I. INTRODUCTION

You didn’t mean for him to die. You told him to stay on the ground. It was such a simple plan to get in and get out. But no! He had to be a hero. He had to mess everything up. Everything was just so messed up that night. And it was all Lois’ fault. Not that Jed cared. Not that anyone cared. It was her idea to steal his cocaine! She was the one who drugged him! She was the one who snorted nearly all of it away. She got you into this, and she just let you take the fall. But can you blame her? Jed’s not himself when he’s on a rampage.

You think back to the moment you returned to Jed’s house. Jed’s shack, really. The place you’ve been staying for a few months since your mom disappeared into heroin again. Would you be here if your dad was still alive, you wonder. Probably. He was just as much of a deadbeat as he chased booze and loan sharks chased him. You walk inside because where else do you have to go at 17. Jed’s waiting; pacing back and forth screaming incoherently.

You still get nauseous as you remember hearing the plate shatter into pieces against the wall behind your head. You can still feel the heat and anger behind Jed’s voice as he slammed you against the wall. As he screams, you can smell the burnt toast on his breath. You feel the scar that formed on the bottom of your foot from slicing it on the glass shards. But it’s his eyes that keep you up at night. They were like a wild animal, a predator. And you, you were the prey.

He wanted his money, and that’s what you were trying to do. Get in. Get the cash. Get out. God – Why couldn’t that man have just stayed down? How were you supposed to know he was a war hero and “Teacher of the Year.” How could you know he would charge you? Or that you two would fight over the gun. Or that it would go off. Now he’s dead, and you sit here day in and day out, waiting for them to shove the needle in your arm. It’s funny, you think in a sad sort of way, how you were destined to die the moment Lois stole that cocaine. Either by the government or by Jed himself.¹

This hypothetical is representative of numerous cases where emerging adults find themselves in situations resulting in capital punishment convictions. Emerging adults encompasses “individuals transitioning from youth to adulthood, from age 18 to 25.”² Psychologist Jeffrey Arnett coined the phrase in 2000.³ Since then, research has demonstrated that there is “no magic birthday that transforms a youth into an adult.”⁴ The science shows, rather, that it is a process that occurs over a period longer than researchers previously understood.⁵ Because there is no national consensus on capital punishment implementation, it is vital to incorporate science into the legal analysis and ratification of law since this is truly life or death.

Billy Joe Wardlow was one such emerging adult who “was just 18 years old, when he killed 82-year-old Carl Cole during a botched attempt to steal Cole’s car[.]”⁶ Wardlow attempted to steal the car so that he and his girlfriend could run away to Montana. Both residents of Carson, Texas, Wardlow and his girlfriend also shared in coming from extensively abusive homes.⁷ Wardlow was described as a “troubled teen of a brutally abusive mother” and frequently attempted suicide.⁸ Even when in custody for Cole’s murder, Wardlow attempted suicide three times.⁹

The difference between the hypothetical and Wardlow is a mere 12 months, potentially even less. Current law now holds that capital punishment is cruel and unusual punishment for those under the age of 18. Anyone who was previously sentenced to death, while under 18, received an immediate mitigated sentence to life without parole.¹⁰ Therefore, the individual in the hypothetical would receive this new sentence. Anyone under 18, then, can no longer be sentenced to death. But what does this system say to those who are 18 by a matter of weeks, days, or even hours when their crime results in a capital punishment case. Is there truly a cognitive cut-off at 18 where an emerging adult is now a full-fledged adult? This Note will explain, as will common sense, that this is not the case.¹¹

What the hypothetical and Wardlow have in common are mitigating factors of abuse and neglect. Each of these is but an example of what social scientists have coined as Adverse Childhood Experiences (“ACEs”). Social science and the American Psychological Association (“APA”) explain that ACEs can directly impair the cognitive development of adolescents and emerging adults. This means that an individual who suffers from one or more ACEs, is over the age of 17, and commits an act that qualifies for capital punishment, is working on a level of maturity and cognitive development younger than peers their age who do not. For example, in Wardlow’s case, his childhood abuse left him at a cognitive age below 18.¹²

Therefore, we are left with the ultimate question of when to establish the cut-off if 18 does not make logical or scientific sense, especially for those who are ACE-impacted. Must we be burdened by societal consensus that 18 marks the beginning of adulthood?¹³ Ultimately, can the law turn to science to answer this question? The answer is yes it can. We can,and more importantly, we should. And yet, when it matters most, the data is ignored. For example, the Supreme Court distastefully chose to ignore the amicus brief filed for Billy Joe Wardlow. His execution on July 8th, 2020, was a direct result of their inaction.¹⁴

In Part II, I will lay out the pertinent background information surrounding capital punishment crimes. This section will identify the governing statutes for death penalty trial evidence and define key terms of the statute, such as aggravating and mitigating factors. Part II will also discuss key cognitive and psychological terms as it serves as a historical walkthrough of the five seminal cases stemming from 1976 to 2012. Part III will begin the transition from case law to cognitive development and secondary source material by parsing out judicial, statutory, and, more importantly, scientific trends. Mental health and cognitive development concepts found in Part III will present the building blocks for Part IV, where the blend of all legal and cognitive principles together look to bridge capital punishment narratives with mental health mitigation, ACEs, and age-appropriate alternatives to emerging adult justice. Finally, conclusory thoughts will be found in Part V.

II. THE UNITED STATES CODE STATES THE THRESHOLD FOR CAPITAL PUNISHMENT WHILE CEMENTING IRREFUTABLE DEFENSE RIGHTS THROUGH MITIGATION

A. Capital Punishment Parameters are Established in the United States Code

Section 3593(c) of the United States Code (“Code”) became effective in November of 2002 for the purpose of addressing the proof needed to mitigate or aggravate death penalty sentencing.¹⁵ In pertinent part, the Code states that “information may be presented as to any matter relevant to the sentence, including any mitigating or aggravating factor.”¹⁶ With the Federal Rules of Evidence in mind, this information may be excluded by a court if the information’s “probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.”¹⁷

With this capability to have discretion over what to exclude, there has been a double standard set by courts to allow aggravating factors while barring mitigating factors. Barred mitigation evidence routinely stems from impressionability evidence. Impressionability is defined as “easily impressed or influenced; susceptible.”¹⁸ In its unconjugated form, impress means “to affect deeply or strongly in mind or feelings; influence in opinion … [and to urge something be done].”¹⁹ Later, the distinction between the different burdens of proof attached to aggravating versus mitigating factors will be crucial in understanding the significance behind excluding evidence of impressionability. This is particularly the case when high impressionability results from ACEs.

