0:00:00.0 S?: We will hear argument first this morning in case number 181259, Jones v. Mississippi.

0:00:11.3 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, the hosts are talking about juvenile life without parole, when a person is sentenced to spend the rest of their life in prison because of a crime they committed as a minor. For a while, the Court was becoming less tolerant of extreme sentences like the death penalty and mandatory life without parole for crimes committed by minors, but in a ruling from earlier this year in Jones v. Mississippi, the Court held that minors can be jailed until their death, even if the state hasn't proved that they are incapable of reform.

0:00:46.5 S?: I don't know how you could ever say, well, I know this person is never gonna change, particularly when you're talking about a child. I don't think any of us are the person we were when we were 16 or 17 years old.

0:01:05.0 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:14.1 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have frayed and flattened our civil rights like the bristles of an overused toothbrush. I'm Peter, and I'm here with Rhiannon.

0:01:25.2 Rhiannon: Hey, Peter, that was descriptive, illustrative.

0:01:28.2 Peter: Thanks, I was looking at my toothbrush when I came up with it.

0:01:31.2 Rhiannon: Yeah.

0:01:34.5 Peter: Michael's taking the week off. But that's okay because we're doing a case where Rhi and I have, believe it or not, some overlapping expertise.

0:01:43.8 Rhiannon: Yeah, you'll be surprised to hear. I am actually literate on these cases, only.

0:01:52.0 Peter: Today's case is Jones v. Mississippi. The case came down just a few weeks ago, and it is about under what circumstances you can sentence a juvenile offender to life in prison without parole. And we thought it would be a great opportunity to walk through the history of Supreme Court rulings on juvenile punishment in the United States. Long-time fans might be asking themselves how I have any expertise on this, and it's not just that I was an unruly child.

0:02:23.4 Rhiannon: Peter has first-hand experience in deliberating these proceedings.

0:02:26.8 Peter: Well, I had a brief do-gooder phase, let's put it that way. And I did some juvenile justice work.

0:02:34.8 Rhiannon: We love that.

0:02:37.1 Peter: Yeah, it was very depressing. And that's why I was like, you know what, I'm just gonna review contracts for the rest of my life, I feel like it's easier on me.

0:02:45.9 Peter: So we have, as a society, dating back to olden times, treated criminal behavior in juveniles differently than we treat it in adults, even before the science was fleshed out, the reason was more or less the same. It was understood that there are developmental differences between children and adults that warrant differential treatment in punishment and rehabilitation.

0:03:08.9 Rhiannon: Totally.

0:03:10.0 Peter: Now, in recent years, the science has become more concrete. We now know that the brain is not fully developed until the age of about 25, and that one of the last parts of the brain fully developed, for example, is the prefrontal cortex, which is critical in impulse control, weighing risk and reward, and future planning, all of which of course directly impact one's likelihood of engaging in certain criminal behaviors. So knowing this, in recent years, people started asking whether imposing severe criminal punishments on juvenile offenders might be unnecessarily cruel.

0:03:41.0 Peter: The Eighth Amendment of the Constitution prohibits cruel and unusual punishment, and that is what we're talking about today, to what extent the Eighth Amendment's prohibition of cruel and unusual punishment prevents the imposition of severe penalties like life in prison without parole on juvenile offenders. So the past 15 years or so especially have involved a constant back and forth between seemingly good Supreme Court decisions and then terrible Supreme Court decisions that mitigate or functionally nullify the efficacy of those good decisions.

0:04:15.1 Peter: So we're going to talk about Jones v. Mississippi, the latest in this garbled and miserable line of jurisprudence, but in order to understand it, we need to walk you through some of the history of punishing kids for crimes.

0:04:28.0 Rhiannon: Yes, and before I forget, we should say that we will be using the term, an acronym, LWOP, we'll say LWOP throughout this episode, that stands for Life Without Parole. You know, I go back and forth with what I feel I should say to prime listeners at the beginning of an episode for what they're about to hear, but suffice it to say that the topic of today's episode is, my friends, very sad.

0:04:58.6 Rhiannon: When I first started as a public defender, Peter, have I ever told you that I represented kids?

0:05:03.9 Leon: Yeah.

0:05:04.8 Rhiannon: Like I was a juvenile defender as well as a practicing trial public defender for adults, so I've represented both juveniles and adults in my career. I don't have a ton of experience in the juvenile context, but the youngest person I ever represented in a jail outfit and handcuffs was 12. I worked on the team that represented a 15-year-old in proceedings that were brought by the state to certify him as an adult in a case in which he was accused of murder. All of these cases, when you are representing a child who has been arrested, all of those cases are tragic. If any child commits a terrible crime, it's a tragedy, right, it's a terrible indictment of the world around that child.

0:05:48.1 Peter: Going on in the background here is that the US does have a system for juvenile defendants, but it's pretty much just disregarded, so they get tried as adults. And this is what you always hear, and that's because there's this extremely backwards and toxic conception that if someone does something bad enough that they must be tried as an adult, because that's like an adult crime. Well, you were acting like an adult, so we're gonna treat you like an adult. Rather than saying there are children and there are adults, they're saying, well, there are child-like crimes and there are adult crimes, and you did an adult crime, you only get the juvenile system if you steal some candy...

0:06:34.0 Rhiannon: Right, right, exactly.

0:06:34.1 Peter: It doesn't work the other way by the way. If you're an adult and you steal some candy, they don't treat you as a juvenile.

0:06:41.5 Rhiannon: Right, right.

