Jones v. Mississippi: The Bare Minimum is “Constitutionally Sufficient”
On April 22, 2021, the Supreme Court of the United States issued its decision in Jones v. Mississippi. The opinion was a long-awaited follow-up to the Miller v. Alabama (2012) and Montgomery v. Louisiana (2016) decisions involving the constitutionality of LWOP sentences for children convicted of first-degree murder. Miller and Montgomery were important victories for children, but they left many questions unanswered. For instance, what procedures should be required for Miller sentencing hearings? What must a judge do before he or she decides on the sentence? Jones supplies answers, but for children and those who advocate on their behalf, the answers are not encouraging.
Although the Court in Montgomery stated that Miller did not impose a “formal” fact-finding requirement, it did state that LWOP would be “excessive for all but ‘the rare juvenile offender whose crime reflects irreparable corruption.’” Thus, the attorneys for Mr. Jones believed that trial judges should be required to make a finding of permanent incorrigibility before imposing an LWOP sentence on a juvenile defendant. Alas, it was not to be. By a 6-3 vote, the majority of the justices interpreted Miller narrowly. According to the majority, “a separate factual finding of permanent incorrigibility is not required” at Miller sentencing hearings. Instead, a hearing in which a trial judge simply considers the defendant’s youth is both “constitutionally necessary and constitutionally sufficient.”
Despite this result, Jones is not the end of the story for Miller defendants. As a juvenile defense attorney explained to me after reading Jones, “rarity” lives on in Miller cases. That is, even the majority in Jones acknowledged that LWOP sentences for Miller defendants must be uncommon. Specifically, the majority recognized that “Miller has reduced life-without-parole sentences for murderers under 18 by about 75 percent.” And, so, if LWOP sentences for juveniles are not rare in a given jurisdiction, then a facial challenge to JLWOP sentences under the 8th Amendment may well be warranted.
Additionally, by its terms, the opinion in Jones “does not properly present . . . any as-applied Eighth Amendment claim of disproportionality.” And, so, defense attorneys should be sure to argue that an LWOP sentence would violate the 8th Amendment as applied to the client. Under an as-applied challenge, the standard of permanent incorrigibility may well be relevant to the determination whether LWOP is warranted under the specific facts of the case.
North Carolina cases also appear to be insulated from the fallout from Jones by virtue of our Miller-fix law. As explained in Jones, “States may require sentencers to make extra factual findings before sentencing an offender under 18 to life without parole.” That’s exactly what North Carolina did when the General Assembly enacted N.C. Gen. Stat. § 15A-1340.19C(a). Based on North Carolina’s statutory scheme, the Supreme Court of North Carolina has made clear that the a judge’s sentencing decision at a Miller hearing must be based on all of the relevant facts and circumstances in the case “in light of the substantive standard enunciated in Miller.” State v. James, 371 N.C. 77, 89 (2018). Because James is based on our own home-grown statute, there is a very good argument that the decision remains valid even after Jones.
Finally, there is one last aspect of Jones that bears mentioning. Though not discussed by the majority, the dissenting opinion pointed out that the “racial disparities in juvenile LWOP sentencing are stark.” According to the dissent, “70 percent of all youths sentenced to LWOP are children of color.” As I’ve mentioned before, the numbers in North Carolina are worse: The “vast majority, or 91.5% of those sentenced to JLWOP, are people of color or members of minority groups.” Ben Finholt, et al., Juvenile Life Without Parole in North Carolina, 110 J. Crim. L. & Criminology 141, 158 (2020). Another thing to note with those numbers: Every kid who has gotten LWOP in North Carolina has been poor.
The question now becomes: What do we do about this problem? It seems to me that some new combined argument under both the Equal Protection Clause and the 8th Amendment is worth exploring. The Supreme Court struck down death penalty laws in Furman v. Georgia because they were arbitrary and discriminatory. A few years later, the Court approved of new death penalty laws in Gregg v. Georgia because the laws were designed to avoid the imposition of the death penalty on a “capriciously selected group of convicted defendants.” It is true that North Carolina’s Miller-fix law has provisions that are supposed to guide the discretion of trial judges in determining who gets LWOP. But if the vast majority of kids who get LWOP are poor and children of color, then those provisions simply aren’t good enough. That is, if our statutes still produce wildly disparate results even with protections in place, then the statutes may well be irrevocably broken.
Jones was not the decision many of us hoped for, but the decision does not stop the progress we’re making in North Carolina. As always, it’s important to keep fighting.
Written by, David Andrews. David W. Andrews is an Assistant Appellate Defender in the North Carolina Office of the Appellate Defender (OAD), a division of the Office of Indigent Defense Services. OAD staff attorneys represent indigent clients in criminal, juvenile delinquency, and involuntary commitment appeals to the Court of Appeals of North Carolina and the Supreme Court of North Carolina.