Courthouse Steps Decision Teleforum: Jones v. Mississippi

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Guy DeSanctis:  Welcome to The Federalist Society’s teleforum conference call. This afternoon, April 26, we discuss the Courthouse Steps Decision Jones v. Mississippi. My name is Guy DeSanctis, and I am Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today’s call.

 

      Today, we are fortunate to have with us Marc Levin, President, Landmark Legal Foundation. After Marc gives his opening remarks, we will turn to you, the audience for questions, so be thinking of those as we go along and have them in mind for when we get to that portion of the call.

 

      With that, thank you for being with us today. Marc, the floor is yours.

 

Marc Levin:  Hi, I’m Marc Levin, Chief Policy Counsel at the Council on Criminal Justice and Senior Advisor at Right on Crime. And thank you for joining this teleforum to discuss the Jones v. Mississippi decision last week by the U.S. Supreme Court. And I really look forward to your questions and comments. I’m going to take 10 or 15 minutes to summarize the decision and the jurisprudential and policy implications, and then go from there, and then have hopefully about 15 of audience input, and then we’ll wrap up at half past the hour.

 

      So let me just start with a summary here. As many of you know, of course, Brett Jones was incarcerated, or still is incarcerated in Mississippi. And he murdered his grandfather about 10 of 15 years ago and has been incarcerated. And then following the Miller and Montgomery decisions, which we’ll talk about, he was given a rehearing regarding his life without parole sentence.

 

      And the Court determined that that sentence should stand. The Court did consider the youthful factors, but it did not apply a requirement that the individual be permanently incorrigible or corrupted beyond any hope, and this case hinged on that. It was a 6-3 decision written by Justice Kavanaugh, which held that the permanently incorrigible requirement is not required by the Constitution.

 

      And I think that, without getting into some of the specifics here, I think the most important overarching consideration is what we always face in looking at decisions that have policy implications, which is it’s important to distinguish between what the Constitution requires versus what is good from a -- what prudentially makes good sense from a policy perspective. And I’ll talk a little bit about some of the legislation that has passed in different states and is being considered in legislative sessions now regarding second look reviews for those convicted as juveniles.

 

      I think that there’s some -- I think members of the general public who just follow the Supreme Court very casually maybe just get the impression that because the Supreme Court said, “You can have this,” that that somehow means it’s a good idea. And I don’t think that was what was communicated in the majority opinion or even the concurring opinion by Justice Thomas.

 

      But rather, what we get into is really a -- the decision doesn’t hinge on juvenile justice. It hinges on your conception of, at bottom, cruel and unusual punishment and whether that ought to be -- that definition is more fixed going back to the time of our founding, what was considered cruel and unusual then, or whether how much we apply these evolving standards of decency, which is I think the framework that certainly isn’t challenged in the majority opinion, but I think, for those who believe in judicial restraint, there’s a real concern that if that keeps expanding, where does the line get drawn between what courts, what judges, who are not elected, say is cruel and unusual as opposed to what’s left for elected policy makers to describe and to discern. And I think that’s really the overriding argument that comes through Justice Kavanaugh’s majority opinion.

 

      And going back to -- beneath the big picture disagreement in terms of judicial philosophy over how to interpret the cruel and unusual punishment prohibition is then this difference of how you apply the Montgomery decision to the current case. And certainly, Justice Thomas says in his concurrence that he would go a bit further than the majority and essentially overrule Montgomery. And Justice Thomas essentially says, well, the majority takes a strained reading of Montgomery to try to make it just a procedural ruling, and what the majority should really do is overrule Montgomery and really focus on Miller.

 

      And to give you all who haven’t looked at Miller and Montgomery in a while, those who may be on the call, essentially what Miller said was, first of all, you can’t have mandatory juvenile life without parole. If you’re going to have it, it has to be discretionary rather than required by a state statute, typically for capital murder. And Miller also said you have to consider the youthful factors in making the discretionary -- the judge or the jury or whoever gives the sentence has to consider the hallmark features of youth, which, of course, immaturity, impulse control, things like that that are relevant to the culpability in the offense, and then, secondarily, of course, relevant to the capacity for change.

 

      And then, of course, you have the Montgomery case come along, which held that Miller is retroactive, and then that’s where you get into the typical line that if it’s a substantive change in the law, it is retroactive, and if it’s merely process, then it isn’t. And so what happened in this case is I would say the majority opinion, without overruling Montgomery, kind of winds this back to being more of a procedural question. Obviously, the dissent rejects that and would carry Montgomery forward or even expand it. And Justice Thomas would expressly overrule Montgomery. So that’s where things landed.

 

      And I think, as is the case often with Supreme Court decisions to some degree, I think the country is already moving on. There have been opinion polls which show a strong majority of people support some type of second look for juveniles, and these bills are advancing in many states.