0:06:42.1 Leon: It's a one-way ratchet, and it only goes the bad way, and it's just such a fucked up little look into how the system actually works.

0:06:52.1 Rhiannon: Yes, and so these cases really show, I think, how the Court and how our law broadly incorporate proportionality and mercy into the law, and unfortunately, like on this topic in 2021, the Supreme Court is as usual behind the learning curve.

0:07:13.2 Peter: So the cases we're going to be talking about here in depth are all fairly recent, starting in about 2005, but before we jump in, we should briefly hop back to 1966 with a case called in re Gault. In re is just an old-fashioned way of saying in the matter of, and when you have certain juvenile proceedings, you would just say in the matter of the child's name, that's why it's not like Gault v. State or something like that, but it's the same basic thing.

0:07:42.1 Peter: So before this case, juveniles did not actually have full constitutional protections in this country. You could just do whatever you want to them 'cause they're just stupid kids, right. The prevailing wisdom of the era was that the way you dealt with deviant juvenile behavior was more discipline, so you'd go to a child psychologist and be like, Timmy's been playing with toy race cars after his bedtime again. And the doctor would be like, are you using your disciplinary barbed wire baseball bat like we... And you'd be like, yes, I am. He still does it, loves those cars. And he would be put to death or something. I don't know, I didn't think about where this ends.

0:08:22.5 Peter: This case was the first time that the Court held that juveniles must be afforded due process under the Constitution. And just to give you a sense of what the world was like in 1966, this case involved a 15-year-old who was held in a juvenile detention facility until the age of 21 for making an obscene phone call.

0:08:41.0 Rhiannon: Yeah, so the barbed wire baseball bat is really not that far off, right?

0:08:46.4 Peter: Thank God I was not born in the '50s. Things would have gone much worse for me.

0:08:53.3 Rhiannon: Yeah, that's right.

0:08:55.1 Peter: We should... Before we dig into some of the more relevant cases, we should outline the basic legal framework. Like we mentioned, these cases are all about the Eighth Amendment, which prohibits cruel and unusual punishment. So the premise of these cases is whether it is cruel and unusual punishment to subject juveniles to certain severe forms of punishment like the death penalty or life without parole.

0:09:15.8 Rhiannon: Right, so there were cases after in re Gault in which the Supreme Court was answering questions about how the law treats juveniles in the criminal legal context, but this issue that we're talking about today about the maximum or the most severe punishments that we can give to juveniles, that issue started to get Supreme Court attention in the late '80s.

0:09:40.2 Rhiannon: First, there were two big cases about whether or not the Eighth Amendment allowed the death penalty to be given to juveniles. One case said yes, and then another case overturned it, and then the Supreme Court started this messy back and forth over life without parole sentences for juveniles.

0:09:58.0 Rhiannon: So that first case about the death penalty for juveniles was a case called Stanford v. Kentucky in 1989. This is a terrible majority opinion written by Justice Scalia that says that executing people who had committed crimes as juveniles is actually totally fine under the Constitution. And just to note that I think it should really be on people's minds more when they're discussing Justice Scalia. It's a horrific case, and Scalia does a lot of pretty horrendous writing and description to justify why executing people who were children at the time of the crime is constitutional and just fine.

0:10:41.5 Rhiannon: But like Peter said, this kind of ends up being a mish-mash of cases that go back and forth between being sort of good on the law and bad on the law. So if you skip ahead another 20 or 25 years, it's 2005, 2005, famously a huge moment for Brangelina, but also a big moment for the test penalty abolition movement.

0:11:01.5 Rhiannon: So in 2005, the Supreme Court overturns Stanford v. Kentucky, and they say that execution of juveniles is unconstitutional under the Eighth Amendment. This is a case called Roper v. Simmons, and it's a 5-4 decision, it's still close, with Justice Anthony Kennedy writing for the majority.

0:11:22.4 Rhiannon: So just to mention that in Eighth Amendment jurisprudence, Supreme Court cases say that a practice is cruel and unusual punishment when it's done completely arbitrarily or when it's completely unnecessary or totally rejected by society, or when it's sort of degrading of human dignity, that's what the standard is for deciding whether a punishment is cruel and unusual. And so when analyzing that, the Court recognizes that's something that is cool and unusual today might not have been in the past, like these determinations, they're not static, right. A punishment should be evaluated based on "evolving standards of decency."

0:12:05.1 Rhiannon: So the concept of evolving standards of decency, that had been around in Eighth Amendment cases since the Earl Warren era, since back in the '50s. In 1958, in fact, there was a case called Trop v. Dulles. The Court said in that case, that revoking someone's citizenship as punishment for a crime, that that was cruel and unusual punishment and should be banned by the Constitution, because the Eighth Amendment isn't static, it has to be based on "evolving standards of decency that mark the progress of a maturing society."

0:12:39.0 Peter: And citizenship is the most important thing you have.

0:12:41.7 Rhiannon: That's right. We cherish it dearly. And so for a long time, at this point, by the time you get to 2005, in Roper v. Simmons, this is the way that many Eighth Amendment cases are decided. The idea that society is evolving, and so we are getting better and progressing, and so our standards of decency are also evolving.

0:13:05.2 Peter: It's a really radical notion, by the way.

0:13:08.0 Rhiannon: Right, right, right. A really radical notion that we are going to use what we think is dehumanizing now today to decide whether something is dehumanizing.

0:13:17.4 Peter: As a society, we've learned a few things, is the basic principle, and the rest of this episode is going to be discussing how conservatives disagree with that strongly.

