Courthouse Steps Oral Argument 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.

 

 

Nick Marr:  Welcome, all, to The Federalist Society's Teleforum conference call. This afternoon, November 3, 2020, we're having a special Courthouse Steps Oral Argument Teleforum on Jones v. Mississippi. I'm Nick Marr, Assistant Director of Practice Groups at The Federalist Society.

 

      Please note, as always, that expressions of opinion on today's call are those of our expert.

 

      And we're fortunate to have with us this afternoon Marc Levin. He's Chief of Policy and Innovation, Right on Crime, at the Texas Public Policy Foundation. Marc's going to give us some opening remarks, and then we'll open it up to audience question and answer. So be thinking of those as we go along, and have them in mind for when we get to that portion of our call.

 

      Thanks for being with us here today, Marc. The floor is yours.

 

Marc Levin:  Thanks so much. And I know this oral argument was what everyone was on pins and needles for today. But I'm going to start with just a summary, and then, after that, I'll talk a little bit about how originalism applies in this context—or might apply, depending on your perspective. And then three trends in this area in terms of where states have been going. And, included in that, I'll talk about some recent polling on the issue of juvenile life without parole and alternatives to it, in case you haven't had enough polling in recent days. And then, finally, some of the policy issues involving recidivism, cost, and other factors that affect the way the public looks at this and the way policy makers look at it.

 

      So I'll just start by saying, of course, whether something's a good idea from a policy perspective is not the same question of whether the Constitution requires a particular policy outcome. So the oral argument today in Jones v. Mississippi really focused on a very narrow question, which is whether the court was required to make a finding, explicit or implicit, that the youth is permanently incorrigible. And in this instance, we were dealing with a 15-year-old person, Brett Jones, who killed his grandfather at the age of 15, and he was sentenced in 2005. And then he had a resentencing in 2015, and the court at that point decided to keep in place the life-without-parole sentence.

 

      Just to take you a little bit through the oral argument, now, I'll kind of explain the back and forth that we saw. And, obviously, it's quite interesting because I know many people wanted to see how the newest justice, Amy Coney Barrett -- what her comments would be in this regard, and I'll certainly get to that.

 

      But, at the outset, the attorneys for the defendant basically said, look, the court, at the rehearing, basically did not comply with the letter of the law in Montgomery, which basically extended the Miller decision, because the court did not say that it was using a dispositive factor—whether Brett Jones was permanently incorrigible, which is essentially to say whether he was incapable of rehabilitation at any time in his future life.

 

      Chief Justice Roberts asked what type of finding defense would like to see, and that exchange kind of revealed that defense was not wanting a formal finding because, actually, in Montgomery they implied that wasn't necessary. But some [inaudible 00:03:50] state by the judge, for these reasons, I've determined that, in this case, Brett Jones is permanently incorrigible.

 

      One of the things to point out is that Justice Alito got in pretty early into the give and take. And he expressed concerns that go back to his dissent both in Miller and Montgomery, and [inaudible 00:04:19] actually what the Eighth Amendment issue is in this case, which is whether the practice of juvenile life without parole, at least without these explicit considerations, is cruel and unusual punishment.

 

      And, at one point, Justice Alito said, "You want to take us and the courts into very deep psychological waters." And he quoted Gandhi in terms of saying Gandhi said no one is beyond redemption, and referenced the good thief on the cross. So Justice Alito basically asked how can a judge determine for sure someone over -- which could be 50 or 60 years in the future could never change, and isn't that a really high bar? And the counsel for the defendant essentially said the court would obviously not have a crystal ball, but the court could just cite the reasons based on, as defense counsel said, looking at the nature of the crime, looking at did that youth have a long criminal record? Did they show remorse? Things like that.

 

      And I thought, at that point, the defense might have missed an opportunity to point out that this particular finding—just like aggravating and mitigating factors, it's well established in the law—would be not based on proof beyond a reasonable doubt, but based on preponderance of the evidence. So yes. Of course, you can't say for 100 percent sure someone won't -- there's no way they'll be rehabilitated; you can't know what's going to be in their head decades from now. But perhaps defense counsel could have allayed Justice Alito's concerns a little more by saying, look, it's a preponderance of the evidence standard.

