Jones Marks Shift In High Court's Juvenile Justice Rulings

By Jack Karp | May 2, 2021, 8:02 PM EDT

The U.S. Supreme Court ruling that juveniles convicted of murder can be sentenced to life in prison without parole without being found "permanently incorrigible" is a marked reversal for the justices, who had been limiting harsher penalties for minors in recent years, attorneys say.

The justices' recent decision in Jones v. Mississippi held that a judge doesn't have to separately find that someone convicted of a murder they committed before they were 18 is "permanently incorrigible" before sending them to prison for life with no chance of parole.

It also ended a string of decisions in which the high court had ruled that because children's minds are still developing, they are less culpable and more deserving of special consideration when being sentenced for their crimes, according to experts.

"It's a very significant rollback of what has been a very promising line of jurisprudence," said Brooklyn Law School professor and former juvenile defender Cynthia Godsoe.

Changing Course

In 2005, the U.S. Supreme Court found in Roper v. Simmons that executing minors constitutes cruel and unusual punishment under the Eighth Amendment. In 2010, the court said in Graham v. Florida that juvenile offenders can't be sentenced to life in prison without parole for nonhomicidal crimes.

The justices continued down that road in Miller v. Alabama in 2012, when they ruled the constitution forbids mandatory sentences of life without parole for juvenile offenders convicted of murder. Finally, in 2016's Montgomery v. Louisiana , the court held that the Miller ruling applied retroactively in cases reviewed outside the direct appeals process and that Miller barred life without parole except for "those whose crimes reflect permanent incorrigibility."

But that streak of rulings, which juvenile justice advocates cheered as shielding minors from the harshest punishments, ended on April 22, when Justice Brett Kavanaugh wrote for a 6-3 majority that "a separate factual finding of permanent incorrigibility is not required" to sentence a juvenile offender to life in prison without parole.

"In a case involving an individual who was under 18 when he or she committed a homicide, a state's discretionary sentencing system is both constitutionally necessary and constitutionally sufficient," according to Justice Kavanaugh's opinion.

That opinion, which was joined by Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch and Amy Coney Barrett with Justice Clarence Thomas filing a concurrence, is a reversal of those previous decisions, according to Kathryn Miller, a professor at Yeshiva University's Benjamin N. Cardozo School of Law and assistant director of its Criminal Defense Clinic.

"The Kavanaugh majority decision essentially reversed Supreme Court precedent, which is Montgomery v. Louisiana, although they denied having done it," professor Miller said.

Justice Kavanaugh insisted in his opinion, however, that the majority "carefully follows both Miller and Montgomery," saying that Miller mandated only that a judge consider an offender's youth before sentencing them to life without parole.

And in Montgomery, "the court flatly stated that 'Miller did not impose a formal fact-finding requirement' and added that 'a finding of fact regarding a child's incorrigibility ... is not required,'" Justice Kavanaugh wrote.

The Miller and Montgomery decisions established that minors who have committed murder are entitled to a certain amount of process before they can be sentenced to life without parole, according to professor Miller, something she said the majority decision in Jones "left open the door" to continue.

But those previous decisions also said that most minors should be exempted from life without parole, even if they've committed murder, she added.

In Miller's majority opinion, Justice Elena Kagan wrote that life without parole should be "uncommon" for juveniles and reserved only for those who show "irreparable corruption," the term that led to the standard of "permanent incorrigibility" delineated in Montgomery, according to professor Miller.

"And that's the part here that the majority is going back on," professor Miller said.

She wasn't surprised by the reversal, however, given the new, conservative justices who've been added to the court since Montgomery was decided in 2016.

"This is a case that the criminal defense bar was anxious about in terms of cert being granted given the makeup of the court," she said. "And of course we all became more anxious after the death of Justice [Ruth Bader] Ginsberg."

Justice Sonia Sotomayor criticized those new justices' change of course in her dissent in Jones, joined by Justices Kagan and Stephen Breyer.

"The court attempts to circumvent stare decisis principles by claiming that '[t]he court's decision today carefully follows both Miller and Montgomery.' The court is fooling no one," the dissent said.

"Today, the court distorts Miller and Montgomery beyond recognition," Justice Sotomayor went on.

Not everyone thinks that's a bad thing.

What the Jones case is really about is whether the public, through the democratic process, is allowed to make decisions about what punishments can and cannot be meted out to criminal offenders or if those decisions can be imposed by the justices, said Mitchell Keiter, who filed an amicus brief opposing Jones' petition on behalf of California prosecutors.

