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November 2, 2020

Background reading before argument in Jones v. Mississippi, the latest SCOTUS foray into Eighth Amendment limits on juve sentencing

Remarkably, it has been more than a decade since the US Supreme Court kicked off its interesting (and uncertain) new line of Eighth Amendment jurisprudence with its ruling in Graham v. Florida, 560 U.S. 48 (2010)Graham declared sentencing juveniles to life without parole (LWOP) for non-homicide offenses to be unconstitutional, and was quickly followed by Miller v. Alabama, 567 U.S. 460 (2012), which held that mandatory LWOP sentences were unconstitutional for juveniles convicted of homicide. Four years later, Montgomery v. Louisiana, 136 S. Ct. 718 (2016), declared that Miller was to be applied retroactively, and now Jones v. Mississippi will explore exactly what Miller and these other cases actually mean for discretionary sentencing of juvenile homicide offenders.

A whole lot of amicus briefs have been filed in Jones on both sides, and the US Solicitor General has also weighed in and been granted leave to participate in tomorrow's scheduled oral argument.  Amy Howe at SCOTUSblog has this preview, which sets up the case this way:

After Miller and Montgomery, state courts can sentence individual juveniles to life without the possibility of parole as long as the sentence is not a mandatory penalty under state law.  On Tuesday, the justices will hear oral argument in a case that asks them to decide what their rulings in Miller and Montgomery require states to do before imposing that sentence.  A Mississippi man contends that the sentencer must find that the juvenile is incapable of rehabilitation, while the state counters that it is enough that the sentencer considered the juvenile’s youth.

For those looking for other background reading beyond the briefs, there have been a number of good commentaries about the issues in this line of rulings published recently:

-- by Brandon Garrett in The Atlantic, "Life Without Parole for Kids Is Cruelty With No Benefit: The United States is the only country that allows this practice, and soon the Supreme Court could get rid of it."

-- by Katie Rose Quandt in In These Times, "The Supreme Court Said Their Sentencing Was Unconstitutional. But They’re Still Behind Bars. Despite SCOTUS rulings against life without parole sentences for juveniles, most who received that sentence remain incarcerated." 

-- by Marc Levin in the Texas Lawyer, "On Election Day, Remember All Youths Are Candidates for Change"

I am looking forward to the Court's consideration of Jones in part because the case presents the three newest Justices with their first big opportunity to weigh in on the Eighth Amendment in a noncapital case.  Based on Justice Gorsuch's work in capital Eighth Amendment cases, I am not expecting him to be a vote for an expansive interpretation of Miller.  But, especially because Justice Kavanaugh and Justice Barrett both are parents to teenage kids, I am wondering if they might be a bit more open to a more expansive view of the Eighth Amendment in this context.

November 2, 2020 at 09:26 PM | Permalink


I'm sure I'm missing something, but I still can't see how "considering youth" could square with a retroactivity finding in Montgomery. Either it's a substantive limitation that protects a class (i.e. all except the irreparably corrupt) or it's not retroactive. How is this worth multiple rounds of briefing (first Malvo, now Jones)? The whole thing makes me concerned that SCOTUS is ready to reverse course in ways that surpass even that in Payne.

Posted by: John | Nov 2, 2020 11:57:06 PM

Well, many lower courts do not apply a consistent standard for deciding the protected juve class, in part because Miller and Montgomery did not articulate one. CJ Roberts was in dissent in Miller but part of the majority in Montgomery, so he could turn out to be a key vote and voice here.

Posted by: Doug B. | Nov 3, 2020 9:11:28 AM

Listening to argument, and the new argument format makes it harder to read tea leaves, but seems like court isn't buying either side.

If I had to guess, they will not require an express finding of incorrigibility but may hold that the Miller factors are about incorrigibility so it would be error to impose an lwop absent an implicit finding of incorrigibility.

They may vacate the opinion below and remand for further analysis under whatever guidance is given.

Posted by: tmm | Nov 3, 2020 11:01:55 AM

As I understood it, "impos[ing] lwop absent an implicit finding of incorrigibility" violates Miller is exactly what Jones was pressing.

Posted by: John | Nov 3, 2020 12:50:31 PM

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