 

      Then we went on with Justice Alito trying to kind of downplay the whole Miller and Montgomery by saying that we just need to look at what they ultimately held, which was requiring some type of reasoning before sentencing a juvenile to life without parole, and that we shouldn't kind of delve too deeply into the language in Montgomery where it does talk about permanent incorrigibility finding.

 

      At this point, Justice Sotomayor got in. And it was kind of surprising because she had some tough questions for the defense lawyer, even though, of course, most people would think she will end up on the side of the defense, but basically saying—I think, maybe, harkening back to her time as a trial court judge—saying, does the trial court have to use the magic words? And he did say he was considering the Miller factors, such as the youth-related circumstances, even though the judge did not reference permanent incorrigibility. And there was an interesting exchange there.

 

      We also then heard from Justice Gorsuch, who brought up the issue of, if we are going to say Montgomery added this new requirement that the permanent incorrigibility issue be dispositive, would that be a substantive change versus a procedural change under Teague, which would determine whether it was retroactive or not? So there was a fair amount of discussion about that.

 

      And I think it was Justice Kavanaugh who brought up the issue of what kind of record does the judge have to establish if we're going to say the judge should have made an explicit determination that Brett Jones was permanently incorrigible? And he emphasized the fact that the court was clear in Montgomery they weren't requiring a formal fact finding. And Chief Justice Roberts said, "Wouldn't just a sentence or two do?" And the defense basically agreed with that.

 

      Justice Amy Coney Barrett, who I referenced earlier -- she really didn't give too many hints in her questions. They were pretty technical in nature. She asked whether also, hypothetically, even if the proper process was followed, the defendant could still raise a challenge to the proportionality of the sentence. And it was a little surprising that the solicitor general or the assistant solicitor general said that there could be. But, ultimately, I don't think that's going to play into the outcome of this.

 

      So at the end of the day, as far as where the justices line up, I think it's clear, based on their prior dissents, Justice Alito and Justice Thomas will almost certainly again determine that cruel and unusual punishment should be looked at in the context of what was considered to be so at the time of the Founding, and that we should really go back from this decades of jurisprudence that has emphasized the evolving standards of decency.

 

      I think Chief Justice Roberts—because he really dominated at the beginning with the questions about what would be enough in terms of the judge's specificity of their findings—I think he's going to take a very narrow approach to the case. And I think there were some hints that Kavanaugh would be with Roberts in that regard. And of course, Kavanaugh, his closeness with former Justice Kennedy, who -- obviously, this jurisprudence really stems from him more than any other judge, so I think that might also be suggestive of that. Although, certainly, Justice Kavanaugh is going to make up his own mind without regard to Justice Kennedy.

 

      And I think Justice Barrett really -- there weren't really any strong hints about whether she would fall more into the Scalia—I'm sorry; well, of course, Scalia would be definitely where Thomas and Alito are—but whether she would fall with Thomas and Alito or more of a narrow approach and Chief Justice Roberts might join the more liberal members of the Court.

 

      So let me move to the second issue, which is just to comment a bit on the question of originalism. I think one thing that's a really kind of interesting question for originalists to ask is whether some constitutional provisions should be approached differently than others. And, obviously, when you say "cruel and unusual"—especially the word "unusual"—it would seem to suggest that perhaps the Founders—the Framers, the ratifiers—that they envisioned that it would, to some degree, change over time in a way [inaudible 00:10:21] soldiers in your home isn't something that's going to be a different question a hundred years later, right? Even things like there should be no law barring freedom of speech, or the Second Amendment. [Inaudible 00:10:37] have the same implicit reference to variability over time that cruel and unusual punishment would. And, of course, if they wanted to, they could have spelled out what practices were cruel and unusual.

 

      But, on the other hand, there is a serious concern that having such a nebulous standard of -- evolving standards of decency basically can lead to the totally unlimited substitution of -- basically where federal courts and judges substitute their opinion for that of the democratically elected branches. So it is important to kind of cabin this not so much, I think, because members of the Court were that concerned about how this particular case—or even this whole issue of juvenile life without parole—is resolved, but that, obviously, a very sweeping approach with no way to cabin it could lead to lots of other practices or types of sentences being ruled to be cruel and unusual and a flood of litigation and a role for the federal courts that overwhelms that of the democratically elected branches—because in some states, of course, judges are elected—or, at the minimum, a state -- a federalism issue of basically where there's a greater involvement of the federal government due to federal courts than really was envisioned under our constitutional scheme. So it's a difficult question for that reason.

