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High Court Weighs Whether Juvenile Life Without Parole Requires 'Incorrigibility'

The U.S. Supreme Court on Tuesday grappled with whether the Constitution requires a trial court to find that a juvenile is permanently "incorrigible" before imposing a sentence of life without parole.

The question is an important one of juvenile justice following the high court's 2012 decision, in Miller v. Alabama, that mandatory sentences of life without parole for those who commit homicide as minors violate the Eighth Amendment. The court followed that up in 2016 with Montgomery v. Alabama, which held that Miller applies retroactively and thus hundreds of serious juvenile offenders had to be re-sentenced. Those hearings often examine the offender's childhood and school record, and sometimes include testimony from educators.

Those cases left a dichotomy between juvenile offenders who may not be sentenced to life without parole because their crimes reflect "the transient immaturity of youth," as then-Justice Anthony M. Kennedy wrote for the majority in both, and the "rarest of juveniles" whose crimes "reflect permanent incorrigibility" and thus may receive the stiffest sentence available to juveniles. (The court had previously struck down the death penalty for juvenile offenders.)

The case of Jones v. Mississippi (No. 18-1259), involves a Mississippi man, Brett Jones, who was 15 in 2004 when he stabbed his paternal grandfather, Bertis Jones, to death with a kitchen knife in a dispute over the younger Jones having his girlfriend over. Jones was convicted of murder and given a then-mandatory sentence of life in prison without parole.

After the 2012 Miller decision, the Mississippi Supreme Court ordered a new sentencing hearing for Jones. At that hearing, which included testimony that Jones had a high IQ and had been in gifted classes in school, a trial judge again sentenced him to life without parole without finding him permanently incorrigible or assessing his capacity for rehabilitation.

Into Deep Waters

During Tuesday's arguments, conducted over the telephone because of the coronavirus pandemic, the lawyer representing Jones said that after Miller and Montgomery, it was clear that only those juvenile offenders whom a judge or jury had found permanently incorrigible could be sentenced to life without parole.

"Settled law recognizes the scientific, legal, and moral truth that most children, even those who commit grievous crimes, are capable of redemption," said David M. Shapiro, the director of the Supreme Court program of the MacArthur Justice Center, and an associate law professor at Northwestern University.

Justice Samuel A. Alito Jr., who was in dissent in both Miller and Montgomery, asked Shapiro to repeat that line from his opening statement. After Shapiro did so, Alito said, "This is fascinating. You want to take us and you want us to take the courts of this country into very deep theological and psychological waters. Do you think that there are any human beings who are not capable of redemption?"

Shapiro replied that many psychologists testify that "particular individuals are permanently incorrigible and can't be rehabilitated."

Alito said "there are a lot of people, they're not psychologists maybe, but there are a lot of people who think that every human being is capable of redemption." Shapiro's arguments would present difficulties for judges who believed every person could be rehabilitated, Alito added.

Shapiro later said he was not asking the Supreme Court to require sentencing courts to use certain "magic words' with respect to a finding of permanent incorrigibility.

"All we are asking for is that the judge needs to understand that children who are capable of rehabilitation cannot be sentenced to life-without-parole, and to decide whether or not the defendant fits within the rule," Shapiro said.

Krissy C. Nobile, Mississippi's deputy solicitor general, argued for the state that Jones received what the Eighth Amendment requires: "An individual life sentencing hearing where the sentencing court considered the mitigating circumstances of Jones's youth and its attendant characteristics before exercising discretion to impose a life-without-parole sentence."

"Miller implicitly holds and Montgomery explicitly states that a finding of incorrigibility isn't required," she added.

Justice Stephen G. Breyer, who was in the majority in Miller and Montgomery, said the two decisions say that for a court to sentence a juvenile to life without parole, the offender must be found permanently incorrigible.

"Did the Court say that?" Breyer said. "I think yes, OK?"

Justice Sonia Sotomayor, also in the majority in both cases, said, "Montgomery says it's the rare juvenile offender whose crime reflects irreparable corruption. Multiple, multiple times in Miller and in Montgomery, the court says it should be rare."

First Week for Barrett

Frederick Liu, an assistant to the U.S. solicitor general arguing in support of Mississippi, said that no affirmative finding of permanent incorrigibility was required.

"Under Miller, the [sentencing] court must consider whether the distinctive attributes of youth have diminished the penological justifications for life-without-parole," Liu said. "When, as in this case, the court determines that they have not, that is a determination that the crime does not reflect transient immaturity, and no further finding is required."

New Justice Amy Coney Barrett, in her second day on the virtual high court bench, asked questions of each participating lawyer that did not clearly suggest how she might rule and were somewhat technical, such as about what standard an appeals court might apply to such cases.

She asked Shapiro: "If you argued below that [Jones] was not permanently incorrigible and, essentially, you know, one way of looking at what the trial court did is it did not make a finding, did not say he was permanently incorrigible, and you're saying as a matter this is a violation of the Eighth Amendment then to sentence him to life without parole, why can't you just raise that challenge, you've preserved it, and raise it on appeal?"

Shapiro replied, "We did, your honor, but the problem is that the Mississippi courts don't recognize that permanent incorrigibility is a rule."


Shapiro briefly noted in court what he and Jones's other lawyers argue more fully in their brief—that Jones is not permanently incorrigible. Jones lacked a prior criminal record, has been a model prisoner, and has expressed remorse for his crime, they argue.

"Beginning from a kid who had just turned 15 and who committed a murder for the most immature reason possible, teenage infatuation, there is an extraordinary story here showing that Brett is an individual who is fully capable of rehabilitation," Shapiro said during the argument.

A decision in the case is expected by next June. 


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