Brief of Amici Curiae Professional Organizations, Practitioners, and Academics in the Fields of Neuroscience, Neuropsychology, and Other Related Fields in Support of Petitioner
Alan E. Schoenfeld
Jared D. Hoffman
Simon B. Kress
Seth P. Waxman
SummaryOriginal

Summary

There is no reliable way to predict the future dangerousness of an offender who commits a violent crime while under the age of 21.

2021 | Federal Juristiction

Brief of Amici Curiae Professional Organizations, Practitioners, and Academics in the Fields of Neuroscience, Neuropsychology, and Other Related Fields in Support of Petitioner

Keywords risk-taking; impulsivity; future dangerousness under 21; transient characteristics of youth; impermanent characteristics of youth; emerging adult; brain development; adolescents
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Summary of Argument

This case presents the question whether the Eighth Amendment permits a State to predicate the death penalty on a jury determination that an 18-year- old convicted of murder “will more likely than not commit criminal acts of violence in the future so as to constitute a continuing threat to society.” The great weight of scientific evidence—much of it developed over the past 15 years—shows clearly that reliable determinations about future dangerousness cannot be made with respect to violent offenders under 21 years of age. Because the Eighth Amendment prohibits the State from executing individuals based on unreliable or arbitrary determinations, see Johnson v. Mississippi, 486 U.S. 578, 584 (1988), no sentence of death consistent with the Constitution may be predicated on a prediction of an 18-year-old’s propensity for future dangerousness.

Over the last 15 years, this Court has issued three landmark decisions that significantly altered the treatment of young people in the criminal justice system. Miller v. Alabama, 567 U.S. 460 (2012); Graham v. Florida, 560 U.S. 48 (2010); Roper v. Simmons, 543 U.S. 551 (2005). In all three decisions, the Court looked to an established scientific consensus regarding adolescent development and considered the unique attributes of youth when applying constitutional protections to juvenile offenders. As a result, the Court’s “decisions rested not only on common sense—on what ‘any parent knows’—but on science and social science as well.” Miller, 567 U.S. at 471.

Over that same 15-year period, advancements in neuroscience and brain imaging research have revealed that the unique characteristics of youth this Court identified in Roper, Graham, and Miller—immaturity, susceptibility, and changeability—persist beyond age 18. It is now well-established that a human brain continues to undergo profound changes throughout adolescence and young adulthood—a period sometimes referred to as “emerging adulthood”—in the areas and systems that are regarded as most involved in impulse control, planning, and self-regulation. Brain imaging and other novel developments in neuroscience have made visible the differences between the developing brain and the adult brain as never before, effecting a paradigm shift in the way the behavior of emerging adults is understood in the scientific community. Well-established, peer-reviewed research, as well as our collective professional experience, demonstrate that it is scientifically impossible reliably to predict the future dangerousness of an offender who commits a crime while under the age of 21.

Billy Joe Wardlow was 18 years old when he killed Carl Cole in northeast Texas in 1993. He was convicted of capital murder and sentenced to death in 1995 based on the sole aggravating factor then available in the Texas death penalty statute—whether the defendant was likely to be dangerous in the future. But Texas’s death penalty statute under which Mr. Wardlow was sentenced to death turned on a determination that can- not be made in any objectively reliable manner for offenders who commit crimes under the age of 21. In Roper, this Court observed that “[i]t is difficult even for expert[s] ... to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” 543 U.S. at 573. That was an understatement. It simply cannot be done with any technology or methodology available today to the scientific community, and it certainly could not be done in 1995 when Mr. Wardlow was sentenced to death.

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Summary of Argument

The Eighth Amendment prohibits the imposition of cruel and unusual punishment, including the death penalty based on unreliable or arbitrary factors. Recent scientific evidence demonstrates that predicting future dangerousness in violent offenders under 21 years of age is scientifically impossible.