 

      Let me shift, now, to looking at the trends, including public opinion, as well as some of the policy factors. And, obviously, these aren't necessarily ones that the courts should take into account, but they're ones that I think many of us find to be very compelling.

 

      As far as [inaudible 00:12:30] concerned, after the Miller decision, a number of states, of course—basically because these determinations are so laborious that the courts would have to make—decided to just get rid of juvenile life without parole. Texas actually did that back in 2009, even before Miller. But some of them, like Texas, set a very long period—40 years—before the child would be eligible for parole. But others have basically moved into a direction of 15 or 20 years, for example. And, earlier in September of this year, the Ohio Senate, by a 29 to 4 margin, passed Senate Bill 256 that set it at 18 years for youths convicted of crimes other than homicide and 25 years for homicide. So that now goes over to the Ohio House.

 

      Looking at public opinion, there's a survey from Data for Progress earlier this year, and they asked two questions. One dealt with, do you agree or disagree that no one should be sentenced to life in prison without the opportunity for parole for a crime they committed as a child? And, overall, there were 57 percent in favor and 29 percent against, with 14 percent not sure. There was a bit of a partisan split, but it really was actually about even, overall, between Democrats and Republicans on that question, with even more Republicans than not agreeing that there should not be life without parole for crimes committed as a child. And then they also asked a separate question which looked at whether there should be an opportunity for release before a judge or parole board after no more than 15 years, is the way they posed it. And that also got favorable responses, including from 64 percent of Republicans, with only 24 percent of Republicans opposed. And the numbers were similar among Independents; slightly stronger among Democrats.

 

      So I think, as with a lot of policy issues, there's a real question of why—it would just seem to make sense given that there has been, I would argue, a change in how society views this in recent years—to why not just have democratically elected branches of government move forward regardless of what courts conclude? And some of the policy reasons that I think have led to this evolution of public opinion is, of course -- first of all, there's been a lot of brain science showing how those who are youngsters basically their capacity for impulse control or judgment and so forth is not fully evolved. And now, of course, with the sophistication of brain scans, we can see how those parts of the brain not only change over time, but actually they can be examined while certain responses to stimuli are occurring. So there's some very compelling brain research.

 

      Now, none of that says that there should not be accountability, particularly for serious crimes. But it does tend to mitigate the culpability. And then, of course, the research on neuroplasticity essentially shows that the younger brain is more impressionable, so it's more susceptible to change. So if you can deliver the right program when somebody is incarcerated for something they did at 15, 16, 17, you have a better chance of changing their outlook going forward.

 

      There has also been some studies regarding [inaudible 00:16:13] outcomes in terms of recidivism, for example, for juveniles sent to prison for extensive -- sent to adult prison for homicide and other serious crimes. And, in particular, there was a study that came out last year in Pennsylvania that found a one percent recidivism rate for—these were juvenile lifers who served about 30 years, on average, before being released, and there were no homicides and virtually no crimes at all—but a total of one percent recidivism rate.

 

      Then Michigan began resentencing many youths pursuant to Miller and Montgomery, and there were 70 who were tracked from 2016 to 2019, and none had recidivated. I actually testified in Texas at a hearing last session on legislation that would have created a second look after 20 years versus the 40 years I referenced earlier. And one thing I noticed in just looking around the room at who was testifying. Of course, there were a number of parents of those who were incarcerated, and they appeared to be maybe 60, 70 years old. And it really occurred to me that if you stick with the 40 years that Texas has now, when these youths are released, they're going to be 58, 59, 60, depending on, perhaps, how long the case took to process. In reality, most of their parents, probably, and even siblings, may not be alive at that point in time, or certainly not in a position to assist with reentry. And of course somebody sentenced to prison 40 years ago wouldn't know a cell phone or e-mail if it hit him in the face, so there's also that.

