Today the Court heard arguments in Jones v. Mississippi.  Although I have not read the briefs in detail, the central issue is whether the “permanent incorrigibility” dicta announced in the landmark case of Miller v. Louisiana requires a finding of that fact by the trial court in order to sentence a juvenile to LWOP.  The case presents two issues, that speak to the difficulty of the Miller holding.

First, and perhaps most apparent, is that if the Court holds such a finding is required, how would it be defined and applied?  Reasonable people can differ in what constitutes permanent incorrigibility and as the Court has said previously, it is not bound by psychological science in defining legal concepts.

Thank goodness.

The obvious first question is whether this finding is based primarily on predictions of a juvenile defendant’s future conduct.  This is problematic because although the scientific literature has shown that some juveniles are life persistent offenders, it remains an arduous task determining which wayward youths will become enduring recidivists.  This is particularly the case if we are to discount the offense conduct and examine other factors, such as adverse childhood experiences, which appear to elevate risk in many juvenile offenders – although nowhere near what past offense conduct does.

The next question is what do we mean by “permanent” incorrigibility?  Life is long for most of us.  One of the most robust findings within criminology is that recidivism risk declines with age.  Even among the most assiduous offenders, criminal behavior is rare in the golden years.  If permanent incorrigibility means something else, such as a person’s overall productive life, difficult definitional questions remain.   Presumably, any standard established by the Court would rely on expert testimony about future risk.  But there are good reasons to suspect that experts’ predictions would be wanting since it is challenging to forecast behavior many decades into the future.

But the real problem in Jones lies with the Court’s past work in Miller.   In Miller, the Court held that LWOP for juveniles violated the federal constitution because it ran afoul of the Court’s determination that juveniles deserve less punishment than adults due to their inherent immaturity and unfledged sense of responsibility, vulnerability to peer pressure, and underdeveloped character.  The Court imbued these as developmental stages that invariably accompany the transition between adolescence and adulthood.

Yet these are not stages insomuch as they are skill sets acquired by most adolescents as they pass into adulthood.   The process of becoming an adult entails understanding and accepting responsibility for one’s behavior, becoming an independent agent, and forming one’s own character.  What life-course-persistent offenders lack throughout their life are exactly these traits of lawful living.  These culpability exceptions implicated in excusing LWOP for juveniles are what makes these kids so dangerous and incorrigible.

The Court has dug itself into a difficult place and my guess is that it will devise a rule that relies on psychological science to provide a veneer of truth regarding who deserves mercy or redemption.