Because I am on the road, I have only had a chance to read once and quickly the Supreme Court's new Eighth Amendment juvenile LWOP decision in Jones v. Mississippi, No. 18-1259 (S. Ct. April 22, 2021) (available here). Though I will need more reads and more time to come to a fully-formed view on this ruling, I do have a few first thoughts on the work of the Court and various Justices. Here are some of these first thoughts:
1. I have always seen Montgomery as a somewhat clumsy rewrite and extension of Miller (as I discussed in this short piece), and I am not surprised that a more conservative Court has now stressed the importance of state authority to implement Miller without further constitutional elaboration of what the Jones majority calls "particular policy approaches" to juvenile sentencing. Because I have long viewed all LWOP sentences, for offenders of any age, as poor policy and constitutionally suspect on various grounds, I am disappointed the Court now has only three votes to embrace and further extend Mongtomery's extension of MIller. But since a majority of current Justices now think the Constitution readily permits the sentencing of juveniles to die in prison, it readily follows that a majrity of Justices are disinclined to read substantive constitutional limitations into how this such sentencing takes place in the states.
2. Speaking of the Justices, this ruling (and I fear others to come) may prevent me from wishfully thinking the current Supreme Court is still inclined to be pro-defendant on big sentencing issues. For a good number of years before recent changes in personnel, criminal defendants got a whole lot of very big wins from SCOTUS on sentencing issues (despite still often losing in circuit courts and elsewhere). But this Jones ruling is a clear indication that replacing Justices Scalia, Kennedy and Ginsburg with Justices Gorsuch, Kavanaugh and Barrett likely means the era of big defense wins in a number of big sentencing cases may be over. Particularly notable when thinking about the overall Court is how the new Justices may have swayed Chief Justice Roberts, who was with the old majority in Montgomery to extend Miller for the benefit of juveniles, but now is in the Jones majority trmming back the protections of the Eighth Amendment.
3. Speaking of the Chief Justice, I have long hoped that his discussion of as-applied Eighth Amendment claims in Graham might spur many more as-applied Eighth Amendment challenges (especially for cases inolving older teens). Against that backdrop, I found interesting this statement by the Court toward the end of its Jones opinon: "Moreover, this case does not properly present — and thus we do not consider — any as-applied Eighth Amendment claim of disproportionality regarding Jones’s sentence." This sentence suggests that Brett Jones — as well as every other juvenile sentenced to LWOP in a discretionary scheme — still can and certainly should argue that the particular facts of his case make LWOP unconstitutional as applied. If future lower court litigation involving Brett Jones or other juveniles might help produce a meaningful as-applied Eighth Amendment jursprudence, perhaps such a jurisprudence could possibly provide some additional protections for a range of persons subject to a range of extreme sentences.
4. Speaking of additional protections for a range of persons, it is important to remember that even if Jones was resolved in favor of the defendant, the Eighth Amendment would still have been interpreted to provide only the most limited of protections to the most limited set of juveniles convicted of murder. A lot more than a robust Eighth Amendment jurisprudence is needed to have a real impact on modern mass incarceration and extreme punishments, and it will always be up to legislatures and executive branch officials to enact sounder sentencing laws and apply them in a more humane manner. Over the last decade, we have, encouragingly, seen many more legislatures and prosecutors do a lot better on sentencing policy and practice. The Jones ruling is perhaps ultimately just another reminder that steady policy work, rather than sporatic constitutional litigation, remains the surest path to an improved criminal justice system.
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