually disabled offenders, the Court also highlighted the inefficacy,
41
Atkins v Virginia (n 5) 321. The decision was six to three with US Supreme Court Justices
Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer for the majority and Justices Scalia
and Thomas and Chief Justice Rehnquist for the dissent. ibid 305.
42
Hall v Florida 572 US 701 (2014) 704; Moore (n 16) 1053.
43
Atkins v Virginia (n 5) 317.
44
ibid 321.
45
Penry (n 36) 340; Atkins v Virginia (n 5) 307.
46
Atkins v Virginia (n 5) 314-15.
47
ibid 315.
Trinity College Law Review [Vol 22
106
when applied to the intellectually disabled, of the death penalty’s deterrent
and retributive theories of punishment.
48
The Court believed that although the intellectually disabled defendant
may understand that his actions were wrong, he was also more likely to ‘act
on impulse’ beyond his control and follow others’ lead.
49
Such actions
lacked the level of culpability required to show that the death penalty, the
most extreme punishment available, was warranted under the retributive
theory, making its application to the intellectually disabled cruel and
unusual.
50
The deterrent properties of the death penalty were similarly
ineffective for a person who was unable ‘to engage in logical reasoning’ in
such a way where he would understand that his criminal impulses may lead
to his death and thus know to control or avoid them.
51
At the close of the
majority’s opinion in Atkins, Justice Stevens warned that evidence of
intellectual disability might be used by the jury not as a mitigating factor but
as an aggravating factor, increasing the risk that the intellectually disabled
will be executed.
52
His fear stemmed from the outcome of Penry, in which
the defendant’s diminished intellectual and emotional capacity were used to
prove the aggravating factor of ongoing dangerousness rather than lower his
culpability and invalidate the application of the death penalty.
53
It was this
risk that the court sought to avoid by barring the execution of individuals
with intellectual disabilities, even though the court allowed states to design
their own processes for determining how to define intellectual disability and
identify intellectually disabled defendants.
54
In 2014, the US Supreme Court declared one such approachstrict
IQ cut-offsunconstitutional.
55
The decision in Hall v Florida was five to
four with Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan
composing the majority and Justices Alito, Scalia, Thomas, and Chief
Justice Roberts, the dissent.
56
During the sentencing phase, the defendant,
Freddie Lee Hall, offered extensive evidence of his intellectual disability,
ranging from school records that labelled him as ‘mentally retarded’ to
clinical results that put him on the same intellectual level as toddlers.
57
His
48
ibid 319, 321.
49
ibid 318.
50
ibid 319.
51
ibid 319-20.
52
ibid 320-21.
53
See Penry (n 36) 324.
54
ibid 317.
55
Hall (n 42) 704.
56
ibid 703.
57
ibid 705.
2019] Two Sides of the Same Coin
107
IQ scores ranged from 60 to 80, but the sentencing court considered his IQ
to be no lower than 71.
58
Under Florida state law, a defendant had to show
that his IQ was ‘70 or below before presenting any additional evidence of
his intellectual disability.’
59
This cut-off, however, ignored the presence of
adaptive functioning limitations that could signify an intellectual disability,
even with an IQ score higher than 70, and also disregarded the imprecision
of IQ scores.
60
Given that only nine states mandated ‘a strict IQ score cutoff
at 70’ at that time, the Court held that the use of such a strict IQ cut-off did
not reflect the standards of decency the Court intended after its ruling in
Atkins.
61
The ongoing shift by the Court in the Hall case is notable in that its
facts are similar to those in Atkins, suggesting that the Court could have gone
further in its holding in the prior case. Instead, although the application of
the death penalty in Atkins had turned on whether Daryl Atkins was
intellectually disabled, the US Supreme Court did not address the question
of his diagnosis directly.
62
Atkins’s proffered IQ was 59.
63
Like Hall, he too
had a variety of test scores ranging from as low as 59 to as high as 76.
64
Atkins’s available scores were 59, 67, 74, and 76, which average to 69.
65
During Atkins’s case, Virginia’s definition of intellectually disabled at the
time of Hall’s case was ‘someone with an IQ below 70 who has significant
limitations in adaptive behaviour that were evident before age eighteen.’
66
Regardless, IQ is only part of the equation in assessing intellectual disability,
providing a metric for intellectual functioning but not for adaptive
behaviour.
67
In 2017, in Moore v Texas, the US Supreme Court revisited for a third
time the permissible approaches to defining who qualifies as intellectually
disabled.
68
If Hall stood for the proposition that states should consult reliable
58
Hall (n 42) 707.
59
ibid.
60
ibid 711-12. In Hall’s case, ‘a score of 71…is generally considered to reflect a range between
66 and 76 with 95% confidence and a range of 68.5 and 73.5 with a 68% confidence.’ ibid 713.
Under Florida’s state law and its courts’ interpretation thereof, Hall’s IQ score could very well
have fallen beneath the allowed threshold. See ibid 707.