 

      But how do you begin to get somebody into employment and self-sufficiency who's been in prison for 40 years and is now in their late 50s? And that puts aside, of course, the average lifespan for prisoners is 61 or 62. Both because of health issues before they were incarcerated and health issues while incarcerated and the challenges in medical care, there are many reasons why the lifespan is shorter. So I think there's a real reason to believe that reentry to where somebody can be self-sufficient is much more likely to occur if you don't wait till somebody's in their late 50s, for example, or early 60s before they're released.

 

      The other thing, of course, is cost. It's about $2.5 million, at least, to effectuate a juvenile life-without-parole sentence. And every year somebody's imprisoned -- in some states it's $30,000, $40,000, $50,000, depending on the state, so there's obviously a cost to the taxpayers.

 

      Obviously, there's been a lot of discussion about race in the criminal justice system during this year. And it is true that 56 percent of those sentenced to juvenile life without parole are African American. It's also true that [inaudible 00:19:07] there is a greater -- there is also disparity among races in terms of the share of homicides and other serious crimes committed by someone of that age, but you do find disparities in some jurisdictions even after adjusting for that. But also it can relate, in some cases, to the victim; there's some research showing that if the victim is white, there is more likely to be a life-without-parole sentence.

 

      There's a lot of different considerations that policy makers have been looking at as they approach this. And, from our standpoint, public safety is the number one consideration. So, in the case of Texas and many other states where there's a parole board, in the event that there is a second look opportunity, the parole board will use an objective risk assessment that has been validated, meaning it's been tested retroactively to show that it's certainly not perfect, but helps inform their decisions about what risk somebody would pose. And, of course, they also look at the record of the individual while they've been incarcerated. In this case, by the way, Brett Jones had an exemplary record, and there was testimony from his correctional officers about the GED he earned, and that his behavior was exemplary, and so forth.

 

      And then the parole board also, importantly, considers input from victims, survivors, prosecutors, family members—really, everybody should have an opportunity to have their voice heard. So these second-look laws aren't guarantees, but they are an opportunity to be [inaudible 00:20:44].

 

      Obviously, we'll have to wait for a few months to find out how the Court rules in this and how the justices align. But I think it was rather -- while it was a somewhat technical discussion on this, kind of, how explicit a judge has to be in their -- how they stated they interpreted Miller and Montgomery, in particular; and of course, in this case, the Mississippi Supreme Court, the guidance they provided to judges to not reference permanent incorrigibility. So that was one of the issues discussed. But I think, regardless of how the Court rules, in light of the research and public opinion, we'll continue to see states move away not only from juvenile life without parole, but also move away from what is often the equivalent, in terms of a 40-year time frame before someone can be reviewed by a judge or parole board, to something probably around half of that for an initial review.

                                                                                

      So, with that, I look forward to questions and comments, as well. I think we have some folks on the line who probably know as much or more about this than I do, and some may have even personal experience. So I look forward to opening it up. Thanks so much.

 

Nick Marr:  Great. Thanks, Marc. And we've got a caller lined up now.

 

Kent Scheidegger:  Hi. This is Kent Scheidegger, Marc. I'm curious if you attach any significance to Justice Kagan's assessment that Montgomery was an aggressive interpretation of Miller—I think "dishonest" would be more candid. Do you think there's any chance that the Court will backtrack on Montgomery and return to what it said in Miller, that it was establishing a procedural rule along the lines of Woodson and Lockett for capital cases and not a categorical exemption for a particular class of persons?

 

Marc Levin:  That's a good question. I'm sorry I didn't mention Justice Kagan's remarks. I'm glad you brought it up. I guess that's a good question.

 

      It's not that often, as all of us know, that the Court expressly reverses a prior case. So I guess I would be reluctant to say there's likely to be five justices to expressly overturn Montgomery. But you're right. That was a big focus of the oral argument as to how much did Montgomery add to Miller. And you know, it can be read, perhaps, as privileging, this issue of permanent incorrigibility over other factors, or essentially making that -- I mean, the defendant's argument was obviously that that's kind of a precondition. In other words, if you find that the defendant is permanently incorrigible, then you have to not impose juvenile life without parole. If you basically find that they're permanently incorrigible, then you can do so, although you wouldn't necessarily be required to do so. So I guess it really is unclear.

