NICK EICHER, HOST: It’s Monday morning and we are rolling up our sleeves for another week of The World and Everything in It. Today is the 23rd of November, 2020.
Good morning to you, I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard. Good morning to you.
Quick reminder, we’re keeping up for awhile longer our listener survey if you’d like to add your voice to it. Pretty simple and not intrusive, takes just a couple of minutes and helps a lot. If you could do that today, we’d be grateful. It’s easy to find: just visit listenersurvey.org. That’s listenersurvey.org.
EICHER: One more reminder. Well, more of an encouragement.
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So please pay a visit to wng.org/donate and you can do that right on your phone or text the word “Give” to the number 218-300-2121. First-time givers this month, let’s see how many new supporters we can bring on board to help keep this program strong.
EICHER: Wng.org/donate or text the word “Give” to the number 218-300-2121. Thanks for considering it.
REICHARD: Well, it’s time for Legal Docket. Today I have two oral arguments the Supreme Court heard this month by telephone, as per usual since May.
First up, a dispute about juveniles convicted of murder and what sentence courts can impose.
Specifically, whether courts have to make a determination of permanent incorrigibility before handing down a life sentence without parole for an offender younger than age 18.
EICHER: Let’s set out the facts of the case. Back in 2004, a teenager by the name of Brett Jones left his home in Florida to live with his grandparents in Mississippi. He’d had all he could endure of physical abuse from his stepfather. His mother was of no help either. She suffered from mental illness and drug abuse, as well as physical abuse from her husband, the same man who was beating and choking 15-year-old Brett.
REICHARD: Brett Jones himself was a troubled young person, defiant and violent.
Just three weeks after moving in with the grandparents, Jones got into a physical fight in the kitchen with his grandfather. Jones had been hiding a girlfriend in his bedroom, and his grandfather disapproved. The confrontation escalated into pushing and punching. Jones then grabbed a knife and killed his grandfather.
EICHER: A jury found Jones guilty of murder. He received life in prison without the possibility of parole. Today, Jones is 31 years old and serving out his sentence at the South Mississippi Correctional Institution.
Now, there’s a lot of history to this particular case we’re leaving out in the interest of time.
But it is important to understand how the law has changed with regard to sentencing juveniles since Jones’ crime in 2004.
REICHARD: A year after the murder, in 2005, the Supreme Court ruled that the death penalty is unconstitutional for anyone younger than 18. Five years later, the court barred sentences of life without parole for that age group, except for murder. In 2012, the court also struck down automatic life sentences without parole for minors who commit murder. A few years later, the court made retroactive that decision for all juveniles serving mandatory life sentences.
EICHER: Lots of changes in a short period of time, and murkiness in the details. But for Jones, it meant he now had the right to a new hearing to determine whether under the new rules his sentence passed Constitutional muster.
REICHARD: Jones’ lawyer, David Shapiro, argued his client didn’t receive the proper sentencing. The judge needed to find that Jones is “permanently incorrigible,” meaning not capable of being rehabilitated.
SHAPIRO: Brett never really had a chance to show that he wasn’t permanently incorrigible in any kind of meaningful way because the court had been told that it doesn’t need to resolve that question against him in order to sentence him to life without parole. I absolutely believe that Brett substantively is not permanently incorrigible. His grandmother, the wife of the victim, testified on his behalf. 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…
Shapiro essentially argues that a child has capacity for change that adults don’t have. Jones completed his GED, learned a trade, behaved in prison. Therefore, judges ought to consider this capacity for change while deciding whether someone is permanently incorrigible.
But defending Mississippi’s sentencing process was state Deputy Solicitor General Krissy Nobile. Mississippi law, like two other states, explicitly says a judge need not find incorrigibility.
NOBILE: The sentencing court here took care to consider the implications of age, age-related characteristics, and the nature of the particularly brutal murder of Bertis Jones. On the whole, the sentencing court disagreed that youth and its attendant characteristics diminish the penological justifications for a life-without-parole punishment.
Let me break off here and provide some definitions. You heard the term “penological justifications,” and those include four:
Retribution, which is punishment.
Deterrence, which is aimed at other possible offenders, to discourage them, or deter them.
Incapacitation, which is simply to remove a dangerous offender from contact with society, that is, to protect society from the offender.
And rehabilitation, which is preparation of the offender for life outside incarceration.
The judge considered those factors as well as Jones’ youth, essentially finding incorrigibility without saying it outright. At least that’s the argument Nobile put forth.
