Kavanaugh just erased years of precedent to keep kids in jail forever


The last year has seen parents — and society broadly — worry about what impact the global pandemic, and its resulting school closures and remote learning, is having on children’s development. It’s a reasonable concern: As their minds, bodies and ways of interacting with the world change daily, children lean on their experiences to learn their place in the world. In a way that is familiar to most lawyers, a key part of growing up is learning what the rules of living in society are and how they will be applied to them as they get older.

States and lower courts may now unnecessarily impart a lifetime of punishment for the awful, yet transient, acts of a group of teenagers across the country.

But now the Supreme Court has altered the rules they follow, doing so in a case centered on how and when young people convicted of a homicide can be sentenced to spend the rest of their life in prison. Thanks to Justice Brett Kavanaugh and the court’s majority, unwilling to hold themselves accountable for their own court’s repeated decisions over the past decade, states and lower courts may now unnecessarily impart a lifetime of punishment for the awful, yet transient, acts of a group of teenagers across the country.

Before this week, the legal understanding on the matter came from a 6-3 Supreme Court decision in 2016. Now-retired Justice Anthony Kennedy wrote for the court that juveniles facing a sentence of life without the possibility of parole “must be given the opportunity to show their crime did not reflect irreparable corruption.”

This is because, he explained, an earlier case made clear that the Eighth Amendment would be violated if you sent a child to prison for life without the possibility of parole when the crime reflects “unfortunate yet transient immaturity.” Since children facing a lifetime in prison must be given the opportunity to show that they can reform, Kennedy continued, “it will be the rare juvenile offender who can receive” as harsh a sentence as life without parole.

On Thursday, however, the court issued its decision in Brett Jones’ case against the state of Mississippi. Kavanaugh, who clerked for Kennedy, wrote for a narrow five-justice majority of the court that what Kennedy meant was merely that after considering the child’s youth, a judge had to have the discretion to impose a sentence other than life without the possibility of parole. The judge in Jones’ case did not need to make any specific, or even implicit, finding that Jones’ crime — committed when he was 15 — showed “irreparable corruption” (or “permanent incorrigibility,” the other phrase used by the court in the earlier cases).

Five justices this week made it easier for states and courts to imprison children who kill for the rest of their lives by ignoring earlier rulings.

In short, there was, by the current court’s reasoning, no real meaning behind Kennedy’s words that this punishment should be “rare.”

Justice Sonia Sotomayor, writing for the trio of more liberal justices remaining on the court, minced no words in her dissent. In it, she assessed that Kavanaugh and the four more conservative justices who joined his opinion had “gutted” Kennedy’s ruling and others that came before it.

Unlike Kavanaugh, she closely followed the earlier precedent. She quoted Kennedy’s ruling in the 2016 case, Montgomery v. Louisiana, to show how far afield the current court was going: “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison,” Kennedy had written, “that sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transient immaturity.”

How could that square with the court’s ruling this week? It couldn’t, Sotomayor explained: “The court simply rewrites (the earlier cases) to say what the court now wishes they had said, and then denies that it has done any such thing.”

Even Justice Clarence Thomas — who vehemently dissented from the earlier decisions and ultimately concurred with the result of Thursday’s decision — agreed that Sotomayor was right about what Montgomery meant.

“If Montgomery is correct about the existence of a concrete class of offenders who—as a matter of fundamental constitutional law—are categorically exempt from a sentence of life without parole, then there must be a determination as to whether Jones falls within that protected class,” Thomas wrote.

To truly highlight how “low this court’s respect for stare decisis has sunk,” as she put it in her dissent, Sotomayor chose to cite an opinion from 2020 — one written by Kavanaugh.

“Not long ago, that doctrine was recognized as a pillar of the ‘rule of law’ critical to ‘keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion,’” she wrote. “Now, it seems, the court is willing to overrule precedent without even acknowledging it is doing so, much less providing any special justification. It is hard to see how that approach is ‘founded in the law rather than in the proclivities of individuals.’”

Nonetheless, five justices — including Chief Justice John Roberts, who had joined Kennedy’s opinion for the court in Montgomery — this week made it easier for states and courts to imprison children who kill for the rest of their lives by ignoring that and other earlier rulings.

As vaccinations of Americans continue as part of our efforts to get the pandemic under control, and as more and more students return back to schools and eventually begin to get vaccinated themselves, there will be lots of talk and stories and studies and conferences about what this past year has done to these kids and what we need to do to help them succeed going forward. It’s not clear yet what lessons they’ve learned — and what developmental milestones they missed out on — over the last year.

That level of nuance and understanding we bring when talking about children, especially more privileged children, disappears far too often once crime and the criminal legal system come into the picture. We’ve faced it with police officers, where multiple videos released this month show children being shot to death by police. And we see it in prosecutors and trial judges who bring and rule on the cases, lawmakers and local officials who make the laws and put in place the policies, the president and governors and executive branch officials who implement the laws, and appellate courts that interpret the laws.

We count on all of our governmental institutions to draw from their past decisions and learn from the mistakes they’ve made. It’s part of the process of accountability. Time and again our institutions have asked for and been given the chance to show a more mature response than what we’ve seen from them before.

But at the Supreme Court this week, Kavanaugh, Roberts and Justices Samuel Alito, Neil Gorsuch and Amy Coney Barrett refused to give that same chance, in any meaningful way, to children who, in the “transient immaturity” of youth, kill. The chance, as Sotomayor put it, “at life beyond the prison in which he has grown up.”

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