 

      But I think it was somewhat surprising, perhaps, that Justice Sotomayor and Justice Kagan did have some tough questions for the defense side, as well. And I think it's kind of -- in some ways, it's gratifying that—and there were some conservative justices who asked tough questions of the lawyers for the government—and I think it's gratifying to see those. And I don't think unexpected, but perhaps outside of the judicial proceedings these days, where you tend to see leading questions from members of Congress and such on each side. I think it was edifying.

 

Nick Marr:  So, Marc, we don't have any questions in the queue, but I guess I'll just -- oh, we do have one now.

 

Christopher Melling:  Hi. This is Christopher Melling from BYU Law. Can you expound a little bit on other -- the evolving national standards with Eighth Amendment's cruel and unusual. I know you spoke specifically about echoes of Scalia, Thomas, in one nod. Is that -- do you think that's going to become more of a fight? For example, Justice Barrett would be in that camp, moving away from the evolving national standard of what defines cruel and unusual. Or do you think that that momentum is to stay with that trend that we've seen over the last 15, 20 years?

 

Marc Levin:  Yeah, and Kent may have some thoughts on that, too. But I think it was unclear -- I mean, Justice Alito was very clear that he hasn't changed his mind since his dissent, and I don't think there's any reason to think Justice Thomas has, either.

 

      I think it was unclear if Justice Barrett -- her questions were so kind of focused on this really ancillary issue of whether [inaudible 00:25:33]. I think it's hard to say. I think there's a chance she would join Alito and Thomas, which would be three votes to fundamentally rethink the jurisprudence. It didn't seem to me like Kavanaugh -- it wasn't entirely clear, but I think he seemed to be closer to Roberts in terms of focusing on distinguishing Montgomery and a very narrow approach to ruling on this that, frankly, could get the votes of -- it didn't seem like there was much difference, really, between Sotomayor and Roberts, for example. But if Kavanaugh and Barrett both were to join Alito and Thomas, then that would obviously be four votes right there.

 

      But I would tend to think that -- Gorsuch. Now, we didn't mention Gorsuch. It wasn't really clear where he was. He kind of posed a hypothetical, saying if Montgomery added a new requirement, should we determine if it should be retroactive? So he was kind of -- when you pose hypothetical questions like that, it's not really easy to discern where Justice Gorsuch was coming from.

 

      But, theoretically, if you had Gorsuch, Barrett and Kavanaugh, and Alito and Thomas, that would be five votes. My impression was, probably out of all those, Kavanaugh's the least likely to end up there. It just wasn't possible to read the tea leaves enough on Gorsuch and Barrett.

 

Nick Marr:  We'll go to our next question, now.

 

Mitchell Keiter:  Hi. This is Mitchell Keiter. I just want to question a little bit that public opinion poll that you described, for at least three reasons. Number one, I think when many respondents hear the term "child," they might think of someone who's 12 or 13 and not 16 or 17. It also did not seem to describe even the type of offense, let alone the specific facts of the offense, that might lead people in the other direction. And then, finally, it's one thing to ask if someone should be punished; it's another to ask, should a jury be able, based on the specific facts of the case, to conclude that someone needs to be confined in prison.

 

      I just think that's a little different way of wording it that could easily produce a significant change in the results because, as we know, the wording of a question can often determine the outcome because -- regardless of culpability, and then that's a question regarding retribution. But even Atkins has never gone further to preclude life without parole because there's still the concern about incapacitation, and it will basically become a question of false positives versus false negatives. There's a possibility the person will reoffend; there's a possibility he won't. And how do we balance those risks? And it's not really a question of culpability at all, but of public safety.

 

      And it just seems to me that the terms that they used about rehabilitation and incorrigibility almost holds out the demand that there be a zero percent chance that this person could ever be rehabilitated. And no one has a 100 percent chance of reoffending, and nobody has a zero percent chance of reoffending. And the question is what do we do with those cases in the middle? So I just want to question -- I think the way those polling questions are worded can really produce significant swings in the outcome.

 

Marc Levin:  Yeah, and I think you make a good point on that. Certainly, everybody has a different perception of who's a child. And obviously a three- or five-year-old is a child, too. So you're right. The question did not provide a specific age range.

