Apr 29, 2021
For the past 16 years, the Supreme Court has moved to restrict states from imposing harsh criminal sentences on children. Last Thursday, a Court remade to reflect Donald Trump's law and order conservatism took a different approach.
It was Trump-appointed Justice Brett Kavanaugh, whose allies insisted during his confirmation that credible allegations he committed sexual assault at age 17 should not prevent him from becoming a Justice, who wrote the majority opinion in Jones v. Mississippi making it easier to sentence children to life behind bars for something they did in their youth.
In the case, 31-year-old Brett Jones appealed a life-without-parole (LWOP) sentence he received for killing his grandfather at age 15. His argument built on two Supreme Court rulings.
The Jones opinion is cruel. But while it might be easy to interpret the majority and dissent as a black-and-white conflict between punitiveness and rehabilitation, challenging juvenile LWOP requires something other than rehabilitative discourse.
In Miller v. Alabama (2012), the Justices struck down state laws mandating LWOP for juveniles convicted of homicide. In Montgomery v. Louisiana (2016), the Court extended Miller to retroactively nullify past sentences issued under mandatory juvenile LWOP statutes. But Jones's sentence was not mandatory--it was chosen by his sentencing judge. His appeal sought to extend Miller and Montgomery to cases in which judges chose to impose LWOP on a juvenile.
The Court's six conservatives declined to do so, deciding that juvenile LWOP was constitutional if imposed by judicial choice. Importantly, they ruled that judges could issue LWOP sentences without finding that a juvenile is "permanently incorrigible," or incapable of rehabilitation. The liberal flank disagreed. Justice Sotomayor's dissent claimed the majority deprived juveniles a chance to demonstrate "all they have done to rehabilitate themselves."
The ruling seemingly presents a conflict between conservatives endorsing a punitive vision of the justice system and liberals endorsing the "rehabilitative ideal"--the notion that punishment should reform offenders. A Trump-branded Court will undoubtedly abet harsh sentencing, but challenging harsh policies like juvenile LWOP through rehabilitative discourse is unlikely to work. As I have written elsewhere, the idea of "incorrigibility" has always been part of the rehabilitative ideal. The spirit of "rehabilitative" reform has always incorporated a punitive streak, even for juveniles.
The rehabilitative ideal originated in the 1870s at New York's Elmira Reformatory under the leadership of Warden Zebulon Brockway. Brockway's model was nationally praised, especially the indeterminate sentence, which released inmates from their terms early for demonstrating reformative progress. Within a few decades, the system was replicated in seventeen states.
But what became of inmates for whom rehabilitation failed? They were labeled "incorrigibles" and subjected to harsh punishments, including lengthy sentences or sterilization to prevent propagation of their "criminal biology." Indeterminate sentencing was designed to serve reformative and punitive purposes, allowing early release for some and containment for incorrigibles. States claimed their average terms of inmate confinement increased with indeterminate sentencing. Distinguishing incorrigibles for punitive treatment was central to the rehabilitative model.
Similar ideas are present in Supreme Court jurisprudence. When the Court upheld indeterminate sentencing in Williams v. NY (1949), Justice Hugo Black stated that indeterminate sentencing was consistent with "reformation and rehabilitation," which required tailoring sentences to "fit the offender." But in Williams, the judge ignored the jury's recommendation of life imprisonment and imposed the death sentence on a defendant deemed unamenable to reform. Through rehabilitative rhetoric, the Justices authorized judges to mete out brutal sentences for anyone they deemed irredeemable.
Despite recent rulings expanding protections for juveniles from capital punishment and LWOP, juveniles were not spared the "incorrigible" classification historically. Through the 1970s and 1980s, the Supreme Court increased judicial discretion to apply the label of incorrigibility to young offenders in cases involving the Federal Youth Corrections Act (YCA) of 1950. They did so through the language of rehabilitation.
The YCA encouraged judges to consider rehabilitation and reduced sentences when sentencing offenders 16-22 years old. But in 1974, the Court ruled in Dorszynski v. US that while the YCA increased judicial discretion to "sentence youth offenders for rehabilitation," it should be applied to "all but the 'incorrigible' youth," who could be punished as adults. The Justices made it stunningly easy for judges to label someone incorrigible. A judge could simply state the juvenile would not benefit from treatment without providing any reason. In dissent, Justice Marshall condemned the majority for enabling judges to issue harsh sentences without justification.
In Ralston v. Robinson (1981), the Justices again made it easier to deem a juvenile incorrigible. When a young man sentenced under the YCA assaulted a corrections officer partway through his term, a judge terminated his YCA sentence and issued an adult sentence. The majority upheld this by concluding that "rehabilitative purposes might justify a lengthy confinement" should "rehabilitation fail." Justice Powell's concurrence noted that the "respondent had shown an incorrigibility" that "warrants adult treatment."
A politics focused on preventing crime through social spending shuns concepts like individual incorrigibility by understanding crime through a structural lens. The Jones opinion is cruel. But while it might be easy to interpret the majority and dissent as a black-and-white conflict between punitiveness and rehabilitation, challenging juvenile LWOP requires something other than rehabilitative discourse. Rehabilitation shrouds a punitive logic by embracing distinctions between corrigibility and incorrigibility when these labels should be abandoned altogether.
There are ways to accomplish this. Rejecting juvenile LWOP as cruel and unusual in light of the 8th amendment could discredit the concept of juvenile incorrigibility. The U.S. is the only country that sentences juveniles to LWOP, underscoring that the practice truly is cruel and unusual.
Rehabilitative discourse also problematically assumes that all causes of crime, and all solutions, exist within the individual. This ignores how violent criminality is shaped by environmental factors and is not a fundamental aspect of someone's personality. Research shows that generous social welfare and economic support is correlated with lower rates of violent and property crime. A politics focused on preventing crime through social spending shuns concepts like individual incorrigibility by understanding crime through a structural lens.
Jones is a terrible decision, but challenges to juvenile LWOP must discredit the concept of incorrigibility, meaning we should eschew rehabilitative discourse. We would be better served by focusing on the fundamental cruelty of juvenile LWOP and challenging the deep structural forces that contribute to juvenile offending.
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