The Supreme Court without a doubt delivered a sucker punch to the gut with its decision in Jones– a sentencing authority need not find a juvenile is permanently incorrigible before imposing a sentence of life without the possibility of parole. [i]
Did Kavanaugh and co. end the forward progress of distinguishing children from adults in the criminal justice system that defined the Kennedy-era court? Let’s take a look back and a step forward to assess the damage.
In Roper, Kennedy relied on science to determine adolescents are different than adults in holding that the death penalty for juveniles was unconstitutionally “cruel and unusual.”[ii] These three key differences included: (1) a “lack of maturity and an underdeveloped sense of responsibility”; (2) children are “more vulnerable or susceptible to negative influences and outside pressures”; and (3) their “personality traits … are more transitory, less fixed.” [iii]
These fundamental differences were the basis of subsequent Supreme Court decisions affecting children in the juvenile justice system. In Graham v. Florida, the court held that it was unconstitutional for a juvenile offender to be sentenced to life without parole for non-homicidal offenses with Kennedy writing for the majority: “[j]uveniles are more capable of change than are adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults.”[iv] In J.D.B. v. North Carolina, the Court held that a child’s age is relevant for the Miranda custody analysis[v] and in Miller v. Alabama, the court held that mandatory life without the possibility of parole for juveniles was unconstitutional.[vi]
A few things to keep in mind post-Jones as detailed in Kristina Kersey’s article “Keeping up with the Jonses 10 Things I Kinda Maybe Don’t hate About Jones” (please see her article for a humor-filled spin on Jones with a more detailed analysis)[vii]:
- The Kennedy-era cases and their oft-cited language remain intact;
- States are allowed to provide additional limits;
- The “permanently incorrigible” standard is inconsistent with the science that laid the foundation in Roper and it progeny;
- Making youth a mitigating factor as opposed to a criteria requiring a finding of fact regarding incorrigibility allows for more creative arguments;
- All the conservative Justices agreed that age plays a role in sentencing; and
- When all else fails, skip to Sotomayor’s dissent and pretend it’s the opinion.
With the Court’s shift to the right, the road ahead may appear bumpier post-Jones, but hey, that’s never stopped us before.
[i] Jones v. Mississippi, 141 S. Ct. 1307, 1317 (2021).
[ii] Esther Hong, “Justice Kennedy’s Justice for Juveniles: Roper’s Reach” (OxHRH Blog, 26 November 2018), <https://ohrh.law.ox.ac.uk/justice-kennedys-justice-for-juveniles-ropers-reach> [October 29, 2021].
[iv] Graham v. Florida, 560 U.S. 48, 68 (2010).
[v] Hong, supra note 2.
[vii] Kristina Kersey, Keeping up with the Jones 10 Things I Kinda Maybe Don’t Hate About Jones, Nat’l Juvenile Def. Ctr. (July 2, 2021), https://njdc.info/wp-content/uploads/Keeping-up-with-the-Joneses-7-2.pdf.