Landmark Supreme Court Decisions on Juvenile Offenders

In recent years, the Supreme Court has recognized the unique developmental characteristics of youth in Miller v. Alabama, Graham v. Florida, and Roper v. Simmons. These decisions acknowledged the immaturity, susceptibility, and potential for change in juvenile offenders.

Advances in Neuroscience and Brain Development

Over the same period, advancements in neuroscience have revealed that the brain continues to develop significantly during adolescence and emerging adulthood. The areas responsible for impulse control, planning, and self-regulation undergo profound changes during this time.

The Impossibility of Predicting Future Dangerousness

These scientific findings have led to a consensus that it is impossible to reliably predict the future dangerousness of offenders who commit crimes under the age of 21. Brain imaging and other neuroscientific methods cannot differentiate between transient immaturity and permanent corruption in young offenders.

The Case of Billy Joe Wardlow

Billy Joe Wardlow was sentenced to death in 1995 for a murder committed at age 18. His sentence was based solely on the prediction of future dangerousness, a determination that is now scientifically recognized as unreliable for offenders of his age.

Conclusion

The Eighth Amendment prohibits the execution of individuals based on unreliable predictions. The scientific evidence overwhelmingly demonstrates that such predictions cannot be made for offenders under 21. Therefore, the death penalty should not be imposed on 18-year-old offenders based on assessments of future dangerousness.

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Summary of Argument

Recent scientific evidence shows that it's impossible to reliably predict if young offenders under 21 will be dangerous in the future. This raises questions about the constitutionality of sentencing 18-year-olds to death based on such predictions.

Youthful Brains and Criminal Behavior

Over the past 15 years, research has shown that the brains of young people continue to develop significantly until their mid-20s. This development affects areas related to impulse control, planning, and self-regulation.

Predicting Future Dangerousness

Despite advancements in brain imaging and neuroscience, it's still scientifically impossible to accurately predict the future dangerousness of offenders under 21. The characteristics of youth, such as immaturity and susceptibility to change, make these predictions unreliable.

Case of Billy Joe Wardlow

Billy Joe Wardlow was sentenced to death in 1995 at age 18 based on the prediction that he would be dangerous in the future. However, the scientific evidence now available shows that such a prediction could not have been made reliably.

Conclusion

Sentencing 18-year-olds to death based on predictions of future dangerousness is unconstitutional because it relies on unreliable and arbitrary determinations. The unique characteristics of youth and the limitations of science make it impossible to make such predictions accurately.

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Summary of Argument

Science has shown that it's impossible to know for sure if someone under 21 who commits a crime will be violent later in life. Over the past 15 years, brain scans and other research have shown that our brains are still changing a lot until we're in our early 20s. The parts of our brain that help us control our actions and think ahead aren't fully developed yet.

This means that young people are more likely to:

  • Act without thinking

  • Be influenced by others

  • Change their behavior over time

Billy Joe Wardlow was 18 when he was sentenced to death for murder. The only reason he got the death penalty was that the jury thought he would be dangerous in the future.

But science tells us that it's impossible to predict this for someone who was under 21 when they committed the crime. It's like trying to guess the weather a year from now. We just don't have the tools to do it accurately.

So, the law says that we can't sentence someone to death based on a guess about their future behavior. It's not fair or reliable.

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Summary of Argument

Scientists say even 18 year olds should not be punished with death, because our brains are still growing and changing until we're about 21. Our brains are like computers that help us make decisions and control our actions. But for people under 21, these "computers" aren't fully developed yet. That means they might make bad choices without thinking about the future.

Scientists have also learned that it's impossible to predict if someone under 21 will be dangerous in the future. It's like trying to guess if a seed will grow into a good or bad plant. We just don't know for sure. So, scientists believe that it's not fair to punish 18-year-olds with death because their brains are still growing and it's impossible to know if they'll be dangerous in the future.

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Footnotes and Citation

Cite

Brief of Amici Curiae Professional Organizations, Practitioners, and Academics in the Fields of Neuroscience, Neuropsychology, and Other Related Fields in Support of Petitioner, Wardlow v. Texas, No. 19-8712 (U.S. 2020).

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