WASHINGTON — Over the last 15 years, the Supreme Court, led by Justice Anthony Kennedy, methodically put limits on the availability of the harshest penalties for crimes committed by juveniles, first by striking down the juvenile death penalty and then by restricting sentences of life without the possibility of parole.
But Kennedy retired in 2018, and an argument on Tuesday suggested that the court, now dominated by six conservative members, has become less receptive to the project and its premises — that teenagers are less culpable than adults because of their immaturity, susceptibility to peer pressure and capacity for change.
The question for the court was whether the Eighth Amendment’s prohibition of cruel and unusual punishment requires judges to determine that juvenile offenders are incorrigible before sentencing them to die in prison.
Justice Samuel Alito said the court’s precedents had gone far beyond what the Constitution required.
“What would you say,” he asked a lawyer for a prisoner serving a life term, “to any members of this court who are concerned that we have now gotten light-years away from the original meaning of the Eighth Amendment and who are reluctant to go any further on this travel into space?”
Even Justice Sonia Sotomayor, the court’s most liberal member, expressed qualms about requiring judges to use what she called “magic words” regarding incorrigibility in sentencing juvenile offenders to life without parole.
Early in the argument, Chief Justice John Roberts made a similar point. Later, though, he said it was not asking very much of trial judges to say directly that they had found the defendant incorrigible.
The case, Jones v. Mississippi, No. 18-1259, concerns Brett Jones, who had recently turned 15 in 2004 when his grandfather discovered his girlfriend in his room. The two men argued and fought, and the youth, who had been making a sandwich, stabbed his grandfather eight times, killing him.
In 2005, Jones was convicted of murder and sentenced to life without the possibility of parole, which was then the mandatory penalty under state law.
David Shapiro, a lawyer for Jones, said his client “committed a murder for the most immature reason possible — teenage infatuation.” In the years that followed, Shapiro said, Jones has proved that he is not “permanently incorrigible.”
“His grandmother, the wife of the victim, testified on his behalf,” Shapiro said. “A correctional officer spoke of his rehabilitation, his extraordinary record in prison, how he is an incredible worker and tries to get along with everyone.”
In 2012, in Miller v. Alabama, the Supreme Court ruled that automatic life sentences for juvenile offenders — like the one imposed on Jones — violated the Eighth Amendment. The decision criticized mandatory sentences, suggesting that only ones in which judges could take account of the defendant’s age were permissible.
In Montgomery v. Louisiana in 2016, the court made the Miller decision retroactive. In the process, it seemed to read the Miller decision to bar life without parole not only for defendants who received mandatory sentences but also “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.”
After the U.S. Supreme Court’s decision in Miller, the Mississippi Supreme Court granted Jones a new sentencing hearing. The trial judge resentenced Jones to life without parole without saying in so many words that he was incorrigible.
On Tuesday, Shapiro said more was required. “Settled law,” he said, “recognizes the scientific, legal and moral truth that most children, even those who commit grievous crimes, are capable of redemption.”
Alito said that assessing the possibility of redemption was not a judicial task.
“You want to take us and you want us to take the courts of this country into very deep theological and psychological waters,” he said.
Krissy Nobile, a lawyer for Mississippi, said it was enough for judges to take account of the defendant’s youth in general terms to satisfy the Eighth Amendment.
“Sentencers must consider how youth and its attendant characteristics may diminish the penological justifications for punishment before imposing a life-without-parole sentence,” she said. “A finding of incorrigibility isn’t required.”
Frederick Liu, a lawyer for the federal government, argued in support of Mississippi’s position. The court’s precedents, he said, do not “require trial courts to make an affirmative finding of permanent incorrigibility.”
Sotomayor wondered whether that approach would honor the larger message of the those precedents. “What Miller and Montgomery said repeatedly,” she said, was that “it would be the rarest juvenile that should receive life without parole.”