Bonnie Serrano of Texas Tech University School of Law has written “Stuck Between Growing up and Grown up: Delaying the Sentencing Phase for Young Adults Facing Capital Punishment in Texas.” (Texas Tech Law Review, forthcoming). The following is the abstract.

Studies indicate that the “future danger” standard used by juries in Texas when determining whether to sentence a capital offender to death can result in inaccurate predictions. This already difficult to apply standard becomes impossible to use when applying it to capital offenders between the ages of 18-25. Studies released since the Supreme Court decided to no longer sentence juveniles to death show that the brain development of young adults differs little from that of juveniles. Because of their lack of brain maturity, young defendants still maintain a propensity for risky behavior and lack impulse control. This makes it difficult for a jury in a capital case to differentiate between traits indicating that a person is a “future danger” and traits that could potentially improve with age.

Some of the most common factors used by prosecutors to show that a defendant is a “future danger” such as criminal history, expert testimony, and character evidence, do not adequately show the threat posed by a young defendant because age cannot be ruled out as a factor in their behavior. If this standard cannot adequately determine which young offenders actually pose a risk to others, then juries are arbitrarily sentencing defendants to death, and therefore violating the Eighth Amendment of the United States Constitution.

This Article proposes that because capital offenders already go through a separate trial to determine their punishment, Texas courts should wait until a defendant reaches 25 before they determine whether to execute a young offender. This will make a prosecutor’s use of expert testimony, a defendant’s criminal history, and character evidence more predictable because a jury can assess an individual once their brain has fully developed and consider their behavior in prison. Under this proposal, Texas courts can continue to apply the “future danger” standard but will be able to eliminate the Eighth Amendment concerns that formulate when applying the standard to offenders whose age make a predictable assignment impossible.

Read the full article on SSRN.