Despite a lower court’s ability to exclude mitigation evidence, there is a pattern of Supreme Court dissenting opinions that capital punishment cases are “special,” requiring the standard admissibility test to be unique to the present case.²⁰ The Code not only creates a unique version of the admissibility test for evidence, but also “tips the balance in favor of admitting mitigating evidence” despite the possibility of confusing the issues.²¹ Here, the alleged concern arises when a defendant becomes mentally/intellectually adverse to impressionability. Specifically asking at what age does one leave youth behind and enter adulthood.

This Note argues that 25 years of age is the scientifically demonstrated cognitive developmental cap. Understandably, the counterargument questions if moving the threshold from age 18 to 25 is (1) necessary and (2) realistic, but also (3) whether the threshold will only continuously be pushed back once changed.²² However, both legal and biophysical development are clear that when ACEs are present in mitigation, capital punishment is cruel and unusual punishment.²³

B. Subsections of the Code Create Not only Create a Distinction Between Warrantable Capital Punishment Crimes, but also a Strong Basis for Defense Through Mitigation

Capital punishment is reserved for crimes such as treason, espionage, or more commonly, murder.²⁴ The death penalty sections of the Code also describe what and when to use aggravating and mitigation factors.²⁵ Under § 3592, mitigating factors could come from (1) impaired capacity, (2) duress, (3) minor participation, (4) equally culpable defendants, (5) the lack of a prior criminal record, (6) severe mental or emotional disturbance, (7) the victim’s consent in the underlying criminal activity, or (8) a series of other factors such as the defendant’s childhood.²⁶ While there are numerous aggravating factors, the most common one is death during the commission of another crime.²⁷ Prior conduct of the defendant and vulnerability of the victim are two other commonly referenced aggravating factors supporting death penalty implementation.²⁸

However, § 3593 lays out a very crucial step in requiring a “special hearing to determine whether a sentence of death is justified.”²⁹ Under this statute, the government must provide notice to the defendant prior to the trial or an acceptance of a plea that the government is justified to seek a sentence of death based on the circumstances of the offense.³⁰ They must subsequently support their findings through an analysis of aggravating factors in the defendant’s case. If the defendant is found or pleads guilty pursuant to § 3591, then the sentencing hearing is scheduled to occur before the court of a jury.³¹

During the sentencing hearing, both the prosecution and the defense have an opportunity to argue aggravating or mitigating factors, respectively. Section 3593(c) presents one of the strongest distinctions for each party. Under the statute, it is the burden of the prosecution to prove any aggravating factor exists such that it can be established beyond a reasonable doubt. Contrarily, the defense has the burden of establishing a mitigating factor exists such that it can be proven by a preponderance of the information.³² This distinction matters because there is a vastly different burden presented on the prosecution versus the defense. The prosecution must prove beyond a reasonable doubt that the aggravating factor not only exists but is properly being applied in the case. On the other hand, mitigation evidence “simply” needs to be more likely than not that the mitigating factor, like an ACE, exists and applies.³³ To establish evidence under the preponderance of the information standard, counsel need only demonstrate that it is more likely than not that “X” occurred.³⁴ This would present at least a 51% likelihood. Whereas evidence under the beyond a reasonable doubt standard contains a likelihood threshold of at least 90% or higher.³⁵

It is then up to the court or jury to perform a balancing test to determine whether the aggravating evidence outweigh the mitigating evidence. Should a defendant be sentenced to death, the defendant can appeal the sentence.³⁶ During review, the appellate court will examine the evidence submitted at trial, the information presented at sentencing, the “procedures employed in the sentencing hearing,” and any special findings.³⁷

C. Historical Application of the Code by the U.S. Supreme Court from 1972- Present Day Presents Shifting Perspectives Based on Temporal Standards of Decency

Gregg v. Georgia (“Gregg”) is the first case that reintroduced the constitutionality of capital punishment in 1976.³⁸ The Gregg court responded to the 1972 holding in Furman v. Georgia (“Furman”) that capital punishment constituted cruel and unusual punishment under the Eighth Amendment.³⁹ Furman was distinguished from Gregg as the Supreme Court reasoned capital punishment is constitutional under the new statutes which differed from those during the “Furman era.” To expand this distinction, the Court looked to the framer’s intent and the standards of decency in modern society to ascertain if capital punishment was excessive. The Court held that no, capital punishment was not excessive since it did not inflict unnecessary pain that was grossly disproportional to the severity of the crime.⁴⁰

Under the new Georgia statute, the scope of criminal activity open to the death penalty was significantly narrowed and mandated an appeal to the state supreme court.⁴¹ The most significant alteration, though, was directed at the proceedings. Now, a jury must find the defendant guilty before holding a separate hearing for sentencing.⁴² Therefore, this new rendition of a capital punishment statute with specific sentencing guidelines was not in violation of the Eighth Amendment nor cruel and unusual punishment. Ultimately, Georgia gifted a boilerplate statute to other states for re-introduction of capital punishment.⁴³

In Atkins v. Virginia (“Atkins”), the Court continued to refine the death penalty by excluding those who were intellectually disabled.⁴⁴ To allow otherwise was held as cruel and usual punishment. There, the Court explained that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”⁴⁵ Similarly, in Roper v. Simmons (“Roper”), the Court extends Atkins’ holding to juveniles under the age of 18.⁴⁶ This ruling was so groundbreaking that 72 other death sentences were also immediately mitigated from death to life without parole.⁴⁷ Roper would have also mitigated the hypothetical individual in Part I off of death row down to life without parole.⁴⁸ In Roper, the Court analyzed the frequency of such sentences in the U.S., how juveniles age out of criminal behaviors, that life without parole is usually reserved for murder, and that only a handful of countries authorize this type of sentence for juveniles who commit nonhomicide crimes.⁴⁹ The Court held that “[t]he qualities that distinguish youth from adults do not disappear when an individual turns 18.”⁵⁰

More specifically, the Court based their change in policy on “three general differences between juveniles under 18 and adults.”⁵¹ First, juveniles lack maturity and have an “underdeveloped sense of responsibility,” which results in poor and impulsive decision-making.⁵² Secondly, juveniles are strongly impressionable.⁵³ And thirdly, a juvenile’s character is not “well formed” like an adult’s.⁵⁴ If youthfulness does not disappear at age 18, then what justifications exist for capital punishment sentences for society’s emerging adult population?

