Does childhood end at 18?

If someone commits a crime days after turning 18, should he be treated like an adult or a child?

In two recent cases — Miller v. Alabama and Montgomery v. Louisiana — the U.S. Supreme Court held that life-without-parole should be reserved for the rare kid (defined as someone under 18) “whose crime reflects irreparable corruption,” citing the ability of youth to evolve and scientific discoveries about young adult brain development. “Children are different,” Justice Kagan wrote, neatly summarizing modern-day medical understanding and common sense attributable to anyone who knows a teenager.

But does 18 makes sense as an arbitrary cut-off? More courts across the country are saying no. After all, people under 18 cannot drink or rent a car. Experts say that the brain continues to develop profoundly between the ages of 18 to 22. And anyone with common sense who knows someone between 18 and 22 cannot reasonably argue that they are able to make the same judgments an adult would make.

In 2015, the Washington Supreme Court held in State v. O’Dell that the mitigating factors of youth can apply to defendants over 18. In a nutshell, this means that an adult defendant may argue for a less severe sentence because of his youth.

Sean O’Dell’s case was a prime example. Ten days after his 18th birthday, O’Dell raped a younger girl. (O’Dell maintains the sex was consensual.) Because he was charged with (and ultimately convicted of) second-degree rape, O’Dell faced a 6 to 8 years prison sentence as an adult under Washington law. At the sentencing hearing, O’Dell’s lawyer argued that, had O’Dell raped the victim just two weeks earlier, he would have been charged as a juvenile and sentenced to a juvenile detention facility for a much shorter amount of time.

The facts here supported looking at O’Dell as a kid. He was still in high school and was hanging out with high school classmates — he was not a predatory older man looking for young girls. He lived with his mother and was fond of video games. And, while none of this legally supports whether O’Dell should receive a lesser sentence, there is plenty of scientific evidence that adolescents have poor judgment and are unlikely to appreciate the consequences of their actions.

As a result, the Washington Supreme Court pointed out that the statutory prison sentences did not take age into consideration — an 18 year old is treated the same as a 45 year old as a 75 year old. In its opinion, the court cited to many of the same reasons relied upon by the U.S. Supreme Court: “But [the Legislature] could not have considered the particular vulnerabilities — for example impulsivity, poor judgment, and susceptibility to outside influences — of specific individuals. The Court places a great deal of weight on scientific evidence that was really not available less than a decade ago.

And this week, a Washington State Appellate Court held that the principles of O’Dell — that youth could be considered as a factor in resentencing — was enough of a change in the law to be retroactive. This means that the defendant in this case, Kevin Light-Roth, is entitled to a new sentencing hearing so that he can have the opportunity to present evidence of his youth. It’s important to remember that these cases are not making a blanket statement about whether individuals deserve lesser sentences — rather they are simply providing the opportunity for young individuals to present evidence that they may be less culpable than others.

As courts across the country face resentencings for inmates who were unconstitutionally condemned to die in prison as youth, there is hope that the arbitrary age cut-off of 18 may soon erode to allow for individualized sentencing.