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Supreme Court: Let’s Make It Easier for Judges to Send Teenagers to Die in Prison

The judicial counterrevolution to juvenile sentencing reform is here, arriving in a regressive decision about a teenager condemned to life without parole.

April 27, 2021

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.