61
ibid 716, 718.
62
Glod (n 1).
63
Atkins v Virginia (n 5) 309.
64
Glod (n 1).
65
ibid.
66
ibid.
67
‘Definition of Intellectual Disability’ (n 17).
68
Moore (n 16) 1044, 1048. The decision was five to three with Justices Ginsburg, Kennedy,
Breyer, Sotomayor, and Kagan for the majority and Chief Justice Roberts and Justices Thomas
and Alito dissenting.
Trinity College Law Review [Vol 22
108
medical and clinical evidence when evaluating intellectual disability, then
Moore presented the challenging issue of determining if and when such
evidence was no longer current and could not reasonably be relied upon by
courts.
69
The court in Moore ultimately determined that the Texas Court of
Criminal Appeals (‘CCA’) failed to carry out the Eighth Amendment
requirements of Hall when the CCA did not apply appropriately current
clinical standards and considered non-scientific factors.
70
Whereas the US
Supreme Court had relied on ‘the most recent versions of the leading
diagnostic manuals’ when reaching its decision in Hall,
71
the CCA had
refused to follow the direction of the Texas State Habeas Court, which used
the same updated editions of the clinical manuals to find that Bobby James
Moore was intellectually disabled.
72
The CCA focused on ‘adaptive
strengths’ alongside ‘adaptive deficit’ when evaluating Hall’s adaptive
functioning as part of its assessment of his intellectual disability.
73
It
attributed Hall’s history of poor performance in school and his abusive
childhood to mental illness rather than linking all these components together
as ‘risk factors for intellectual disability’ as defined by the most recent
clinical manuals.
74
Lastly, the CCA had developed a set of seven factors at
common law to establish a link between a person’s adaptive functioning and
intellectual capacity.
75
The Court found that these factors impermissibly
relied on lay opinion without any clinical indicia, increasing the risk that the
intellectually disabled would be executed.
76
B) Clarity After Roper v Simmons
In the aforementioned cases, the US Supreme Court contoured the death
penalty’s application in the intellectual disability context over several years.
When it comes to the death penalty’s application to juvenile defendants,
however, a single US Supreme Court case, Roper v Simmons, has provided
the answer since 2005. Roper overturned the Court’s 1989 ruling in Stanford
v Kentucky allowing for the execution of juvenile offenders.
77
In Stanford,
the Court considered a case factually comparable to that of Christopher
69
Hall (n 42) 721; Moore (n 16) 1048.
70
Moore (n 16) 1050-53.
71
ibid 1048.
72
ibid 1405-46.
73
ibid 1050.
74
ibid 1051.
75
ibid 1046.
76
ibid 1051-52.
77
Roper (n 9) 556.
2019] Two Sides of the Same Coin
109
Simmons’s.
78
After committing robbery and rape, Kevin Stanford, aged
seventeen, decided to murder the victim because she saw Stanford’s face.
79
Simmons, in similar circumstances, murdered his victim because she might
recognise him.
80
The Court decided Stanford on the same day as Penry and
held that the evolving standards of decency of American society did not
require the abandonment of the death penalty for juvenile offenders.
81
Sixteen years after Stanford, the Roper Court declared the death
penalty unconstitutional when applied to juveniles, who were defined by the
Court as those under the age of eighteen at the time of the committed
offence.
82
Explaining its reasoning, the Court’s majority highlighted three
unique traits of juveniles that make them less culpable than adults: (1) ‘a
lack of maturity and an underdeveloped sense of responsibility’, (2)
increased ‘vulnerab[ility] or susceptib[ility] to negative influences and
outside pressures’, and (3) a transitory character.
83
The Court found, similar
to its reasoning in Atkins, that an increasing number of states were refusing
to execute persons who were under the age of eighteen when they committed
a capital offence.
84
For example, since the start of the modern era for death
penalty jurisprudence (measured from January 1, 1973) until the
implementation of the Roper decision, only twenty-two juveniles were
executed in the United States; all but one was seventeen when they
committed their offences, and the one exception was sixteen.
85
Again,
mirroring its reasoning in Atkins, the Court found that the theories of
deterrence and retribution were not served by the death penalty’s application
to minors.
86
Juveniles were unlikely to weigh the long-term implications of
their behaviour under the deterrence rationale and lacked the maturity to
warrant the most severe penalty that could be given adults to carry out
retribution.
87
78
Stanford (n 37) 365.
79
ibid.
80
Roper (n 9) 55657.
81
Stanford (n 37) 380. See also Roper (n 9) 562.
82
Roper (n 9) 578.
83
ibid 569-70.
84
ibid 564-67.
85
‘Execution of Juveniles in the US and Other Countries’ (Death Penalty Information Center)
accessed 13
February 2019.
86
Roper (n 9) 571-572.
87
ibid.