 

      In Ohio late last year, Governor DeWine signed a provision which after 18 years, a youth is eligible for parole who would have otherwise had to serve life if for non-homicide, and after 25 years in the case of homicide. The Maryland legislature passed a similar second look bill. It was vetoed by Governor Hogan, and then the legislature overrode him. And here, where I’m talking to you from in Texas, the Texas House passed a second look bill with over 100 votes a few weeks ago, and it is now being considered in the state Senate. So it’s still about half and half as far as what states have enacted second look laws.

 

      But some states are actually going beyond even youths now. In Washington State, they passed one that goes up to 20. And of course, the broader question is being asked of whether you should even have life without parole for adults. And groups like The Sentencing Project have an initiative to eliminate that.

 

      I think one of the things that strikes me, just as it’s very difficult to put contours on cruel and unusual punishment, it’s extremely difficult to say whether somebody’s permanently incorrigible. I’m reminded of the work of the economist Friedrich Hayek who emphasized the diffusion of knowledge and the fact that, in basically defending capitalism, said that you can’t have state control because there’s all these uncertainties, and only knowledge diffuse among individuals can really produce the innovation to drive society forward.

 

      Well, none of us know, of course, whether somebody’s going to recidivate. None of us have a crystal ball at the time somebody’s sentenced whether they are -- it’s 100 percent sure that they’re never going to change. And many of us view this from the standpoint of, whether you’re religious or not, that, of course, all people are capable of redemption.

 

      Now, there’s certainly good arguments to be made about whether parole boards or courts -- how well equipped they are. I will say, certainly, there have been advances in terms of actuarial assessments that many parole boards, virtually all of them, now use, and they do look at a variety of factors, including someone’s behavior while they’re incarcerated. Certainly, age is a major factor. If somebody’s been in prison for 20 or 30 years, they’re often not the same person that they were.

 

      And I think one of the other things is when you look at a lot of the facts of these cases, you find that they may have been ones in which the young person was involved in a gang, and perhaps they joined a gang for protection. They felt that, given the kind of situation where they grew up, often without a father in a very dangerous area, that they needed to do that. And again, it’s not to excuse anything, but you have -- many of these crimes would involve a turf war between two gangs.

 

      And when you take someone out of that setting and hopefully -- again, there’s a lot of problems with our correctional environments, but they’ve been in a totally different setting for 20 years. I think that that’s kind of why you see the recidivism data that you do. The study that came out of the Philadelphia juvenile lifers, there was a one percent recidivism rate, and none of them were violent felonies. In Michigan so far, none of those who have been resentenced have recidivated.

 

      Again, these are all factors that are ones that policymakers are focusing on. And the Court here was, certainly in the view of the majority, including Justice Thomas in his concurrence, are very much focused on what does the Constitution prohibit versus what is at leave from a judicial restraint perspective to the wisdom of, really, the public but channeled through their elected representatives to decide.

     

      I guess going forward, I see this decision as important in the sense that it’s going to probably encourage energies of those who want to see further changes, particularly in states that haven’t adopted a second look provision. It’s going to encourage folks to focus on state capitals, on talking to legislators, certainly additional academic research, although I think the recidivism data is fairly clear from what we see already.

 

      There are those who certainly believe, regardless of recidivism data, that somebody who did such a heinous crime, that they ought to, for the sake of punishment alone, spend the rest of their life in prison. And that view is not -- I think it’s a minority view, perhaps even among those of us on the right. But it does exist, and certainly respect that view.

 

      But I think from my experience, the majority of legislators and policymakers are willing to look at the data and say, “Does this make sense, if nothing else, from a taxpayer perspective to pay $30,000 to $40,000 a year to keep this person in prison beyond 20, 30, 40 years when evidence suggests they’re a good risk to be rehabilitated?”

 

      One of the things I’ve noticed in being part of some hearings on this legislation is that the parents of many of these juveniles who have received life sentences are very active in terms of advocating for legislation. Victims are very involved, as they should be, in the process, and some support and some don’t.

 

      But one thing I’ve noticed is, of course, when -- typically, the parents are at these hearings. They’re in their 60s or 70s. And if the individual is released after 20 years, their parents are there to help them reintegrate. Maybe they’re 50 years old and they can get a job, or 45 years old, whatever it might be, whereas if somebody’s released when they’re already 65 or whatnot -- first of all, the average lifespan of people in prison is much lower, so they can end up dying in prison, of course. But beyond that, if they’re released once they’re 60, 65, 70 years old, it’s going to be very hard for them to become self-sufficient, and there’s not going to be a support system for them.

