Constitutionality of Age-Eligibility for Capital Punishment Cannot Be Challenged Prior to Conviction
In Commonwealth v. Bredhold, 599 SW.3d 409 (Ky. 2020), the Supreme Court of Kentucky vacated and remanded a trial court order that raised the age for death-penalty eligibility to 21. The appellees successfully persuaded the lower court that the evolving standards of decency in decisions on the Eighth Amendment precluded the death penalty for those who committed offenses between the ages of 18 and 21. The state supreme court ruled that, as none of the appellees had been convicted, there was no standing to hear the challenge.
Facts of the Case
This case consolidated three related cases. The Commonwealth gave notice of intent to seek the death penalty for all three cases. The first case was that of Travis Bredhold, who was indicted on counts of murder, first-degree robbery, theft, trafficking less than eight ounces of marijuana, and carrying a concealed weapon. On December 17, 2013, when Mr. Bredhold was eighteen years and five months old, he allegedly robbed a gas station and fatally shot a gas-station employee. In anticipation of the trial, Dr. Ken Benedict, a clinical psychologist and neuropsychologist, evaluated Mr. Bredhold. He found “Bredhold was about four years behind his peer group in multiple capacities, including the capacity to regulate his emotions and behavior, and that he suffered from a number of mental disorders” (Bredhold, p 413).
The second and third cases involved Justin Smith and Efrain Diaz, Jr., co-defendants who allegedly robbed and fatally shot Jonathan Krueger on April 17, 2015. They were each indicted and charged with one count of murder and two counts of first-degree robbery. Mr. Smith was eighteen years and five months old at the time of the alleged offense, whereas Mr. Diaz, Jr., was twenty years and seven months old at the time of the alleged offense. Dr. Benedict evaluated Mr. Smith and concluded that Mr. Smith's “executive functions related to planning, anticipating the consequences of his actions, and impulse control are below those of an adult and he too exhibited a number of mental disorders” (Bredhold, p 413). The trial court called an evidentiary hearing for Mr. Diaz and Mr. Smith, during which Dr. Laurence Steinberg, an expert in adolescent development, testified to current research on brain development. The court supplemented Mr. Bredhold's record with Dr. Steinberg's testimony as well.
The appellees moved the court to exclude the death penalty as a sentencing option. They asked the court to extend the holding in Roper v. Simmons, 543 U.S. 551 (2005), to persons who commit offenses under the age of 21. Roper precludes the death penalty for persons who commit their offense under the age of 18. The trial court issued three separate orders declaring Kentucky's death penalty statute unconstitutional under the Eighth Amendment as it pertains to capital punishment for offenders under 21 years of age at the time of the offense. The court concluded that the individual psychological findings for Mr. Bredhold and Mr. Smith further supported excluding the death penalty in each of their cases.
The Commonwealth filed interlocutory appeals. Given the public importance of the matter, the appeals were transferred from the Court of Appeals directly to the Supreme Court of Kentucky.
Rules and Reasoning
The Supreme Court of Kentucky acknowledged the gravity of capital punishment decisions. The court reviewed Kentucky law, which authorizes a death sentence for persons convicted of a capital offense. The law is subject to the bounds of the Eighth and Fourteenth Amendments' probations on cruel and unusual punishment. Recognizing that standards of decency evolve, the court reviewed precedent from the U.S. Supreme Court that applied society's evolving standards of decency in their decisions about Eight Amendment applications to juveniles: Thompson v. Oklahoma, 487 U.S. 815 (1988); Stanford v. Kentucky, 492 U.S. 361 (1989); and Roper. Through this line of cases, the Court incrementally applied evolving standards of decency to proscribe execution of juveniles who commit offenses under the age of 18.
Although the court reviewed the Eighth Amendment precedent, the court stressed that none of the three cases had yet been heard by the trial court and no jury had recommended the death penalty. The court said that, with “no penalty having been imposed and the clear possibility that death would not be recommended by the jury in any of these cases” (Bredhold, p 415), it was error for the trial court to issue its ruling. Regardless of type of constitutional challenge, the person bringing the challenge must first have standing. “It follows that an appellate court does not have jurisdiction to review on its merits an interlocutory appeal arising from a [trial] court judgment in such circumstances” (Bredhold, p 416, citing Commonwealth v. Sexton, 566 S.W.3d 185, 195 (Ky. 2018)). The Kentucky Supreme Court does not have jurisdiction to adjudicate the constitutional question raised. Therefore, the trial court's orders declaring Kentucky's death penalty unconstitutional as applied to these appellees were vacated, and the cases remanded for further proceedings.
Discussion
In Bredhold, the court ruled that that the appellees did not have standing before sentencing to challenge the applicability of the death penalty to persons who commit offenses between the ages of 18 and 21.
Currently, the precedent set by Roper is that persons who commit offenses before the age of 18 may not be sentenced to death. Proponents of existing law may argue that the Roper decision confirms other legal standards that set the age of adulthood at 18. On the other side, as the appellees in Bredhold pointed out, there is increasing research and literature from the fields of neuropsychology and neurobiology on brain development. Among others, the American Psychiatric Association and the American Academy of Psychiatry and the Law joined in an amicus brief in Roper to emphasize important behavioral differences in adolescents, as a group, in comparison to older persons.
Although the court in Bredhold did not reach the issue of whether the evolving standards of decency are now such that the Eighth Amendment prohibits imposition of the death penalty on persons under age 21 at the time of their offense, courts may face this question in the future. In addition to the U.S. Supreme Court line of cases on capital punishment for juveniles, the U.S. Supreme Court has also established a line of cases on sentences of life without parole for juvenile offenders. For example, in Miller v. Alabama, 567 U.S. 460 (2012), the Court considered two cases of 14-year-old juveniles who had been convicted of murder. They were both sentenced to mandatory life sentences without parole. Under Miller, the Court ruled that the Eighth Amendment prohibits sentencing schemes that mandate life without parole in cases where a juvenile is convicted of homicide. Relying on Roper and other cases, the Court recognized that there exist developmental qualities of youth that require juveniles to be treated differently from adults in the criminal justice system. These line of cases and further scientific research about brain maturation are likely to be used in future challenges to the death penalty and life, or de facto life, sentence schemes. Further, as courts consider these cases and individual characteristics of defendants, forensic mental health professionals may have a role, like in Bredhold, of evaluating defendants and communicating to the court an evaluee's important cognitive and behavioral abilities (or deficits). In Bredhold, the evaluating psychologist concluded that the appellees had cognitive abilities below what is expected for their age, placing their cognitive functioning below the minimum age qualification for capital punishment.
Footnotes
Disclosures of financial or other potential conflicts of interest: None.
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