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110
C) Reconciling the US Supreme Court’s Singular Treatment of Juveniles
with its Ongoing Refinement of Intellectual Disability
In its 2005 decision in Roper, the Supreme Court often relied on its
reasoning in Atkins to justify its eventual decision to forbid the application
of the death penalty to juveniles.
88
Its reliance on Atkins was profoundly felt
when examining the penological justifications for the death penalty.
89
For
both the intellectually disabled and juveniles, the Court has recognised that
the deterrence and retributive theories of punishment are not served when
those who may not fully understand the impetus or impact of their action are
executed.
Intellectual disability sometimes translates into the realm of juvenile
terminology. The intellectually disabled cannot ‘understand and process
information learn from experience engage in logical reasoning or
control impulses.’
90
Daryl Atkins, for example, was also eighteen years old
when he committed his capital crimes, meaning he would have failed the
juvenile cut-off had his proffered intellectual disability not been considered
by the court as mitigating evidence of his culpability.
91
When the Supreme
Court of Virginia affirmed Atkins’s death sentence, the dissent recognised
the diminished culpability of Atkins, stating that ‘the imposition of the
sentence of death upon a criminal defendant who has the mental age of a
child between the ages of nine and twelve is excessive.’
92
The juvenile may
be able to learn from experience, but at the time of the offence, the Roper
majority believed that anyone seventeen years or younger was too immature
and irresponsible to make a reasoned decision that considers the risk of the
death penalty.
93
Justice O’Connor’s dissent, however, provides a convincing
counterargument by discussing the differences between juveniles and adults
and juveniles and the intellectually disabled.
94
She noted that ‘lesser
maturity simply cannot be equated with the major, lifelong impairments’
suffered by the intellectually disabled.
95
Juveniles will, presumably, grow
up and mature, allowing them to take responsibility for their actions and thus
satisfying at least the deterrence theory for the death penalty.
88
ibid 564-67.
89
ibid 563-64.
90
Atkins v Virginia (n 5) 320.
91
Patenaude and Reynolds (n 2) 531.
92
Atkins v Commonwealth (n 3) 324 (Hassell and Koontz JJ concurring and dissenting).
93
Roper (n 9) 569-72.
94
ibid 601-02.
95
ibid 602.
2019] Two Sides of the Same Coin
111
The reasoning of the Court in Atkins is particularly salient for
juveniles, even though it applied solely to the intellectually disabled. There,
the majority noted that ‘because of their disabilities in areas of reasoning,
judgment, and control of their impulses (those with intellectual
disabilities) do not act with the level of moral culpability that characterizes
the most serious adult criminal conduct.’
96
Whereas intellectual disability is
determined using ‘the medical community’s diagnostic framework,’
97
the
assignment of juvenile status has had a fixed cut-off since 2005an
approach found unconstitutional in 2014 in regards to IQ. Justice
O’Connor’s 2005 dissent in Roper foreshadowed potential issues with the
use of a juvenile age cut-off when she wrote, ‘Chronological age is not an
unfailing measure of psychological development, and common experience
suggests that many seventeen-year-olds are more mature than the average
young ‘adult.’
98
What remains to be seen is whether the Court will continue
to evolve in how it defines who is a juvenile in the same way it has with
defining who is intellectually disablednamely, whether the cut-off at
eighteen will be found unreliable in light of medical evidence.
III. Moving Toward a Holistic Scientific Approach
In 2005, in Roper v Simmons, the US Supreme Court favoured ‘an arbitrary,
categorical rule’ for defining an offender as a juvenile outside of the reach
of the death penalty.
99
Nevertheless, nearly a decade later, in Hall v Florida,
such a rule had fallen out of favour when determining who was intellectually
disabled and similarly out of reach.
100
Regardless, the Roper cut-off for
juvenile status at eighteen years of age still stands.
101
As scientific
advancement allows for a greater understanding of brain development, the
American legal system should adjust the death penalty to fit these new
conclusions.
102
The final part of this article suggests reconciling the US
96
Atkins v Virginia (n 5) 306.
97
Hall (n 42) 721.
98
Roper (n 9) 601.
99
ibid 602 (O’Connor J dissenting).
100
Hall (n 42) 704.
101
Hollis A Whitson, ‘The Case Against Execution of People Who Were Youths Under the
Age of Twenty-One Years Old at the Time of the Offense: A Position Paper and Call for
Research’ (Death Penalty Information Center, 1 July 2014) 1
accessed 13
February 2019.
102
Adam Ortiz, ‘Adolescence, Brain Development, and Legal Culpability’ (American Bar
Association’s Juvenile Justice Center, January 2004) 2 .americanbar.org/c
Trinity College Law Review [Vol 22
112
Supreme Court’s disparate treatment of two similar distinctions of
culpabilityjuvenile status and intellectual disabilityby addressing
emerging approaches to evaluating juvenile culpability related to scientific
advancements regarding brain development. Section A considers the role of
neuroscience in diagnosing the underdeveloped brain. Section B discusses
recent approaches in American state courts and legislatures to the topic of
juvenile culpability and suggests how states should further evolve. Section
C examines the possibility of reforming Roper after Graham v Florida in
2010.