Fundamentally, case law presents two justifications for the death penalty: retribution and deterrence. Yet, both are insufficient when looking at the populations affected by the Atkins and Roper decisions. Retribution is a theory of criminal law where the “extent of th[e] punishment is supposed to fit the crime.”⁵⁵ Contrary to revenge, retribution expects the offender to give up something in return for their offense; usually their freedom for a prison cell.⁵⁶ Under Atkins and Roper, these offenders’ qualities and attributes make them less morally culpable.⁵⁷ Deterrence is a theory of choice. It analyzes the benefits versus cost paradigm that individuals consider before committing a crime.⁵⁸ This justification seeks prevention through the threat of punishment.⁵⁹ As with retribution, precedent shows that intellectually disabled individuals and youth under 18 are offenders who are less able to rationally consider the death penalty. Since both justifications fail to hold either population culpable, neither can be relied upon to support capital punishment implementation.⁶⁰ The Atkins Court articulated that “those with less retributive or deterrent strings are more likely to be coerced into false confessions, less able to show mitigation, and less able to assist in their own defense in a significant manner.”⁶¹

Roper is regularly referenced as the most crucial case in relation to capital punishment, yet Miller v. Alabama (“Miller”) encompasses the takeaway from Roper while expanding on it in a profound way.⁶² The issue in Miller is whether mandatory life-without-parole sentences for individuals (1) convicted of murder and (2) were under 18 at the time of the crime constituted cruel and unusual punishment. Justice Kagan, writing for the Majority, relied on retribution to explain that the Eighth Amendment precedent requires the punishment be proportionate to the crime.⁶³ The Court discussed five (5) factors that have become known as the “Miller Factors.”

These include: (1) chronological age and immaturity, impetuosity, and the failure to appreciate risks and consequences; (2) the offender’s family and home environment; (3) circumstances of the offense, including the extent of participation in the criminal conduct and the effect of familial and peer pressures; (4) the effect of the offender’s youth on the criminal-justice process, such as the offender’s inability to comprehend a plea bargain; and (5) the possibility of rehabilitation.⁶⁴ (emphasis added).

While citing Roper and Graham,⁶⁵ the Court further explained that juvenile offenders are not only less morally culpable than adults, but are more susceptible to pressure from negative influences,⁶⁶ are often more impulsive, do not have defined character traits, and have not fully developed cognitively.⁶⁷ The Court described the character traits of emerging adults as “transient by nature.”⁶⁸ Additionally, in 2011, the Court explained that “[y]outh often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them.”⁶⁹ Current trends across the United States reflect more rehabilitative spaces based on these Court findings.⁷⁰ States like Georgia, Michigan, South Carolina, and the District of Columbia have redefined “youthful offender” to include emerging adults up to 24 years of age.⁷¹

III. MENTAL HEALTH AND COGNITIVE DEVELOPMENT PAVE THE WAY TO CAPITAL PUNISHMENT RELIEF

A. The ACE Paradigm: From Biopsychosocial Development to the Death Penalty

Miller is so important because the holding plainly laid out that juveniles do have diminished culpability and that the Court is willing to accept this as fact. The Court also reasoned that juveniles should be treated differently with respect to strong sentences such as life without parole or capital punishment.⁷² Here, the Court‘s analysis was tied to the lower court’s incorrect dismissal of ACEs in connection to sentencing proceedings.⁷³

Similarly, Tennessee’s state supreme court recently relied on this precedent when striking down Tennessee’s automatic life sentence legislation on November 18, 2022.⁷⁴ The legislation was designed to significantly hinder parole eligibility until prisoners served fifty-one years of incarceration.⁷⁵ However, the Justices’ analysis found the parole preventive nature of the law constituted cruel and unusual punishment for “juvenile homicide offenders.”⁷⁶ Contemporary standards of decency, the retributive nature at stake, and “whether the sentence [went] beyond what is necessary to accomplish ‘legitimate penological objectives’” were key factors that the court looked to.⁷⁷

Yet, the instrumental factor was recognizing that under this legislation, Tennessee would have the strongest punishment for youthful homicide offenders in the entire country.⁷⁸ Neighboring states permitted parole eligibility between 15 and 30 years, depending on the state.⁷⁹ Meanwhile Tennessee prisoners would be subject to waiting nearly twice as long.⁸⁰ When striking down the legislation, the court further explained that once eligible for parole under the new guidelines, the juvenile’s “age and other circumstances” at the time of the crime must be taken into account.⁸¹ These other circumstances are an indirect reference to ACEs.

The ACE paradigm was cultivated by Drs. Felitti, Anda, and colleagues in 1998.⁸² Their motivation was “to examine the relationship of exposure to childhood emotional, physical, or sexual abuse and household dysfunction to the leading causes of death in adults.”⁸³ As a result of the study, the doctors were able to create a clear definition for ACEs. An ACE is defined as having survived abuse, neglect, or loss before turning 18.⁸⁴ Abuse, neglect, and loss were expanded into the following categories:

1) emotional abuse by a parent, 2) physical abuse by a parent, 3) sexual abuse, 4) emotional neglect, 5) physical neglect, 6) loss of a parent, 7) domestic violence, 8) a household member who abused alcohol or drugs, 9) a family member experiencing mental illness, or 10) experiencing the incarceration of a household member.⁸⁵

The study comprised of a questionnaire used as a predictor of a juvenile’s delinquency.⁸⁶ Currently, the study serves as a foundation for isolating which ACE(s) a defendant has survived or contemporaneously experiences. With this information, the defense can better articulate the intricacies of juvenile delinquency, emerging adult criminal activity, and the interplay of ACEs on cognitive development.⁸⁷

