Today marks the final day of voting in this year’s presidential election, considered by many to be the most consequential of our lifetimes. But no matter what result (or lack thereof) we wake up to on Wednesday, some of the ramifications of President Donald Trump’s actions will last well past the next presidential term.
There may be no better example of this than America’s courts. On Tuesday, the Supreme Court weighed a question that could have a disproportionate impact on Black youth: Should juveniles only be sentenced to life without parole if they’re considered to be “permanently incorrigible”—or unable to be rehabilitated? Over much of the last decade, the court has increasingly found that children convicted of serious crimes shouldn’t be held to the same standards as adults. But with Trump’s three Supreme Court picks tilting the court further to the right, that trend could very well be reversed.
As the Associated Press reports, some conservative judges made clear during Tuesday’s oral arguments that they thought the court’s interpretation of “cruel and unusual punishment” in the Eighth Amendment—upon which the recent progress against harsh sentencing for minors is based—had gone too far left.
“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?” Alito asked. Justice Clarence Thomas, considered to be the most conservative justice on the court, and Trump appointee Justice Neil Gorsuch also suggested they disagreed with the court’s most recent ruling on the issue of juvenile life sentences.
From the AP:
The case the court was hearing Tuesday is the latest in a series of cases going back to 2005, when the court eliminated the death penalty for juveniles. Five years later, the court barred life-without-parole sentences for juveniles, except in cases where a juvenile has killed someone.
Then, in 2012, the justices in a 5-4 decision said juveniles who kill can’t automatically be sentenced to life with no chance of parole. A related decision four years later said those sentences should be reserved “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.”
The AP also notes that conservative justices have replaced Justice Ruth Bader Ginsburg and Justice Anthony Kennedy, both representing the court’s left wing, and whose votes were crucial in its 2012 decision.
The United States is unique among industrialized nations in the way it approaches juvenile justice—which is to say, punitively and harshly. The U.S. leads other “developed” countries both in the raw number and rate of children it incarcerates, Human Rights Watch reported in 2016. In 2011, nearly 100,000 juveniles were sent to adult jails and facilities.
The case the Supreme Court is considering centers on a white Mississippi man who was 15 at the time of his conviction. Brett Jones is only 31 but has already spent half of his life behind bars for killing his grandfather. His lawyers are arguing that he should be eligible for parole because he is not “permanently incorrigible,” while the state of Mississippi is countering that Jones need not be considered irredeemable in order to be sentenced to a life term; the court just needed to consider Jones’ age prior to his sentencing.
But while Jones is white, the result of his case would likely have a disproportionate impact on Black juveniles, whom studies have shown are punished at greater rates, and more harshly, than their non-Black peers.
A recent story from WNYC comparing American approaches to juvenile justice to practices in Germany lays out one telling statistic. Between 2011 to 2016, Black and Latinx youth comprised 90 percent of all minors prosecuted as adults in New Jersey. A report from the Sentencing Project also found evidence that people of color were more likely to be denied probation or have it revoked than their white peers, even when their infractions were similar.
This will also be among the first cases Justice Amy Coney Barrett, whose confirmation was rushed through the Senate in the weeks prior to the election, will sit on.