A) Fulfilling the Hall Mandate by Relying on Neuroscientific Advancements
When assessing an offender’s intellectual disability, the US Supreme Court
has demanded that ‘the determination be informed by the medical
community’s diagnostic framework.’
103
The same should be true for
determining a young adult’s brain development.
104
Jurisprudence on age
limits for the death penalty should advance alongside our understanding of
the brain’s executive functionsprimarily how our brain regulates our
judgment and impulses.
105
Executive functioning represents the skills and
processes needed to self-regulate.
106
The frontal lobe, which controls these
functions, is ‘the last part of the brain to develop.’
107
Even before Roper, scientists understood that teens overproduce grey
matter, which is the ‘brain tissue that does the “thinking,”’ in the frontal
lobe, especially in the prefrontal cortex where judgment is regulated.
108
As
teenagers mature into their twenties, the teenage brain undergoes
myelination, a process through which the grey matter is pruned out, and
white matter, which promotes brain precision efficiency, takes over.
109
Notably, it is the prefrontal cortex that ‘allows (individuals) to anticipate
consequences, plan, and control impulses.’
110
These are the kinds of
behaviours that the Roper Court recognised were certainly lacking in those
ontent/dam/aba/publishing/criminal_justice_section_newsletter/crimjust_juvjus_Adolescence.
authcheckdam.pdf> accessed 13 February 2019.
103
Hall (n 42) 721; Moore (n 16) 1048 (2017).
104
Ortiz (n 102) 2.
105
ibid.
106
Joyce Cooper-Kahn and Laurie Dietzel, ‘What Is Executive Functioning?’ (LD Online: The
Educators’ Guide to Learning Disabilities and ADHD)
accessed 13 February 2019.
107
Ortiz (n 102) 2.
108
ibid 1-2.
109
ibid 3.
110
ibid 1.
2019] Two Sides of the Same Coin
113
no older than eighteen.
111
Moreover, it is this pruning process that the brain
must undergo before it reliably makes reasonable executive decisions.
112
Not all agree that science is so useful or fool-proof.
113
For instance,
the development of the brain is not linear but cyclical, with some evidence
pointing to maturation regressing during middle age.
114
This evidence is
used to sustain the argument for the arbitrary cut-off at eighteen as the ‘best
guess’ for maturation while indicating the impossibility of a wholesale
adoption of neuroscience as the measurement for culpability without a cut-
off age.
115
What this argument ignores, however, is the socialisation that
occurs between late adolescence and middle ageincluding the engraining
of logical reasoning and cost-benefit analysis of risky behaviours and their
consequencesthat may not have occurred by the mid-twenties and may
outlast the brain’s later changes.
116
Ultimately, the use of neurological testing is becoming increasingly
more accessible, and the notion that the brain is not fully developed until a
person’s early twenties at the earliest is becoming the prevailing wisdom.
117
Even if an ‘arbitrary’ cut-off age to obtain ‘juvenile’ status under death
penalty jurisprudence must prevail for the sake of practicality, placing the
cut-off age at eighteen increasingly seems too young. Precedent already
exists for the age of twenty-one as a more informed cut-off, especially for
engaging in government-regulated risky behaviours that could impact
ongoing brain development, such as drinking alcohol, or, in some American
states and cities, purchasing tobacco products.
118
Despite the promising
scientific advancement of neurological testing, however, clinicians and
courts alike lack a diagnostic tool for measuring brain maturation that is as
easy to administer to individuals as IQ tests. Until that day comes, a more
informed cut-off age is the next best cure to assist juries in determining the
culpability of a young offender at risk of receiving the death penalty. Such
111
Roper (n 9) 569-70.
112
Terry A Maroney, ‘The False Promise of Adolescent Brain Science in Juvenile Justice’
(2010) 85 Notre Dame Law Review 89 at 99.
113
ibid 116-66.
114
ibid 152.
115
ibid 152-53.
116
ibid.
117
Whitson (n 101) 1.
118
‘States and Localities that have Raised the Minimum Legal Sale Age for Tobacco Products
to 21’ (Campaign for Tobacco-Free Kids, 8 January 2019)
https://www.tobaccofreekids.org/as
sets/content/what_we_do/state_local_issues/sales_21/states_localities_MLSA_21.pdf>
accessed 19 February 2019.
Trinity College Law Review [Vol 22
114
advancement may not be too far off as the American judicial system
demonstrates an increasing desire to rely on rapidly evolving neuroscience.
The Supreme Court has continued to rely on neurological reasoning in
reaching its more recent decisions, thereby defying expectations that it
would ignore these developments.