B. Cognitive Development Demonstrates that Adulthood Begins at 25, not 18.

“The developing brain is easily molded, making it highly responsive to experience and stimulation.”⁸⁸ Meaning that youth who are subject to the emotional trauma of ACEs can become predisposed to abnormal behavior beyond childhood.⁸⁹ This is due to the constant growth and development of neural pathways consisting of neurons and synapses.⁹⁰ These pathways become critical because healthy and maladaptive development are linked to events in the environment, such as ACEs.⁹¹ The connections formed during development become not only strong, but more permanent the more they are used and relied on.⁹² Conversely, synaptic connections that are not used disappear. Therefore, the synaptic formations will differentiate into “specialized cells and brain regions that perform specific functions[.]”⁹³ The basal ganglia and amygdala are two key brain regions where specialization occurs.⁹⁴

The basal ganglia contains both the dorsal and ventral striata.⁹⁵ Located in the middle of the brain, both striata have critical roles in behavior. Respectively, the dorsal stratum is identified as the “habit hub,” whereas the ventral striatum is known as the “reward hub.”⁹⁶ The dorsal striatum is linked to decision-making as it processes “sensorimotor, cognitive, and motivational/emotional information[.]”⁹⁷ The ventral striatum is “innervated with dopaminergic neurons,” meaning that it consists of dopamine neurons which “promote reward- and sensation-seeking” behavior.⁹⁸ Given how the reward center can dominate juvenile behavior, research shows that these pleasure-seeking pathways can further lead to risky behavior.⁹⁹

These pathways are also more prone to emotional triggers due to brain sensitivity.¹⁰⁰ Compared to adults, youth and emerging adults have heightened amygdala activity when presented with fearful stimuli.¹⁰¹ The amygdala is located very close to the basal ganglia. This plays a direct role in the interplay of ACEs and cognitive development because the synaptic connections that form are interconnected.¹⁰² Circuits may originate in one area of the brain, however, one skill set or behavior cannot occur without the others supporting it.¹⁰³ Through the constant emotional trauma that ACEs present, the brain is in a constant heightened state.¹⁰⁴ This heightened amygdala state creates a pattern of neural pathways in the dorsal striatum seeking relief from the emotional trauma being perceived through the ventral striatum.¹⁰⁵ Tragically, ACEs have long-lasting effects not only on cognitive development, but also “stress response systems, coping mechanisms, and learning…linked to problems[]” as youth transition into adulthood.¹⁰⁶ Riskier behavior can ensue, especially if those being affected believe the risky behavior will lead to relief. This risky behavior can present as criminal acts with the hopes of escaping the ACE, while propelling themselves toward a capital punishment sentence.¹⁰⁷

Poor emotional and decision-making regulation stems from a different hub in the brain: the prefrontal cortex. This region of the brain is different than other, older regions because it does not become fine-tuned early on.¹⁰⁸ Rather, it takes over twenty years to reach maturity.¹⁰⁹ The prefrontal cortex is in the frontal lobe and is responsible for personality expression.¹¹⁰ There, the cortex has executive function that works in tandem with the basal ganglia to fine-tune and strengthen the connections formed.¹¹¹ Meanwhile, progressing toward adulthood, the brain also undergoes a decrease in gray matter as it is replaced by white matter. This results from the process of myelination which insulates the neural pathways with “white fatty tissues called myelin.”¹¹² The insulation aids in the speed of neural signaling, thus an increase in myelination is the pathway toward emotional regulation, normative decision-making, and law-abiding social behavior.¹¹³ The frontal lobe, with respect to the prefrontal cortex, “remains developmentally immature and underregulated until the mid-20s, while the brain’s reward centers are relatively overexpressed, making emerging adults ‘more vulnerable to impulsivity,’ less capable of emotional reasoning, and more likely to make ‘errors in self-regulation.’”¹¹⁴

Ultimately, the brain is not fully mature and adult in nature until well after the age of 20.¹¹⁵ Additional research demonstrates that the new cognitive cut-off is at the age of 25 rather than the societally accepted age of 18.¹¹⁶ The National Institute of Mental Health conducted a study tracking 5,000 children.¹¹⁷ The study concluded that cognitive maturity (adultness) did not occur until the age of 25.¹¹⁸ Science demonstrates that the rapid myelination process begins to slow down as pruning takes over at 25 to increase efficiency and reasoning skills.¹¹⁹

However, as emotional trauma from ACEs affects the basal ganglia and amygdala, they also affect the prefrontal cortex, which is the last area of the brain to fully mature.¹²⁰ Normally, in uncharged situations, the prefrontal cortex works to promote “attention and action toward relevant information while suppressing responses to irrelevant information.”¹²¹

ACEs can have a profound effect on cognitive development as they prevent ACEimpacted individuals from reaching adulthood until after their peers who are not ACEimpacted.¹²² Reaching adulthood takes longer because emerging adults suffering from ACEs require additional time to fully develop cognitively. Therefore, ACEs prevent proper maturation seen through “the effect of being in a charged emotional context [which makes the] emerging adult brain ‘look younger’ than it actually Is[]” when comparing those with ACEs to those without at the same ages.¹²³

C. ACEs are often Interconnected, Occur Simultaneously to Each Other, and their Exposure Creates the Foundation for Emerging Adults to Build from Trauma to Criminal Activity

Jessica Trapassi synthesized an in-depth analysis of ACEs and their roles in mitigation.¹²⁴ She pointed to physical abuse, sexual abuse, parental absence/abandonment, foster care and broken homes, substance abuse, and mental illness as several key ACEs that emerging adults can be exposed to prior to engaging in criminal activity¹²⁵ .¹²⁶ Each of these ACEs directly relates to the heightened emotional state consequently stunting cognitive development and increasing impressionability. This normative development is further altered through ACEs and their strong impact on an emerging adult’s life, presenting as “anger, hostility, anxiety, depression and lower self-esteem.”¹²⁷ Suicidal ideation can also stem from ACEs.¹²⁸ All of these negative impacts are related to the emotional trauma that ACEs create¹²⁹ and stunting of normal cognitive development and human behavior.¹³⁰

Disturbingly, mitigation may have adverse effects on a defendant.¹³¹ Trapassi found that more often than not substance abuse, foster care, and general youthfulness were less likely to mitigate, but rather aggravate the defendant’s position. 132 How, then, do factors end up aggravating a defendant’s case when the general idea is that “[m]itigators should never increase the perception of culpability of the offender.”¹³³ The answer arises from overstimulation. When jurors are presented with an overwhelming quantity of details behind mitigating evidence, the effect may work against the defendant and lead toward capital punishment sentences.¹³⁴ Additionally, research demonstrates that when the defense’s counsel “believes that there is a chance that a mitigator could be rejected, they should not present it[]” as defendants could pay the ultimate price for rejected mitigating factors.¹³⁵ The key is to provide “a detailed presentation of the defendant’s childhood experiences with a cogent explanation of its long-term repercussions[]” which has shown to lead to an empathizing jury.¹³⁶

