The Marble Shooter, Oil on Canvas, 26" x 24", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust*

During a segment on her Thursday show, Rachel Maddow thought it unusual that the Supreme Court didn’t have someone other than “the guy who likes beer,” the justice who, during his confirmation process, was credibly accused of attempted rape as a teen (resulting in a brief delay in his confirmation while the FBI conducted a faux investigation), author the majority opinion in Jones v. Mississippi. My immediate reaction upon hearing of the decision and its author was the same.

Setting aside the irony, or protestation, the decision is deeply troubling. Child sentencing jurisprudence under the Eighth Amendment just took a giant step backward, despite Justice Kavanaugh’s lip service to recent Supreme Court precedent. A link to the decision is below. Kavanaugh wrote the majority opinion, Thomas wrote a concurring opinion, and Sotomayor wrote the scathing dissent in which she systematically deconstructs the opinion to reveal the conservative majority’s material retreat from substantive Eighth Amendment progress.

Full Disclosure

I am a criminal defense attorney in Utah. I have had occasion to represent juveniles who were accused of serious crimes. Those cases have been in both juvenile court and district (adult) court, and a combination of both.

Juvenile Justice in Utah

For 16-17-year-olds in Utah who are charged with the most serious crimes, the prosecution bypasses the juvenile court and files the case directly in the district court. The child is tried – and treated – as an adult in almost every respect. For children under 16 years of age who are charged with such crimes, the prosecution must begin the case in juvenile court and, if it wishes to try the child as an adult, seek “certification” to the district court, a process that requires the juvenile judge to consider a list of factors in deciding where the child should be tried and, upon conviction, sentenced. The judge must also make specific factual findings that support the decision for the benefit of an appellate court that will likely review the decision. If the child is tried and found guilty in juvenile court, the juvenile justice system in Utah can retain jurisdiction until the child is 25.

Utah law is a mixed bag. By statute and Eighth Amendment jurisprudence, the death penalty and mandatory life without the possibility of parole cannot be imposed on children who are tried as adults. Mandatory sentences for the serious crimes, however, are for a period of years up to the end of the child’s natural life. For example, a child tried as an adult and convicted of murder is sentenced to a minimum mandatory 15 years to life in prison. For aggravated murder, it’s 25 years to life. The “to life part of the sentence gives the Utah Board of Pardons, an executive branch agency, discretion never to parole the person for a crime committed as a child, but does afford the child a chance to prove him/herself as worthy of some life outside prison.

From start to finish in Utah, the child who is tried and sentenced as an adult serves the entire sentence in adult prison which, given the nature of prisons, virtually assures the child will never be paroled.

The juvenile justice system is based and built on the belief that almost every child is not a lost cause, and because the child’s brain is still in its developing stages, s/he can be redirected, reformed, and likely salvaged. If the child were able to serve the first part of a lengthy adult sentence in the juvenile system – say until the child is 25 years of age, when most children’s brains reach peak development– where the child could access the array of therapeutic, educational, rehabilitative, and other services that are unavailable in prison, the child could develop the maturity and skills to have a chance to survive the remaining part of the sentence in prison. But in Utah, the legislature does not permit a split sentence for the same criminal episode. It’s one or the other, but not both.

I remember a very experienced juvenile court judge – who certified my 14-year-old client to be tried as an adult – later lamenting to me that he wished “the legislature would pull their heads out of their asses” and permit children who are tried and sentenced as adults for serious crimes to serve the first several years in the juvenile system before being dumped into adult prison.

Why Treat Juveniles Differently from Adults?

The UCLA School of Law Juvenile Justice Project explained:

The modern juvenile justice system was founded with the goal to serve the best interests of the child, with an understanding that youth possessed different needs than adults. Transfer [to the adult system] policies represent a departure from that understanding of juvenile justice and are contrary to fundamental notions of justice. The majority of studies have found that youth transfer disproportionately impacts minority youth and results in high rates of pretrial detention, conviction and incarceration, with adult courts often sentencing youth more severely than juvenile courts, and placing them in adult facilities where they are exposed to high risk of assault and abuse. Furthermore, transfer policies have demonstrated no proven deterrent effect and have caused sharp increases in recidivism across several jurisdictions. The adult criminal justice system is ill-equipped to meet the needs of youth offenders at all stages of the process, from trial to sentencing options to incarceration. All of these findings indicate that justice is not served by forcing juveniles through a system never intended to process youth, while transfer policies have exacerbated the problems they sought to address.

The Impact of Prosecuting Youth in the Adult Criminal Justice System. A Review of the Literature, UCLA School of Law Juvenile Justice Project, July 2010, at 32-33.

The American Psychological Association, National Association of Social Workers and American Psychiatric Association have also weighed in on the issue:

“[D]evelopments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.” . . . In fact, an ever-growing body of research in developmental psychology and neuroscience continues to confirm and strengthen the Court’s conclusions. Compared to adults, juveniles are less able to restrain their impulses and exercise self-control; less capable of considering alternative courses of action and avoiding unduly risky behaviors; and less oriented to the future and thus less attentive to the consequences of their often-impulsive actions. Research also continues to demonstrate that “juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure,” while at the same time they lack the freedom and autonomy that adults possess to escape such pressures. . . . Thus, even after their general cognitive abilities approximate those of adults, juveniles are less capable than adults of mature judgment and decision-making, especially in the social contexts in which criminal behavior is most likely to arise.

