Donald Trump led a truly damaging attack as part of the culture war between regressive rightist forces and those of the (multiracial) progressive left. At least for his tenure in office, the federal government ceased to be a source of progressive social change. Think back to the 1960s, at least in domestic terms. If you were a minority group, where were you likely to win enactment of laws that would attack racism and other forms of discrimination? Not in your state legislature—be it Republican or Democrat. Not even your city or county government. What you would find at that time, and at the level of local government, was a race-based attitude we now attribute mainly to Trumpsters and unredeemed police forces. It was rather to congress and the federal courts that Martin Luther King and other progressive leaders looked for redress against the racist impulses festering at the level of state and local government (think LBJ’s Great Society legislation).
The regressive right, periodically flying both the Confederate flag and the banner of “States’ rights,” started to eat away at the progressive power center in Washington around the time of the Ronald Reagan Administration. Please note that Reagan knowingly broke federal law (illegal aid to the Central American Contras) and, while a “celebrity,” had the analytical capacity of a monkey named Bonzo. With but a few progressive interludes, it has been one reactionary victory after another to the point where the entire achievement of mid-20th century America—civil rights legislation on race and gender issues, science-based education and separation of church from state—the whole nine yards of progress, now rests on very shaky ground. And, it is not too much to suggest that, if it wasn’t for the November 2020 victory of Joe Biden—for which, ironically, you might thank the Covid-19 virus—the whole American liberal edifice might have collapsed.
Jones v. Mississippi
If you think that this brief description is exaggerated—things in this regard are not precarious—just consider the recent Supreme Court review of the case Jones v. Mississippi.
Here are the particulars of the case:
Brett Jones, now age 31, was convicted of murdering his grandfather when he was 15. The fact that Jones committed the crime is not contested. He confessed to the murder at the time.
Yet the act cannot be fully understood apart from the context of Jones’ life up to that time. Justice Sonia Sotomayor briefly described this life in her dissent to the court’s 6-3 ruling on the case. Jones was “the victim of violence and neglect that he was too young to escape. His biological father was an alcoholic who physically abused his mother, who had severe mental health problems. His stepfather abused him, too, using ‘belts, switches, and a paddle. He openly expressed his hatred for Jones. When Jones moved to Mississippi to live with his grandparents, he abruptly lost access to medication he took for mental health issues, including hallucinations and self-harm. Jones’ grandfather beat him, as well.” He was but a month past his 15th birthday, when Brett Jones stabbed his grandfather to death during an argument over Brett’s girlfriend.
It is at this stage that several relevant points must be made about the brain of a fifteen-year-old. There are parts of the brain that mature relatively late. For instance, if you were introduced to a twenty-one-year-old person, you would assume he or she was an adult: they can vote, may be college educated, can serve in the military, and can drink at a public establishment. However, in terms of their brains—and in many ways the most important parts of the brain, the prefrontal cortex—they are not yet mature. And a fifteen-year-old is even less so.
The prefrontal cortex is a part of the brain having to do with “executive cognitive function.” That is, decision making, emotional and impulse control, gratification postponement and that part of your mental makeup that, according to the neurobiologist Robert Sapolsky, allows you to “do the harder thing when it is also the right thing.” The male prefrontal cortex usually does not fully mature until about the age of 25 (which, Sapolsky suggests, explains some of the weirder behavior of college students). The female prefrontal cortex matures, on average, about two years earlier than that of a male. Also, exactly what mature means can be highly idiosyncratic. The functioning of the prefrontal cortex can be influenced by an array of internal and external stressors: sleep patterns, nutritional status, drug and alcohol use, sex hormones and other “insults” often suffered by adolescents to a greater extent than adults.
The Supreme Court Decision
This bit of biology is well known to the U.S. justice system. For instance, in the recent past “The Supreme Court—primed by research that shows the brains of juveniles are not fully developed, and that they are likely to lack impulse control—has issued a half dozen opinions holding that juveniles are less culpable than adults for their acts.” Thus, prior Supreme Court decisions disallowed the punishment of life imprisonment without the possibility of parole for “juvenile offenders” unless they were judged to be “permanently incorrigible.”
It is reasonably clear that Brett Jones was not “permanently incorrigible.” He had confessed his crime and gone on to be a “model prisoner.” Prosecutors and judges, including two former Republican U.S. Attorney Generals had been so convinced of the prisoner’s corrigibility that they filed a brief siding with Jones in his appeal. His grandmother, the victim’s widow, also supported his case.
Writing the majority opinion for the Court, Judge Brett Kavanaugh, a man with his own record of questionable adolescent behavior, ignored the filed briefs and essentially did away with the precedents of past Court rulings. He claimed that judges were only required to consider “an offender’s youth and attendant characteristics before imposing a sentence of life without parole.” In her dissent, Justice Sonia Sotomayor identified this maneuver as “an abrupt break from precedent” and accused Kavanaugh and the majority of using “contortions” and “distortions” to “circumvent” legal precedent.”
Kavanaugh did not stop there. He went on and asserted that “determining the proper sentence in such a case raises profound questions of morality and social policy. The States, not the federal courts, make those broad moral and policy judgments in the first instance when enacting their sentencing laws. And state sentencing judges and juries then determine the proper sentence in individual cases in light of the facts and circumstances of the offense, and the background of the offender.”
Exactly what was Brett Kavanaugh and the other judges in the majority getting at here? Was it, as one commentator insisted, that the notion of reform was basically false? “That reform, however much a free and open society depends on it, is a delusion. No amount of rehabilitation will change bad people.” Or, was it something much more traditionally conservative: the notion that it was the prerogative of the States to make decisions in cases such as that of Brett Jones? As long as those decisions were not unconstitutional in the strictest sense, the federal courts should not second guess them.
Whatever callousness Kavanaugh, et al. harbor in their hearts, the State’s rights argument seems to be what they are pushing here. Thus, they reminded the reader that “Mr. Jones still has other avenues of relief, such as clemency from the governor, and that state legislatures may abolish life without parole for juveniles.” All relief is state based even if that state is Mississippi.
Of course, those Supreme Court judges in the minority felt that Jones’ punishment was “cruel and unusual” and therefore indeed unconstitutional. However, the Court could only muster three votes for that progressive, biologically relevant, position.
The message that comes out of Jones v. Mississippi is that “State’s rights” is back in the driver’s seat (unless, perhaps, if it contests fundamentalist religious “rights”). And the majority of the Supreme Court clearly does not care if a state is behaving in a barbaric fashion. Nor does the majority care about the biological facts. If many of the states want to ignore that evidence, that too is apparently their “right.” And, indeed, there are presently 2,570 juveniles in the United States sentenced to life in prison without the hope of parole.
One might well consider this shift towards States’ rights as a predictor of future decisions, including the upcoming review of Roe v. Wade.
One doubts if the Supreme Court majority in this case asked themselves what sort of a society they prefer for the U.S. If they did there is nothing for it but to label them, as did the writer John Stoehr in an essay appearing in Alternet, as barbarians. But institutional setups usually work to insulate decision makers from full awareness of the consequences of their decisions. More often such decision makers operate in group-think environments and reduce issues to narrow parameters, follow predetermined rules, and search for rationales that allow them to pass the buck when questionable choices are made. I assume something like this happened in the case of Jones v. Mississippi. Of course, from the outside, the result was barbaric on the face of it. In fact, it debased not only America’s children, but the nation—a good reason to expand the Supreme Court while the opportunity exists.