IV. MERGING PRECEDENT, ACES AND BIOPSYCHOSOCIAL DEVELOPMENT DEMONSTRATES THE UNCONSTITUTIONALITY OF CAPITAL PUNISHMENT FOR EMERGING ADULTS UNDER 25

A. Individualized Sentencing Requires Working Outside the Black Letter Law of the U.S. Sentencing Guidelines

John Meixner Jr.’s law review article is the most recent literature looking at “Modern Sentencing Mitigation;” an aptly titled work. There, he dissected the U.S. Sentencing Guidelines (“Sentencing Guidelines”) and “sentencing memoranda filed by defense attorneys in federal felony cases” to evaluate mitigating information.¹³⁷ To do this, Meixner first created a set of categories for mitigation with specificity and reliability.¹³⁸ He analyzed the Sentencing Guidelines, “generally accepted categories of mitigation outlined in prior literature,” and federal sentencing memoranda.¹³⁹ Two main categories were created – offense mitigation and personal mitigation.¹⁴⁰

As offense mitigation looks at how culpable the defendant is,¹⁴¹ personal mitigation looks to how the defendant’s history and characteristics affect culpability.¹⁴² Personal mitigation refers to ACEs and will look at a defendant’s past trauma,¹⁴³ character,¹⁴⁴ familial and social history,¹⁴⁵ health,¹⁴⁶ and age¹⁴⁷.¹⁴⁸ Meixner’s approach demonstrates that mitigation is critical to the sentencing outcome as personal mitigation directly impacts how judges apply “mitigation in a modern way[.]”¹⁴⁹ Instead of adhering to the Sentencing Guidelines in a strict, textualist manner, judges are creating individualized sentences in a fashion that the guidelines did not originally consider.¹⁵⁰ Further, science-based arguments as seen in Part III above would prove more persuasive.¹⁵¹ Consequently, there should be a far less number of capital punishment sentences, yet there appears to be no change to the system. This is clear in the reimplementation of the death penalty to Dzhokhar Tsarnaev (“Tsarnaev”), who pled at every level of the judicial system that his ACEs mitigated his sentence away from death¹⁵².¹⁵³ Specifically, Tsarnaev alleged that the gravity of Tamerlan’s, his older brother, radical jihadi influence within their household mitigated his sentence down to life without the possibility of parole.¹⁵⁴ Tsarnaev’s mitigation is deeply rooted in the third Miller Factor: “circumstances of the offense, including the extent of participation in the criminal conduct and the effect of familial and peer pressures (emphasis added).”¹⁵⁵ Impressionability exacerbates an emerging adult’s “predisposition to risk-taking and deficiencies in decision-making,” like Tsarnaev.¹⁵⁶ This occurs because impressionability influences juveniles and emerging adults to seek acceptance and approval, even if doing so requires engaging in criminalistic behavior.¹⁵⁷ Even the mere presence of the negative influence can promote dangerous and illicit behavior.¹⁵⁸

The defense claimed that Tamerlan’s first blatant display of radicalization occurred in Tamerlan’s alleged involvement in a triple homicide.¹⁵⁹ This self-radicalization and strong influence on those around him, specifically Tsarnaev, constituted proper mitigation.¹⁶⁰ “Research on radicalization shows emerging adults are often attracted to terrorist movements through loving relationships, particularly with siblings…who hold extreme beliefs.”¹⁶¹ Tsarnaev petitioned the U.S. Supreme Court by claiming it was Tamerlan who was sufficiently culpable for the attack.¹⁶² He reasoned that Tamerlan’s pressure and authority over him as the elder brother in an Islamic household directly led to Tsarnaev’s manipulation toward radical jihad.¹⁶³

What we know is that this is an age [18-24] when people are hypersensitive to what other people think of them. It’s also an age when people are trying to figure out who they are, and one way is by identifying with a group – even a violent one. There probably are similarities between the dynamics here and dynamics of antisocial or delinquent gangs. Older, more powerful young adults persuading younger adolescents to do their bidding for them.¹⁶⁴

Yet, the Majority barred this mitigating evidence, discrediting any value. They held that the information would only confuse the jury and lead to a series of minitrials where the key persons, Tamerlan and Todashev, both of whom are deceased, would be on trial.¹⁶⁵ As courts in each tier rely on past criminal behavior from the prosecution, the Dissent countered the Majority with a pivotal question. “If courts admit evidence of past criminal behavior, unrelated to the crime at issue, to show aggravating circumstances, why should they not do the same to show mitigating circumstances?”¹⁶⁶

This question is critical because it presents an issue within the judicial system that even the Supreme Court is still getting wrong today – the differing burdens of aggravating and mitigating factors. Courts are implementing the wrong burden for each type of factor. The Code is explicit in explaining that the burden of proof for an aggravating factor falls on the prosecution to prove the evidence beyond a reasonable doubt.¹⁶⁷ Whereas, a mitigation burden is by a preponderance of the evidence.¹⁶⁸ However, what courts are demonstrating, through evidence they permit or reject, is the opposite. They promote a system of aggravation where the prosecution need only prove evidence by its preponderance. Mitigation evidence is tragically forced under the scrutiny of being proven beyond a reasonable doubt. Furthermore, despite the literal, life-altering nature of these capital cases, the majority of the Supreme Court Justices do not feel swayed to take extra precaution and scrutiny to avoid judicial error. This only frustrates our legal system as capital cases are permitted to hear evidence that would otherwise be barred from trial, such as hearsay evidence.¹⁶⁹

While Tsarnaev’s case may arguably have less ACE connection compared to other death row inmates such as Billy Wardlow or Justin Dickens, any ACE connection at all should be incorporated into any capital punishment case. Plus, this case is relevant to this discussion because this capital punishment was recently reinstated. His reinstated death sentence follows the consistent miscarriage of justice from courts confusing the burden of proof for mitigation evidence. Tsarnaev, Dickens, and Wardlow all had strong mitigating evidence through their impressionability resulting from ACEs. But instead of following the Code’s clear instructions, courts have consistently gone astray allowing a flood of aggravating evidence under the wrong burden. Defendants are then left with an unrealistic expectation to prove beyond a reasonable doubt that their ACEs have not only a direct link to their criminal activity, but also that their impressionability stems from their ACEs’ impact on cognitive development. That burden was never meant for defendants in capital punishment cases, yet now becomes the norm.

