Kavanaugh Ruling on Juvenile Life Terms Underscores Court Divide

April 23, 2021, 8:45 AM

The Supreme Court made it more likely that people who committed homicides as minors will die in prison, after ruling that judges aren’t required to find them “permanently incorrigible” before imposing life-without-parole-sentences.

Thursday’s ruling spotlighted the stark ideological divide on the 6-3 court, with Justice Brett Kavanaugh writing for the Republican-appointed majority over dissent by Justice Sonia Sotomayor for the Democratic appointees that accused the majority of gutting precedent.

The decision highlights the longstanding split on the court when it comes to Eighth Amendment cruel and unusual punishment cases. It’s the same divide evident in death penalty cases, where the court’s 5-4 gap widened to 6-3 when Justice Amy Coney Barrett replaced the late Justice Ruth Bader Ginsburg.

The ruling in Jones v. Mississippi also underscores the shift on the court since Kavanaugh replaced now-retired Justice Anthony Kennedy, who sided with defendants in key juvenile sentencing precedents.

“This ruling, reflecting a new, more conservative make-up of the Court, diverges from the Court’s jurisprudence over the past decade, which meaningfully strengthened constitutional protections for children facing life without parole, rooted in the recognition that children are developmentally different from adults and uniquely capable of positive change,” said Heather Renwick, legal director of the Campaign for the Fair Sentencing of Youth.

Judges will still need to consider “youth and its attendant mitigating factors” before sentencing juveniles to life without parole, Renwick said.

In addition, the opinion leaves room for states to give juveniles greater protections, including banning life-without-parole, said Marsha Levick, chief legal officer and co-founder of the Juvenile Law Center.

More than half of U.S. states have either banned the practice or have no one serving such sentences. The U.S. is the only country with life-without-parole for minors.

Precedent Fight

The case came to the court through the appeal of Brett Jones, 31, who killed his grandfather, Bertis, a few weeks after Jones turned 15.

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 her in the house and kicked her out. Jones stabbed his grandfather eight times.

His appeal forced the court to reckon with landmark juvenile sentencing precedents Miller v. Alabama, from 2012, and Montgomery v. Louisiana, from 2016. Both were close cases, with Kennedy siding with defendants in the majority.

In Miller, the court said the Eighth Amendment bars mandatory life-without-parole for juveniles convicted of homicide. 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. Miller barred life-without-parole “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility,” Kennedy wrote for the majority in Montgomery. Dissenting in Montgomery, the late Justice Antonin Scalia said Miller required the opposite, quoting Miller‘s mandate “only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing a particular penalty.”

Jones’ case raised the issue of what exactly those precedents require—that is, what specific findings, if any, judges need to make before locking juveniles up for life. Jones argued that judges need to find defendants permanently incorrigible first.

They don’t, Kavanaugh wrote for the majority.

He quoted from Montgomery, which said Miller “did not impose a formal fact-finding requirement.” He noted that Thursday’s ruling “does not preclude the States from imposing additional sentencing limits in cases involving defendants under 18 convicted of murder,” or from banning the practice entirely.

The majority “interpreted Montgomery in a way to make it consistent with Miller,” said Kymberlee C. Stapleton, associate attorney at the Criminal Justice Legal Foundation, a crime victims’ group. She called the decision “a victory for the families of victims murdered by juveniles.”

Kavanaugh’s opinion was joined by Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, and Barrett. Justice Clarence Thomas filed his own opinion, agreeing with the result but saying the court should expressly overrule Montgomery.

In dissent, writing for herself and Justices Stephen Breyer and Elena Kagan, Sotomayor said the court “guts” Miller and Montgomery, overruling those precedents without admitting it and rewriting them to minimize their effect.

John Neiman, who argued Miller for the state when he was Alabama’s solicitor general, said the decision “marks a reasonable attempt to apply the Constitution faithfully while making sense of prior Supreme Court case law that was not especially coherent.”

“I remain uncertain how any judge could possibly determine that any offender is permanently incorrigible,” added Neiman, who clerked for Kennedy and is now a shareholder at Maynard Cooper & Gale in Birmingham. “I believe that all of us are capable of redemption.”

The case is Jones v. Mississippi, U.S., No. 18-1259.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at jcrawley@bloomberglaw.com; Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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