Even though tomorrow is election day across America, the Supreme Court will be at work as usual, with the nine Justices hearing two new cases, including a case that brings up a familiar theme: how severely may states punish juveniles who commit the most serious crimes? The audio portion of the hearings can be heard on C-SPAN.org/supreme court
First case, starting at 10 a.m.:
Jones v. Mississippi
Background: Fifteen years ago, the Supreme Court began exploring the scientific and moral question of appropriate punishment for criminals who are under 18 years old at the time of their crimes. Applying the principle that the punishment should not only fit the crime but should also fit the criminal, the Court in the 2005 decision in Roper v. Simmons declared the death penalty unconstitutional for minors, no matter how awful the crime.
It accepted the premise that the immaturity of minors may explain their wrongful behavior, and suggested that it would be possible for them to reform as they grew older. The Eighth Amendment’s ban on “cruel and unusual punishment,” the Court said, meant that execution should be the fate only of the worst offenders. Science, it said, had not shown that juvenile crime means “irreparable corruption.”
Because the Roper decision left states with only the option of life prison sentences without parole, even if a juvenile committed murder, the Court has spent the years since exploring the constitutional dimensions of that option. In 2010, it ruled out such a sentence for serious crimes other than murder. States, it said, must give minors the opportunity to be released from prison by showing that they had matured and had been rehabilitated.
In 2012, it decided that life-without-parole could not be made a mandatory penalty, even for murder, so each juvenile convicted of a serious crime was entitled to be judged as an individual; judges and juries must examine whether that specific individual, over time, could be rehabilitated. “Youth, and all that accompanies it,” must be evaluated, it said.
Then, in 2016, the Court made that requirement retroactive to all sentences imposed on juveniles prior to 2012, thus giving those who were in prison still serving life-without-parole sentences the opportunity to show that they deserved to be released. The standard to be used if such a sentence were to be upheld, it said, was that the particular individual exhibited “such irretrievable depravity that rehabilitation is impossible.” This meant, it added, that such a sentence was valid only for “the rarest of juvenile offenders.”
In that most recent ruling, in the case of Montgomery v. Alabama, the Court made a gesture to state governments, saying it would leave it to them to decide on a procedure to implement the requirement for individualized sentencing. When it established a new constitutional rule, such as this one, it explained, it had been “careful to limit the scope” of any procedural requirement “to avoid intruding more than necessary upon the states’ sovereign administration of their criminal justice systems.”
As surely could have been expected, that concession has now led to a deep division among state supreme courts on a specific question: must the judge, before imposing a life-without-parole sentence on a minor, make a specific factual finding, in writing or orally, that the convicted youth is “permanently incorrigible” – or, in other words, is never going to become rehabilitated?
Brett Jones, who was a few weeks beyond his 15th birthday when he stabbed his grandfather eight times, killing him, is now asking the Court to impose that as a mandatory procedure under the Eighth Amendment. The Court granted review, presumably to provide an answer.
Jones (who is now 31 years old) was living with his grandparents in Lee County, in northeast Mississippi, in the summer of 2004. His grandfather, Bertice Jones, was angry because his grandson’s girlfriend was staying in his room; he told her to leave. A bit later, as Brett was making a sandwich in the kitchen, he and his grandfather argued and got into a shoving match. Brett was later convicted of murder for using two separate knives in the stabbing; he was sentenced to life without parole. That sentence was overturned by state courts in response to the Supreme Court’s ruling against such sentences, but a similar sentence was reimposed later.
Ultimately, the Mississippi Supreme Court split 5-to-4 in upholding the new sentence, concluding that the Supreme Court had not required a specific finding of “permanent incorrigibility.” Brett’s lawyers then took the issue to the Justices in Washington.
The question before the Court: Is it unconstitutional for a judge, in sentencing a minor convicted of murder, to impose a life-without-parole sentence without first making a specific, on-the-record finding that the individual is permanently beyond rehabilitation?
Significance: The question of juveniles’ punishment for crimes is one of the constitutional areas where the now-retired Justice Anthony M. Kennedy was a sympathetic leader of the Court. He wrote three of the four rulings outlined above, leading the majority of a divided Court in each. His departure from the Court and the recent creation of a six-Justice conservative majority may signal at least the beginnings of a retreat from the willingness to treat juveniles differently from adults, when they commit particularly heinous crimes. The case of Jones v. Mississippi may reveal much about how criminal law will be defined in coming years.
Although what is at stake in the case is a procedure, rather than the right of juvenile offenders to be treated differently, every lawyer is acutely aware of how crucial legal procedure can be. As the late Justice Felix Frankfurter once wrote, “The history of liberty has largely been the history of the observance of procedural safeguards.” That may be something of an exaggeration, but the basic point is valid; much of procedure is designed to make the legal system fairer. Indeed, much of the meaning that the Court over many decades has written into the two words, “due process,” has to do with making government action fairer, less arbitrary.
The Sentencing Project, a well-known advocate of criminal justice reform, has estimated that there are now about 2,500 individuals serving life-without-parole sentences committed when they were minors. It also has summed up where such sentences are currently allowed: “The federal government and most states allow life-without-parole sentences for juvenile offenders….[Such sentences are] not permitted in six states, and [are] allowed but not currently used in an additional nine states. Seventy-three of the individuals serving [such sentences] were age 14 or younger at the time of their offense.”