119
The American judicial system broadly
must embrace current scientific trends for juvenile jurisprudence in the same
way that they once embraced burgeoning research and methodology when
assessing intellectual disability.
120
B) State-Inspired Approach
In Atkins v Virginia, the US Supreme Court left ‘to the [American] states the
task of developing appropriate ways to enforce the constitutional restriction
upon their execution of sentences’ for those with intellectual disabilities.
121
A line of cases emerging in the latter half of 2017 from state courts within
the geographic boundaries of the federal US Court of Appeals for the Sixth
Circuitnamely, Kentucky and Ohiodemonstrate that this mandate can
translate to juvenile death penalty restrictions.
122
In August 2017, in
Commonwealth v Bredhold, a trial court in Kentucky declared a state statute
unconstitutional under the Eighth Amendment of the US Constitution
because it allowed for the execution of individuals under the age of twenty-
one.
123
The defendant, Travis Bredhold, was indicted on several crimes,
including murder, when he was eighteen and five months old.
124
The Fayette
Circuit Court, Seventh Division, excluded Bredhold from death penalty
eligibility.
125
This decision hinged on expert testimony on Bredhold’s
119
Graham v Florida 560 US 48 (2010) 68-69, 82. See also Maroney (n 112) 119-20.
120
‘Resolution Regarding Judicial Training on Adolescent Brain Development’ (National
Council for Juvenile and Family Court Judges (NCJFCJ), 16 July 2016)
2016_0.pdf> accessed 17 February 2019.
121
Ford v Wainwright 477 US 399 (1986) 405, 416-417; Atkins v Virginia (n 5) 317.
122
Order Declaring Kentucky’s Death Penalty State as Unconstitutional, Commonwealth v
Diaz (2017) (No. 15-CR-584-001)
accessed 13
February 2019 (hereinafter Diaz Order); Order Declaring Kentucky’s Death Penalty Statute as
Unconstitutional, Commonwealth v Bredhold (2017) (No. 14-CR-161)
ExtendingRopervSimmons.pdf> accessed 13 February 2019 (hereinafter Bredhold Order).
123
Bredhold Order (n 122) 1. See also ‘Juveniles and the Death Penalty’ (Death Penalty
Information Center) accessed 13
February 2019.
124
Bredhold Order (n 122) 2.
125
ibid 12.
2019] Two Sides of the Same Coin
115
developmental capacity by Dr Kenneth Benedict, a clinical psychologist and
neuropsychologist, who found that the defendant ‘was about four years
behind his peer group in multiple capacities.’
126
Among these capacities was
poor impulse control, which closely resembles one of the reasons for
lessened culpability of the intellectually disabled and the ineffectiveness of
the death penalty’s deterrent properties in Atkins.
127
Bredhold was also
unable to regulate his emotions and ‘develop mutually gratifying social
relationships’, and had not developed ‘a consistent identity or sense of self’,
just as the US Supreme Court saw in juveniles generally when compared to
adults in Roper.
128
Furthermore, the Kentucky trial court noted that eighteen to twenty-
one-year-olds were not being executed, showing a shift in the US national
consensus about the death penalty’s acceptability for such offenders.
129
The
court claimed that only nine states out of the thirty-one with the death
penalty were executing individuals who were eighteen or older but younger
than twenty-one at the time of their offence.
130
It also claimed that there were
states that had never executed anyone younger than twenty-one (Montana
and Wyoming) while other states had not done so in fifteen years (Utah,
Idaho, and Kentucky).
131
Perhaps most influentially, the Kentucky trial court also referenced
numerous studies on neuroscience that showed a stronger understanding of
when the brain matures beyond what is considered juvenile; that is, beyond
age eighteen and into the early twenties.
132
This age group may be known as
late adolescence or young adulthood and can last from eighteen to twenty-
four years of age from a developmental standpoint.
133
The court examined
psychological evidence that demonstrated the need for thrill-seeking and
peer acceptance among young adults.
134
This evidence also pointed to their
inability ‘to exercise self-control, to properly consider the risks and rewards
of alternative courses of action, and to resist coercive pressure from
126
ibid 3.
127
Atkins v Virginia (n 5) 320; Bredhold Order (n 122) 3.
128
Roper (n 9) 570; Bredhold Order (n 122) 3.
129
Bredhold Order (n 122) 4.
130
ibid.
131
ibid 3.
132
ibid 6-11.
133
K Teipel, ‘Developmental Tasks and Attributes of Late Adolescence/Young Adulthood’
(State Adolescent Health Resource Center, Konopka Institute, University of Minnesota).
20AYADevelopment%20LateAdolescentYoungAdulthood.pdf> accessed 17 February 2019.
134
Bredhold Order (n 122) 7.
Trinity College Law Review [Vol 22
116
others.’
135
Two recent studies estimated ‘the peak age for risky decision-
making to be between nineteen and twenty-one.’
