When we talk about folks who have a right but not a remedy, we are talking about people who have gained some profound constitutional victory but still aren’t assured they will be able to regularly rely on it to avoid becoming victims of the law. It’s hard to imagine this principle being more important than in cases about life-without-parole sentences for teenagers, the issue in a Supreme Court case decided last week, Jones v. Mississippi.
Think of Clarence Earl Gideon’s case in Florida nearly 60 years ago. We associate the iconic Gideon v. Wainwright decision with the idea that everyone has a constitutional right to an attorney if they cannot afford one. What the history books don’t teach is that millions of Americans since that epic ruling have been tried and convicted and spent time in prison without ever having a meaningful right to counsel.
I thought immediately of the lessons of the Gideon case after last week’s disappointing 6–3 ruling. In both instances, the right to counsel and life sentences for teenagers, the justices originally fell short of connecting the rights they recognized with the remedies they provided for those who had been wronged. There have been countless restrictions on the right to counsel since 1963. Now, from the most conservative court in nearly a century, we see predictable judicial clawback on the imposition of life sentences to underage offenders.
Take the case of Brett Jones who, at age 15, murdered his grandmother. He was convicted and sentenced to life without parole. That was nearly 17 years ago. Jones was destined to spend the rest of his natural life in prison, regardless of what he did or said once he got there. Then he got lucky. In two landmark rulings, Miller v. Alabama and Montgomery v. Louisiana, the Supreme Court in the past decade outlawed mandatory life-without-parole sentences for juvenile offenders and applied that rule retroactively, giving thousands of people (like Jones) a chance at something they could only have dreamed of: getting out of prison alive.
But now Jones is unlucky again. The Supreme Court today looks dramatically different from the one that decided Montgomery in 2015. Gone are Justices Ruth Bader Ginsburg and Anthony Kennedy, and in their places are Amy Coney Barrett and Brett Kavanaugh. That’s how quickly the tide turns when it comes to the Court and core issues of criminal justice. That’s how a judicial movement to limit the number of children whose lives are thrown away before their brains are fully developed turns into a judicial countermovement to ensure that more children will be locked away forever.
In Jones, the Court’s conservatives declared that sentencing judges do not have to make a specific factual finding that a juvenile convicted of murder is “permanently incorrigible” before sentencing that teenager to life without parole. That these trial judges (or resentencing judges in Jones’ case) can exercise their discretion in life-without-parole cases without being tethered to factual inquiries that go to the heart of the question about juvenile justice: how many teenagers are capable of rehabilitation as their brains mature? That’s how the Court’s six conservatives just gave legal cover to trial judges so they can hand out life-without-parole terms to teenagers, usually Black teenagers, convicted of murder.
The message to these judges could not be clearer: go ahead and impose those parole-less life sentences without digging too deep into the rehabilitative promise of teenagers and don’t worry about having us later tell you that you’ve gone too far. Kavanaugh, writing for the majority, tried to hide what the Court had done with opaque language — the old soft shoe, you might say — but Justice Sonia Sotomayor, dissenting for the Court’s diminished liberal wing, saw right through it. Saw right away that Jones will result in countless more young people being condemned to die in prison no matter how rehabilitated they may become.
Mark Joseph Stern over at Slate and Matt Ford at the New Republic both wrote excellent essays last week covering the nuts and bolts of the case and ably summarized the legal and moral tension caused by the push-and-pull between Kavanaugh and Sotomayor. Ford in particular got close to the point I want to make: The Supreme Court in Miller and Montgomery gave juvenile offenders like Brett Jones a tantalizing right without the promise of a full remedy. Those facing life-without-parole sentences were guaranteed a hearing, but not a result, even if the result they did get from their judges wasn’t or isn’t within the spirit of Miller.
Sotomayor made a form of this argument, too, in her dissent when she wrote that the majority was treating Miller as a procedural rule rather than a substantive one. You can think about that in many ways. One way is to say that Kavanaugh was able to treat Miller like a procedural rule rather than a substantive one, and was able to so glibly undermine such new precedent, because the authors of the Miller majority didn’t button it up the way they should have. They didn’t prohibit outright these types of sentences imposed on teenagers. They didn’t tell all judges everywhere that this barbaric practice is outlawed by the “cruel and unusual punishment” clause of the Eighth Amendment.
That’s almost certainly the fault of former justice Anthony Kennedy, the Ronald Reagan nominee who for so many years occupied the Court’s swing seat. He could have made Miller and Montgomery less vulnerable to the man who replaced him (whom he reportedly wanted to replace him). He chose not to, both in Miller and Montgomery three years later. So, too, did Chief Justice John Roberts, who dissented in Miller but then was part of the majority in Montgomery. Roberts, too, could have stood up for the Court’s precedent in Jones. He could have made it harder for judges to throw away the key for teenage murderers. Instead he sided with Kavanaugh.
I thought of Gideon last week because a form of the same dynamic was in play there. When the justices in 1963 recognized the constitutional right to counsel, they left it to the states to determine how to roll out their public defender programs. The justices didn’t button up the right to counsel as strongly as they could have — as strongly as they should have. The result has been a disaster in many jurisdictions. If you live in a place with a strong public defenders program you are much more likely to be treated fairly within the criminal justice system than if you lived in a place with a lousy defender program. There are many more of the latter programs than the former. The same will be said now of the sentencing of teenagers to life without parole.
By encouraging sentencing judges to use their discretion, the Kavanaugh court naturally has guaranteed that these penalties will be handed out in more of an arbitrary and capricious manner than they have been. They will depend in the future, as they did in the past, on geographical and other disparities the Supreme Court is supposed to restrict, not encourage. We’ve seen in just these past few years the ebbing and flowing of a tide that had washed away these kids and then brought them back and now threatens to wash them away again. It’s a shameful choice that Kavanaugh and company will carry all the rest of their days.
The compromise in Gideon ultimately centered around money. The Gideon court allowed state legislators and judges to weasel their way out of adequately funding public defender programs so that in many places your “right” to a lawyer meant your ability to get a lawyer so overworked and underprepared as to guarantee only “ineffective assistance.” The compromise in Miller and Montgomery centered around discretion. The justices in 2012 and 2015 didn’t want to do away entirely with life-without-parole sentences for teenagers so it left for a later day the details of how judges should handle those cases. Then came Kavanaugh.
The compromise that still plagues Gideon, with devastating effect, will plague Miller and Montgomery for many years to come. It will mean that young people whose lives are just starting will never have the opportunity to benefit practically from their own redemption. Worse, Jones v. Mississippi presages similar precedential rollbacks in other areas. The Court’s First Amendment jurisprudence may soon be unrecognizable with this crew in command. The pattern also threatens progressive legislative efforts, like the sweeping voting rights and election reform bill now wending its way through Congress. Talk about rights without remedies.
The views expressed are the author’s own and not necessarily those of the Brennan Center.