0:13:25.8 Rhiannon: Yeah, yeah, basically. And so talking about Roper v. Simmons and how Anthony Kennedy argued that executing juveniles is unconstitutional, the facts at the center of Roper v. Simons are tragic. Like I said up top, it's a tragic case. Three teenagers rob a woman and then kill her by throwing her over the side of a bridge. Christopher Simmons was 17 when that killing happened, and he was found guilty of murder and sentenced to death. So his lawyers appealed and the question before the Supreme Court was is execution of children, people who committed crimes when they're younger than 18 years old, is that constitutional.

0:14:08.2 Rhiannon: And Justice Kennedy and the majority say, no, it isn't, but what I think is noteworthy about this case is Justice Kennedy does a little legal realism to get to that right answer. He uses social science and contemporary scientific and humanitarian concerns to support the conclusion that executing juveniles is unconstitutional. He cites statistics saying teenagers are vulnerable to peer pressure and bad influence and group think more than adults are, and he talks about the brain science that shows that adolescent brains aren't fully developed like adults' brains are.

0:14:47.1 Rhiannon: And then he also says that other areas of law reflect this distinction between children and adults. Teenagers aren't allowed to vote, they can't buy alcohol, they can't get married without adult consent, because the law recognizes and society recognizes they're not as mature, and they're not as responsible as adults are. So after conducting this kind of like survey of the modern-day conceptions of juvenile v. Adult and juvenile culpability, Anthony Kennedy says, yeah, obviously, I can see that killing kids is cruel and unusual.

0:15:22.5 Peter: And to flesh out what the Court is referring to a bit, the evidence concerning juvenile brain development is pretty strong. We understand that the pre-frontal cortex, which I mentioned up top, helps weigh risk and reward, maintains impulse control, allows for long-term planning, it's not fully developed even in late adolescence. The limbic system, a system of structures in the brain that regulates response to emotional stimuli, is not fully developed in younger people, resulting in them being more likely to act on emotion and have mood swings, act impulsively, all of which should be traits that you're familiar with in children.

0:15:58.2 Peter: They weigh risk and reward differently due to shifts in dopamine production; younger people have imbalances between different parts of their brain, like the subcortical region and the prefrontal cortex, making self-control more difficult for them. I don't want to get too detailed here because I'm way outside of my realm of expertise, but my understanding is that the science is pretty settled.

0:16:20.6 Rhiannon: Absolutely.

0:16:22.1 Peter: And it's pretty common sense, right? At what age do you see the most high risk behavior, whether it's criminal or not? At what age do you see the most emotional behavior, whether it's criminal or not? There's a reason not many 50-year-olds are out there drag racing every day, outside of Fast and Furious franchise, I suppose.

0:16:38.6 Rhiannon: Right, right. No, but you're right, the chemicals are different, things are firing off literally differently in a child's brain than they do in a mature adult's brain, and we all know that and society knows that because all of us were once children.

0:16:53.5 Peter: All of this science, all it really adds up to is the basic idea that juveniles when they commit a crime are less culpable, less responsible in the legal sense, than adults are for committing the same crimes. This is the guiding principle that is animating what you might call the left position on juvenile LWOP.

0:17:17.7 Peter: So again, the majority has held in this case, Roper v. Simmons, that you can't impose the death penalty on juvenile offenders. Antonin Scalia writes another one of his famous fiery angry dissents for this one, which is joined by Rehnquist and Thomas. We've talked about Scalia's position on cruel and unusual punishment before, but basically it's... And the basic position of the originalists is that what really matters is whether the execution of juveniles would have been considered cruel at the time of the founding.

0:17:45.8 Peter: He rejects the idea that we should be evaluating, like changing social understanding of right and wrong it. He does not believe that our interpretation of these amendments should change over time. This dissent is a classic obnoxious originalist opinion, it starts with an Alexander Hamilton quote, and then Scalia spends several paragraphs acting absolutely aghast that the Court would overturn legislation that it finds unfavorable. He says that by claiming there's a consensus against juvenile execution, the majority is "presuming to be the authoritative conscience of the nation." The majority in his mind is supplanting the legislature with its own preferences.

0:18:28.3 Peter: Great little window, I think, into Antonin Scalia. Here he is pretending that the idea of striking down a law is inherently offensive to his sensibilities. Just a few years later, in 2013, when he and the conservatives are striking down huge substantive portions of the Voting Rights Act without any real basis in the Constitution, Scalia joins the majority without a peep, right?

0:18:48.3 Rhiannon: Of course not.

0:18:50.2 Peter: But when the law the Court is striking down is one he happens to like, he comes out like quoting Alexander Hamilton and shit, right?

0:18:57.6 Rhiannon: That's right, yeah. And so he's saying like, we used to be able to tar and feather people, so killing kids is just fine.

0:19:05.4 Peter: Who am I to say that you can't launch a child out of a catapult, even though in Massachusetts, in 1804, it was one of the most common things you could see.

0:19:13.5 Rhiannon: Right, right, right. Even though the world consensus smartest person in history, Alexander Hamilton, was alive and fine with it.

0:19:24.6 Peter: I was trying to think about when Hamilton, the musical, came out, because I am just trying to imagine Scalia seeing it.

0:19:34.9 Rhiannon: He would be so mad.