B. Modern Problems Can Look to Old Systems in Establishing AgeAppropriate Alternatives to ACE-Impacted Emerging Adult Justice

States – such as Connecticut, Illinois, Massachusetts, and Vermont – are beginning to recognize that current carceral systems do not function properly for the emerging adult population.¹⁷⁰ This is particularly true of emerging adults functioning at a cognitive age lower than their birth age. To combat this dysfunction, legislatures are considering “raise the age” campaigns to further extend juvenile court jurisdiction.¹⁷¹ These considerations are the direct byproduct of research demonstrating the arbitrary demarcation line between juveniles aged 15-17 and emerging adults aged 18-24.¹⁷²

“[J]urisdictions across the country have also been considering and implementing specialized courts, specialized caseloads, specialized correctional units, and the expansion of hybrid systems.”¹⁷³ These individualized services combine not only the law with biopsychosocial development, but also restorative justice and rehabilitative measures.¹⁷⁴ Illinois is one such jurisdiction leading the way towards an age-appropriate approach to emerging adult justice. Cook County, Illinois, is home to the first juvenile court in the country established in 1899.¹⁷⁵ From the beginning, Illinois has recognized the arbitrary age demarcation between the juvenile and adult criminal-legal systems. In 1914, Illinois operated the Boys’ Court – “a specialized criminal branch [in Chicago] with exclusive jurisdiction over male defendants between the ages of 17 (the maximum age limit of juvenile court jurisdiction) and 21.”¹⁷⁶ The Boys’ Court operated for 55 years as it innovatively provided an alternative means of justice for the emerging adult population.¹⁷⁷

Currently, the emerging adult population is more likely to be incarcerated and more likely to recidivate upon release when compared to older adults.¹⁷⁸ Coupled with the biopsychosocial development of emerging adults particularly the ACE-impacted, this alternative method to implement justice could be groundbreaking. Restorative justice seeks to repair and rebuild; heal the harm and rebuild the impacted community. Emerging adulthood is unique because it is not only a transitional period, but also a period of opportunity.¹⁷⁹ When compared to older adults, this population is particularly “responsive to rehabilitation and appropriate interventions that promote growth[.]”¹⁸⁰ Therefore, through restorative justice and specialized courts, ACE-impacted individuals, and others within the emerging adulting population, can be granted the opportunity to age out of criminal behaviors and develop cognitive maturity. These opportunities can mean the difference between life and death by acting as a preemptive measure for ACE-impacted emerging adults from engaging in capital punishment behaviors.¹⁸¹

V. CONCLUSION

The scientific, undisputed facts remain. First, cognitive development is not complete until the age of 25.¹⁸² Because of this, every individual under that age can be considered an emerging adult. This is crucial since science and logical reasoning demonstrate that emerging adults are more impulsive and susceptive to influence and manipulation.¹⁸³ Second, ACEs are vital, life-changing events that are rooted in trauma and heightened emotional states.¹⁸⁴ The combination of trauma and a lasting emotional state only compounds the impulsivity, recklessness, and impressionability of emerging adults well beyond 18.¹⁸⁵ Reputable science demonstrates that when ACEs meet cognitive development, brain maturation is stunted.¹⁸⁶ Essentially, emerging adults who suffer from ACEs will physically, socially, emotionally, and behaviorally present as cognitively younger and less mature than their peers who do not suffer from ACEs.¹⁸⁷

How, then, can practitioners incorporate the endless facets of case law and neuroscience into well-crafted, compelling legal arguments in court? There are five (5) steps that every practitioner can look to as blueprints for compelling legal arguments rooted in both the law and current cognitive development research.¹⁸⁸ First, always clearly state the defense theory.¹⁸⁹ Think of this as the foundation of a house. Legislation and case law become the walls that are built off the theory as a foundation. Keeping in mind to cite all relevant law and distinguishing opposing caselaw as a builder brick and mortars the walls. Next, connect the law to the research and neuroscience as a roofer connects all four sides of the house together.¹⁹⁰ Now, describe the supporting research as if describing the house to a stranger.¹⁹¹ Highlight details of the research as you would highlight the color or design of the house. Lastly, tie the research and science to the facts and law as if welcoming the stranger into the house.¹⁹²

Justice Steven’s concurrence in Roper signifies a continued theme of the Court’s own maturation over the past 234 years.¹⁹³ “In the best tradition of common law…our understanding of the Constitution does change from time to time[.]”¹⁹⁴ Further, our understanding must change to meet the standards of decency that society holds at the current time in relation to ACEs. Ironically, what is demonstrated by a pattern of dissenting opinions is that the courts are not maturing. Instead, courts are standing fixed in outdated and harmful positions.

Capital punishment is a difficult topic, which means any dialogue on the topic will constitute difficult conversations. But simply because something is a difficult conversation does not mean that the conversation holds no merit. Yet this is precisely what the courts are holding when they bar relevant mitigating evidence through distorted burden shifting. This rings true for even scholarly writers incredibly well-versed on the topic. Their evidence demonstrated that Roper needs to be extended to all those under 25 year-of-age particularly when ACEs are present, but similarly miss the mark when stating “…our nation is much more likely to accept the exemption of eighteen- to twenty-year-olds than, for example, eighteen- to twenty-four-year-olds because the age of twenty-one is already a well-defined cultural and legal marker of maturity.”¹⁹⁵ This is not good enough. We cannot wait for society to collectively agree that the new twenty-one is now twenty-five. It is up to those with the legal authority and voice to partner with the scientific community to demonstrate what science says and how we need to evolve our standards of decency to match the science. If not for everyone, then at least for those who are ACE-impacted and are subject to the harshest punishment of all – their loss of life. In conclusion, “[A]n adolescent is an adolescent, whether he is making fun of his teachers, committing armed robbery or building a bomb. No matter how ‘adult-like’ the crime is, it doesn’t change the fact that brain systems are still developing.”¹⁹⁶

Summary

This document examines the evolving legal and scientific understanding of adolescent and emerging adult brain development, arguing against the application of capital punishment to individuals under 25, especially those with Adverse Childhood Experiences (ACEs). The analysis incorporates legal precedent, focusing on Supreme Court cases that have addressed the issue of age and culpability in capital punishment cases. The document also delves into the neuroscience of adolescent brain development, highlighting the prolonged maturation of the prefrontal cortex and the impact of ACEs on cognitive function. This interplay underscores the argument for a higher age threshold for capital punishment. The document concludes by proposing a multi-pronged approach to legal argumentation and advocating for a shift towards age-appropriate, rehabilitative justice systems for emerging adults.