Second case, starting at about 11 a.m.:
Borden v. United States
Background: There is an old saying, that “ignorance of the law is no excuse” when one violates the law. But that is offset by a basic principle of criminal law: what the law forbids must be expressed clearly and be easily understood, so that people do not become law-breakers without knowing it. An ambiguous law, in other words, does not give the citizenry fair warning of where the legal line is that they may not cross. In constitutional terms, this is known as “fair notice”; more broadly, it is an element of the concept of “due process,” which is protected under both the Fifth and Fourteenth Amendments.
For some years, the Supreme Court has been in the process of striking down parts of a number of federal criminal laws because of their ambiguous wording. This has been a process in which both conservative and liberal Justices have joined. Some of those rulings have involved the specific law that is now being reviewed by the Court in this case: the federal Armed Career Criminal Act.
Aimed at making punishment more severe for repeat offenders, that Act provides that, if an individual commits a new federal crime and has three previous convictions for a “violent felony,” then the sentence is to be 15 years, at least as a minimum starting point. The law, in part, defines “violent felony” as a crime that involved the use, attempted use, or threat of “physical force against the person of another.”
In previous decisions, the Court has ruled that phrases like that are too vague to satisfy the constitutional requirement of fair notice, or due process. For example, it declared that driving under the influence of alcohol, while dangerous, is not a crime of violence, and it ruled that it is too vague to criminalize actions that have a “potential risk of physical injury.” In one of those rulings, the Court commented that a “crime of violence does not include negligent or accidental conduct.” But, in what may have been an interruption, even if temporary, in that series of rulings, the Court two years ago interpreted a law against gun possession for those who have committed domestic violence to cover acts of reckless misconduct toward a spouse or partner.
This new case involves a Tennessee man, Charles Borden, Jr., who pleaded guilty to being a felon who had illegally possessed a gun. Federal sentencing guidelines specified that, for that crime if punished on its own, the sentence should be in a range between six years and five months and eight years in prison.
Three years ago, police in McMinn County, Tenn., investigated a stopped car in which Borden was sitting in the passenger seat. He told police there was a gun in the car. He later admitted that it was his. He was charged with one count of possessing a gun illegally as a felon; he pleaded guilty.
When it came time for sentencing, federal prosecutors urged that he be punished under the career criminal act. They noted that he had three prior convictions in state court for two counts of aggravated assault and one count of “reckless aggravated assault.” Under Tennessee law, that last charge can be proven with evidence that the offender was merely reckless in the assault. Borden unsuccessfully claimed that this third crime did not satisfy the ACCA definition of “violent felony.”
With the ACCA in play, he was given an original sentence in a range from a minimum of 15 years to a maximum of 17 ½ years. However, because prosecutors indicated that he had cooperated with them, they suggested a reduction in the range, and he wound up with a sentence of nine years and seven months. If he were to win his appeal to the Supreme Court, he would be entitled to a reduction in his sentence, under the lower guideline range.
The question before the Court: If the only proof of a crime was that the individual acted recklessly, without intending to harm someone else, does that qualify as a “violent felony” for purpose of a longer prison sentence under the Armed Career Criminal Act?
Significance: A continuing complaint of those who want to reform the criminal justice system is that mandatory minimum sentences are a contradiction of the long-standing principle that guilt should fit the individual involved as well as the seriousness of the crime that led to conviction. Many judges who preside over criminal trials also complain that mandatory sentencing laws deprive them of the discretion that they should have as they assess the individual before them for sentencing; if guilt is personal, so should the degree of punishment, it is said.
An ambiguous law is, according to reformers, not an uncommon feature of legislating against crime. Legislators are acutely aware of how a reputation for being “soft on crime” can count in an election campaign, so there often can be a rush to get new criminal laws passed to deal with perceived new threats to civic order and peace.
The law at issue in this case was first enacted in 1984, when Congress decided that judges had been handing out too-lenient sentences, especially to repeat offenders. The wording of the law, in practical operation, has resulted not in creating uniformity in sentencing, but wide disparities. In addition, the ambiguity of the text enhances the discretion that prosecutors have in deciding when to seek the enhanced 15-year sentence for those with prior convictions for what they deem to be “violent felonies.”
In his appeal in this case, George Borden’s lawyers argue that there had been a well-established consensus among federal appeals courts that it is not a “violent felony” when someone acts recklessly. A person can act recklessly without ever intending to cause harm to another person, and that is what the definition of “violent felony” is supposed to cover, the appeal contends. The federal appeals court ruling in his case, he says, tends to bring the harsh minimum to bear for a wide range of crimes that simply result from misconduct that is based on nothing more than negligence or indifference to the welfare of others. That may be a crime, but it is not a violent one, the appeal asserts.
The federal government defends the validity of enhancing Borden’s sentence as a repeat offender, interpreting the Tennessee reckless assault law at issue in this case as definitely requiring proof that another person was the target of the assault. It relies heavily upon the Court’s ruling two years, especially the language that suggested that reckless behavior definitely can involve violence to another, whether intended or not.