While there is a risk that a young offender may be locked away for life despite having the potential to be reformed, there are also risks to releasing offenders prematurely and allowing them to commit more crimes, Keiter said. How society balances that certain harm to the individual offender against the possible harm to the public is a question for the public and not the justices.

"As I see it, it's really more a question of balancing risks and who gets to participate in that balance," he said.

While he agrees with the decision, he also agrees that it marks a shift in recent Supreme Court jurisprudence, though it's a shift he applauds.

"It was certainly desirable that the court not go further in creating not only restrictive rules, but very difficult-to-apply rules," he said.

A Problematic Standard

The standard of "permanent incorrigibility" at the center of the Jones case is a difficult-to-apply rule, attorneys agree.

Petitioner Brett Jones was convicted of killing his grandfather when he was 15 years old. At the time, Mississippi law mandated sentences of life without parole for murder. But after the Supreme Court held in Miller that such a sentence can only be imposed on a juvenile if it is not mandatory, Jones was ordered to be resentenced.

A judge again sentenced him to serve life without parole, and Jones appealed, citing the Miller and Montgomery decisions.

Jones claimed in his petition for certiorari that the judge who sentenced him "focused principally on the nature of the crime" and barely considered either his youth at the time it was committed or the progress he had made while incarcerated since, which included earning his GED. The judge had not found that Jones was permanently incorrigible, according to his petition.

"Without a requirement to find permanent incorrigibility before imposing life without parole, the command of Miller and Montgomery to restrict the sentence to rare, permanently incorrigible juveniles loses its force as a rule of law," Jones said.

But that "permanent incorrigibility" standard is problematic, according to attorneys on both sides of the issue.

The standard "feels very mushy," professor Miller said. Keiter called it "nebulous."

It may be possible for a judge to gauge the magnitude of an offender's depravity, but it doesn't seem possible to measure it's duration, Keiter said. "We have no idea 20 or 30 years from now how much or how little this person will change," he added.

"That's definitely one of the things that bothered the majority" in Jones, according to professor Miller.

But the attorneys disagree on why the standard is problematic.

For Keiter, the Miller decision was based on "very tenuous reasoning," and since it's impossible to say with any certainty that a defendant can never be reformed, judges would have to give every defendant an opportunity for parole. As a result, the standard would functionally eliminate the sentence of life without parole for juveniles.

"And that's going to really weaken the protective force of the law," he said.

But the real issue is that the "permanent incorrigibility" standard offers judges far too much discretion and that discretion can be applied in a racially biased way, according to professors Miller and Godsoe.

It's easy to imagine "that Black and brown criminal defendants would be more likely to be found permanently incorrigible," professor Miller said.

'Potentially Devastating'

The Jones decision's biggest impact will be on people who have already been sentenced to life without parole for crimes they committed as juveniles, according to professor Miller, who called the ruling "potentially devastating" for those inmates.

It will now be much harder for those prisoners to present evidence of their rehabilitation to get their sentences changed, she explained.

"Now it's not clear that judges are going to have to consider that evidence," she said.

The decision may have already had that effect on at least one defendant.

Just days after the Jones ruling, Evan Miller, the Alabama prisoner who lent his name to Miller v. Alabama, was resentenced to life without the possibility of parole.

Miller, who was 14 when he committed the murder for which he was originally sentenced to mandatory life without parole, was entitled to be resentenced after the high court's ruling that those sentences are barred for juveniles when they are mandatory.

But at a resentencing hearing Tuesday, a judge ruled that the severity of Miller's crime outweighed his age at the time and barred Miller from ever becoming eligible for parole.

It's difficult to know if the high court's decision in Jones impacted Miller's resentencing, Godsoe admitted, but "I would not be surprised at all if it did," she said. "How could it not?"

How the Jones decision will impact other defendants convicted of murders they committed as kids remains to be seen.

Sentences of life without parole for juveniles are banned in 25 states and the District of Columbia, according to the Sentencing Project. In the remaining states, life without parole remains a possibility for juveniles, and 1,465 people were serving those sentences for crimes they committed as minors when 2020 began.

Under the Jones ruling, judges will not have to make a separate finding that those offenders are "permanently incorrigible" before imprisoning them without the possibility of parole.

And while that is a problematic standard, "it's still better than nothing," Godsoe said.

"It's definitely not a panacea," she said, and judges should have to make a much more detailed finding than one of "permanent incorrigibility" before sentencing a juvenile to spend their life in prison with no chance of parole.

"But still it would have been far better to at least require that than to just eliminate it altogether," Godsoe said, "which is basically what they did."

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

--Editing by Katherine Rautenberg.

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