136
In terms of
neurobiological developments, the court highlighted the myelination
process and its impact on the self-regulation and impulse control of young
adults.
137
Thus, the court ultimately reasoned that an eighteen-and-five-month-
old offender could have relatively the same maturation as a sixteen- or
seventeen-year-old.
138
Due to the strict cut-off in Roper, however, the
psychologically immature eighteen-and-five-month-old could be executed
whereas the sixteen- or seventeen-year-old could not.
139
The pitfalls of an
arbitrary, bright-line distinction closely track that of Hall, where Freddie
Hall faced death ‘because he scored a 71 instead of 70 on an IQ test.’
140
Commonwealth v Diaz, another Kentucky state trial court case that
mirrors the Bredhold case and features the same scientific research, was
decided merely a month after the latter case.
141
The defendant, Efrain Diaz,
was indicted on several crimes, including murder.
142
He was eighteen and
seven months old when he committed his offences.
143
The trial court found
that Diaz lacked the culpability deserving of the death penalty because of
the same ‘maturational imbalance’ it had found for Bredhold.
144
The trial
court also reiterated that ‘Kentucky’s death penalty statute is
unconstitutional insofar as it permits capital punishment for offenders under
twenty-one at the time of their offense.’
145
The effect of the Diaz and Bredhold cases has expanded within the US
beyond the borders of Kentucky, potentially demonstrating a growing
consensus toward officially banning the use of the death penalty for those
younger than twenty-one at the time of their offence. In September 2017, in
a case from the state of Ohio, the defendant, Gary Wayne Otte, had sought
a declaratory judgment that ‘based on the Eighth and Fourteenth
Amendments’ evolving standards of decency’ the death penalty was not
135
ibid 8.
136
ibid.
137
ibid 9-10. See also Ortiz (n 102).
138
ibid 11.
139
Roper (n 9) 578.
140
Hall (n 42) 724.
141
Diaz Order (n 122) 2-10. See also ‘Juveniles and the Death Penalty’ (Death Penalty
Information Center) info.org/juveniles-and-death-penalty> accessed 17
February 2019.
142
Diaz Order (n 122) 2.
143
ibid.
144
ibid 10. See also Bredhold Order (n 122) 11.
145
Diaz Order (n 122) 11.
2019] Two Sides of the Same Coin
117
applicable ‘for any offender who committed his capital crime before turning
age twenty-one.’
146
Otte’s claim relied heavily on the Bredhold decision in
Kentucky from the previous month.
147
Otte had killed two individuals during
two separate robberies when he was approximately twenty years and two
months old, for which he received the death penalty.
148
Thus, his age put him
a couple of years removed from the ages of Diaz and Brenhold when they
committed their capital offences.
149
The Ohio state trial court dismissed Otte’s claim on procedural
grounds, and the Ohio State Appellate Court upheld that dismissal.
150
The
State Appellate Court acknowledged a recent federal Sixth Circuit case, In
Re Phillips,
151
that unsuccessfully addressed the constitutionality of the
death penalty for those under twenty-one years of age when they committed
their offence.
152
The Sixth Circuit found that ‘no authority exists at the
present time supportingthe claim of the defendant, who was nineteen when
he committed his capital offence.
153
The Phillips case, however, was decided
on July 20, 2017, a month before the Bredhold case’s order.
154
Conversely,
Judge Tim McCormack, writing a concurring opinion in Otte, recognised
the compelling nature of brain development evidence as presented in
Bredhold.
155
He recommended staying the executions of those under the age
of twenty-one at the time of their capital offences, at least until Ohio
Supreme Court finished its review of the issue.
156
Individual American states are also starting to amend their statutes on
when a minor may be tried as an adult.
157
In 2014, ten states permitted trying
juveniles as adults and of these ten states, seven (Georgia, Louisiana,
Missouri, New Hampshire, North Carolina, South Carolina, and Texas) have
the death penalty.
158
New York and North Carolina tried those aged sixteen
or older as an adult. Those seventeen and older were tried as an adult in the
146
Otte v State 96 N E 3d 1288 (Ohio Ct App 12 September 2017) 1290.
147
ibid 1291, 1292.
148
State v Otte No. 64617 1994 WL 590556 (Ohio Ct App 27 October 1994) *1.
149
ibid. See also Diaz Order (n 122) 2; Brenhold Order (n 122) 2.
150
Otte v State (n 146) 1293.
151
No. 17-3729 2017 WL 4541664 (6th Cir 20 July 2017).
152
ibid *2.
153
ibid *2, 3.
154
See Otte v State (n 146); Phillips (n 151).
155
Otte v State (n 146) 1294 (McCormack J concurring).
156
ibid.
157
‘Looking Back’ (Campaign for Youth Justice, 5 January 2017)
ustice.org/news/blog/item/looking-back> accessed 17 February 2019.
