Is It Time To Change How We Prosecute Young Adults?

By Natalie Rodriguez | July 26, 2020, 8:02 PM EDT


Billy Joe Wardlow was, by some accounts, an average teen. He played on the church basketball team and volunteered to help his high school librarian pack and move books. He never had a disciplinary problem at the high school, which he dropped out of in his junior year, according to court documents.


Then in 1993, when he was 18, he shot and killed an 82-year-old man during an armed robbery. In a 1994 confessional letter, he wrote: "Being younger and stronger, I pushed him off and shot him right between the eyes. Just because he pissed me off. He was shot like an executioner would have done it."

Billy Joe Wardlow, here in an undated photo, was executed on July 8 despite calls from neuroscientists to revisit his death sentence and consider his age when the crime occurred. (Texas Department of Criminal Justice via AP)

While Wardlow later tried to walk back his reasons for the fatal shooting, he was ultimately executed on July 8.

In Texas, a jury has to find a person is a "future danger" to sentence that person to death. But science suggests Wardlow's brain was likely closer to that of a juvenile than an adult: impulsive, bad at decision-making, and more capable of future change. Some advocates say Wardlow, who was called a "peacemaker" as an inmate after the age of 21, never should have been sentenced to death over the crime.

"The course of Billy's life after his brain matured demonstrates that his character — assessed by the jury as likely posing a threat of dangerousness in the future — was anything but that. His character, once fully formed, was in no respect 'irretrievably depraved,'" Wardlow's legal team said in a petition to the U.S. Supreme Court this year.

The U.S. Supreme Court declined to take up that petition, which was backed by several neuroscientists, but there is a growing movement afoot in the legal community to reform the judicial system in ways that take into account new findings that young adults aged about 18 to 24 still have developing brains.

These include efforts to treat young adults more like juveniles than adults when it comes to sentencing, as well as new young adult court programs that aim to keep this cohort of convicts out of the adult penal system. Progress on these efforts, however, is slow-moving and faces an uphill climb against Supreme Court precedent, according to experts.

"I think it's going to be a stop-and-start process," said John H. Blume, a Cornell Law School professor and director of the Cornell Death Penalty Project.

Science and Precedent

In recent years, the Supreme Court has decided that the death penalty and life without parole are both "cruel and unusual" punishments violating the Eighth Amendment rights of juveniles. Wardlow's case was one of several working their way through the judicial pipeline hoping to extend those precedents to young adults.


"Clearly, the age of majority is 18 in this country, but the brain doesn't overnight mature just because they turn 18," said Adriana Galván, a neuroscientist and professor of psychology at the University of California, Los Angeles, who had signed onto a brief in Wardlow's appeal. "There is data showing that people beyond 18 still show neural patterns of activation, or how their brain functions, is more similar to juveniles."

In Wardlow's case, Texas makes "future dangerousness" a specific finding that a jury has to find in order to sentence someone to the death penalty. Wardlow petitioned the Supreme Court to appeal this finding since new neuroscience shows that no one can say with 100% certainty that a young adult will continue to pose a threat to society.

Texas, however, shot back that Wardlow's youth was considered by the jury and noted that the Supreme Court has continued to draw a line at 18 for the death sentence and life without parole.

"This decision was not arbitrary. Rather, it reflected a careful and deliberate determination that 18 years of age is the line at which most governmental and social institutions recognize legal adulthood," Texas said in a reply to the petition.

In the weeks after declining Wardlow's petition, the Supreme Court allowed federal death penalty executions to resume after a 17-year hiatus, which has chilled some of the efforts to raise young adult death penalty and life sentence challenges before the high court.

"Many lawyers in the field think, probably correctly, that now is not the time to raise the issue. ... This court does not seem to be receptive at the moment to these types of changes," said Blume, who expects the efforts to continue on instead in state courts and at the legislative level.

Momentum at the State Level

Indeed, momentum is gaining in certain states.



In May, Illinois' appellate court found that Israel Ruiz and Omar Johnson, who were convicted of violent murders at the ages of 18 and 19, respectively, could proceed in lower court to develop claims that the Supreme Court precedent against sentencing juveniles to life without parole should be extended to them.

The appeals court based this decision on "the emerging consensus that the development of the brain continues well beyond 18 years, the arbitrarily demarcated admittance to adulthood for individuals arrested and entering our criminal law system."

The decision is part of a slowly building stream of case law in the state, largely backed by the Office of the State Appellate Defender, according to Jacqueline L. Bullard, director of the Juvenile Defender Resource Center at the OSAD.

"It's taken a while to have these cases percolate up in our system," said Bullard.

In a 2018 case known as People v. Harris, the Illinois Supreme Court said the U.S. Supreme Court had drawn a bright line at 18, but provided an opening for young adults to challenge life without parole under the Illinois Constitution's proportionate penalties clause. And the following year in a case known as People v. House, the court granted a new hearing to a 19-year-old convicted of a gang-related kidnapping and murder based on that argument.

