The Supreme Court’s Abhorrent Decision to Back Life-Without-Parole for Kids

    What is considered a “normal” punishment is culture—it’s where you live.

    In 18 states, overwhelmingly in the South, a teacher can repeatedly hit a child with a paddle for developmentally normal disobedience—an act that would bring criminal charges in most places above the Mason-Dixon Line.

    In 24 states, under-18s convicted of murder can get a sentence of life in prison without parole. In practice, 20 states—mostly, but by no means all, red states—still use the punishment. Approximately 1,500 people are serving such sentences today.

    This might seem appalling to people in states that don’t do this, but perhaps even more so to people in other countries: The United States is the only nation that sentences kids to die behind bars.

    The Supreme Court, on the other hand, doesn’t share this view. Nor does it seem concerned that seemingly all its cases about cruel and unusual punishment for kids come from Florida, Mississippi, Alabama or Louisiana.

    On April 22, the Court issued a 6-3 majority decision in Jones v. Mississippi, ruling that trial judges can permanently remove a child’s freedom. They just have to think that the child is bad enough. They definitely do not have to consider children’s developmental stages or capacity for change.

    Judges won’t receive any real oversight when they refuse to meaningfully consider what makes children different than adults.

    Justice Sonia Sotomayor, writing for the Court’s liberal wing in her dissent, said that the new decision “guts” prior decisions that restricted “juvenile” life sentences. Although the majority opinion is terrible, her characterization is perhaps an exaggeration. Because the Court previously only held (in Miller v. Alabama) that such sentences cannot be the minimum mandatory punishment for a murder conviction, and that this rule extends to historic cases, too (in Montgomery v. Louisiana).

    But the import of the decision in Jones is that judges in the most provincial parts of Mississippi or Louisiana won’t receive any real oversight when they refuse to meaningfully consider what makes children different than adults.

    Some legal professionals who enjoy discretion within the criminal justice system definitely refuse to do so. Abe Laeser, the retired Florida prosecutor who sent more people to death row than any other, once said, “Just because you are six months or 10 months from reaching the magic age of 18, doesn’t change the fact you are essentially a broken toy at this point—and you are not going to get fixed.”

    The Mississippi judge who resentenced Brett Jones, Circuit Court Judge Thomas Gardner, said basically the same thing, using subtler words. When redeciding Jones’s fate in 2016, Judge Gardner apparently looked at prior Supreme Court opinions and said that the law merely “requires that the sentencing authority consider both mitigating and the aggravating circumstances,” though no opinion says that.

    The judge briefly acknowledged that Jones was a 15-year-old child when he committed his crime. He also opined that boy “reached some degree of maturity in at least one area”—foremost in the judge’s mind, murder, since 15-year-old Jones fatally stabbed his grandfather with a kitchen knife during a fight in 2004. The man, now in his 30s, who did that as a teenager, Gardner determined, deserves never to leave prison.

    The charade of states and judges considering resentencing without applying it is reminiscent of what happened after the Supreme Court banned the mandatory application of the death penalty for murder in 1972 in Furman v. Georgia.

    Retentionist states quickly created a new, bifurcated death penalty trial system, complete with a “penalty phase” that has been roundly criticized as a fig leaf to legitimize decisions as something more than arbitrary. This marginal effort sufficed to save the death penalty from being ruled unconstitutional again in Gregg v. Georgia in 1976.

    Real-world cases can speak to whether the death penalty’s application is in any way principled:

    Gary Green is a man with an IQ of 78 and schizoaffective bipolar disorder who checked into a psychiatric hospital five days before he killed someone. His sentence? Death.

    William Taylor is a man with an IQ of 74, a traumatic brain injury, and epilepsy who repeatedly tried to kill himself and then killed someone else. His sentence? Death.

    Demetrius Charles Howard is a man who participated in an armed robbery while his partner killed someone. His sentence? Death.


    With so-called “juvenile lifers,” the gratuitous cruelty of sentencing is equally apparent. In contrast to the details of their crimes, the “mitigation” evidence—that, for example, if these people’s childhoods were planets, they would be deemed unsuitable for human life—means incredibly little to many judges. A 2012 Sentencing Project report found that 79 percent of “juvenile lifers,” of whom one-third grew up in public housing, had regularly witnessed violence in their homes; 47 percent had been physically abused, and that 77 percent of the girls had been sexually abused.

    This has led some activist litigators to turn their attention to the nebulous concept of “permanent incorrigibility.

    Neither does the consensus of neuroscientists that adolescent brain development continues until around the age of 25 carry any weight.

    The knowledge that all people, but especially kids, deserve better has led some activist litigators to turn their attention to the nebulous concept of “permanent incorrigibility”—a phrase that drifts mysteriously at the edges of the Court’s prior “juvenile life without parole” decisions. To the activists, a judge cannot sentence a kid to die in prison without first deciding that the kid is “permanently incorrigible.” If not, the person must be able to leave prison at some point—even if as an octogenarian, like one recently-freed “juvenile lifer” in Philadelphia.

    Despite the moral appeal and logic of this argument, the Supreme Court was not sold. To the majority in Jones—led by Justice Brett Kavanaugh, who argued against his own culpability for teenage actions at his confirmation hearing—finding that a child is “permanently incorrigible” before sentencing that child to life without parole is just an obtuse standard made up by clever human rights attorneys.

    Instead, according to the majority, we can trust a judge to genuinely “consider” an “offender’s youth,” with no need to force that judge’s hand. It doesn’t matter that judges are elected in many states, including Mississippi—or how constituents don’t care much for the former kid who once killed someone.

    In 2021, the Supreme Court still dismisses compassion, common sense and cognitive science, even when it comes to kids. That is abhorrent, but it is also par for the course in a nation that shouts about human rights while denying them at every turn. 


    Photograph by Mark Thomas from Pixabay

    • Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School’s Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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