Part I: What Jones v. Mississippi said about Juvenile Sentencing, and Why it Matters
By Allison Elder, Root & Rebound Equal Justice Works Fellow
In Jones v. Mississippi, 141 S. Ct. 1307 (2021), the Supreme Court seemingly gutted its precedents that protect children from spending a life-time behind bars for crimes reflecting their transient immaturity. In so doing, it quite literally chose form over substance, finding that a procedure in which children’s youth can be considered necessarily means it will be considered.
Advocates know that is simply not true. Even though the Supreme Court has stated that it is only the rarest of juveniles that could be incarcerated for life, at the beginning of 2020, 1,465 individuals were still serving juvenile life without parole (JLWOP) sentences. And that figure does not account for the thousands more serving de facto life sentences, either because they will never be granted parole or because their sentence is so long that they will likely die in prison.
Jones v. Mississippi represents a major setback to all those still fighting for a meaningful opportunity for release for crimes they committed as children. As an incarcerated client wrote to me, the decision was absolutely “heart-shocking.” What did Jones v. Mississippi rule, exactly, and why was it such a punch-in-the-gut?
We had been moving in the right direction.
Since 2005, a series of Supreme Court cases have expressed what we have always known: children are not fully developed and cannot be criminally punished in the same ways as adults. Relying on the Eighth Amendment’s prohibition on cruel and unusual punishment, the Supreme Court reined in the use of the most severe sentences for children.
It started with low-hanging fruit. In Roper v. Simmons, the Supreme Court banned the use of the death penalty for individuals who commit crimes as juveniles. 543 U.S. 551, 602 (2005). Imagine thinking that someone could be put to death for a crime they committed as a child. Thankfully, the proportionality framework continued to develop. The Supreme Court next held that a JLWOP sentence is constitutionally disproportionate for non-homicide offenses. Graham v. Florida, 560 U.S. 48, 82 (2010). All the while, the Court was recognizing that children are not culpable for their actions in the same way as adults.
Finally, in 2012, the Supreme Court decided Miller v. Alabama and Jackson v. Hobbs jointly, (referred to collectively as Miller), holding that a mandatory life without parole scheme for juveniles violates the Eighth Amendment, even for homicide offenses. Miller v. Alabama, 567 U.S. 460, 479 (2012); Jackson v. Hobbs, 565 U.S. 1244 (2012). Under Miller, states could no longer mandate a life sentence for juveniles convicted of any offense. But the logic of Miller went further, as the Court expounded upon certain juvenile factors that judges must be able to consider, such as “transient rashness, proclivity for risk, and inability to assess consequences.” 567 U.S. at 472.
What the Supreme Court began in Miller, it entrenched in Montgomery v. Louisiana, 577 U.S. 190 (2016). In that case, the Supreme Court held that Miller’s ruling applies retroactively to those already serving JLWOP sentences. See Montgomery, 577 U.S. at 732. To get there, the Court had to decide whether Miller pronounced a substantive or procedural rule. If it was merely procedural, (and not a watershed procedural rule, an illusory category rendered obsolete in an opinion decided shortly after Jones), Miller would only apply moving forward. See id. at 729–730. But the Court held that it was substantive and applied retroactively, meaning that considering juvenile factors was more than a box to check. See id. at 736. It was a substantive protection against cruel and unusual punishment for juveniles, and as such, opened the door to resentencing for people serving JLWOP sentences across the country.
JLWOP sentences are not just cruel; they are illogical.
It was in this era of hope that I entered law school. One of the first cases I ever worked on as a clinical student was a JLWOP resentencing case. Sitting across from the client, he could have been a colleague, trusted neighbor, or friend. That is how many of these cases go: kids make mistakes, but they grow up.
Some things are so intuitive that they sound funny coming from the mouths of judges or lawyers. In the Miller-line of cases, we learned that children should not be overly punished for transient immaturity, and that only a rare few children will be so permanently incorrigible as to require a life sentence. That is a legal test backed by science regarding childhood brain development, but also imbued with common sense. Any parent asked about their own child’s mistakes would likely believe in their capacity to change, grow, and make better decisions in the future. So, why are we ever locking up juveniles for life?
Generally speaking, when we sentence people to prison, we are doing so with four penological purposes in mind: retribution, deterrence, rehabilitation, and incapacitation. By sending a child into an adult prison system for any length of time, the State is getting its retribution. Hopefully as a society we are more concerned with rehabilitating young people, but sentencing a juvenile to life does not promise any kind of better rehabilitation, outside of the natural effects of maturing and growing into adulthood. Prisons are violent places to grow into men and women. Moreover, a life sentence sends the message that you are not worth rehabilitating. By precluding the possibility of restoration to the community, it sets up a “nothing-to-lose” framework for the incarcerated individual. JLWOP survivors are a testament to their own resilience and capacity to change, but not to the institutions that house them.
That leaves deterrence and incapacitation. For years we have known that children cannot be deterred by more severe sentences. A seven-year Department of Justice study found that, for juveniles, “severity of punishment (i.e., incarceration) has little specific deterrent effect.” It is the surety of punishment that has a deterrence factor, and not the severity of the punishment. What parent hasn’t desperately tried ratcheting up the consequences for a certain behavior, only to feel frustrated by their child’s illogical failure to respond? Consistency matters, but severity does not.
