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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Monday, January 2, 2023

SCOTUS Justices Make The Rules In Our Game Of Democracy


Today’s blog is Part One of several devoted to learning how the Supreme Court of the United States (SCOTUS) has done its job poorly or well over the past 250 years. There are always winners and losers. I will highlight the good in SCOTUS wherever I can. 
We voters can learn how this stuff works! We can increase the power of our voting by learning how politics actually works--and avoiding being deceived by political manipulation from shallow, carefully constructed and powerful campaign slogans.
The Constitution and Bill of Rights contain only about 1100 words, but these two documents have designed and fostered a durable United States of America. Along the way, SCOTUS has produced over 25,000 Court decisions ranging from the simple to the very complex. The Court has made a complete reversal in law only about 150 times. 
Democracy is a never-ending struggle of citizens within local, state, and federal governments to get more of what they do want and less of what they don’t want. This living, dynamic, process functions according to laws written by other citizens we collectively call public officials. The important phrase “living dynamic process” means something which constantly changes and progresses, or regresses, recovers successfully and adapts, or dies. Often the need to make changes is scary and disruptive.
Referring to democracy as a game is not insulting. Instead, we are using a solid analytical framework for understanding how something complex works. This respects the inherent difficulties of understanding people, politics, and democracies. The mathematical framework of game theory was launched in 1944 in the book Theory of Games and Economic Behavior, by John von Neumann and Oskar Morgenstern. Von Neumann’s brilliance and his practical ideas contributed greatly to America’s success in World War II. Game theory is an extensive academic field with a wide range of applications. 
BUT DON’T WORRY ! We won’t be using any math in these blogs. We will carefully use verbal concepts to label the “moving parts” in SCOTUS and describe how those parts interact to produce SCOTUS decisions. We will look at the reasoning processes of the Justices. We will try to understand what led to some of the unfortunate and controversial SCOTUS decisions. 
Although politics is an absolutely necessary, sometimes honorable, and often disgusting occupation, hating and avoiding politics won’t help us. But by understanding the gamesmanship of the political process, we can minimize our political distress and maximize our constructive political participation.
Many of the words and phrases in political talk, come from the competitive language of card games, board games, and sports such as the hugely popular games of baseball, and football. Competition naturally begets conflict along with the eventual glory of success or agony of defeat. Examples of competitive phrases are:
“I can’t even get to first base!” Or, “What you just accomplished for yourself was a real home run!”
Opening move in tick-tack-toe, checkers, or chess.
 Later in the game, “I have no move, you win.”
 A person’s actions can be described as out of bounds or having stepped over the line. "That's illegal!"
Enjoyable games often involve competition in which only one person or team wins. Relevant strategies include: exploiting your opponent’s weak points and/or making the best use of your own strong points. The foundation for a surprise attack is hiding your intentions from your opponent so he can’t foil your efforts.
Most proposed legislation stimulates some political opposition such that, “Getting this bill passed will be a real fight!

The sociological concept of ROLES (for example, teacher acts differently from student and principal acts differently from teacher or student) is necessary for interpreting why people are authorized to some things but not others.
Our current Chief Justice is John Roberts. In his 2005 confirmation hearings he was asked by Senator Schumer what sort of justice he might turn out to be. John Roberts made several points:
That he did not have a political agenda but was committed to thorough examination of the cases, being open-minded to the views of his colleagues, and making decisions on the rule of law without “fear or favor.”
He said, “Judges and Justices . . . are like umpires [in baseball]. They don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.” He added that, “I will remember that it’s my job to call balls and strikes, and not to pitch or bat” (as found in Zirin, page 43, 2016).
Professional judges, whether in sports or SCOTUS, must keep their thoughts, well-controlled emotions, and actions exclusively in the judge/umpire role. As we learn more about SCOTUS history, we will see striking examples of Justices who made poor verdicts while violating their judicial role or by allowing biases and political distractions to tip the scales of justice.
Roberts used an analogy to highlight the important role of a baseball umpire; and this is easy enough for even kids to understand. He employs this umpire image/concept to define that as a SCOTUS Justice, his role would not be making law but deciding what the law says when applied to something much more complex than baseball, namely a Federal Law case in the Supreme Court. Baseball and football games are completely finished in a single day and become a game in history—talked about but not replayed. But SCOTUS decisions and written opinions continue in play for decades and centuries [for example Marbury v. Madison].
Probably, most American adults know next to nothing about the separation of powers. Only 56% of Americans can name the three branches of government and it’s unlikely they could also articulate the limited role of a judge; but, they might be able to show understanding by learning Justice Robert’s analogy.

The three coequal branches of United States government cause a healthy and stabilizing balance of power:
The Executive Branch is made up of the current President, his staff, and the thousands of permanent government workers. Like a boss of a large company, the President’s job is to supervise, hire and fire, and insure the successful operation of the government. 
The Legislative Branch (also called Congress) is made up of the House of Representatives and the Senate. Each Representative in the House represents about 700,000 citizens ! In the Senate, each State and their citizens are represented by two senators. 
The Judicial Branch is The Supreme Court of the United States (referred to with the acronym SCOTUS). Way back in 1803 in the case Marbury v. Madison the first Chief Justice defined the role of the Supreme Court. Most generally important is Judicial Review, which means that SCOTUS is the highest authority for deciding what the laws say, including what’s in the Constitution of the United States. SCOTUS (and lower federal courts) can, when asked, review both new and old laws and Executive actions to determine whether they violate the Constitution.