 

      And of course, just from an employment perspective, you’ve seen juvenile lifers come out. They don’t know what a cell phone or an email messages or text messages are. So when such a huge amount of time goes by, it does make reentry more difficult. So one of the things that’s been new is there’s some nonprofits like the Epicenter Initiative here in Texas that’s set up to assist with some of those challenges, and there’s the Louisiana Parole Project.

 

      I think one thing everybody can kind of agree on, regardless of your legal or policy stance on this, is that for those that are released, it’s really important to take every measure possible to make it more likely they’ll be successful, both from a public safety and reintegration standpoint.

     

      Obviously, I have my own views on this from a policy perspective. But on the other hand, I think that there’s, from a legal perspective, this decision reflects that it’s a very difficult question, and it’s one that I think raises serious concerns about how far courts should go versus the role of elected officials.

 

      And obviously, we saw where different justices fell on that. And I do think the implication of this will be, not just within the juvenile context, but I think this type of divide on the Court where clearly there’s a majority on a more restraint-oriented approach, I think it’s going to cause advocates of positions on both sides of the policy debate to really focus on other avenues rather than litigation to resolve these concerns.

 

      With that, I’d like to open it up to questions and comments from those on the line. Thanks so much.

 

Guy DeSantis:  Great. Thanks very much, Marc. We’ve got one question in the queue.

 

Caller 1:  Hi. Good afternoon, everyone. My question was for how far you think states might go that had ongoing collateral relief proceedings based on the retroactivity decisions that seemed  to set the high bar for imposing a juvenile life sentence. I know different states have taken different tacks. Arizona, for one, is actually having ongoing litigation putting the state to the burden of showing the -- basically, to disprove the immaturity standard that had been set. So I was curious if you had thought about that.

 

Marc Levin:  Yeah, that’s a good question. The pace of these resentencings has been different in various states. In some states it’s a parole board issue, and in other states, it’s going to courts to decide. And I don’t think this interferes with that. I just think the implication, of course, directly is that there’s no requirement. That doesn’t mean the state legislature couldn’t impose it, but there’s no requirement of the factfinder to determine that the individual is permanently incorrigible.

 

      Obviously, in the Brett Jones case, given that he got a degree in prison and he’s had such a fine record there, it almost -- it’s kind of tragic in my view that, at least unless something changes in Mississippi legislatively, he’s obviously going to continue to be in prison indefinitely.

 

      But I think that there’s been some frustration in some states, the pace of these rehearings, resentencings hasn’t been faster, but I think that they are, from what I can see, it looks like they’re doing a deep dive into the evidence in the case, the background. And obviously, given that it’s a sentencing, not a guilt or innocence proceeding, everything’s on the table to look at.

 

      And you have more information, going back to what I said earlier, because you have so far, however many years the individual has been in prison, what their performance has been, what programs have they completed that are targeted towards reducing recidivism, and also looking at -- in many states, they do consider what would be their reentry plan. Who would be a resource for them when they come out of prison?

 

      And that’s one of the reasons I think it’s important to have opportunities for individuals who are incarcerated to work with, to communicate with -- obviously, prison phone calls is its own issue, but visitation, in writing, and all those other ways, but to be able to communicate not just with family but also ministers, other sources of support in the community so that they can develop a real plan.

 

      One of the things when I was working with the White House during the last administration, when we went up there, the first thing we said is let’s have -- within 90 days after someone gets to federal prison, let’s develop a reentry plan that would look at what jobs they would be qualified to do, what training they could receive while they’re in prison that might facilitate that. And who would their source of support be when they leave?

 

      And so I think that that’s the -- I think whether it’s a parole board or a judge, there’s a real understandable desire to identify what kind of protective factors there are that are going to set this person up for success. Obviously, the standard is not going to -- there’s not a constitutionally required finding now of permanent incorrigibility, and frankly, it wasn’t clear that there was one before this case. That’s what the case was to resolve. So I don’t see that it will have a major impact on the outcome of these resentencings.

 

Caller 1:  Thank you so much.

 

Guy DeSanctis:  It looks like our queue is open right now. Seeing none, Marc, I’ll send it back to you if you have anything else you want to add. Or if you want to wrap up a bit early today, I’ll defer to you. 

 

Marc Levin:  Well, I think we’ve covered it, and I just really want to thank everyone for tuning in and hope that everyone will join future teleforums as well.

 

Guy DeSanctis:  Great. Thanks very much, Marc. On behalf of The Federalist Society, I’ll offer thanks to you, Marc, for the benefit of your valuable time and expertise today, of course, to our audience for calling in, for your great questions. We welcome your feedback, of course, by email at [email protected]. If you’re looking for future teleforums, as Marc mentioned, or future Zoom events, please check your email and our website for announcements about those upcoming events. So with that, until next time, thanks very much for joining us. We are adjourned. 

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.