0:19:37.4 Peter: Oh, God. Scalia also, in this dissent, does the classic conservative thing of when you're arguing for a harsher punishment, you describe the crime in brutal detail. We talked about this in the abortion context before, where they describe an abortion. This always gets me because he's excoriating the majority for acting on their own personal beliefs and opinions, but then he inserts this passage that is clearly meant to play on the reader's emotions and sort of gin up a desire for punishment, right?

0:20:06.1 Rhiannon: Absolutely.

0:20:07.2 Peter: It's just very revealing, I think, of the psychology behind the reactionary view of crime and punishment. Nothing about the grotesque details of the crime undermines the validity of the science of juvenile psychology and brain development that Kennedy is referring to in his majority. And Scalia isn't really trying to attack that idea, I think. I think what he's trying to say is, hey, all of this psychology bullshit or whatever, it doesn't matter, it's besides the point. The point is that this guy is a piece of shit, right? When he describes these violent crimes, he's saying, look, anyone who could do this isn't like you and me, they can't be redeemed and we should act accordingly.

0:20:49.6 Rhiannon: Yeah, that's the thesis, right? And so in Roper v. Simmons, Sandra Day O'Connor also writes her own much more boring dissent that we're not going to get into, but probably because Scalia was a little too aggressive for her taste, we talked before about how O'Connor does this kind of moderating, paternalistic, narrowing, separate opinions a lot of the time. But also just to note, this is 2005, 16 years ago, and four Justices of the Supreme Court dissented to say that state-sponsored murder of children is okay.

0:21:25.2 Rhiannon: But luckily, like I said, it's a good case, it said that executing juveniles or sentencing juveniles to execution is unconstitutional. And this case is really a turning point in sentencing for young people in the United States, because it signaled that there would be more emphasis on rehabilitating juveniles in recognition of their immaturity and their lack of culpability in the law. And also it's important for bringing in things like brain science and sociological information to say that these things are going to start to matter to judges when they're sentencing young people.

0:22:05.2 Rhiannon: So it's not really that this kind of scientific data was completely absent from cases before this, but this is a big win for those who were working to overturn the death penalty in the early 2000s, and it was unique in what was considered throughout the opinion. Something else that Justice Kennedy did was talked about worldwide, what the statistics were or trends were for executing juveniles, saying that the United States was really an outlier, that European countries had long outlawed the death penalty altogether and certainly executing juveniles, and so there's a sort of little international survey that he does.

0:22:45.3 Rhiannon: So there's a lot of different kinds of information from the modern world that Kennedy used and incorporated in the decision to say that executing juveniles is unconstitutional.

0:22:57.8 Peter: One thing I want to note before we move on, as we keep saying, executing juveniles or whatever. By the time of their execution, they would no longer be juveniles, right, the point is they were juveniles at the time of the offense, but the appeals process actually takes so long that they would generally be in their 20s, if not their 30s, by the time a scheduled death penalty was carried out.

0:23:18.2 Rhiannon: Absolutely, yeah.

0:23:18.7 Peter: So in 2010, another good case comes down the pipe, Graham v. Florida. There is a 16-year-old repeat offender who is convicted of a home invasion and sentenced to life without parole, but the Supreme Court holds in Graham v. Florida that you can't sentence juveniles to life without parole for a non-homicide offense. And this aligns with what the Court had said in the past, for example, in the '70s, it held that the death penalty could not be imposed for the crime of rape. The principle is that certain punishments are too severe for the nature of the crime or the nature of the offender and that can violate the Eighth Amendment. Thomas writes a dissent that is more or less the same shit as Scalia's dissent in Roper, so we don't have to rehash it, but the conservatives, still mad, still made at this point.

0:24:09.7 Rhiannon: Yeah, absolutely. Throughout these cases, the conservatives are not progressing, like they are staying with what they thought 20 years ago, 50 years ago about crime and punishment, right?

0:24:21.1 Peter: Right. Well, 200 years ago, really.

0:24:23.1 Rhiannon: Right, yes. So another good case actually comes down the pipeline in 2012, just a couple of years later. This case is Miller v. Alabama. And wow, does it feel like we're making progress.

0:24:35.5 Peter: Yeah. We'll see you next week. Things are great.

0:24:38.3 Rhiannon: Yeah, wrap up the episode. So in Miller v. Alabama, the Supreme Court said that mandatory LWOP, mandatory life without parole for juveniles is unconstitutional, which is to say that we can't have automatic LWOP sentences without individual consideration of a juvenile's circumstances.

0:25:00.8 Rhiannon: So I think we should explain really quickly what we mean by automatic LWOP or mandatory LWOP. What we're talking about really is the sentencing range, like the range of punishment for a certain offense. So you might hear that robbery carries a sentencing range, a punishment range of 2 to 20. The minimum prison time you can get would be two years, the maximum is 20 years, and a jury or a judge who is deciding what the sentence will be, they are given discretion to decide between that minimum and maximum when they're choosing someone's sentence.

0:25:34.9 Rhiannon: And those sentencing ranges, the minimum and maximum, those are set by your state legislatures or there are federal sentencing guidelines, so it depends on where you are that would control what a sentencing range is for a certain offense. But murder or capital murder, of course, are the most serious crime that we have, so the sentencing range is unique. In many states, Texas as an example, this case happened, Miller v. Alabama was in Alabama, the minimum punishment for being found guilty of murder or capital murder is LWOP, it is life without parole, and then the maximum could be the death penalty right.

