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Justices Consider ‘Magic Words’ in Juvenile Life Sentences

Nov. 3, 2020, 9:07 PM

The Supreme Court heard argument Tuesday over what’s required of judges when they sentence juvenile offenders to life-without-parole, including what “magic words,” if any, judges need to use.

The court didn’t provide a clear signal at the argument about whether the man at the center of the case, who killed his grandfather at the age of 15, will receive a new sentencing hearing, or how such a proceeding would be conducted.

The outcome will depend, in part, on how the newest justices, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, apply closely-divided precedents.

A decision in the case is expected by late June.

Precedent, Redemption

Brett Jones, now 31, killed his grandfather during an argument at home in the summer of 2004. Jones had recently moved in with his grandparents in Mississippi to escape violence in the Florida home he shared with his stepfather and mother. His girlfriend ran away from home in Florida to stay with Jones in Mississippi. Jones and Bertis fought after Bertis found the girlfriend in the house and kicked her out.

The main precedents at issue are the high court’s 2012 decision in Miller v. Alabama and 2016 decision in Montgomery v. Louisiana, both of which sided with juvenile offenders.

Under those cases, judges need to find that a juvenile homicide offender is “permanently incorrigible” before sentencing them to life-without-parole, Jones’ lawyer David Shapiro said at the argument. He’s director of the Supreme Court and Appellate Program of the Roderick and Solange MacArthur Justice Center.

Shapiro pointed to the “scientific, legal, and moral truth that most children, even those who commit grievous crimes, are capable of redemption.”

That got Justice Samuel Alito’s attention. The justice who dissented in both Miller and Montgomery said he found that “fascinating.” He said Shapiro wanted to “take us and you want us to take the courts of this country into very deep theological and psychological waters.”

Alito asked Shapiro what he would say to “any members of this Court who are concerned that we have now gotten light years away from the original meaning of the Eighth Amendment and who are reluctant to go any further on this travel into space?”

In Miller, a 5-4 court said the Eighth Amendment, which bars cruel and unusual punishment, bars mandatory life-without-parole for juveniles. Now-retired Justice Anthony Kennedy sided with the late Ruth Bader Ginsburg and Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor. Kennedy was replaced by Kavanaugh, who pressed both sides at the argument about what level of findings those precedents require.

After Miller, in a new sentencing, the state court heard evidence of Jones’ abusive childhood and rehabilitation in prison but still said he shouldn’t be eligible for parole.

The Supreme Court then decided Montgomery, which made Miller retroactive and said that, under Miller, parole should be available for “all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” Montgomery was 6-3, with Roberts joining the Miller majority. In addition to Alito, Justices Clarence Thomas dissented in both cases, as did the late Antonin Scalia, whom Gorsuch replaced and for whom Barrett clerked.

Barrett has said she shares Scalia’s philosophy. She didn’t give a clear indication during the argument how she’ll rule in Jones’ case.

Magic Words

The question, then, still lingering after the argument, is what’s required of sentencing judges in these situations.

“I’m having just a little trouble figuring out what exactly it is that you’re looking for,” Roberts, whose vote could be pivotal, told Shapiro."We know it can’t be a formal finding, as I think you indicated, because of Miller and Montgomery‘s statements. And, obviously, you want more than just a hearing at which you’d have an opportunity to raise the—the arguments, but what is it in the middle there?”

Sotomayor, who is likely to side with Jones, also pressed Shapiro on this point, telling him during an exchange with the justice that “you’re getting back to you want magic words.”

Shapiro said multiple times during the argument that that wasn’t the case. He said judges need to show they’ve considered incorrigibility, which he said the Mississippi courts have affirmatively failed to do.

Roberts told the lawyer for the state, Krissy Nobile, that it didn’t sound like Shapiro was asking for much. Nobile said no more is required for Jones than he has already received in his post-Miller hearing. She said the Eighth Amendment requires considering “the mitigating circumstances of youth and all that accompanies it” but doesn’t “impose specific procedures or require sentencers to follow a particular verbal formula.”

The case is Jones v. Mississippi, U.S., No. 18-1259, oral argument 11/3/20.

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: John Crawley at; Tom P. Taylor at