Texas Inmate Cites Brain Science in SCOTUS Execution Fight

June 11, 2020, 3:15 PM

Billy Joe Wardlow shot and killed an 82-year-old man when he was 18. But he says the fact that his brain was still developing at the time should bar his execution and, by implication, more than 40 others, too.

A 2005 Supreme Court case outlawed the death penalty for defendants who killed when they were 17 or younger. At first glance, that wouldn’t seem to help Wardlow.

But, facing a July 8 execution, the Texas death row prisoner cites that precedent plus more recent scientific evidence to argue the state’s unique system, which requires findings of “future dangerousness” to impose the ultimate punishment, is particularly ill-suited to the developing brains of those who were under 21 when they committed their crimes.

That amounts to 45 current Texas inmates, including Wardlow, he told the justices in his June 10 petition, calling into question death sentences for what he concedes is “not an insignificant number of people.”

That number alone could give pause to a Supreme Court whose majority has taken a strict stance toward death row claims, particularly since Justice Brett Kavanaugh replaced Justice Anthony Kennedy.

Kennedy was key for criminal defendants in Eighth Amendment cases—including that 2005 case, Roper v. Simmons—where he authored the 5-4 majority’s cruel and unusual punishment ruling in favor of the defendant, by taking into account evidence that showed differences between still-developing juvenile brains and those of adults.

If the post-Kennedy court is inclined to apply modern science to crime and punishment, it could do so in the case of the man who, as Wardlow’s lawyer Richard Burr puts it, is the “living embodiment of what happens when your brain gets more mature.” His petition cites declarations from supporters describing him today as a “peace-maker” with “this way of empathizing with people, especially when they are hurting.”

Sea Change

That’s not the man Carl Cole met when Wardlow killed him during a robbery of Cole’s rural northeast Texas home in 1993. Two years later, Wardlow was convicted of the murder and, because the jury found he’d likely be a future danger, sentenced to death.

But since then, and even since Roper, “scientific research has established that the brains of young people between 18 and 20 years old are functionally indistinguishable from the brains of 17-year-olds in the ways that are relevant to Eighth Amendment moral culpability,” Wardlow said in his petition.

Citing Roper‘s recognition that qualities distinguishing juveniles from adults don’t disappear at age 18—Kennedy concluded that “a line must be drawn” nonetheless—Wardlow argues that those qualities can’t be appreciated in a jury’s future dangerousness analysis for young adults, either.

A leading law and neuroscience expert not involved in the case called Wardlow’s claim “incredibly strong.”

There’s been “a sea change in the scientific community’s view of human cognition generally, and juvenile/young adult cognition specifically, over the quarter-century since Billy Wardlow was convicted of murder and sentenced to death,” said Fordham Law professor Deborah Denno, founding director of its Neuroscience and Law Center.

“While Texas’s future dangerousness aggravator has been criticized over the decades—most notably by the psychiatric community—its singular application in a case involving an 18-year-old is particularly disturbing,” Denno said.

Of the 45 Texas death row prisoners who were under 21 when they committed their crimes, 18 were 18-years-old, Wardlow said in his petition, citing government data.

Texas officials wouldn’t comment on the case, because it is ongoing. They’ll have the chance to file a brief opposing high court review before the justices decide whether to take the appeal. Wardlow is asking the justices to overturn a Texas top criminal court ruling that rebuffed his claim in summary fashion.

Rejecting one of his previous appeals where the youth claim wasn’t at issue in 2017, a Texas federal court pointed to his advance planning of the robbery, and his needless confrontation with Cole, then said “there was adequate evidence for the jury to conclude that Wardlow presented a future danger.”

Faulty Undertaking

There’s agreement in the scientific community that the brain keeps developing past age 18, rendering precarious the task of predicting an individual’s future behavior.

“We know that 18 is about the peak of delinquent and criminal behavior in adolescents, and that in the vast majority of teenagers, as they become adults, their violent and criminal behavior drops off significantly,” said Clark Clipson, who has over 30 years experience conducting psychological and neuropsychological evaluations with children, adolescents, and adults.

“Our ability to make risk assessments on that population is extremely limited,” Clipson said. “If I do a risk assessment of an 18-year-old, I’m only going to say that risk assessment is good, at most, for two or three years.”

Similarly, forensic psychologist Karen Franklin described the dangerousness test, as applied to defendants under 21, as “taking a bunch of not fully formed people and trying to predict which ones, when they are fully formed, are going to be dangerous in the future.” Neither she nor Clipson are involved in the case.

That’s a “faulty undertaking,” Franklin said, “because things that contribute to danger, that are controlled by the frontal lobes, may change.”

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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