In the past two years, there have been a number of other similar cases decided by the Illinois courts. Some, particularly those involving young adults over the age of 21, have been losses. But there have also been a handful of other procedural wins like the House, Ruiz and Johnson cases, where those convicted as young adults have received a green light to further develop the record.

"It also helps that in Illinois, it's not just our courts that are moving in that direction. It's also our Legislature," said Bullard, noting that state lawmakers enacted a law in 2019 granting parole opportunities to those convicted under the age of 21 to long sentences.

Young Adult Courts

In some ways, how the new neuroscientific research is being used to push for change in the judicial system has split into a battle on two fronts: litigation efforts to expand juvenile precedent to include young adults, and new legislation and programs aimed at steering young adults out of adult prisons. Some of the programs are called young adult courts.


"There is a fork in the road," said Judge Bruce Chan, who heads the San Francisco Young Adult Court, on how neuroscience is impacting both litigation efforts to extend protections to young adults and programs like his.

The first such alternative court program in the country when it launched in 2015, the San Francisco Young Adult Court works with case managers, social service organizations and other stakeholders to provide more one-on-one support in helping young adult convicts aged 18 to 24 transition to a life outside of crime.

Former San Francisco District Attorney George Gascón helped found the Young Adult Court, as well as a similarly focused program that runs outside the court system called Make It Right, after a number of conversations regarding policing and incarceration convinced him they were approaching juvenile justice, including young adults, incorrectly.

"I think it's really important for the legal profession to inform its practices on science. Unfortunately, we don't do that really well as a profession. We tend to operate in a vacuum," Gascón said.

The Young Adult Court largely deals with young adults who have committed a nonviolent felony rather than misdemeanors, or, as Judge Chan puts it, "people who are high-risk and high-need." Gascón had originally hoped to include more violent felony offenders, but "political realities" made that impossible, he said.

The program has had 105 "graduates" so far come through and complete the program -- about 40% of all participants. Initial research on these graduates suggests about 84% percent have avoided rearrest in San Francisco county. Judge Chan hopes future research will provide a picture of the impact on other indicators of success such as educational achievement, employment, and parenting skills. 

Gascón, who is currently running for Los Angeles district attorney, hopes to replicate the court program if he is elected and to "be bolder" if given the chance. He contends the San Francisco court has been restricted in how many cases it can take because of its limited funding.

More young adult court programs have sprouted. Another young adult court opened its doors in Orange County, California, a little over a year ago. There is also a similar program in Brooklyn, New York, though that program deals only with misdemeanor convictions, rather than felonies, Judge Chan noted.

Some jurisdictions have also taken new neuroscience on young adults into account in other ways. For example, New York and Vermont recently raised the maximum age of a juvenile from 16 to 19 for purposes of the court system.

But Judge Chan believes the young adult court programs are better suited to the older teens and young adults, as they tend to have different needs and circumstances than say a juvenile who likely still has a parent or guardian in charge of his or her well-being.

"A 16-year-old is very different from an 18- or 19-year-old," said Judge Chan.

With most 16-year-olds, the state is bound to work with family or guardians. An 18- or 19-year-old coming through the program likely does not have that support system, which makes the employment, housing and education support that is available through the program so important.

Judge Chan noted a participant who had been one of five foster kids had lost one brother to murder and another was serving life in prison for homicide.

After her arrest, the program helped her find an apartment and a union job. She is a single mom and has stayed out of the prison system since.

Drawing a New Line

While there is a general consensus among neuroscientists that young adults' brains are still developing, the science cannot — at least currently — say exactly when the maturation process ends for any one individual, which opens up a gray area that courts must wade through.


"What is challenging in the conversations between neuroscientists and legal scholars is we don't have a specific age when we know people are adults," Galván said.

Opponents of the efforts to extend juvenile protections to young adults often argue that the new science is not enough to establish a new age line.

"Science is an ever-evolving field of study, and by Wardlow's logic, every time a new scientific study or finding is produced, petitioners would have new factual bases for their claims. This cannot be the case," Texas said in a response to the Wardlow petition before the Supreme Court.

Texas and others have also argued that the science doesn't tell the judicial system anything that common sense hasn't already in terms of the impulsiveness and bad-decision-making of young adults and that youth has often been considered at trial in some way.

"The record establishes without question that the trial court considered his age and attendant characteristics and fashioned a sentence that was appropriate for the senseless, yet intentional, crimes he committed," said a judge who dissented in the Illinois Ruiz case.

Still, advocates say that while almost any age line will be arbitrary in some way, science is saying it should be pushed beyond 18 years.

"When you try to draw one of these lines, you know it's not going to be perfect, but you try to draw it in a way that's going to be most right in the majority of the cases," said Blume. "Based on what we continue to know about the brain, 21 is a much closer benchmark than 18 is."

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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