0:26:16.8 Rhiannon: So if you're found guilty of a crime like capital murder, it's only those two choices, the minimum is LWOP, the maximum is the death penalty. And so when Roper v. Simmons said that executing juveniles is unconstitutional, many states just nixed execution from being an option. They just took off that maximum, but they kept LWOP as the only punishment then that was left for juveniles.

0:26:42.5 Peter: Right, and so that's what mandatory means in this context.

0:26:44.7 Rhiannon: Right, exactly.

0:26:45.8 Peter: If you do the crime, life without parole is mandatory.

0:26:47.9 Rhiannon: Exactly, that's actually by law, the only option for sentencing you. So if someone is found guilty of murder they committed as a juvenile, they would automatically be given LWOP because that's the only punishment by law that was available. So in this case, Miller v. Alabama, Justice Sonia Sotomayor is writing for the majority, that's a lot of times, a good indication that it's a good case, and saying that this mandatory or automatic LWOP scheme for juveniles is unconstitutional.

0:27:16.6 Rhiannon: And so I want to say that this is a good case, but it doesn't really go far enough in establishing goodness for juveniles, and it opens the door for a lot of discretion that ends up being problematic, as we'll talk about in a little bit. So Miller v. Alabama says, rather than mandatory or automatic LWOP schemes for juveniles, you have to have an individualized sentencing proceeding that considers the five, what are called Miller factors, after the case name Miller v. Alabama.

0:27:54.8 Rhiannon: So a judge or a jury, they have to consider age and immaturity of the juvenile, they have to consider family home environment, circumstances of the offense, the incapacities of youth that may have disadvantaged the child, plus they have to consider the child's individual chance for rehabilitation.

0:28:13.6 Rhiannon: So really, Miller v. Alabama is providing a new framework for judges to exercise downward discretion, meaning it's like creating basically a more lenient minimum punishment then LWOP. If the sentencing scheme only allowed for LWOP as a punishment, Miller v. Alabama says, no, you have to be able to decide something less than LWOP.

0:28:39.8 Peter: Right, yeah, so this is a good case in a lot of ways, but the flexibility allowed by this case is what leads to Jones v. Mississippi, which we'll get to in a couple of minutes, and is a disaster of a case. So this case, Miller v. Alabama, it doesn't ban juvenile life without parole, it just gives courts some things to consider before imposing it, which is better than nothing, but not better than just outright banning it. The court could say, if it was being a little bit more proactive, after 25 years for a juvenile offense, a juvenile needs an opportunity for parole. It's not a guarantee that you get out on parole, it's an opportunity for parole. To me, it's not judicial activism to say that 25 years after a juvenile offense or something like that, someone gets the opportunity for parole.

0:29:37.8 Rhiannon: Yeah, and so in 2016, a few years after Miller v. Alabama, there was another case that's sort of seen as the sister or they're seen as a pair of cases that go together.

0:29:49.9 Peter: Cases are girls, yeah.

0:29:51.5 Rhiannon: Miller v. Alabama was followed by Montgomery v. Louisiana, and we don't need to go into the details of Montgomery v. Louisiana, but the holding was that Miller v. Alabama applies retroactively, meaning that people who were sentenced to mandatory or automatic LWOP for crimes they committed as juveniles would have to be re-sentenced, even if they had already been sentenced before Miller v. Alabama was decided.

0:30:23.9 Peter: Right, alright, so that is going to bring us to our current case, and I think we should take a little break before we get there for a word from our sponsors, which is just ourselves.

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0:31:15.3 Peter: Alright, welcome back. We have now arrived to the year 2021.

0:31:20.1 Rhiannon: It's bad.

0:31:21.8 Peter: And this episode's namesake, a case from just a few weeks ago, Jones v. Mississippi. Like we mentioned before the break, Miller v. Alabama held that you can't sentence juvenile offenders to automatic life without parole, you need to consider the individualized circumstances in sentencing. And then Montgomery v. Louisiana says that's retroactive, so people who were sentenced to mandatory life without parole for juvenile offenses would have to have their sentences reconsidered. And case is about one of those reconsiderations.

0:31:55.6 Rhiannon: Yeah, that's right. So Jones v. Mississippi, like I said up top, it's sad, there's nothing but sadness at the center of all of these cases, because all of these cases are talking about kids who were involved in serious crimes. So Brett Jones was 15 years old and living with his grandparents in Lee County, Mississippi, in 2004, they live in a small town. And Brett and his grandfather get in an argument one day after the grandfather discovers that Brett had snuck his girlfriend into his bedroom. And over the course of the day, the argument escalates. According to Brett, they're arguing in the kitchen, he and his grandfather, when his grandfather at one point pushes him and Brett pushes back, then his grandfather takes a swing at him and Brett stabs his grandfather.

0:32:46.6 Rhiannon: Other factual rundowns of what happened in this case note that Brett actually attempted CPR on his grandfather, but you're not going to hear that in Justice Kavanaugh's factual background. Like Peter said, Justice Kavanaugh, like all conservatives, when they represent the facts of a crime, make it sound just exceedingly horrific and include no mitigating information or circumstances.

0:33:11.5 Peter: Not to mention information that would make it clear that this was a very impulsive act. If you stab someone and then immediately regret it so much that you try to revive them, that aligns perfectly with our understanding of juvenile psychology.

