LIFE WITHOUT PAROLE: WHAT COULD THAT MEAN FOR A JUVENILE?

Beginning in 2005, the United States Supreme Court began to acknowledge what people who study the adolescent brain had known for some time: that juvenile brains are not fully developed. In fact, research confirms that most of our brains do not finish development until about 25 years of age. Most importantly, the last part of the brain to complete its development is the frontal cortex, the part of the brain responsible for things such as decision making and impulse control. This is why young people are far more likely to take greater risks and engage in thrill-seeking behavior. This is also why “the peak age-crime involvement (the age group with the highest age-specific, arrest rate) is younger than 25 for all crimes reported in the FBI’s Uniform Crime Report except gambling.” With this knowledge, the practice of treating juveniles as adults, prosecuting juveniles in adult courts, and imposing the harshest penalties allowed in the criminal justice system on juveniles has fallen out of favor.

Thus, in 2005 in Roper v. Simmons, SCOTUS eliminated the death penalty as a potential punishment in America for those who were under the age of 18 at the time of their offense. Then, in 2012, in Miller v. Alabama, SCOTUS invalidated state statutes that imposed mandatory life-without-parole (LWOP) sentences on people whose crimes were committed as minors, requiring (or so we thought) an individual determination that a juvenile was “irreparably corrupted,” meaning incapable of rehabilitation before they could be sentenced to LWOP. At the time, Justice Scalia wrote that the standard would likely eventually “eliminate life without parole for juvenile offenders,” a sensible takeaway as the idea that one could prove that a person with 60 to 70 years of life ahead of them whose brain has not yet fully developed is incapable of being rehabilitated is as preposterous as it sounds.

However, the personnel of SCOTUS was notably different in 2005. Conservatives held a slim 5-4 majority and, in fact, it was frequent swing-vote Justice Kennedy who wrote the opinion in Roper joined by the 4 liberal Justices. Since then, Mitch McConnell and Senate Democrats blocked President Obama’s nomination of Merrick Garland to fill the position vacated by Justice Scalia’s death, leading to Neil Gorsuch’s appointment by President Trump and then, as he left office, Trump was able to swing the balance by nominating Amy Coney Barrett to fill the seat vacated by Ruth Bader Ginsburg’s death.

And just like that, conservatives now have a commanding 6-3 advantage. So however upsetting, it came as no surprise, that this court last month moved as far back as it could from the leniency for juveniles that the court has moved towards for the last two decades. In Jones v. Mississippi, that exact 6 vote bloc rejected the requirement that a judge imposing LWOP on a juvenile offender first find the defendant incapable of rehabilitation. In other words, as long as a judge considers a youth’s age as a factor in mitigation and has the option to not impose LWOP, a judge may freely impose life without parole on the defendant without violating the Constitutional prohibition on cruel and unusual punishment.

In her dissent, Justice Sotomayor accurately characterized the majority opinion as “distorting [the Court’s prior decisions] beyond recognition.

The defendant in the case at bar, Jones, Brett Jones, killed his grandfather in a dispute regarding his girlfriend when he was 15 years old. He is now 31. He has since earned his high school diploma and been a model prisoner.

All I can say is that this is a stark reminder of how much elections matter. The moral arc of the universe that MLK spoke of does not bend toward justice on its own, and this decision has certainly set the long arc off course.