II. LEGAL FRAMEWORK FOR CAPITAL PUNISHMENT AND MITIGATION

A. Capital Punishment Parameters in the United States Code

Section 3593(c) of the United States Code governs the presentation of mitigating and aggravating factors in capital punishment sentencing. The Code allows for the introduction of relevant information, but permits judicial exclusion if probative value is outweighed by the risk of prejudice or confusion. A pattern of judicial practice favoring the admission of aggravating factors while restricting mitigating evidence, particularly concerning impressionability, is critiqued. The document argues for a reconsideration of the age threshold, proposing 25 as a more scientifically accurate reflection of cognitive maturity.

B. Distinction Between Aggravating and Mitigating Factors

The Code distinguishes between aggravating and mitigating factors in capital sentencing. While aggravating factors, such as death during the commission of a crime, must be proven beyond a reasonable doubt, mitigating factors, including those stemming from ACEs, need only be established by a preponderance of the evidence. This difference in evidentiary burden is central to the argument for mitigating the harshness of capital punishment for emerging adults.

C. Supreme Court Precedent and Evolving Standards of Decency

A review of Supreme Court cases, including Gregg v. Georgia, Atkins v. Virginia, Roper v. Simmons, and Miller v. Alabama, reveals an evolution in the understanding of the Eighth Amendment's prohibition against cruel and unusual punishment. These cases highlight the evolving societal standards of decency and the diminished culpability of intellectually disabled individuals, juveniles, and those impacted by significant mitigating factors. The "Miller Factors," in particular, emphasize the developmental differences between juveniles and adults.

III. MENTAL HEALTH, COGNITIVE DEVELOPMENT, AND CAPITAL PUNISHMENT

A. The ACE Paradigm and Its Influence on Cognitive Development

The Adverse Childhood Experiences (ACEs) paradigm is introduced, outlining the various forms of abuse, neglect, and household dysfunction that can negatively impact a child's development. The connection between ACEs, cognitive development, and juvenile/emerging adult delinquency is established, arguing that the effects of ACEs should significantly influence sentencing considerations. Recent case law reflecting this understanding is cited.

B. Cognitive Development and the 25-Year-Old Threshold

Neuroscientific evidence is presented to support the argument that cognitive maturity is not reached until around age 25. The roles of the basal ganglia, amygdala, and prefrontal cortex in behavior regulation and decision-making are discussed, highlighting the prolonged development of the prefrontal cortex and its susceptibility to the effects of ACEs. The research suggests that the age of 18 is an arbitrary and inaccurate cutoff for assessing cognitive maturity.

C. Interconnectedness and Cumulative Effects of ACEs

The interconnectedness and cumulative effects of ACEs are explored, showing how multiple ACE exposures can profoundly affect an individual's cognitive development, emotional regulation, and propensity for risk-taking behaviors. The implications for criminal justice are discussed, including the potential for mitigating circumstances to be misinterpreted or discounted.

IV. INTEGRATING LEGAL PRECEDENT AND BIOPSYCHOSOCIAL DEVELOPMENT

A. Individualized Sentencing and the Limitations of Sentencing Guidelines

The limitations of a strictly textualist approach to sentencing guidelines are discussed, highlighting the need for individualized sentencing that considers the unique circumstances of each defendant. The case of Dzhokhar Tsarnaev is used to illustrate how mitigating evidence related to ACEs and familial influence can be overlooked or improperly weighed by the courts. The inconsistent application of evidentiary burdens for aggravating and mitigating factors is critiqued.

B. Age-Appropriate Alternatives to Traditional Justice Systems

The document advocates for age-appropriate alternatives to traditional justice systems for emerging adults, focusing on models that incorporate restorative justice and rehabilitative measures. The example of Illinois' historical approach to emerging adult justice and current efforts in other jurisdictions are presented as models for reform. Emphasis is placed on the responsiveness of emerging adults to rehabilitation and the potential of restorative justice approaches to reduce recidivism.

V. CONCLUSION: A CALL FOR REFORM

The document concludes by reiterating the scientific basis for raising the age threshold for capital punishment to 25, emphasizing the prolonged development of the brain and the significant impact of ACEs on cognitive function. Practical steps for incorporating neuroscience and legal precedent into legal arguments are provided. The document ultimately calls for a reformation of the legal system, advocating for a more nuanced and informed approach to justice for emerging adults.

Summary

This document examines the intersection of neuroscience, social science, and legal precedent regarding capital punishment for emerging adults (ages 18-25). It argues that the current legal framework, which considers 18 as the age of adulthood, is scientifically unsound, particularly when considering the impact of Adverse Childhood Experiences (ACEs) on brain development.

II. THE UNITED STATES CODE ESTABLISHES CAPITAL PUNISHMENT PARAMETERS AND DEFENSE RIGHTS THROUGH MITIGATION

The U.S. Code outlines procedures for capital punishment, including the presentation of aggravating and mitigating factors during sentencing. A crucial distinction exists in the burden of proof: aggravating factors must be proven beyond a reasonable doubt, while mitigating factors require only a preponderance of evidence. This disparity, combined with judicial discretion in admitting evidence, often disadvantages defendants attempting to introduce mitigating evidence related to impressionability and ACEs. The document argues that the current legal threshold of 18 years old fails to account for the ongoing cognitive development of emerging adults, especially those impacted by ACEs.

III. MENTAL HEALTH AND COGNITIVE DEVELOPMENT INFORM CAPITAL PUNISHMENT RELIEF

The ACE paradigm, stemming from research on Adverse Childhood Experiences, highlights the impact of childhood trauma on cognitive development. Neurological research indicates that the brain's prefrontal cortex, responsible for executive function and decision-making, doesn't fully mature until around age 25. ACEs can disrupt this development, leaving individuals with impaired emotional regulation, increased impulsivity, and heightened susceptibility to negative influences, making them more likely to engage in risky behaviors. This delayed maturation underscores the inadequacy of using age 18 as the sole determinant of culpability in capital punishment cases.