Here is where “permanent incorrigibility” comes into play. By announcing that as the standard, the Court was at least implicitly restricting JLWOP sentences only to those rare cases in which a child must be incapacitated for their entire life, meaning that they must be kept separate from the community for everyone’s safety. I would argue that JLWOP sentences can only be constitutional in that circumstance, and offer that as a working definition of “permanent incorrigibility.” The case law is built around the understanding that such a child exists, but surely must be a unicorn.
Jones v. Mississippi is not intellectually honest.
Somehow, we seem to have thousands of unicorns still sitting in prison on life sentences. That is why Jones v. Mississippi mattered so much. Substantive protections such as Miller deserve substantive application, and yet individuals serving JLWOP sentences and de facto life sentences continue to struggle for meaningful release. In Jones, the Supreme Court decided whether a sentencing judge must make a finding of permanent incorrigibility before sentencing a juvenile to life without parole. The majority held that the Eighth Amendment does not require such a finding, whether it be explicit or implicit. See Jones, 141 S. Ct. at 1318–1319; 1321. As Justice Kavanaugh explained, Miller is merely a procedural protection against a mandatory JLWOP scheme. See id. at 1317. You may be thinking, wasn’t Miller deemed to be a substantive protection in Montgomery, and that is why it applied retroactively? You would be right.
In Jones, the majority reminded us that stare decisis is convenient, except for when it is not. Stare decisis is how we build case law — it is the practice of following binding precedent. The majority’s reasoning treated Montgomery as so much noise. As Justice Thomas explains in his concurrence, the majority opinion was so inconsistent with Montgomery as to effectively overturn it. See id. at 1323 (Thomas, J., concurring). Except, again, the majority portends to leave Miller and Montgomery intact, going so far as to say it “carefully follows both” of those opinions. Id. at 1321.
To twist precedents in the pursuit of keeping kids locked up for life is certainly “heart-shocking.” To think that we would not notice the inconsistencies — that our clients who live this would not notice the inconsistencies — is offensive.
A finding of permanent incorrigibility matters because it exposes bias.
The system is not working to give children a meaningful opportunity for release. Without having to put a finding on the record of permanent incorrigibility, judges will be presumed to have considered the evidence of youth presented to them. This makes appellate review much more difficult, as we have seen in other sentencing contexts. And it matters especially in the juvenile sentencing system.
First, remember that the permanently incorrigible child should be so rare as to, quite probably, never come across a particular sentencing judge’s desk. To determine that this child is the one-in-a-million, or whatever the statistic would be, a judge should be required to explain their thought-process. An appellate court will not be able to get back inside that judge’s mind, and will not have the first-hand impressions. And this kind of tea-leaf reading is particularly difficult to gather from a cold record. Without the finding, it is not clear that the judge even understood the rigorous standard to which they are constitutionally held, and yet will likely be shielded by presumption. We will never know for sure whether a particular juvenile’s youth was adequately considered. We will likely have to watch for patterns or slip-ups that somehow make it into the record, meaning that many JLWOP sentences will be rendered effectively unreviewable. The burden will be ever more decisively on advocates to find ways to ensure that courts adequately consider what they constitutionally must.
Second, and largely because of this flimsy procedural protection, racial disparities will thrive. As Justice Sotomayor explains in her dissent, “[t]he racial disparities in juvenile LWOP sentencing are stark: 70 percent of all youths sentenced to LWOP are children of color.” Id. at 1334, n.11 (Sotomayor, J., dissenting). These racial disparities have persisted in a post-Miller regime, extending to resentencings as well. See id. Racial bias is so embedded in our criminal legal system — from policing through sentencing — that it is impossible to extricate without requiring some level of explicit consideration. And racial bias is particularly pernicious in the juvenile context because black and brown children are more likely to be perceived as older than they are, and less innocent. We can expect that the transient qualities of youth are shorter-lived in the majority perception of minority juveniles.
What comes next is up to us.
As a society, we have to decide how we want to treat children that make terrible choices. If we play hide-the-ball with permanent incorrigibility determinations, we can expect a mysteriously high number of children to remain imprisoned for life. Not so mysterious if we acknowledge the deeply-imbedded racial bias that necessarily drives adult sentences for black and brown children.
There is a silver lining to the kind of disingenuous majority opinion we see here. Miller and Montgomery remain the law of the land, and advocates can fight for the kind of meaningful opportunity for release at the heart of those decisions. Sentencing judges are not bound to silence. If they feel compelled to sentence a juvenile to life, they can explain themselves and offer that decision up for better review. Doing so would recognize the weight and complexities of such a decision. What better time to articulate deep reflection than when issuing a finding that a child can never be redeemed.
About the author: Allison is Root & Rebound’s Equal Justice Works Fellow sponsored by the Leonard & Robert Weintraub Family Foundation. Her project is centered on advocating for families facing legal barriers to reunification due to past criminal legal system involvement. Allison aims to
keep South Carolina families together by helping to reunite those separated by the carceral system and by advocating for long-needed systemic change to break patterns of cyclical familial incarceration in the state.