Moreover, because juveniles are still in the process of forming coherent identities, adolescent crime often reflects the “signature”—and transient—“qualities of youth” itself . . . rather than an entrenched bad character. Research into adolescent development continues to confirm the law’s intuition that “‘incorrigibility is inconsistent with youth.’” . . . And although some youthful offenders will develop into criminal adults, it remains essentially impossible “even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” . . . [T]hat is true even of juvenile offenders who have committed the most serious crimes.

Brief for APA, NASW & APA as Amicus Curiae in Miller v. Alabama, 567 US 460 (2012), at 3-4.

Eighth Amendment Jurisprudence

The Eighth Amendment “guarantees individuals the right not to be subjected to excessive sanctions.” Roper v. Simmons, 543 U.S. 551, 560 (2005). The right to be free from excessive sanctions “flows from the basic precept of justice that punishment for crime should be graduated and proportioned to both the offender and the offense.” Miller v. Alabama, 567 US 460, 469 (2012) . . . . This “concept of proportionality is central to the Eighth Amendment.”

The Eighth Amendment, “like other expansive language in the Constitution, must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design.” Roper, 543 U.S. at 560. Therefore, to “determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society.” Graham v. Florida, 560 U.S. 48, 58 (2010). The Supreme Court has ruled that evolving standards of decency have transformed several formerly permissible sentencing practices into “cruel and unusual punishment” under the Eighth Amendment: executing an insane person, Ford v. Wainwright, 477 U.S. 399, 410 (1986); executing a mentally retarded person, Atkins v. Virginia, 536 U.S. 304, 321 (2002); executing any defendant convicted of a capital crime committed before the age of 18, Roper, 543 U.S. at 568; sentencing a juvenile who did not commit homicide to life without parole, Graham, 560 U.S. at 81–82; a sentencing scheme that mandates a juvenile be sentenced to life without parole, Miller, 567 U.S. at 479.

Over time, as scientific and behavioral understanding of adolescent brain development and the mitigating effects of youth have evolved, the Supreme Court has consistently limited the number of sentencing practices allowed by the Eighth Amendment based on biological differences among certain classes of offenders. This is particularly true in terms of mandatory practices that strip the judiciary of any oversight and the ability to provide case-specific outcomes based on the mitigating effects of youthfulness.

In the last 16 years, the United States Supreme Court has issued four seminal opinions concerning the relationship between criminal punishment of juveniles and the Eighth Amendment. These cases recognize what scientific research has confirmed (and continues to confirm) and what common sense already led us to believe: biological differences between juveniles and adults diminish the culpability of youthful offenders and significantly impact reasonable sentencing. This realization has led the Court to strike down sentencing schemes where juveniles are given stiff, often mandatory, sentences in adult court.

The Supreme Court recognized in Roper and Graham that “children are constitutionally different from adults for purposes of sentencing.” Miller v. Alabama, 567 US 460, 471 (2012). In making that determination, the Court relied on three significant differences between juveniles and adults. First, “children have a lack of maturity and an underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risk-taking.” Second, children are more vulnerable than adults to negative influences, and often lack the ability to get out of “horrific, crime-producing settings.” Third, a “child’s character is not as well formed as an adult’s; his traits are less fixed and his actions less likely to be evidence of irretrievabl[e] deprav[ity].”

The Court also relied on scientific and behavioral differences to determine that children are constitutionally different from adults. In Roper, the Court cited research demonstrating that “only a relatively small proportion of adolescents who engage in illegal activity develop entrenched patterns of problem behavior.” In Graham, the court explained, “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds—for example, in parts of the brain involved in behavior control.” The Court concluded that these critical differences between juveniles and adults “both lessened a child’s moral culpability and enhanced the prospect that, as the years go by and neurological development occurs, his deficiencies will be reformed.”

As our understanding evolves so, too, does the Court’s application of the Eighth Amendment on juvenile sentencing. In 2005, the Roper Court held that the Eighth Amendment forbids the imposition of the death penalty on youthful offenders. Later, in 2010, based on the critical differences between juvenile and adult offenders, the Court in Graham held that the Eighth Amendment prohibits sentencing a juvenile to life in prison without parole for non-homicide offenses. Graham at 560 U.S. at 82. Finally, in 2012, the Court in Miller held that the Eighth Amendment prohibits a mandatory sentence of life in prison without the possibility of parole for homicide offenses committed by juveniles. Miller, 567 US at 479.