The Legislative Branch makes the federal laws. Federal laws define the rules and regulations about how government works; the federal laws must comply with the Constitution, the Bill of Rights , and any Amendments.
The Executive Branch puts into operation and supervises the federal laws created by the Legislative Branch. The president along with his staff are often considered to be the most powerful of the three branches.
The Judicial Branch (SCOTUS) is the highest and final court in America. Below the level of SCOTUS there are 94 Federal District courts and 13 Federal Appeals Courts. SCOTUS has the job of insuring that federal laws and state laws don’t violate the Constitution. SCOTUS can declare a law unconstitutional and therefore not enforceable. The Supreme Court does not make laws; however, a few of its legal decisions might appear to be law making.

Dred Scott, a slave, was taken by his owner to a free state and a free territory; Scott’s slave wife and two daughters were with him. Subsequently, the new owner of Scott and his family moved to the slave state of Missouri. Scott had reason to believe that he should have become a freed man because he had previously been in a free state and territory for four years. In 1846 he filed suit in Circuit Court [Federal] but lost. Scott then appealed to the Supreme Court. 
In the book, Great Decisions of the U.S. Supreme Court, the authors state, “On March 6, 1857, in the single most controversial decision of the nineteenth century, Chief Justice Roger Brooke Taney announced the 7-2 decision of the Court” (Harrison and Gilbert, 2003). [This valuable book contains 16 important and well-written summaries of SCOTUS decisions; it’s interesting, it’s hard to put down, and makes learning very satisfying.]
In the course of my blogging over the past year, I have read a lot about slavery, race, and overcoming the effects of slavery and racism. Roger Taney supposedly had a good reputation before writing the majority opinion in Dred Scott v. Sanford; after that case, he was often strongly condemned. I too felt the Taney court’s finding was horrible. That’s understandable from our modern viewpoints 166 years later.
However, I learned two things which moderated my thoughts and feelings:
I understood Justice John Roberts’ analogy and statement that, “They don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role.”
And I read the 19 synopsis pages of the Dred Scott case in the Great Decisions book. Chief Justice Taney clearly discussed the relevant issues and referenced the federal law and the rather complex case history. He made reference to his and the Court’s role in the case: “It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power [that is, the Constitution and other federal and state laws]” (Harrison and Gilbert, 2003).
I found no fault with Chief Justice Taney’s logic. He thoroughly navigated complex laws of high personal impacts—State, Federal, and Territory laws.
Finally, Taney’s final opinions benefited from having read the two dissenting opinions. Justices Benjamin Curtis’ dissent was 67 pages. Reportedly, the Curtis dissent was quite persuasive and prompted Taney to add almost twenty more pages to his majoritarian opinion. In the other dissenting opinion, from Justice John McLean, he wrote, “In the argument, it was said that a colored citizen would not be an agreeable member of society. This is more a matter of taste than of law.” That is a profound statement ! For more information go to:

We have discussed:
The dynamic, never ending struggle of people wanting to get more of what they want and less of what they don’t want. Such struggles go in and out of equilibrium, heating up and cooling down. The Civil War broke out in 1861 after increasing tensions between the North and South over slavery. Some histories believe the Dred Scott decision of 1857 accelerated the onset of the Civil War.
We focused on the importance of distinguishing the roles of the players in a competitive game. And, thinking about politics and government as a game is recommended. Politics is typically a divisive topic and can best be discussed and worked upon by avoiding intense emotions. Emotions routinely interfere with rational thought processes; emotions altar one’s underlying priorities. By abstracting politics to competitive games, irrelevant details can be cleared out of the way so the "moving pieces" are more visible, which facilitates analytic understanding.
I noticed no fault in Chief Justice Taney’s logical reasoning in his majoritarian opinion in Dred Scott v. Sanford. I felt strong negative emotions reading, not due to Taney’s legal analysis, but from what he described and reported of the thinking, feeling and actions of pro slavery legislation. As a Justice writing about law, he was right in saying, “It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws.” 
To read about American government, we must be educated about how to read! Formally stated, we must separate the content from the process and keep an intellectual boundary line between them.
But, if we ever wanted to legislate changes in the law, we would have to set a clear goal; and we would have to get political and generate emotional commitments from allies to get the votes to change the laws. The first term of the Clinton administration is (1) an example of how this is very successfully done and (2) a nitty-gritty story of the high stakes drama (The Agenda: Inside the Clinton Whitehouse by Bob Woodward, 1994).

I will use the 2010 Citizens United v. Federal Election Commission as a takeoff point for discussion of how bias, prejudice, elitism, and lack of common sense in SCOTUS can damage democracy.

For references, see the relevant page on the website.

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