Thursday, January 19, 2023

SCOTUS Opinions on Juvenile Executions and Sentencing



The goals of this blog episode are to:
1. Show how vital state and federal laws get modified and reconstructed over time. These laws do evolve as prompted by changes in society and government. 
2. Show how the Supreme Court works with the Constitution and Bill of Rights, work with the States, and makes reasonable changes in state and federal laws—even in matters of life and death. If you read the full cases, you will see how the justices agree or disagree and how they reason out their conclusions.
4. Show how SCOTUS upholds a state-federal division of labor in the application of criminal law.
5. Stimulate your interest in SCOTUS and motivate you to read actual Supreme Court opinions or summaries available on and numerous other organizations. 
6. I chose the topic of executions and sentencing for illustrating the operations of SCOTUS because these cases are simple enough to fit into a single blog.
Note: I will use “juvenile” to refer to children of age 17 and below. The youngest person convicted of murder, sentenced and executed in America was 14 years old.

The Eighth Amendment of the Constitution (1791) prohibits the infliction of “cruel and unusual punishments.” Since Colonial times, 364 juveniles have been executed for crimes.
Before 2002 the constitutionality of the death penalty was a “reasonably well-settled issue”; but in the next several years, the states and federal government made laws setting the minimum age for execution at 16 or 17; and finally in 2005 SCOTUS in Roper v. Simmons upheld the Missouri Supreme Court’s death penalty ban for juvenile offenders ( This SCOTUS opinion effectively banned, for all the states, executions of those under 18 years of age. 
Both the Eighth and Fourteenth Amendments are relevant for determining permissible changes to sentencing. From the Constitution’s Bill of Rights, the Eighth and Fourteenth Amendments are: 
Eighth Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Fourteenth Amendment: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(1) Roper v. Simmons (2005)
The Constitution does not explicitly say what makes punishment “cruel” or “unusual.” Those two adjectives are general and nonspecific. Roper v. Simmons put execution for juveniles into the cruel and unusual category of punishments. 
Roper v. Simmons eliminated the death penalty for juveniles by a 5-4 vote. Those in the five member majority didn’t agree on some points; and those in the dissents didn’t agree with each other on some points. Saying only yes or no to the legality of execution with one majority opinion and one dissent would have left out important nuanced ideas from justices Stevens, Ginsburg and O’Connor; they likely had important independent ideas they felt needed to stand out on their own—separate from the majority and minority opinions.
Justice Kennedy wrote the majority opinion of the Court, joined by justices Stevens, Souter, Ginsburg, and Breyer.
Justice Stevens filed a concurring opinion in which Ginsburg joined.
Justice O’Connor filed a dissenting opinion.
Justice Scalia filed a dissenting opinion in which justices Rehnquist and Thomas joined.
But Roper v. Simmons in 2005 was certainly not the end of these matters. As a result of Roper, for capital murder cases, many states responded by mandating sentences of life without the possibility of parole. Execution is the ultimate finality for a convicted criminal; but now for convicted juveniles, never, ever getting out of prison was also an ultimate finality.

(2) Miller v. Alabama (2012)
Inevitably, there were parents of juveniles condemned to life in prison, along with sympathetic citizens, criminal lawyers, and specialty litigation organizations who wanted to respond; and they filed lawsuits in state and federal courts. These lawsuits aimed to lessen the severity of the life without parole sentencing. Eventually one of these cases worked its way up through the appeals courts to SCOTUS. For SCOTUS to agree to take this case, four of the nine justices had to agree to hear it; four justices did agree and the full court heard the case of Miller v. Alabama in 2012.
Often when SCOTUS is deciding what to do in its current case, it considers other previous, related cases. And as SCOTUS justices argued in Miller v. Alabama, they considered their findings in Roper v. Simmons, Graham v. Florida, and Woodson v. North Carolina. These cases found merit in well-supported conclusions that:
  • Children are different from adults in lacking mature judgment;
  • have an underdeveloped sense of responsibility;
  • are more vulnerable to outside negative influences;
  • and because their age at sentencing is 3-5 years below the developmental milestone of brain maturity,
  • it is not reasonable to conclude they are incapable of eventually maturing and earning another chance for freedom.
The Miller v. Alabama finding said that juveniles cannot be sentenced to life without parole UNLESS [emphasis mine] the judge has “discretion” [emphasis mine] to take into account the characteristics of the juvenile—specifically whether his character has “irreparable corruption” or “irretrievable depravity.” In the majority were: Kagan, Kennedy, Ginsburg, Breyer, and Sotomayor. Chief justice Roberts wrote a dissenting opinion in which Scalia, Thomas, and Alito joined (Greenhouse, 2021).
Note: “Discretion” means a judge can choose a sentence from among permitted options.