In Jones, the child was 15 when he killed his grandfather. At the time, Mississippi law required a sentence of life without parole. After Jones’ conviction and sentence to life in prison without parole, the US Supreme Court held in a separate case that the Eighth Amendment permits a life-without-parole sentence for children who commit homicide, but only if the sentence was not mandatory (rendering Mississippi’s law unconstitutional) and the judge had discretion to impose a lesser punishment. Given the substantive nature of the constitutional limitations of the Eighth Amendment, the case was applied retroactively to Jones. He was, therefore, resentenced. While recognizing he had discretion to sentence Jones to less than life without parole, the sentencing judge nonetheless decided that life without parole was the appropriate sentence. Jones appealed that decision claiming that under Supreme Court precedent, the sentencing judge could not lock up a child and throw away the key absent an express factual finding that the child was “permanently incorrigible,” as compared with “*unfortunate yet transient immaturity” where life without parole is constitutionally impermissible.

Writing for the 6-3 majority, Kavanaugh held that a discretionary system that allows the judge to impose life without parole on a child without a finding of permanent incorrigibility is both constitutionally necessary and constitutionally sufficient. Aside from the decision’s collision with recent Eighth Amendment jurisprudence, inadequate detail in the sentencing court’s rationale for locking up kids for life without the possibility of parole will, in my opinion, result in unreviewable racial disparities. Black and brown kids will receive the harshest sentences in disproportionate numbers.

Justice Sotomayor wrote a scathing dissent, arguing that discretion is “necessary to separate those juveniles who may be sentenced to life without parole from those who may not . . . but far from sufficient.” She explained that under the Eighth Amendment, life without parole for children is rarely constitutionally permissible. Citing the Supreme Court cases she believed the Jones case was implicitly overturning – “distort[ing] . . . beyond recognition,” she explained: “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, the sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transitory immaturity.” “[T]he distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences, even when they commit terrible crimes.” And the Court “adopted categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of the penalty.”

Why is the Jones majority a course reversal? With “sentencing discretion” as the only guiding principle, life without parole sentences will not be rare, at least in states that have not reformed their sentencing requirements for youth offenders based on recent Supreme Court cases. “Sentencers will not ‘necessarily . . . consider the defendant’s youth.” “If sentencing discretion is all that is required, far too many juvenile offenders will be sentenced to die in prison.”

Justice Sotomayor recites the factual history of Jones’ case, explaining “it is hard to see how Jones is one of the rare juvenile offenders ‘whose crime reflects irreparable corruption.’ In fact, many aspects of Jones’ crime seem to epitomize ‘unfortunate yet transient immaturity.” He killed his grandfather 23 days after Jones’ 15th birthday. He was the victim of violence and neglect. His birth father was an alcoholic who severely abused Jones’ mother. Jones’ mother married Jones’ stepfather who was also abusive, especially toward Jones. The stepfather’s favorite epithet for Jones and his brother was “little motherfuckers.” Jones’ stepfather forced him to move out. He moved in with his grandfather in Mississippi. He lost access to his mental health medication and at age 11 or 12 began cutting himself so he “would not feel the panic and hurt that was inside of [his] head.” The murder of his grandfather was precipitated by a dispute about Jones’ girlfriend. Jones said something disrespectful of his grandfather who started yelling. They began pushing each other and Jones’ grandfather tried to hit him. Jones grabbed a steak knife and stabbed his grandfather eight times. Jones then attempted to save his grandfather by administering CPR. When that failed, he tried to hide what he had done.

At his resentencing, Jones provided evidence that he was capable of rehabilitation and had already matured significantly in prison since his crime. He earned his GED and sought out work, becoming a “very good employee.” He found religion and expressed remorse for what he’d done. He had family support, including that of his grandmother who “remains ‘steadfast in her belief that Brett is not and never was irreparably corrupt.’”

Justice Sotomayor explained that while his crime was terrible, it appeared to have been “the product of ‘unfortunate yet transient immaturity.”’ In conclusion, she said:

“Jones and other juvenile offenders like him seek only the possibility of parole. Not the certainty of release, but the opportunity, at some point in their lives, to show a parole board all they have done to rehabilitate themselves and to ask for a second chance. Jones recognizes that the parole board may ultimately decide he must spend his entire life behind bars. He simply requests that the State not “mak[e] the judgment at the outset that [he] never will be fit to reenter society.” The Eighth Amendment requires that most juvenile offenders be given this small “hope for some years of life outside prison walls. . . .

“Jones should know that, despite the Court’s decision today, what he does in life matters. So, too, do the efforts of almost 1,500 other juvenile offenders like Jones who are serving LWOP sentences. Of course, nothing can repair the damage their crimes caused. But that is not the question. The question is whether the State, at some point, must consider whether a juvenile offender has demonstrated maturity and rehabilitation sufficient to merit a chance at life beyond the prison in which they have grown up. . . . For most, the answer is yes.”

*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to and Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November17, 2020. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. The Contortionists, however, is not for the faint of heart.

**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in many traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father's work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father's art reproduced in and are hers


Natural US Citizen. Caucasian. Shamed into blogging by DSM-V Cluster B 9/9-led regime, Utah's most embarrassing congressperson, and Newton's Third Law of Motion. The views expressed are mine.

USA, Utah, Salt Lake City


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