0:33:27.8 Rhiannon: Exactly. So when CPR fails and Brett realizes that his grandfather is dead, also making clearly impulsive and immature decisions, Brett tries to hide his grandfather's body and he runs away in the family car. Police find him pretty quickly, and Brett Jones admits to killing his grandfather almost immediately. A jury finds him guilty of murder, and at the time in Mississippi, this is before Miller v. Alabama was decided, so at this time, the sentence for a juvenile convicted of murder was automatic LWOP, so he's sentenced to mandatory life without parole, and then once Miller v. Alabama is decided and it's found to apply retroactively a couple of years later, Brett Jones has given a new sentencing hearing.

0:34:16.6 Rhiannon: Now, a judge again sentences him to life without parole. So how we get this case is Brett Jones appeals this new life without parole sentence to the Supreme Court, and his lawyers are arguing now that Miller v. Alabama didn't just say that mandatory life without parole is unconstitutional, it also said that a child has to be deemed "permanently incorrigible" before being sentenced to life without parole.

0:34:45.3 Peter: Right. So we mentioned that Miller v. Alabama forbids mandatory life without parole, but it doesn't forbid life without parole for juvenile offenders altogether, it just says that a court must consider certain factors before sentencing a juvenile offender to LWOP. So this case is really just seeking clarity on those facts. Exactly what does a court need to do before it can sentence a juvenile offender to life without parole. What Jones argues, like Rhi mentioned, is that in order for him to be sentenced to life without parole under the Supreme Court's precedent, the court must declare that he is not able to be rehabilitated, that he is incorrigible.

0:35:24.5 Peter: But the Supreme Court, in a 6-3 decision authored by juvenile delinquency expert Brett Kavanaugh, says no, that is not what is required. Instead, all that is required by our precedent is that the court considers the defendant's youth as a potential mitigating factor. Now, this completely bastardizes the Court's holdings in Miller and Montgomery, which Sotomayor points out in a pretty decent dissent, those cases explicitly held that LWOP for juveniles should be limited to "those rare children whose crimes reflect irreparable corruption."

0:36:05.8 Peter: Kavanaugh essentially tosses that out, and we could walk you through the intricacies of these decisions and explain exactly how Kavanaugh is butchering that precedent, and I'd like to think you'd agree with us, but rather than going through the effort, maybe the simplest way to make this argument is to note that Clarence Thomas agrees with us. Like I said, Sotomayor filed it a dissent stating that the majority was functionally overruling the Court's precedent in Miller and Montgomery while pretending that it was adhering to that precedent, and Clarence Thomas files a concurrence that essentially agrees with her, but what he says is, look, those cases were wrongly decided anyway, so in my view, it doesn't matter.

0:36:48.6 Peter: He's filing what's called a concurrence in judgment, where you agree with the conclusion of the majority, but not the reasoning. So Thomas is saying, yeah, look, Kavanaugh is absolutely butchering the precedent here, it's just that the precedent is wrong anyway, so I agree with his conclusion. And it doesn't really matter at the end of the day. So I feel like we also must talk about a footnote in Thomas's opinion, in which he owns the [0:37:14.6] ____.

0:37:15.4 Rhiannon: He writes so stupid. Okay, go on.

0:37:19.7 Peter: He writes a whole footnote saying that Sotomayor and other liberal Justices use the term children to refer to juveniles who are receiving criminal penalties, but use the term young woman to describe juveniles who are seeking abortions.

0:37:34.6 Rhiannon: Woah.

0:37:35.5 Peter: That's right, folks, he's bringing abortion into this somehow. And he cites a few examples of each from different Justices over the course of 30 years. And conservatives on Twitter, we're like, "Oh, shit, he got 'em."

0:37:51.0 Rhiannon: On into oblivion, they use different words.

0:37:56.3 Peter: His implication is that the liberals are being disingenuous, that they are framing issues in a way that is beneficial to them. Now, let's put aside whether piecing together instances of different language use over the course of 30 years different Justices actually prove something, and whether the use of the terms in question are actually examples of strategic framing rather than different language being more natural in different contexts, we consider ourselves straight-shooters here at 5-4, so I will say this outright. Of course, the liberals frame issues in a way that is beneficial to their argument.

0:38:35.3 Peter: Every lawyer and every judge in all of history has framed issues in ways that are beneficial to their arguments. Earlier, we mentioned how conservatives often describe the grisly details of a crime when arguing for the constitutionality of harsher punishments. Kavanaugh does it in this very case, leaving out mitigating facts. In this concurrence Thomas is admitting that Kavanaugh is pretending to adhere to precedent while he's actually ignoring it. These are all different iterations of the same phenomenon that Thomas is ostensibly calling out.

0:39:09.2 Peter: Judges write opinions in a way that is colored by their own preferences and biases. The implication that the liberals on the Court are subject to their own biases is not offensive to me at all, and should not be offensive to you. What is offensive to me is the other side of that implication, which is that Thomas himself is not subject to his own biases, that he is somehow the one person who is above all of this. That is what is offensive to me, and that is what makes this footnote fundamentally bullshit.

0:39:37.5 Peter: I'm not going to be one of those like libs on Twitter who were trying to explain why exactly this terminology makes sense in these different contexts. I don't give a shit. Every fucking lawyer, every judge on earth is doing this, including Clarence Thomas, and that's the fundamental hypocrisy.

0:39:53.6 Rhiannon: It's nonsensical, it's super stupid. Literally so, right, like anti-intellectual, it's self-imposed ignorance, and they think it's such a huge gotcha moment and it's gross.

0:40:04.4 Peter: So where does all of this law, all of these cases that we've gone through leave us?

0:40:10.4 Rhiannon: Kids in cages.

