The Supreme Court heard oral argument on Tuesday on what states must do before imposing a sentence of life without the possibility of parole for defendants who were under the age of 18 when they committed their crimes. After nearly an hour and half of oral argument by telephone, it was not clear how the justices would resolve the case. Several justices seemed to believe that what a Mississippi judge had done in the case of Brett Jones, who was convicted of the 2004 stabbing death of his grandfather, was enough. Other justices voiced broader concerns with the case, while still others suggested that Jones should challenge his sentence through an entirely different path.
Representing Jones, who was 15 when he committed his crime and is now in his thirties, lawyer David Shapiro told the justices that two of their decisions – a 2012 ruling in Miller v. Alabama, prohibiting a mandatory penalty of life-without-parole sentences for juveniles, and 2016’s Montgomery v. Louisiana, holding that Miller’s ban on mandatory life-without-parole sentences applies retroactively – establish that only juveniles who are incapable of rehabilitation can be sentenced to life without the possibility of parole in a scheme that gives sentencers the discretion to impose such penalties. In Jones’ case, Shapiro argued that the Mississippi Supreme Court misinterpreted what Miller and Montgomery require, so that the sentencing judge on remand did not assess whether Jones is incapable of redemption. The Supreme Court, Shapiro argued, should enforce this “settled law” by sending Jones’ case back to the state courts for them to determine the decisive question: Is Jones “permanently incorrigible”?
Several justices pressed Shapiro to explain what precisely he wanted courts to do and say before imposing a life-without-parole sentence. Chief Justice John Roberts, who led off the questioning under the format used for telephone arguments, had a series of questions on this point. He asked Shapiro, “What exactly are you looking for?”
Shapiro responded that Jones was not looking for “magic words” but instead wanted a sentencing judge who understood the key inquiry – whether the defendant is permanently incorrigible – and properly applied it. You can normally presume, Shapiro told Roberts, that a sentencer has made an “implicit finding” that a defendant is permanently incorrigible if you presume that the judge knows and applies the law.
Roberts pushed back, observing that at Jones’ sentencing hearing his lawyer had argued about “irreparable corruption” and the judge had referred to Miller before concluding that Jones was not entitled to leniency. Is the problem, Roberts asked, that the judge didn’t quote enough passages from Miller? “I’m just not sure what he said isn’t enough,” Roberts said a few minutes later. (Roberts would take a different tack with Krissy Nobile, the deputy solicitor general representing Mississippi, telling her that Jones “didn’t seem like he was asking for a lot” – just one sentence stating the holding of Miller, followed by another sentence saying what the judge found.)
Justice Sonia Sotomayor echoed Roberts’ question for Shapiro. Here, she observed, the judge said that he had considered Miller and its factors, including incorrigibility. Why, Sotomayor queried, isn’t that the beginning and end of this case?
Justice Brett Kavanaugh also questioned Shapiro on this point. Do you agree, Kavanaugh asked, that a sentencer does not have to make a specific finding that a defendant is incapable of rehabilitation? When Shapiro agreed that formal findings are not required, Kavanaugh asked him to distinguish between a formal finding and an informal finding. And when a sentencing scheme is discretionary, Kavanaugh posited, won’t a judge normally make an informal finding because the defendant’s lawyer will raise the subject of his youth, which “will really be the centerpiece” of the decision?
Shapiro countered that it is not enough to consider that the defendant is young. The sentencer must also determine whether the defendant is incapable of redemption – a decision that the judge in Jones’ case did not make.
Justice Samuel Alito was skeptical, but for a different reason. The holding in Miller, he remarked to Shapiro, was that the Eighth Amendment prohibits mandatory life-without-parole schemes for juveniles, while Montgomery held that Miller applied retroactively. Those two holdings, Alito proposed, create a much narrower rule of law than the one Jones is advocating.
Alito also had more sweeping concerns. What would you say, he asked, Shapiro, to members of the court who are concerned that the court’s jurisprudence has drifted “lightyears away from the original meaning of the Eighth Amendment” and are “reluctant to go any further?”
Justice Neil Gorsuch indicated that the court’s decision in Montgomery may have “expanded and created a new substantive right” rather than merely deciding whether Miller applied retroactively. If that were true, Gorsuch continued, wouldn’t the court then need to decide whether the right created in Miller applied retroactively? Perhaps somewhat to Shapiro’s surprise, Gorsuch then asked about Teague v. Lane, the Supreme Court’s 1989 decision holding that new rules of criminal procedure generally do not apply to cases on collateral review. What authority do we have, Gorsuch concluded, to be reconsidering state final judgements in this way?
Justice Amy Coney Barrett suggested that Jones should have brought a different challenge. Instead of disputing the procedure used to sentence him to life without parole, she asked Shapiro, why didn’t Jones instead argue that in his case such a sentence violated the Eighth Amendment’s ban on cruel and unusual punishment?
Shapiro responded that such a challenge would only work with a judge who understands that the standard for a life-without-parole sentence is whether Jones is permanently incorrigible.
Justice Stephen Breyer had a similar question for Nobile. If Miller and Montgomery create a substantive rule that a juvenile must be deemed permanently incorrigible before he can be sentenced to life without the possibility of parole, he asked, why isn’t that the end of the case? If a judge discusses factors to be balanced, Breyer observed, he simply hasn’t gotten the substantive law correct.
Nobile (as well as Frederick Liu, an assistant to the solicitor general who argued on behalf of the United States in support of Mississippi) fielded questions from some justices about how Miller could create a substantive rule, and therefore apply retroactively, if, as Justice Elena Kagan explained, it boiled down to “only basically ensuring that a certain kind of process is accomplished” – the requirement to consider youth in determining whether a defendant should receive a life-without-parole sentence.
Nobile responded that Miller did create a substantive rule because “it is premised on the protection against grossly disproportionate punishment.”
Kavanaugh followed up on Kagan’s question, telling Nobile that “the key paragraph in Montgomery that says no finding of fact is required is, some say, in tension with the conclusion that Miller is a substantive rule.” And if it is, Kavanaugh continued, isn’t one solution to “just require a finding of fact that the defendant is incorrigible”?
Shapiro closed by emphatically telling the justices that Jones was not asking them to require sentencers to use formal “magic words” before sentencing juveniles to life without parole. Instead, he stressed, Jones is just arguing that a judge must understand that children who are capable of redemption cannot be sentenced to life without parole. “We are not asking for much,” Shapiro pleaded.
A decision in the case is expected sometime next year.
This post is also published on SCOTUSblog.