IV. MERGING PRECEDENT, ACES, AND BIOPSYCHOSOCIAL DEVELOPMENT DEMONSTRATES THE UNCONSTITUTIONALITY OF CAPITAL PUNISHMENT FOR EMERGING ADULTS UNDER 25

The document analyzes case law, focusing on Miller v. Alabama, which highlighted the diminished culpability of juveniles and the need for individualized sentencing. It criticizes the judicial system's inconsistent application of evidentiary standards, often favoring aggravating factors over mitigating evidence related to ACEs. This is exemplified by the case of Dzhokhar Tsarnaev, where mitigating evidence of familial influence was disregarded. The document proposes a move toward age-appropriate justice systems, including specialized courts and restorative justice initiatives, better suited to address the needs of emerging adults, particularly those affected by ACEs.

V. CONCLUSION

The document concludes that the current legal framework for capital punishment fails to account for the scientific understanding of brain development and the impact of ACEs on emerging adults. It advocates for a shift in legal thinking, incorporating neuroscience and social science into legal arguments, and the extension of legal protections afforded to juveniles to include individuals up to age 25, especially those with ACEs. The authors emphasize the need for a more nuanced approach to justice that considers the unique developmental vulnerabilities of this population.

Summary

This document examines the application of capital punishment to emerging adults (ages 18-25), arguing that current legal standards are outdated and inconsistent with scientific understanding of brain development. The author uses a hypothetical case and the case of Billy Joe Wardlow to illustrate the complexities of applying the death penalty to individuals who are still developing cognitively.

II. Capital Punishment Laws and Mitigation

Federal law allows for mitigating factors in death penalty cases, but there's a disparity in how aggravating and mitigating evidence is treated. The prosecution's burden of proof for aggravating factors is higher than the defense's burden for mitigating factors. This imbalance, the author contends, often works against defendants, especially those with mitigating circumstances stemming from Adverse Childhood Experiences (ACEs). Supreme Court cases like Gregg v. Georgia, Atkins v. Virginia, Roper v. Simmons, and Miller v. Alabama are examined to show the evolution of legal thinking on capital punishment and the evolving standards of decency. The author highlights the importance of considering the developmental immaturity of juveniles and emerging adults, particularly their heightened impressionability.

III. Mental Health, Cognitive Development, and ACEs

The author explains the Adverse Childhood Experiences (ACEs) paradigm and its connection to cognitive development. ACEs, like abuse and neglect, negatively impact brain development, affecting areas like the amygdala and prefrontal cortex, leading to impulsivity and poor decision-making. Scientific research showing that brain development isn't complete until age 25 is presented as a key argument against capital punishment for emerging adults. The interconnectedness of various ACEs and their cumulative effect on an individual's development and behavior is explored.

IV. Integrating Law, Science, and Age-Appropriate Justice

The document analyzes how courts often fail to adequately consider mitigating evidence, particularly evidence related to ACEs and their impact on cognitive development. The author cites the case of Dzhokhar Tsarnaev as an example of how mitigating evidence related to familial influence and impressionability is often disregarded. The need for individualized sentencing and alternative approaches to justice for emerging adults, such as specialized courts and restorative justice programs, is advocated for. These systems would account for the unique developmental stage and potential for rehabilitation in this population.

V. Conclusion

The author concludes that capital punishment for emerging adults under 25, especially those with ACEs, is scientifically unsound and morally questionable. The document emphasizes the need for a legal system that incorporates scientific understanding of brain development and acknowledges the mitigating effects of ACEs on behavior. Five steps are offered to help legal practitioners build stronger arguments that incorporate both legal precedent and neuroscience. The author criticizes the judicial system's failure to adapt to current scientific understanding, urging a shift towards age-appropriate and restorative justice approaches.

Summary

This article opens with a hypothetical story of a teenager named Mike who gets involved in a robbery that goes terribly wrong. Someone dies, and Mike is facing the death penalty. The story shows how tough life can be for kids who have grown up in bad situations. Mike's life wasn't easy; his mom used drugs, his dad wasn't around, and he lived in a rundown place with Jed, a man who was often angry and violent. This makes you think about whether it's fair to punish someone so harshly when their life has been so difficult. The story also discusses how brains aren't fully grown until people are much older than 18, and that this is especially true for kids who have had really hard lives.

II. THE LAW SAYS WHEN SOMEONE CAN GET THE DEATH PENALTY, BUT THERE ARE WAYS TO FIGHT IT

The law says what crimes could get someone the death penalty and what things can help a person avoid it. For example, if someone's past is really rough—like having a bad home life—that can be used to help them avoid the death penalty. The prosecution needs to show, without a doubt, why the death penalty is right. But the defense only needs to show that things like a rough childhood are probably true. If the bad things in someone's past are stronger than the reasons for the death penalty, they might avoid it. Courts have changed their minds about who should get the death penalty over time. They used to think it was okay for anyone over 18, but now, they know it's not fair for kids under 18.

III. BRAIN SCIENCE HELPS US UNDERSTAND WHY IT’S NOT FAIR TO GIVE THE DEATH PENALTY TO YOUNG PEOPLE

A person's experiences as a child have a big impact on how their brain grows and how they behave. Tough childhoods, with things like abuse or neglect, can affect brain development and make it harder for a person to make good choices. Scientists have learned that brains aren't fully developed until people are around 25 years old. This means that young people, especially those with bad pasts, might not understand the consequences of their actions as well as adults.

IV. PUTTING IT ALL TOGETHER: WHY THE DEATH PENALTY FOR YOUNG PEOPLE IS WRONG

It's not fair to give the death penalty to young people, particularly those who have had difficult childhoods. Courts need to consider the science and take a more personal approach to sentencing. Some places are starting to create better ways to help young people who have gotten into trouble, focusing on helping them change their lives instead of just punishing them.

V. CONCLUSION

Science shows that brains aren't fully developed until age 25. A tough childhood can make it even harder for young people to make good choices. The death penalty is too harsh a punishment for young people, especially those who have had hard lives. Courts should consider this and work towards more fair ways of dealing with young people in trouble.