0:40:13.7 Peter: Calm down. For a while there, it seemed like we had some decent law about sentencing juvenile offenders to life without parole. The law was that they could not be sentenced to mandatory life without parole. And what Jones v. Mississippi has done is take the teeth out of that, so now you have this constitutional right as a juvenile offender not to be sentenced to mandatory life without parole. What does that actually mean? Well, not much anymore, because now a judge can sentence a juvenile to life without parole without having to provide much justification at all.

0:40:42.4 Peter: All they need to do is say that they considered the defendant's age before sentencing him. And that defeats the entire function of the rule, right? All it does is require that the judge is checking a little metaphorical box before they finish with their sentencing. This is a staple of conservative jurisprudence. Where liberals have fought to establish a constitutional right, you don't overturn it, you just sort of steadily erode the substance of the right until it's not meaningful.

0:41:09.9 Peter: You see this with abortion rights, with voting rights. We've said it countless times, but rights are not self-sustaining, you cannot speak them into existence, they need to be fostered and protected, institutional power needs to be placed behind them. Without that, the difference between having a right and not having a right is nothing.

0:41:25.9 Rhiannon: Yeah, I think that's absolutely right. And I also think that a problem with, Peter, you mentioned that Miller v. Alabama sort of didn't go far enough because it just introduced this idea of discretion, all that a judge needs to do is just say that he considered a juvenile's individual circumstances, but can still turn around and give them life without parole, right.

0:41:48.7 Rhiannon: And so there's a problem that's introduced by Miller v. Alabama that then this case, Jones v. Mississippi, the conservatives are all too happy to sort of exploit, which is that the reliance on this judicial discretion and how that results in really uneven distributions of justice, right. So when you're relying on a judge in Texas, in Alabama to just consider individual factors, but there's no instruction or order about what to do with those individual circumstances of a child's life, then the result, the disposition of these cases is not necessarily more mercy or more lenience or greater reliance on rehabilitation of juveniles, right.

0:42:36.2 Rhiannon: So I think broadly, the ostensible, like legitimate purposes of criminal law, like the reasons why we have criminal law, in theory, you could say rehabilitating people who commit crimes, deterring other people who commit crimes by punishing those who have committed crimes, like those theoretical hypothetical legit purposes, for our criminal law are really belied by the arbitrariness of judicial discretion in the juvenile context.

0:43:05.2 Peter: Yeah, there's a degree to which giving discretion to judges in these cases has been framed as almost progressive, because you are allowing the consideration of individualized circumstances. In reality, though, it just allows for the unequal application of justice, because your punishment for a given crime depends on the vibes of the judge you get. You can commit the same crime in the same place as someone else, get a different judge and get a completely different sentence. The idea that that is just seems inherently absurd to me, right.

0:43:40.6 Peter: If you want to tell me that there's no other way, that it's very difficult to formulate another system, I might believe that, at least to some degree, right, but you cannot tell me that that is sort of the application of justice. That is clear injustice. Something that Josie Duffy Rice pointed out on our McCleskey v. Kemp episode is you can commit the same crime in different states and be punished in completely different ways, right, and there's inherent injustice in that. Here, we're not even talking about that, we're talking about different judges, it's just luck of the draw with your judge, do you get someone who is rehabilitation-oriented or punishment-oriented.

0:44:16.1 Peter: This is the reality of our criminal punishment system, and the idea that this is somehow more just than just providing rigid standards, the real reason that this flexibility exists and that people want it is not so that individualized discretion can be used to give lesser sentences, to give lesser sentences to offenders who deserve it because of their individualized circumstances, it's so that the default position is a high level of punishment, and then no one can get away with anything. The conservative fear is that people might be able to just sneak out of the system, and that someone who has done something horrible will get away with it by getting a less aggressive sentence. And a lot of the American sentencing superstructure among all the states with the federal government is designed to ensure that the baseline is so punitive that no one gets away with anything.

0:45:12.9 Rhiannon: That's exactly right. And I think that's a perfect articulation of what I mean by like in this juvenile context, when we're talking about punishing kids, and the standard that the Supreme Court has set, the standard really is that most punitive option of life without parole, and then a child has to show something exceptional in order for a judge to exercise downward discretion, to exercise leniency in their sentencing. That really to me, is a really good example that turns all of what we think criminal law is supposed to do, it turns it on its head, because there is no other reason to have a statutory scheme like this, to have a constitutional scheme like this about punishment other than harsh punishment.

0:46:00.8 Rhiannon: You're not getting rehabilitation out of this, you're not getting deterrence out of this, it only directs judges and sentencers legally and culturally to the most punitive option for punishment's sake.

0:46:11.9 Peter: Right. We were talking about the science behind brain development earlier. There is a degree to which this stuff is so plainly anti-intellectual and anti-science that it's hard to over-emphasize it. I mean, the conservatives just don't buy into that, and they don't care about it. There's such a wealth of science here that points us towards the just answer, what is the most just outcome in 90% of these cases, and it's just completely ignored. And the stuff about juvenile brain development just feels completely intuitive to me as I get older. We're both in our 30s, think about yourself at 15.

0:46:47.7 Rhiannon: Peter, I wouldn't recognize her walking down the street. It is a different person.

0:46:53.1 Peter: It is a different person. There are 60-year-olds in prison right now for something they did when they were 15, right. What exactly is the purpose of that? Their brains aren't the same, their bodies aren't the same. The person who's being punished does not even exist in a very meaningful way, and conservatives do not have a response to that, they just think there are good guys and bad guys, and that's it.

