By: Travis Henderson
The United States Supreme Court should broaden the protections of the Eighth Amendment and make it unconstitutional to sentence a person to death who committed their offense under the age of twenty-five.
The Supreme Court, in 2005, made it illegal to sentence a juvenile to death who was under eighteen at the time of the offense. The court identified three reasons juveniles are less culpable than their adult counterparts: first, juveniles lack maturity and responsibility; second, juveniles’ are more susceptibility to negative influences and outside pressures, such as peer pressure; third, the personality of a juvenile is less set in stone, and so they are more likely to outgrow their criminal tendencies. However, Justice Kennedy acknowledged that eighteen was an arbitrary choice. Saying, “[t]he qualities that distinguish juveniles from adults do not disappear when an individual turns [eighteen].”
In today’s day and age, we do not often see agreement between society and science, but here we do.
Society has made several recent decisions to treat individuals past eighteen differently than other adults.
Legislatures have already expanded whom we view as juveniles. For example, the Affordable Care Act allowed persons to stay on their parent’s insurance until twenty-six. In addition, the federal government restricts anyone under twenty-one from purchasing firearms. Continuing this trend in 2021, the federal government made it “illegal for a retailer to sell any tobacco product—including cigarettes, cigars, and e-cigarettes—to anyone under [twenty-one].”
Industries and organizations have also expanded whom we view as juveniles. For example, rental car agencies, such as Enterprise, often charge “young renter fees” for those under twenty-five. Additionally, the American Bar Association issued a resolution in 2018 addressing juveniles and the death penalty. The resolution sought to “prohibit the imposition of a death sentence on… any individual who was [twenty-one] years old or younger at the time of the offense” due to new scientific evidence.
Recent studies and developments in our understanding of the human brain have also shifted who might be a juvenile.
A person’s prefrontal cortex, the part of the brain used for reasoning, planning, and impulsivity, is not fully developed until their mid-twenties. Additionally, studies have shown that the brain’s overactive “reward system” during puberty does not begin to decline until age twenty-five. An overactive “reward system” makes an individual more susceptible to peer pressure.
We can look to gang activity to paint a picture of this overactive “reward system.” It has long been recognized that gang activity is one of the leading causes of violent crime, particularly involving teenagers and young adults. Furthermore, studies have shown that peer pressure is one of the main reasons these groups of people get involved with gang activity. However, a recent survey found that gang members over twenty-five accounted for merely thirteen percent of total gang membership. This survey correlates with the decline of a person’s overactive “reward system,” which makes someone less susceptible to peer pressure.
The United States Supreme Court laid out three critical concerns for why we treat juveniles differently: maturity, susceptibility to peer pressure, and still-developing personalities. Reasoning, planning, and impulsivity are all hallmarks of maturity and are not fully developed until a person’s mid-twenties. These facts support society’s push to treat individuals past eighteen differently and expand what a juvenile is. In addition, studies show that a person’s involvement in gang activity after age twenty-five is less likely. This could be connected to scientific studies, which have identified that twenty-five is when a person’s overactive “reward system” begins to decline.
Persons under twenty-five or juveniles are not yet whom they will become. As such, the United States Supreme Court should broaden the protections of the Eighth Amendment and make it unconstitutional to sentence a person to death who committed their offense under the age of twenty-five, expanding what a juvenile is.
Travis (he/him) is currently a 3L at Arizona State University’s Sandra Day O’Connor College of Law. He attended Utah Valley University for his undergrad. His legal interest is primarily in indigent criminal defense and criminal justice reformation. Outside of law school he enjoys hanging out with his wife and two dogs Tonka (Great Pyrenees) and Tony (Pitbull), and riding his motorcycle around the valley.
 “Juveniles” for this paper refers to people who are treated differently because of their age.
 Roper v. Simmons, 543 U.S. 551 (2005).
 Alli Katzen, Why Justice Kavanaugh Should Continue Justice Kennedy’s Death Penalty Legacy-Next Step: Expanding Juvenile Death Penalty Ban, 74 U. Miami L. Rev. 964 (2020).
 Talia Stewart, Capital Punishment of Young Adults in Light of Evolving Standards of Science and Decency: Why Ohio Should Raise the Minimum Age for Death Penalty Eligibility to Twenty-Five (25), 70 Clev. St. L. Rev. 91. (2021)