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Jim Dey is a staff writer for The News-Gazette. His email is jdey@news-gazette.com.

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When judges, not legislators, make law, confusion often reigns.

They decide cases one issue at a time. They produce conflicting opinions. They cause lower-court judges to speculate about how to implement their sometimes-opaque rulings.

All of which leads today’s readers to an issue that’s been the subject of repeated columns in this space — what to do with juvenile murderers under the limits of the U.S. Constitution’s prohibition on cruel and unusual punishment.

If that seems esoteric, it’s really not.

It’s about how much time in prison these killers can and should get considering their youth, immaturity and rehabilitative potential.

Courts across the country, including in Illinois, have been trying to implement new rules since the U.S. Supreme Court first outlawed the death sentence for juvenile murderers and followed up that decision by banning mandatory life sentences.

While prohibiting most life sentences, the high court said that extreme punishment can be appropriate if the youthful defendant is beyond rehabilitation and poses a continuing safety threat.

For its part, the Illinois Supreme Court addressed the issue by placing a 40-year cap on the sentences of juveniles convicted of murder. Even if Illinois’ rule seems clear, new cases involving disputed sentences keep popping up all over the state and country.

Last week, the U.S. Supreme Court re-entered the fray it started 15 years ago with another ruling on the question of life sentences for juvenile murderers.

It took a step back from its campaign to make it more difficult to impose harsh sentences. By a 6-3 ruling, it decided that all sentencing judges are required to do in fashioning a sentence is consider the defendant’s history, character and youth. The court said sentencing judges are not required to make specific findings about why a defendant must receive a life sentence.

Writing for the majority, Justice Brett Kavanaugh concluded that sentencing judges “consider youth as a mitigating factor” along with a host of other mitigating and aggravating factors when imposing a sentence.

That is, of course, what all judges do in fashioning sentences in all kinds of criminal cases, not just murder.

What Kavanaugh’s decision means in the real world remains to be seen since state and federal courts know there are new rules in place for defendants in these kinds of cases.

But beyond that narrow question, Kavanaugh cited another issue — the right of individual states to decide how to proceed for themselves.

The 6-3 vote — with the conservative majority on one side and liberal minority on the other — speaks volumes about the unwillingness of the high court to intrude on issues it sees as squarely within the purview of state legislatures and courts.

The case from Alabama involved a 15-year-old who stabbed his grandfather to death in 2004. Initially sentenced to a mandatory life sentence under Alabama law, Brett Jones won a new sentencing hearing after the Supreme Court’s decision to strike down mandatory life sentences for juveniles.

But at his re-sentencing, Jones, now in his early 30s, was again sentenced to life because the judge considered him to have poor rehabilitative potential.

Kavanaugh said the court’s ruling expressed neither agreement nor disagreement with the life sentence, instead affirming the state court’s authority to make “broad moral and policy judgments” about how cases like this should be handled.

At the same time, he noted that state legislatures are free to write new laws to address questions of this nature. He also said defendants like Jones are free to petition prisoner-review boards to explain why their conduct in prison demonstrates why they deserve release.

This latest twist on the issue is surely not the last. Indeed, the court’s ruling in the Jones case is likely to generate even more litigation in a tortuously long process that proceeds one issue at a time.

Jim Dey, a member of The News-Gazette staff, can be reached at jdey@news-gazette.com or 217-393-8251.

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