0:47:18.9 Rhiannon: Right, exactly. And I just want to say, because we talk so much about how sad these cases are, about how hostile conservative psychology is, but I really think that the evolving standards of decency rule, that that actually makes a lot of sense. At the time of Roper v. Simmons in 2005, it was crazy that Justice Kennedy was doing this international survey, going around the world and saying what other regions, what other countries do in their juvenile justice schemes.

0:47:50.8 Peter: Causing Scalia, by the way, to lament that the Court was relying on foreigners, direct quote.

0:47:57.5 Rhiannon: That's exactly right, yeah. But actually, if you take a step back, what is wrong with that? We should be doing that, like asking ourselves how is humanity progressing as a whole on a certain issue, right? Punishment, the rights of children, whatever it may be. And so I just want to say that sort of viewpoint, the incorporation of an idea, like evolving standards of justice in our law, that is actually really hopeful to me as somebody who practices in a criminal law context. It helps us all realize like society doesn't have to be like this, there are other examples of places where people are doing better on this issue right now.

0:48:38.7 Rhiannon: You know, for example, in Europe, we don't give children life without parole, they abolished the death penalty a long time ago. And so there are less punitive societies all over the world, and none of them are going up in flames, chaos, whatever, whatever. We have to sort of break down the walls that conservatives want us to have in our minds about what is possible in order to change all of this stuff. And so evolving standards of decency in Eighth Amendment jurisprudence is actually really hopeful to me, and it underscores that this is really about bad people on the Supreme Court making these limiting decisions for us that end up harming a lot of people.

0:49:20.5 Peter: Right, yeah. Scalia and Rehnquist and Thomas, they're making this argument that we shouldn't be relying on evolving standards of decency. What they say is, well, that's too imprecise. But what they really mean is they don't want to base our Constitution around the notion of society progressing when they reject the progression, right. Conservatism is a rejection inherently, so of course, they don't want to adhere to new norms, they reject the new norms, they embrace the old norms, even as those norms are on both sides difficult to define. That's the center of conservatism, it's the heart of conservativism.

0:49:58.9 Peter: It sometimes feels a little cheap, but when you are thinking about originalism versus a living Constitution, what we're doing now, what Scalia was doing, what Thomas wants to do is frame the Constitution's conception of morality around what literal slave owners thought was moral. Again, I know this sounds like a cheap... Maybe like a chief shot or something, but it's true, and the question is what they say as well, if you talk about a living Constitution, that doesn't mean anything inherently, it can mean whatever the judge wants, and there's absolutely some level of truth to that. The alternative, though, is rooting the guiding document of our government and law in the morality of deeply immoral people, and you have to make a choice between one of those, and to me it's obvious.

0:50:47.3 Peter: You know, I think part of what underlies this is that conservative see any sort of display of understanding of criminal behavior as an endorsement of criminal behavior. If we say that juveniles are more likely to commit crimes because of their brain structure and chemistry, and suggest that maybe our society should factor that into its laws, they view that as apologetic for the conduct itself, which of course it's not. You can understand something without forgiving it. At the end of the day though, the conservatives are choosing to ignore and reject the prevailing science, not just about juvenile brain chemistry, but about the efficacy of the current criminal justice system generally, about the utility of rehabilitation.

0:51:27.7 Peter: The United States' record on criminal justice is self-evidently terrible. Like you were just mentioning, every comparable country with better criminal justice outcomes is less punitive than us, and yet the conservative solution is always to be more punitive. And that's because they don't have the same goals. We've always emphasized in this podcast that much of reactionary thought can be understood by recognizing their desire for the reinforcement of social hierarchy. America's system of criminal punishment is a mechanism for maintaining hierarchy.

0:52:02.3 Peter: If you're a young person from what we can call in crude terms the lower classes, your brain is the same as a young person from the so-called upper classes, you'd be susceptible to your emotions, you'd lack impulse control, lack the ability to adequately measure risk and reward, both of you would be highly vulnerable to peer pressure. But the world around you is different. If you're from the lower classes, the world around you is more likely to be violent. There's interpersonal violence, sure, but there's state violence, there's economic violence.

0:52:34.0 Peter: The decisions being presented to you are not the same, and the consequences of making the wrong ones are not the same. Your lack of impulse control and vulnerability to peer pressure might result in you engaging in a violent crime, you might get caught and go to prison. If you're from the upper classes, your impulsivity is less likely to bring you to the same place, and even if it does lead you to commit a crime, hierarchy is there to protect you. So when a woman accuses you of sexual assault, you can maybe just deny it, and people will believe you, and then you can put it behind you and maybe make it to the Supreme Court where you can write an opinion about how a juvenile offender from the lower classes should be in prison for the rest of his life.

0:53:15.7 Rhiannon: The end.

0:53:16.2 Peter: Yeah, well, let me clarify. We're talking about Supreme Court Justice Brett Kavanaugh.

0:53:22.7 Peter: Next week is Dukes v. Walmart, a case where Antonin Scalia himself undermined your ability to file a class action against your employer.

0:53:33.5 Peter: Follow us on Twitter @fivefourpod, subscribe to our Patreon, patreon.com/fivefourpod, all spelled out, premium episodes, all sorts of benefits. I'm off to get shot number two. This time tomorrow I will be skurking off the momo, as they say, fully microchipped, Bill Gates mind-controlled and then I'm just gonna go lick the sidewalk for three weeks. We'll see you next week.

0:54:07.9 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward with editorial support from Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.

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