158
Sarah Hockenberry and Charles Puzzanchera (n 13) 103. ‘States With and Without the Death
Penalty’ (Death Penalty Information Center, 11 October 2018)
org/states-and-without-death-penalty> accessed 17 February 2019.
Trinity College Law Review [Vol 22
118
following eight states: Georgia, Louisiana, Michigan, Missouri, New
Hampshire, South Carolina, Texas, and Wisconsin.
159
Then, in 2016, the tides began to change.
160
Louisiana and South
Carolina both raised their age of jurisdiction in the adult courts to eighteen,
while Michigan, North Carolina, and New York made significant strides
toward doing so.
161
When Louisiana commissioned a study on the impact of
raising their age from seventeen to eighteen, one of the significant findings
that they uncovered was that ‘seventeen-year-olds are developmentally
different than adults and should be treated as such.’
162
This outcome buoys
what the Supreme Court held to be true in Roper that youths are less
culpable than adults because of their different levels of maturity.
163
Rather
than merely seeing these changing statutes as evidence of states responding
to Roper more than a decade later, however, these statutes could be an
encouraging sign that states are recognising the need to use developmental
evidence in their decision-making outside of the Roper context.
164
Furthermore, because Roper did not require states to abandon the practice
of trying minors as adults but instead only precluded states from executing
offenders for capital offences they committed as minors, these state trends
are self-initiating and thus even more promising.
165
In terms of
demonstrating US society’s evolving standards, there is a limit to the trend,
however; four states have attempted to raise the age of juvenile status to
include those up to age twenty-one but not one state has yet to succeed.
166
The states that have attempted to raise the age of juvenile jurisdiction
159
ibid.
160
‘Looking Back’ (n 157). Notably, though New Hampshire and Wyoming retain the death
penalty, these states each have only one inmate on death row as of April 1, 2018. ‘Facts
About the Death Penalty’ (Death Penalty Information Center, 11 February 2019)
hpenaltyinfo.org/documents/FactSheet.pdf> accessed 17 February 2019. New Hampshire has
not executed anyone since 1976 and Wyoming has executed only one person since then. ibid.
161
‘Looking Back’ (n 157).
162
‘Promising Findings of Louisiana Raise the Age Study’ (Campaign for Youth Justice, 18
March 2016)
louisiana-raise-the-age-study> accessed 17 February 2019.
163
Roper (n 9) 569-70.
164
‘Promising Findings of Louisiana Raise the Age Study’ (n 162).
165
Roper (n 9) 578.
166
An Act Relative to Criminal Justice Reform 2018, ch 69, s 221(a) (Massachusetts). See also
Sarah Childress, ‘More States Consider Raising the Age for Juvenile Crime’(Frontline, 2 June
2016)
juvenile-crime/> accessed 17 February 2019.
2019] Two Sides of the Same Coin
119
through twenty years are Connecticut, Illinois, Massachusetts, and
Vermont.
167
Interestingly, these states do not have the death penalty.
168
State legislatures that maintain the death penalty can go a step further
and evaluate young adult offenders’ brain development as was done in
Kentucky in Commonwealth v Bredhold to better determine an offender’s
ability to understand the weight and consequences of his or her actions in
capital cases.
169
Such evaluations should be performed at least for offenders
who commit a capital offence before their twenty-first birthday, in order to
determine whether such an offender should properly be considered an adult
for purposes of the death penalty.
170
As an added safeguard, mitigating
evidence should be allowed of immature brain development and the
presence of grey matter at any age under any circumstance.
C) The Potential Influence of Graham v Florida
Though the US Supreme Court has not revisited its age cut-off in Roper, it
had occasion to re-examine the criminal culpability of juveniles under the
Eighth Amendment in 2010.
171
In Graham v Florida, the Supreme Court
addressed the issue of ‘whether the Constitution permits a juvenile offender
to be sentenced to life in prison without parole for a non-homicide case.’
172
The defendant, Terrance Jamar Graham, committed felonies as a sixteen-
and seventeen-year-old, including crimes while he was on probation.
173
He
received a life sentence without parole for an armed robbery that he
committed ‘thirty-four days short of his eighteenth birthday.’
174
Graham’s
case seems to represent the susceptibility to peer pressure and inability to
make smart decisions that the Supreme Court in Roper acknowledged as
being common in teenagers.
175
The question in this case arose under the Eighth Amendment, forcing
the Supreme Court to review its evolving standards of decency.
176
The Court
relied on its reasoning in Atkins and Roper as these decisions were also ones
167
Childress (n 166).
168
‘States With and Without the Death Penalty’ (n 158).
169
Bredhold Order (n 122) 3.
170
Whitson (n 101) 1.
171
Graham (n 119) 58. The decision was six to three with Justices Kennedy, Stevens, Ginsburg,
Breyer, and Sotomayor and Chief Justice Roberts for the majority and Justices Thomas, Alito,
and Scalia for the dissent. ibid 51.