(3) Montgomery v. Louisiana (2016)
In this case, SCOTUS ruled that its previous ruling in Miller v. Alabama should be applied retroactively. This would potentially affect 2300 cases nationwide. 
An inmate, Henry Montgomery, sentenced to life without possibility of parole and who had become a model prisoner, filed a motion for his sentence to be corrected so he could have a chance for parole. He lost in the Louisiana appeals court. He then filed a petition for his case to be heard by SCOTUS. 
SCOTUS found in favor of Mr. Montgomery by a vote of 6-3 . Justice Kennedy wrote the opinion for the court, joined by Chief Justice Roberts, and justices Ginsburg, Breyer, Sotomayor and Kagan. Justice Scalia wrote a dissent that was joined by justices Thomas and Alito.
Justice Kennedy wrote for the majority, that “prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption; and if it did not, their hope for some years of life outside prison walls must be restored."
Miller v. Alabama stated that a judge should have discretion to consider the characteristics of the juvenile before sentencing him to life without parole; but, that finding did not explicitly state that the judge had to make an official finding. What was meant by discretion was left ambiguous (probably not from neglect but to facilitate nine judges reaching a decision). 
Many judges ,when reacting to an inmate’s suit requesting resentencing, probably tried to satisfy Miller v. Alabama by a very quick look at very limited data--taking only a few minutes to scan a report. Obviously, fairly reconsidering sentencing should take the time to acquire and examine useful data.
As it turns out, Mr. Montgomery persisted in his attempt to be paroled. Parole was twice denied but in 2021 the Louisiana Board of Pardons and Parole granted parole by a unanimous vote. It is pleasant to note that while Mr. Montgomery was still in prison he was visited by two family members of the murder victim; and they forgave Mr. Montgomery.

(4) Jones v. Mississippi (2021)
Mississippi was one of a few states which had not changed their juvenile sentencing laws to conform with the previously discussed SCOTUS opinions. In 2005 Mr. Jones was convicted of murder and sentenced to life in prison without possibility of parole; this was a mandatory sentence under state law. The Mississippi judge had no discretion to choose any other sentence and according to Jones’ lawyer, there was no determination of incorrigibility [incorrigible = incapable of being corrected, amended, or reformed].
Mr. Jones appealed his sentencing in the Mississippi courts. As a result of SCOTUS Montgomery v. Louisiana, Mississippi entitled Jones to a rehearing of his case. Nevertheless, Jones was again sentenced to life without parole. Jones’ lawyer then asserted that Mississippi failed to consider the issue of permanent incorrigibility or rehabilitation potential (which would be a violation of Montgomery v. Louisiana).
Jones’ attorney appealed to SCOTUS and his case was accepted to be heard.
The question presented by the lawyers to SCOTUS was: 
“Whether the Eighth Amendment required the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole” (Greenhouse, 2021).
SCOTUS in a 6-3 vote affirmed the Mississippi Court of Appeals sentence of life without parole. 
Justice Brett Kavanaugh wrote the majority opinion, which was joined by Chief Justice Roberts, and justices Alito, Gorsuch, and Barrett. Justice Thomas wrote a concurring opinion. The dissenting justices were: Sotomayor, Breyer, and Kagan.
What justice Kavanaugh wrote does, in my opinion, display a deep respect for the seriousness of the issues and a knowledgeable and straight-forward application of State of Mississippi Law and U.S. Constitutional law.
From Wikipedia ( here is what justice Kavanaugh said:
“Determining the proper sentence in such a case raises profound questions of morality and social policy. The States, not the federal courts, make those broad moral and policy judgments in the first instance when enacting their sentencing laws. And state sentencing judges and juries then determine the proper sentence in individual cases in light of the facts and circumstances of the offense, and the background of the offender. [A] discretionary sentencing system [underline not in original] is both constitutionally necessary and constitutionally sufficient.”

Here is a brief review of SCOTUS rulings:
1. Roper v. Simmons (2005) says executions of convicted juveniles are no longer allowed.
2. Miller v. Alabama ( 2012) says judges must [both] have ”discretion” to choose among sentences for the convicted juvenile and take into consideration both the crime and the characteristics of the juvenile. Otherwise, life without parole sentences are not allowed. 
3. Montgomery v. Louisiana (2016) says Miller v. Alabama is retroactive to the 2100 murderers currently serving mandatory life sentences (Greenhouse, 2021).
4. Jones v. Mississippi (2021) answered the question whether a court had to make a finding [“finding” is taken to mean a conclusion] that a youth is “permanently incorrigible” before imposing a sentence of life without parole. SCOTUS affirmed the Mississippi appeals court sentence of life without parole and also said that Miller and Montgomery do not require the sentencer to make a separate factual finding of permanent incorrigibility before sentencing the defendant to life without parole. Kavanaugh’s majority opinion is saying that Mississippi’s discretionary sentencing system does include or allow sufficient attention to be paid to the individual characteristics of the convicted juvenile. Note: The word “finding” as used by SCOTUS justices seems to have some technical connotations; but I have not been able to track them down in a definition. 
Finally, I know from my forensic work that the goal of scientifically pronouncing a juvenile murderer “permanently incorrigible” is unreachable; determining incorrigibility is a useful phrase but, like a verdict of guilty or not guilty, the answer needs to come from a person occupying the official capacity of judge.

In this blog, we purposely didn’t talk about the crime specifics and or paint a picture of the defendant’s personality. The critical topics are simply a defined offense (murder) and (more complexly) the relevant state and federal laws. The SCOTUS opinion sets a boundary which distinguishes the role of federal law in contrast to what state law is responsible for. 
Whenever human beings discuss and argue what is to be done about an issue [whether petty or critically important], their viewpoints will focus on particular concepts; and their particular words are chosen to win a difference of opinion by obscuring some meanings and suggesting or actively promoting other meanings. This human interaction process shows up in ALL of the SCOTUS opinions I’ve read over the last year. 
Supreme Court justices are human beings who “argue” cases. They have an argument, but it's a professional argument. I find in reading simple SCOTUS cases that majority opinions seem more coherent and self-confident but that dissent opinions more tend to accuse the majority of ignoring important points and tend to be punctuated with cynical or sarcastic remarks. 

Fortunately, however, from all the reading I’ve done on America’s Supreme Court, I’ve been pleased to learn that even justices who often strongly dissent still honestly enjoy one another when not arguing! 
For references, see the relevant page on the website.
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