Illinois Appellate Court Affirms That Miller Protections Do Not Apply to Twenty-One-Year-Olds

Above: A timeline of the court decisions affecting Illinois offenders who are under the age of 18. These protections have not been extended to offenders who are over the age of 18. Image source: InjusticeWatch

Despite defendant Bernard Foster’s mention of emerging adult brain science on appeal, on November 13, 2020, the Illinois Appellate Court affirmed the judgement of the Circuit Court of Cook County and denied his post-conviction relief petition.

In 1994, Bernard Foster, aged 21, shot and killed Mark Peters. Foster was found guilty before a jury in 1996 and sentenced to 95 years in prison. On July 3, 2017, over twenty years after his original sentencing, Foster filed a pro se post-conviction petition, asserting that during his original trial, “his appellate counsel was constitutionally ineffective, the trial court erred in sentencing him to an extended term, and his sentence violated the United States and Illinois Constitutions.” To support his claim that his sentence violated the United States and Illinois Constitutions, Foster cited emerging adulthood brain development evidence. He claimed that “the trial court failed to consider his ‘youth’ and its ‘attendant circumstances,’” and that “the frontal cortex of the brain is not fully formed until a person reaches his mid-twenties.” In August 2017, the trial court dismissed Foster’s petition as “frivolous and patently without merit.”

On appeal to the Appellate Court of Illinois on November 13, 2020, Foster stated that the Illinois Supreme Court’s decision in Harris “left the door open for individuals like [him] to raise as-applied challenges to the constitutionality of their sentences under the Post-Conviction Hearing Act even though they find themselves on the ‘adult’ side of the traditional dividing line between adults and children.”

Despite the defendant’s use of emerging adult brain development to support his position, the court affirmed the judgement of the Circuit Court of Cook County. The court reasoned that Miller does not apply in Foster’s case, as he was not under the age of eighteen when he committed his crimes. The court further asserted that his sentence was not inappropriate, as Foster received a parole-eligible sentence rather than a sentence to life in prison without parole. Notably, the courts admitted that “indeed ‘the traditional dividing line between adults and children,’ as defendant phrases it, becomes more arbitrary when confronted with a defendant who has just stepped over it.” However, the court wrote that in Foster’s case, the “dividing line” is less arbitrary due to the fact that “[Foster] stepped over the line many years before he shot Peters repeatedly in the back and killed him.”

Key Words: Miller v. Alabama, People v. Harris, adolescent brain, Eighth Amendment, Illinois

Citation: People v. Foster, 2020 WL 6707578 (Ill.App. 1 Dist., 2020)

This post is the 26th post as part of an ongoing Center for Law, Brain & Behavior (CLBB) series tracking the latest developments in law and neuroscience cases. To see previous posts about recent cases, see the full case archive on the CLBB website. To see updates on legal scholarship, see the Neurolaw News, hosted by the MacArthur Foundation Research Network on Law and Neuroscience. This project is made possible through support of the Dana Foundation.



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