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Criminal Defense Attorneys

Juvenile LWOP: Must Permanent Incorrigibility Exist?

Before sentencing a juvenile offender to a life without the possibility of parole (LWOP) sentence, must a judge find that the juvenile is permanently incorrigible?  If he does not need to make this finding, after all, how would a life sentence without parole not constitute cruel and unusual punishment?

Whether a judge must make such a finding of permanent incorrigibility was the question posed to the U.S. Supreme Court in Brett Jones v. Mississippi in 2021 and decided on April 22, 2021.  593 U.S. ____.

The factual and legal background to this case is important to understand.  In 2004, Mr. Brett Jones, then 15, fatally stabbed his grandfather after an argument over Brett’s girlfriend.  Brett’s defense was that he acted in self-defense, but the jury did not agree with him and, in 2005, he was sentenced to life without the possibility of parole (LWOP), which was the mandatory sentence in Mississippi for this crime.

In 2012, the U.S. Supreme Court issued its ruling in Miller v. Alabama (2012) 567 U.S. 460, which held that a mandatory life sentence without the possibility of parole for a juvenile was considered cruel and unusual punishment, in violation of the Eighth Amendment prohibition against cruel and unusual punishment, unless the judge found that the juvenile was “permanently incorrigible.”  The ruling built upon an earlier ruling that it was cruel and unusual punishment to sentence a mentally retarded person to death because the person may not have had the mental ability to understand the nature and consequences of what he or she did.

Juveniles were likened to mentally retarded people insofar as a juvenile’s cognitive ability was diminished due to his or her young age and still-developing decision-making ability, judgment, impulsivity, susceptibility to peer pressure and anger management skills.  Since these abilities may be still developing at a young age, to punish him or her like an adult was an equal protection violation and also cruel and unusual punishment.  Moreover, such juveniles were still developing their character, ethics and morals, so they had a higher potential for rehabilitation than an adult.

Medical studies had also found that a juvenile’s immature hypothalamus, the front part of the brain responsible for impulse control, does not fully develop until one is well past 18, often not until age 25.  California has recognized this in its evidence preservation proceedings available to certain youthful offenders in its Franklin Hearing proceedings.

In 2016, under Montgomery v. Louisiana (2016) 577 U.S. ____, Miller v. Alabama was made retroactive to all prior sentences “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” 

After Miller v. Alabama and Montgomery v. Louisiana, many states changed their laws on juvenile sentencing, but Mississippi remained a state where life sentences without the possibility of parole could be ordered upon a finding of “permanent incorrigibility.”

Brett Jones then applied under Montgomery for resentencing because the judge in his case did not make a finding of “permanent incorrigibility.”  The Mississippi state court granted Jones a rehearing, but then upheld the sentence as proper.

Jones then filed a writ for a petition of certiorari to the U.S. Supreme Court, arguing that the Mississippi failed to consider any aspect of the facts which suggested “permanent incorrigibility” and failed to consider Jones’ potential for rehabilitation.
 
The Supreme Court held, in a 6-3 vote, with Justice Brett Kavanaugh writing the majority opinion, that the states retain the discretion to sentence a juvenile to a life sentence without the possibility of parole (LWOP) without a separate finding of “permanent incorrigibility.”  Kavanaugh acknowledged that such sentencing power raises “profound issues of moral and social policy,” but recognized the discretionary power of the states to conduct the individual analysis of each defendant, the facts of the case and the background of the offender.

Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Elena Kagan, dissented, noting that the majority opinion marked a sharp break from precedent and that the courts must evaluate whether the defendant has demonstrated rehabilitation to rise above the prison system in which he or she grows up.

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