But Shapiro argued that is just not enough; Supreme Court precedent requires more, a specific finding of incorrigibility, not just the assumption.
Justice Samuel Alito seemed skeptical. Listen to this exchange with Shapiro, again for Jones:
ALITO: If you have it in front of you, could you just repeat the first sentence of your presentation this morning?
SHAPIRO: Yes, Your Honor. The first sentence was: “Settled law recognizes the scientific, legal, and moral truth that most children, even those who commit grievous crimes, are capable of redemption.”
ALITO: This is fascinating. You want to take us and you want us to take the courts of this country into very deep theological and psychological waters. Do you think that there are any human beings who are not capable of redemption?
SHAPIRO: Well, Your — Your Honor, I — I think that there are many psychologists who can very much testify and –
Shapiro seemed to stumble a tad here, but said people do exist who cannot be rehabilitated back into society. Justice Alito followed up:
ALITO: I mean, there are a lot of people who think that every human being is capable of redemption. There’s actually a famous quote by Gandhi, who says exactly that. There are a lot of Christians who believe that. You think of the good thief on the cross. So, what if a judge says, you know, wow, the Supreme Court says I have to determine whether this person is capable of redemption, I believe that every human being is capable of redemption? What do you do with that?
What you do, Shapiro replied, is focus not on personal beliefs about redemption, but upon a judge looking at the person’s capacity for rehabilitation. That includes hearing evidence from before and after the crime in question.
Chief Justice John Roberts wondered about the nuts and bolts of that: does Jones want a mere statement on the record about incorrigibility? Something more? Something less? Shapiro answers:
SHAPIRO: And there are any number of ways that it could be done. One is through words, not magic words, but words, but—that convey in substance the idea that the defendant is permanently incorrigible, going to commit more crimes, going to recidivate, et cetera.
Justice Amy Coney Barrett wondered whether Jones should have sued directly on 8th Amendment cruel and unusual punishment grounds. Yet Justice Alito signaled he thought the court may have stepped over its authority already:
ALITO: What would you say 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?
Shapiro replied it’s no further travel at all to ask a trial court to decide whether a minor is permanently incorrigible and read court precedent to require that.
One thing’s for certain: the outcome of this case will affect hundreds of juveniles who face a lifetime in prison. Should Jones win here, he’ll still have a life sentence; but he’d be given a chance to show he is eligible for parole.
When I saw what this final case today was about, I felt a lot like Justice Alito when he said this:
ALITO: It’s always a pleasure to have another case involving the Armed Career Criminal Act. It is a real favorite.
Ah, yes, the Armed Career Criminal Act, ACCA. It deals with repeat offenders. You could say the law itself is kind of a repeat offender at the Supreme Court.
ACCA puts a longer prison sentence on felons who repeatedly commit certain crimes and whom authorities find in possession of a gun.
Charles Borden Jr. had three prior felony convictions for aggravated assault. Then in 2017 police found him with a gun during a routine traffic stop in Tennessee.
Borden pleaded guilty to possession of a firearm as a felon. The government threw the ACCA book at him to add additional prison time, given his three priors.
But Borden argues one of those prior convictions shouldn’t count against him, because his mental state was not intentional. Reckless, for sure, but not intentional.
And that oughtn’t qualify as a “violent felony” under ACCA’s “use of force” clause.
One wrinkle: later that same year in 2017 the 6th Circuit ruled that reckless aggravated assault does qualify as a violent felony. So Borden argues you can’t apply that new rule retroactively to him.
You can get the flavor of the questions in this from Justice Stephen Breyer to Borden’s lawyer:
BREYER: Suppose we take what I think is the best definition of recklessness. A person’s reckless when he consciously disregards a substantial and unjustifiable risk that the bad result will follow. So, I have my baseball bat I’m swinging around. I know I am the worst baseball player in history. I know that this baseball bat is likely to slip out of my hands and bump somebody on the head. There’s a person standing in front of me. I think: Oh, that person may be hit. I don’t want him to, but he might be because I’m so bad. And then I swing it, and he’s hit.
All right. What’s the difference really between that and my committing a crime knowing that that result is likely to follow or desiring it intentionally, purposely, that it’s likely to follow?
The hypotheticals were flyin’! What about texting and driving? What about waving your arms? How about trying to shoot a hat off someone’s very tall hairdo?
All trying to find that line between intentional and reckless.
Although I frequently intend to make a prediction on how the court might rule, I have to say that to do so here might be, well, reckless.
And that’s this week’s Legal Docket!