Disparate Racial Sentencing in lieu of Jones v. Mississippi

In 2012, the United States Supreme Court ruled that mandatory life-without-parole sentences for juvenile defendants constituted cruel and unusual punishment and was therefore unconstitutional via violation of the Eighth Amendment. Writing for a 5-4 majority, Justice Elena Kagan argued that because children are fundamentally different from adults, especially considering the human brain does not fully develop until the age of 26, such a sentence would be constitutionally disproportionate [1]. However, this past April, in deciding Jones v. Mississippi, the most conservative U.S. Supreme Court in nearly a century made it easier for children to be sentenced for life. The Court’s decision, which allows a single judge to decide if a youth is worthy of a chance at parole rather than serving a life sentence without it, allows vast room for racial prejudice when deciding which children are worthy of redemption, as there is no other present party to both inform and check the rulings. Thus, the Court’s decision may facilitate and exacerbate the racial biases already present in the criminal justice system.

Jones v. Mississippi is about an altercation that occurred on August 9, 2004, in which 15-year-old Brett Jones stabbed his grandfather during a home altercation [2]. He was convicted of homicide by the Circuit Court of Lee County and received a mandatory life sentence without the possibility of parole. Following the decision, Jones filed a direct appeal, which was denied, and subsequently filed a motion for post-conviction relief in the trial court, which was first denied and then upheld by the Mississippi Court of Appeals. Jones then petitioned the Mississippi Court of Appeals for a writ of certiorari, a request for a higher court to review a lower court’s decision in a case. 

In 2012, the Supreme Court ruled in Miller v. Alabama that child defendants are constitutionally different from adults, and therefore have a different threshold for a sentence to be deemed “cruel and unusual” [3]. A mandatory life sentence without possibility of parole would be unconstitutionally severe punishment, except in cases where the defendant is “permanently incorrigible” [4]. Shortly after, in 2016, the Court ruled in a 6-3 decision authored by Justice Anthony Kennedy that Miller applied retroactively, as it established a substantive constitutional rule about a group of defendants hinging on their age that went beyond granting merely procedural rights. Following these two landmark decisions, Jones alleged that the Miller standard of requiring proof of incorrigibility meant that a sentencing judge or jury must be present to deem a child as suffering from “irreparable corruption” before dooming them to life behind bars with no chance of parole. Further, because the Miller ruling established substantive constitutional law, a ruling on a juvenile defendant’s incorrigibility must be made [5]. 

This assertion by Jones brings us to the fundamental question of this case: before a sentence of life without possibility of parole is imposed on a juvenile, does the Eighth Amendment require an outside sentencing authority beyond a trial judge or jury to find the defendant permanently incorrigible? The Supreme Court answered no. Writing for the majority, Justice Brett Kavanaugh stated that although the Court held in Miller that “a sentencer [must] follow a certain process — considering an offender’s youth and attendant characteristics — before imposing” [6]. Furthermore, the Court asserted that “a finding of fact regarding a child’s incorrigibility...is not required”; as such, it is not constitutionally necessary to find a child irreparably corrupt before sentencing them to life without parole [7].  Such a ruling consolidates the power over making a decision on a child’s redeemability to one single person, which heightens the impact racial bias can have during sentencing without a third body to validate the decision-making process. 

Although Jones is a white man, the Court’s decision will allow unjust sentencing to proliferate on the basis of race. A brief glance at the Supreme Court’s recent past unveils the abject injustices it routinely propagates. Take the case of Flowers v. Mississippi (2019), for example. This case involved the trial — and six re-trials — of Curtis Flowers for an alleged quadruple homicide committed in 1996 [8]. The first three appeals were due to the admission of evidence of three victims. However, the fourth, fifth, and sixth appeals were on account of the prosecutor, Doug Evans, engaging in racial discrimination during jury selection by way of peremptory strikes. The State was “relentless” in its efforts to strike Black jurors from the prospective jury pool: in the third trial, it used all 15 of its peremptory strikes against prospective Black jurors, then 11 strikes in the fourth, and five out of six strikes in the sixth [9]. Although the Supreme Court had previously ruled in Batson v. Kentucky (1986) that the use of peremptory strikes to remove a juror solely on the basis of race was unconstitutional, the ongoing prejudiced use of this legal mechanism is a stark reminder of racially charged elements still pertinent in our criminal justice system [10]. 

To this point, disparate racial sentencing is also indicative of the racism plaguing the criminal justice system’s sentencing. Since 1977, for example, 295 Black defendants have been executed for killing a white victim, while only 21 white defendants have been executed in cases involving a Black victim [11]. A 2021 study by the Sentencing Project also showed Black Americans comprise two-thirds of those serving life sentences in prison and approximately 55% of those serving life without parole sentences, though Black individuals only account for 13% of the national population [12]. More broadly, the great potential for racially motivated sentencing is clear. 

Armed with this framework, the question of juvenile sentencing lingers. In deciding Miller, the Supreme Court did not go so far as to fully outlaw imposing life sentences without parole on children. Rather, it banned mandatory sentencing, which resulted in new sentencing hearings for many defendants who were previously automatically sentenced. However, despite new discretion as a seemingly positive outcome, expanding the discretion of judges opened the door to racial biases in deciding which children were beyond rehabilitation. Prior to the ruling, 60% of juveniles serving life without parole were Black; after, the figure jumped to 72% [13].

