In an appalling 6–3 decision on Thursday, the Supreme Court effectively reinstated juvenile life without parole by shredding precedents that had sharply limited the sentence in every state. Justice Brett Kavanaugh’s majority opinion in Jones v. Mississippi is one of the most dishonest and cynical decisions in recent memory: While pretending to follow precedent, Kavanaugh tore down judicial restrictions on JLWOP, ensuring that fully rehabilitated individuals who committed their crimes as children will die behind bars. Justice Sonia Sotomayor’s dissent, joined by Justices Stephen Breyer and Elena Kagan, pulls no punches in its biting rebuke of Kavanaugh’s duplicity and inhumanity.
[...]
The Supreme Court strictly curtailed the imposition of juvenile life without parole in two landmark decisions: 2012’s Miller v. Alabama and 2016’s
Montgomery v. Louisiana. In
Miller, the court ruled that mandatory sentences of JLWOP—that is, sentences imposed automatically upon conviction—violate the 8th Amendment’s bar on “cruel and unusual punishments.” It explained that children’s crimes often reflect “transient immaturity”; because their brains are not fully developed, young offenders are “less culpable” than adults and have greater potential for rehabilitation. In
Montgomery, the court clarified that discretionary sentences of JLWOP—that is, sentences imposed at the discretion of a judge—are generally unconstitutional, as well. It then applied these rules retroactively, allowing all incarcerated people who were condemned to life without parole as children to contest their sentences.
[...]
[Kavanaugh's] majority opinion in Jones v. Mississippi claims fidelity to
Miller and
Montgomery while stripping them of all meaning. Kavanaugh wrote that these precedents do not require a judge to “make a separate factual finding of permanent incorrigibility” before imposing JLWOP. Nor, Kavanaugh wrote, do they compel a judge to “at least provide an on-the-record sentencing explanation with an implicit finding of permanent incorrigibility.” Instead, a judge need only be granted “discretion” to sentence a child to less than life without parole. So long as that discretion exists, Kavanaugh held, the 8th Amendment is satisfied—even if the judge provides no indication that they actually considered the defendant’s youth, gauged their potential for rehabilitation, and nonetheless decided their crime reflected “permanent incorrigibility.”
Slate
That is rich coming from a man who owes his seat on the bench to convincing people that his own juvenile indiscretions - and likely crimes - deserved to be forgiven.
As Sotomayor noted in her extraordinary dissent, “this conclusion would come as a shock to the Courts in Miller and Montgomery.” Those decisions explicitly required the judge to “actually make the judgment” that the child is incorrigible. They also “expressly rejected the notion that sentencing discretion, alone, suffices.” Kavanaugh claimed that he followed these precedents, Sotomayor wrote, but he “is fooling no one.”
[...]
“The Court simply rewrites Miller and Montgomery to say what the Court now wishes they had said, and then denies that it has done any such thing,” Sotomayor declared. “The Court knows what it is doing.” Then she used Kavanaugh’s own words against him, quoting his past statements claiming to support stare decisis, or respect for precedent, to illustrate how he has abandoned his own purported principles. “How low this Court’s respect for stare decisis has sunk,” Sotomayor wrote. “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”—and here, she quoted Kavanaugh himself—“is ‘founded in the law rather than in the proclivities of individuals.’ ”
"Activist judges." The very thing Republicans claim to abhor.
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