Kentucky court considers whether to raise death penalty age

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FRANKFORT, Ky. (AP) — Kentucky’s Supreme Court delved into a case Thursday revolving around whether the death penalty should apply to defendants who committed their crimes between the ages of 18 and 21.

The case reached the high court after a lower court judge ruled that applying the death penalty to such defendants amounts to an “unconstitutionally disproportionate punishment.”

During arguments in Somerset, Kentucky, Assistant Attorney General Matthew Krygiel urged the Supreme Court to overturn the 2017 ruling by Fayette County Circuit Judge Ernesto Scorsone.

“There’s nothing in any other area of society or case law or anyplace else that says, ‘OK, let’s pluck those people out and make them ineligible for the death penalty,'” Krygiel said.

In 2005, the U.S. Supreme Court abolished capital punishment for juvenile offenders, ruling it is unconstitutional to sentence anyone to death for a crime committed while younger than 18.

Advances in studying the human brain since 2005 make it appropriate to examine whether the death penalty ban should apply to people committing offenses between 18 and 21, Timothy Arnold, an attorney with Kentucky’s Department of Public Advocacy, said Thursday. There’s now a “completely different understanding of the science” regarding people in that age group being more likely to engage in risky behavior and lack proper control over those impulses, he said.

“In 2005 we thought the problem with juvenile misbehavior was simply that the brakes were defective,” Arnold told the Kentucky justices. “And now we know they have their foot on the gas, and they are flooring it between the ages of 18 and 20.”

Arnold, director of the department’s post-trial division, argued that the lower court ruling should be upheld.
Krygiel acknowledged that the science has evolved regarding brain development.

“All of that stuff is very interesting,” he said. “But none of it is extrapolated out to figure out, well what does that mean for a criminal defendant? And do we want to now exempt every 18- to 20-year-old when they might be just as culpable” as someone older?

Both attorneys fielded a series of questions from the justices. Justice David C. Buckingham referenced the U.S. Supreme Court ruling as he questioned Arnold.

“The Supreme Court, it seems to me, has set the line, a bright line, at 18,” he said. “And for this court to change that to 21, wouldn’t it be overruling precedent or wouldn’t it be acting contrary to the precedent of the U.S. Supreme Court?”

Scorsone’s ruling that declared the death penalty unconstitutional for offenders between 18 and 21 at the time of their crimes came in the case of a man charged in the fatal shooting of a gas station attendant in Lexington. The defendant was 18 when the murder occurred.

The ruling also affected two defendants charged in the death of a University of Kentucky student. Those defendants were 20 and 18 at the time of the separate slaying, also in Lexington.

Both cases have been on hold while prosecutors appealed Scorsone’s decision.

It could take several months for the Supreme Court to rule.

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(This story was originally published on September 19, 2019)

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