In 2009, Cornell Law School professor Jeffrey Rachlinksi and colleagues examined implicit racial bias in judges. In one study, judges were asked to hear a series of cases in which the race of the defendant was manipulated. In one version of a case, an 18-year-old charged with battery, the defendant was Black and the victim white, and in the other vice versa. Evidence showed that white judges participating in the study expressed no difference in conviction rates. However, in another portion of the study, rather than explicitly state the race of the defendant and victim, it was more subtly hinted at through the use of a “subliminal priming technique” and context clues [14]. In this case, judges who held a white-good/Black-bad association — established by an earlier implicit bias association test that had judges associate positive and negative words with Black and white faces — imposed harsher penalties on the defendants who were hinted at being Black. The study concluded that when judges were cognitively looking out for race, they were able to constrain their biases; however, when judges were not specifically focusing on their biases, sizable differences in sentencing emerged exclusively based on race [15]. In the fast-paced, overcrowded environment of the American courtroom, total cognizance and focus on combating racial biases is not reality. Therefore, it is evident that racial biases influence judgment and play a role in the justice system that is impossible to ignore. 

One specific bias that may partially explain this sentencing disparity is the concept of the adultification of Black youth, wherein Black girls are seen as “less innocent” by adults and more “adult-like” than their white peers; likewise, Black boys are seen as “older and more culpable” [16]. These views likely contribute to a skewed perception of Black juveniles as more responsible for their actions, and therefore less capable of rehabilitation later on down the road. This research also underscores the problematic nature of the decision in Jones v. Mississippi. There is now a constitutionally mandated space for judges to make decisions deciding the redeemability of youth, yet there is no mechanism to account for potential bias, signifying a disastrous outcome in the long fight towards a more racially equitable system of sentencing. 

In deciding the case of Jones v. Mississippi, the Supreme Court has unwittingly reopened a new avenue through which the American criminal justice system can inequitably sentence juveniles, specifically Black youth, to life in prison without parole. Some may argue that it is not the Supreme Court’s role to anticipate and deal with the consequences — unintended or otherwise — of their decisions. Indeed, Justice John Roberts, in filing a dissent in Miller, enumerated that the Court’s role was not to answer questions on morality and social policy, but rather to analyze and apply the rule of law [17]. Yet, the highest court in the land arguably has a duty to its citizens to evaluate the ramifications of its rulings and adjust its decision-making accordingly. Indeed, written above the Supreme Court building’s main entrance are the words “Equal Justice Under Law.” When the application of the law directly results in disparate convictions and sentences on account of race, and justice is inarguably not being served equally, it must fall on the Court to correct its ways and ensure the law is applied in a just fashion. As citizens, we must ask the question: if the highest arbiter of justice in the land does not protect its citizens equally under the rule of law, then what will?

References

[1] Miller v. Alabama, 567 U. S. 460 (2012)

[2] Jones v. Mississippi, 593 U. S. ___ (2021)

[3] Miller v. Alabama, 567 U. S. 460 (2012)

[4] Ibid.

[5] Duffek, B., & Onishi, K. (n.d.). Liibulletin: The LII Supreme Court Bulletin. Legal Information Institute. Retrieved October 10, 2021. 

[6] Jones v. Mississippi, 593 U. S. ___ (2021)

[7] Ibid.

[8] Flowers v. Mississippi, 588 U. S. ___ (2019)

[9] Ibid.

[10] Batson v. Kentucky, 476 U. S. 79 (1986)

[11] Long, Colleen. “Report: Death Penalty Cases Show History of Racial Disparity.” The Washington Post, September 15, 2020. https://www.washingtonpost.com/politics/courts_law/report-death-penalty-cases-show-history-of-racial-disparity/2020/09/15/a10d2e94-f70a-11ea-85f7-5941188a98cd_story.html.

[12] Folley, Aris. “Study: Two-Thirds of Prisoners Serving Life Sentences Are People of Color.” TheHill, March 2, 2021. https://thehill.com/homenews/news/541285-study-two-thirds-of-prisoners-serving-life-sentences-are-people-of-color.

[13]  Schwartzapfel, Beth. “Supreme Court Conservatives Just Made It Easier to Sentence Kids to Life in Prison.” The Marshall Project, April 30, 2021. 

[14]  Rachlinski, Jeffrey J., et al. “Does Unconscious Racial Bias Affect Trial Judges?” Cornell Law Library, Cornell Law Faculty Publications, Mar. 2009.

[15] Donald, Bernice B., et al. “Getting Explicit about Implicit Bias.” Judicature, Bolch Judicial Institute Duke Law School, 19 Apr. 2021. 

[16] Matei, Andreea, and Colette Marcellin. “State Bans on Juvenile Life without Parole Can Right the Wrongs of Jones v. Mississippi.” Urban Institute (blog), May 6, 2021. https://www.urban.org/urban-wire/state-bans-juvenile-life-without-parole-can-right-wrongs-jones-v-mississippi.

[17] Miller v. Alabama, 567 U. S. 460 (2012), (Roberts, John, dissenting).