SCOTUS Takes Alarming Step Backwards for Criminal Justice Reform

May 17, 2021, 8:00 AM

In April, the nation’s collective consciousness was focused, once again, on the intersection of race and police accountability. But mere days after reform advocates breathed a sigh of relief following the Derek Chauvin guilty verdict, a conservative majority of the U.S. Supreme Court penned a quiet reminder that the battle for American criminal justice reform requires more than just a jury’s verdict, and even old victories cannot be considered unassailable.

In a decision that included all three of the court’s newest members, a 6-3 majority in Jones v. Mississippi halted more than 15 years of advancement in the way we, as a nation, treat youth charged with serious crimes.

In a series of opinions starting in 2005 and culminating in 2016, the Supreme Court recognized in Graham v. Florida what psychologists have long understood and brain scientists continue to prove: There are fundamental differences between juvenile and adult minds, and children’s brains continue to mature through late adolescence.

With that series of holdings, the U.S. came closer—though certainly not close enough—to embracing the penal philosophies applied to children in the rest of the world. A sentence of life without the possibility of parole could only be handed out to a child with demonstrable “permanent incorrigibility.”

Life Sentences for Children Are Back on the Table

But a majority of the court unraveled this holding. As the dissent put it, the majority supplanted what the court had decided just five years ago with what the new justices wish had been said. And the result? Life sentences for children are fully back on the table, and at least arguably, a sentencing judge need not determine that a child is irredeemable before handing down such a sentence.

As Justice Sonia Sotomayor put it in her dissent, the majority patently ignored what the public knows and science has proven: Children have capacity for change and they, in the court’s own words in Roper v. Simmons from 2005, have the “potential to attain a mature understanding of [their] own humanity.”

It is our shared humanity that stands at the center of the need for all criminal justice reform. As the brother of George Floyd, Philonise Floyd, stated after his brother was murdered, the police “showed no mercy, no humanity and tortured my brother to death.”

The court recently maintained the requirement that a judge consider someone’s youth in imposing a potential life sentence. But by not requiring a finding that a young person is either redeemable or, as one of the rarest of the rare, is permanently incorrigible, that consideration of youth is incomplete. In short, it is a deficient examination of a young person’s humanity.

That is a tragedy in its own right. But even worse, the reverberations of the court’s decision will not echo equally. As most things in the criminal justice system, the negative impact of Jones will be disproportionately borne by people of color, and in particular by Black children.

Before 2016, Black youthful offenders were sentenced to life imprisonment without parole 10 times more often than White offenders. It is disheartening to think that Jones could be the catalyst for a return to that systemic inequity.

Even before Jones—and even in firmly blue pockets of America—the battle for humane juvenile justice policies was already arduous. For instance, in New York, draconian laws enable the state to prosecute 13-years-olds as adults and mandate life-with-parole sentences for children convicted of serious felonies.

And because it is standard practice for New York’s Board of Parole to deny juvenile offenders release based only on the seriousness of the underlying crime (and Black and Hispanic parole applicants are already less likely to receive parole), these children routinely and effectively serve life without parole. Jones could serve to hinder years-long efforts in the state to address these systemic problems.

States Can Set Standards

Yet all hope is not lost. The court was careful to note that states are not prevented from setting their own sentencing standards. Twenty-five states have already outlawed life without parole for children charged as adults.

California affords youth offenders a meaningful chance at parole after 15 to 25 years. In 2017, the District of Columbia Council passed a law that permits youthful offenders serving lengthy adult sentences to ask for a court’s reconsideration, and mandates that the reconsidering judge account for “the hallmark features of youth…which counsel against sentencing them to lengthy terms in prison.”

In other words, in some parts of this nation, a child’s humanity must be examined fully before sentencing.

Jones put the country at a crossroads and delegated complete responsibility of setting the standards for sentencing youthful offenders to the states. The nation must take the court up on its invitation, and make the “broad moral and policy judgment” to choose to view the humanity of these young people.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owner.

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Arthur Ago is the director of the Criminal Justice Project at the Lawyers’ Committee for Civil Rights Under Law.

Rochelle Swartz is a Orrick Racial, Social & Economic Justice Fellow at Lawyers’ Committee for Civil Rights Under Law.

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