{"id":2342,"date":"2020-11-03T15:27:27","date_gmt":"2020-11-03T23:27:27","guid":{"rendered":"https:\/\/www.crimeandconsequences.blog\/?p=2342"},"modified":"2020-11-03T16:29:08","modified_gmt":"2020-11-04T00:29:08","slug":"the-muddy-waters-of-miller","status":"publish","type":"post","link":"https:\/\/www.crimeandconsequences.blog\/?p=2342","title":{"rendered":"The Muddy Waters of Miller"},"content":{"rendered":"

Today the Court heard arguments in Jones v. Mississippi.<\/em>\u00a0 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 <\/em>requires a finding of that fact by the trial court in order to sentence a juvenile to LWOP.\u00a0 The case presents two issues, that speak to the difficulty of the Miller<\/em> holding.<\/p>\n

First, and perhaps most apparent, is that if the Court holds such a finding is required, how would it be defined and applied?\u00a0 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.<\/p>\n

Thank goodness.<\/p>\n

The obvious first question is whether this finding is based primarily on predictions of a juvenile defendant’s future conduct.\u00a0 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.\u00a0 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 \u2013 although nowhere near what past offense conduct does.<\/p>\n

The next question is what do we mean by “permanent” incorrigibility?\u00a0 Life is long for most of us.\u00a0 One of the most robust findings within criminology is that recidivism risk declines with age.\u00a0 Even among the most assiduous offenders, criminal behavior is rare in the golden years.\u00a0 If permanent incorrigibility means something else, such as a person’s overall productive life, difficult definitional questions remain.\u00a0\u00a0 Presumably, any standard established by the Court would rely on expert testimony about future risk.\u00a0 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.<\/p>\n

But the real problem in Jones <\/em>lies with the Court’s past work in Miller<\/em>.\u00a0\u00a0 In Miller<\/em>, 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.\u00a0 The Court imbued these as developmental stages that invariably accompany the transition between adolescence and adulthood.<\/p>\n

Yet these are not stages insomuch as they are skill sets acquired by most adolescents as they pass into adulthood.\u00a0\u00a0 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.\u00a0 What life-course-persistent offenders lack throughout their life are exactly these traits of lawful living.\u00a0 These culpability exceptions implicated in excusing LWOP for juveniles are what makes these kids so dangerous and incorrigible.<\/p>\n

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.<\/p>\n","protected":false},"excerpt":{"rendered":"

Today the Court heard arguments in Jones v. Mississippi.\u00a0 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.\u00a0 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?\u00a0 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.\u00a0 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.\u00a0 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 \u2013 although nowhere near what past offense conduct does. The next question is what do we mean by “permanent” incorrigibility?\u00a0 Life is long for most of us.\u00a0 One of the most robust findings within criminology is that recidivism risk declines with age.\u00a0 Even among the most assiduous offenders, criminal behavior is rare in the golden years.\u00a0 If permanent incorrigibility means something else, such as a person’s overall productive life, difficult definitional questions remain.\u00a0\u00a0 Presumably, any standard established by the Court would rely on expert testimony about future risk.\u00a0 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.\u00a0\u00a0 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.\u00a0 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.\u00a0\u00a0 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.\u00a0 What life-course-persistent offenders lack throughout their life are exactly these traits of lawful living.\u00a0 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.<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[32,49],"tags":[],"class_list":["post-2342","post","type-post","status-publish","format-standard","hentry","category-juveniles","category-sentencing"],"yoast_head":"\nThe Muddy Waters of Miller - Crime & Consequences<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.crimeandconsequences.blog\/?p=2342\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Muddy Waters of Miller - Crime & Consequences\" \/>\n<meta property=\"og:description\" content=\"Today the Court heard arguments in Jones v. Mississippi.\u00a0 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.\u00a0 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?\u00a0 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.\u00a0 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.\u00a0 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 \u2013 although nowhere near what past offense conduct does. The next question is what do we mean by “permanent” incorrigibility?\u00a0 Life is long for most of us.\u00a0 One of the most robust findings within criminology is that recidivism risk declines with age.\u00a0 Even among the most assiduous offenders, criminal behavior is rare in the golden years.\u00a0 If permanent incorrigibility means something else, such as a person’s overall productive life, difficult definitional questions remain.\u00a0\u00a0 Presumably, any standard established by the Court would rely on expert testimony about future risk.\u00a0 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.\u00a0\u00a0 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.\u00a0 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.\u00a0\u00a0 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.\u00a0 What life-course-persistent offenders lack throughout their life are exactly these traits of lawful living.\u00a0 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.\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.crimeandconsequences.blog\/?p=2342\" \/>\n<meta property=\"og:site_name\" content=\"Crime & Consequences\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/CriminalJusticeLegalFoundation\/\" \/>\n<meta property=\"article:published_time\" content=\"2020-11-03T23:27:27+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2020-11-04T00:29:08+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/www.crimeandconsequences.blog\/wp-content\/uploads\/2020\/07\/FB_DefaultLJ.png\" \/>\n\t<meta property=\"og:image:width\" content=\"300\" \/>\n\t<meta property=\"og:image:height\" content=\"400\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/png\" \/>\n<meta name=\"author\" content=\"Steven Erickson\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Steven Erickson\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"2 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"WebPage\",\"@id\":\"https:\/\/www.crimeandconsequences.blog\/?p=2342\",\"url\":\"https:\/\/www.crimeandconsequences.blog\/?p=2342\",\"name\":\"The Muddy Waters of Miller - Crime & Consequences\",\"isPartOf\":{\"@id\":\"https:\/\/www.crimeandconsequences.blog\/#website\"},\"datePublished\":\"2020-11-03T23:27:27+00:00\",\"dateModified\":\"2020-11-04T00:29:08+00:00\",\"author\":{\"@id\":\"https:\/\/www.crimeandconsequences.blog\/#\/schema\/person\/2815be9479f5f979daf24251ce229ed3\"},\"breadcrumb\":{\"@id\":\"https:\/\/www.crimeandconsequences.blog\/?p=2342#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\/\/www.crimeandconsequences.blog\/?p=2342\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\/\/www.crimeandconsequences.blog\/?p=2342#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\/\/www.crimeandconsequences.blog\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"The Muddy Waters of Miller\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\/\/www.crimeandconsequences.blog\/#website\",\"url\":\"https:\/\/www.crimeandconsequences.blog\/\",\"name\":\"Crime & Consequences\",\"description\":\"Crime and criminal law\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\/\/www.crimeandconsequences.blog\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Person\",\"@id\":\"https:\/\/www.crimeandconsequences.blog\/#\/schema\/person\/2815be9479f5f979daf24251ce229ed3\",\"name\":\"Steven Erickson\",\"url\":\"https:\/\/www.crimeandconsequences.blog\/?author=7\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"The Muddy Waters of Miller - Crime & Consequences","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.crimeandconsequences.blog\/?p=2342","og_locale":"en_US","og_type":"article","og_title":"The Muddy Waters of Miller - Crime & Consequences","og_description":"Today the Court heard arguments in Jones v. 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