 

      Overall polling that I've seen in this area is fairly -- it's not unanimous by any means, but I think the majority of Americans tend to be supportive of alternatives to juvenile life without parole.

 

      The other issue you raised in terms of -- I would argue kind of from the Hayekian perspective, that we all have imperfect information. That's part of the reason that you want the [inaudible 00:30:22] in a free market economy and not central planning by the government, right? Well, you know, you have more information 15, 20 years later, if you're a judge or parole board looking at the individual, than whoever was making the decision that a 15, 16-year-old at the time of sentencing, in terms of what they've done while they're incarcerated.

 

      And obviously it provides more of an incentive for somebody who's incarcerated to behave well and to complete programs if they know there's at least a chance they might get out of prison eventually versus -- and there have been statements by prison officials saying that someone who has life without parole—and obviously this applies to adults, too—that, because there's no possibility of release, there can be more issues in terms of behavior management and so forth.

 

      So I think that’s secondary, obviously, to the broader questions, and people can come down on different sides in terms of how they approach this from a moral perspective. Obviously, my own view is that we should provide an opportunity for someone to demonstrate that they've changed over time. But, certainly, if somebody has a perspective that judges and juries should have that, I can understand the view whether it's from putting aside the public safety assessment, which I think is better done later, someone could say. I just think, from a retributive standpoint, judges and juries should be able to [inaudible 00:31:57] life [inaudible 00:31:58] sentences even to juveniles. So there certainly are members of the public who have that perspective; I think it's a minority view. But overall, I do believe that regardless of how the narrow issue in this case comes about, the best, kind of [inaudible 00:32:13] side would agree the way to affect the greatest number of cases and to have all sides of the issue in terms of public opinion be considered is for state legislatures to take this up.

 

      Now there is still juvenile life without parole at the federal level, but it's a very—there was a proposal by Senator Booker, I believe, to get rid of that, which might be part of some future criminal justice bill—but it's a very small number of cases. So the vast majority of cases are state level. There were many that, of course, have been resentenced in certain states, like Michigan and Pennsylvania. But, again, the broader issue is also, okay, if we're not going to have juvenile life without parole, how long should somebody serve in these cases before their first parole review or judicial review, whether it's 15, 20, 25 years. And, certainly, there's no kind of divinely ordained figure; it's really something for elected officials, for state lawmakers, to kind of come to terms with and to take into account the views of their constituents.

 

Nick Marr:  Great. So, Marc, we don't have any questions in the queue right now. We've covered a lot of ground here. So why don't I offer you a chance for anything you haven't covered, you want to bring up, or any closing remarks. Unless we get another question, I think we'll wrap it up a bit early.

 

Marc Levin:  Sure. Well, I know everybody's got a lot on their mind today. So I'm just grateful that this is something that people are concerned with.

 

      I think that -- I don't think that the ruling in this case one way or the other will be as much of a catalyst as, of course, the Miller opinion was to begin with. Of course, that did force states to reexamine their policies. But I think, at the end of the day, it's really important to -- as we communicate with the public in this area, that people remember there are distinctions between what's constitutionally required—and that varies depending on your approach to interpreting the Constitution—versus what's sound policy from a recidivism or other perspective. So, obviously, I would hope members of the public—even those justices that end up ruling, perhaps, against Brett Jones—that doesn't necessarily mean that they think juvenile life without parole [inaudible 00:34:45] or if they were a lawmaker.

 

      But, nonetheless, I think it was a very interesting oral argument, and we appreciate everybody's comments today. I hope everyone has a great day and that we have a very -- I know we will have a very interesting evening. So thanks a lot.

 

Nick Marr:  Great. And thanks, Marc, for the benefit of your valuable time and expertise today. And thanks to the audience for calling in and your great questions. As a reminder, we welcome your feedback by email at [email protected]. And, as usual, keep an eye on our website and your e-mails for announcements about upcoming Teleforum calls. We're not done with this week in oral arguments, and we'll have some more Teleforum calls covering that this week.

 

      Also, be sure to check out our website for info about the National Lawyers Convention upcoming next week. So take a look at those panels and see which ones you want to register for.

 

      Thank you all for joining us today. 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.