172
ibid 53.
173
ibid 53-55.
174
ibid 55, 57.
175
Roper (n 9) 569-70.
176
Graham (n 119) 58.
Trinity College Law Review [Vol 22
120
of categorical exclusions under the death penalty.
177
In each of these cases,
the Court evaluated the shifting winds of state legislative mandates that
allowed the use of the death penalty against the intellectually disabled and
juveniles. In Graham, however, the Court seemed to be bucking its usual
approach, as the trend was overwhelmingly against Terrance Graham’s
claim seeking relief based on his age and against the Court’s ultimate
holding.
178
The Court noted that six states ‘do not allow life without parole
sentences for any juvenile offenders’ while seven ‘permit life without parole
for juvenile offenders, but only for homicide crimes.’
179
At the time of the
Court’s decision, ‘thirty-seven States as well as the District of Columbia
permit[ted] sentences of life without parole for a juvenile non-homicide
offender in some circumstances’ while ‘Federal law also allow[ed] for the
possibility of life without parole for offenders as young as thirteen.
180
Instead of relying on raw numbers, the Court focused on how states enforced
the applicable statue.
181
Only 123 juveniles nationwide were serving
sentences of life without parole for a non-homicide offence.
182
Furthermore,
only eleven states were carrying out the sentences of such individuals.
183
This approach could justify halting the executions of those who were
younger than twenty-one when they committed their offence.
184
Of the 772
persons over eighteen executed in the United States between January 1, 2000
and July 1, 2014, only 137 (17.7 per cent) were eighteen, nineteen, or twenty
when they committed their capital offence
185
In the six years before Roper,
an average of 9.83 persons eighteen through twenty were executed whereas
after Roper that average dropped to 9.18.
186
This decrease could show a
changing national consensus.
Furthermore, when re-examining the culpability of juveniles in
Graham, the Supreme Court may have hinted that it left open a window for
reconsidering Roper.
187
Though the Court acknowledged that ‘[n]o recent
data provide reason to reconsider (its) observations in Roper about the nature
of juveniles,’ it also pointed out that ‘developments in psychology and brain
science continue to show fundamental differences between juvenile and
177
ibid 61-62.
178
ibid 62.
179
ibid.
180
ibid.
181
ibid 64.
182
ibid.
183
ibid.
184
Whitson (n 101) 2.
185
ibid.
186
ibid 3.
187
Graham (n 119) 68.
2019] Two Sides of the Same Coin
121
adult minds,’ including that ‘parts of the brain involved in [behaviour]
control continue to mature through late adolescence.’
188
That the Court
continues to weigh recent and advancing clinical knowledge in the context
of juvenile death penalty jurisprudence, paying particular attention to the
‘late adolescent’ phase beyond the age of eighteen provides some credence
for pushing the Court toward expanding its Roper ruling.
189
Given the
aforementioned state legislative attempts to raise the juvenile age ceiling in
criminal cases broadly and the Supreme Court’s reliance on state-based
responses, the time is now to reform Roper and bring it in line with the
Atkins, Hall, and Moore decisions on intellectual disability determinations.
Conclusion
Under current US jurisprudence, when deciding whether to execute an
individual, an arbitrary age cut-off is permissible, but a potentially arbitrary
IQ cut-off is not. For the intellectually disabled, the disability is present
when that person is still considered a juvenile, though the disability will
affect that person for his entire life. In stark contrast to the juvenile and his
inherent immaturity, the person with an intellectual disability will not ‘grow
into’ full-fledged culpability and is unlikely to develop what US society
considers adequate reasoning and impulse control functions to justify
applying the harshest of criminal penalties.
In order to appropriately consider individual culpability and uphold
the US constitutional value of proportional punishment under the Eighth
Amendment, the American legal system should evolve beyond the arbitrary
age cut-off at eighteen for juveniles. First, the US Supreme Court should
revisit its holding in Roper v Simmons and raise the age of juvenile offender
status to better ensure that fewer immature, irrational, and neurologically
underdeveloped offenders who are capable of deterrence and rehabilitation
are executed. Though an age cut-off remains arbitrary to some degree, a
more informed cap that falls in line with other caps throughout American
society, such as age twenty-one, ultimately creates a more decent and just
system. To further combat the arbitrary cut-off, the US legal system should
borrow from the intellectual disability line of cases, taking its
counterbalancing approach to IQ cut-offs and applying that approach to the
juvenile line of cases. This application would create a juvenility defence that
incorporates evidence of a not yet fully developed brain at the time of the
offence and could be employed irrespective of the offender’s age.
188
ibid 68.
189
ibid; Teipel (n 133).
Trinity College Law Review [Vol 22
122
Ultimately, US society does not satisfactorily reflect its ‘evolving standards
of decency’ if it executes young persons who, based on neurological
functioning, are capable of reform and deterrence.

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