Jurisprudence

Brett Kavanaugh’s Opinion Restoring Juvenile Life Without Parole Is Dishonest and Barbaric

Brett Kavanaugh and Amy Coney Barrett arrive at Joe Biden's inauguration wearing robes and masks.
Justices Brett Kavanaugh and Amy Coney Barrett arrive at the inauguration of Joe Biden. Win McNamee/Getty Images

In an appalling 6–3 decision on Thursday, the Supreme Court effectively reinstated juvenile life without parole by shredding precedents that had sharply limited the sentence in every state. Justice Brett Kavanaugh’s majority opinion in Jones v. Mississippi is one of the most dishonest and cynical decisions in recent memory: While pretending to follow precedent, Kavanaugh tore down judicial restrictions on JLWOP, ensuring that fully rehabilitated individuals who committed their crimes as children will die behind bars. Justice Sonia Sotomayor’s dissent, joined by Justices Stephen Breyer and Elena Kagan, pulls no punches in its biting rebuke of Kavanaugh’s duplicity and inhumanity. It doubles as an ominous warning that the conservative majority is more than willing to destroy major precedents while falsely claiming to uphold them.

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The Supreme Court strictly curtailed the imposition of juvenile life without parole in two landmark decisions: 2012’s Miller v. Alabama and 2016’s Montgomery v. Louisiana. In Miller, the court ruled that mandatory sentences of JLWOP—that is, sentences imposed automatically upon conviction—violate the 8th Amendment’s bar on “cruel and unusual punishments.” It explained that children’s crimes often reflect “transient immaturity”; because their brains are not fully developed, young offenders are “less culpable” than adults and have greater potential for rehabilitation. In Montgomery, the court clarified that discretionary sentences of JLWOP—that is, sentences imposed at the discretion of a judge—are generally unconstitutional, as well. It then applied these rules retroactively, allowing all incarcerated people who were condemned to life without parole as children to contest their sentences. Taken together, Miller and Montgomery held that JLWOP is unconstitutional for “all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” And they forbade judges from imposing JLWOP unless they found that the defendant’s crime reflected “irreparable corruption.”

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On Thursday, Kavanaugh overturned these decisions without admitting it. His majority opinion in Jones v. Mississippi claims fidelity to Miller and Montgomery while stripping them of all meaning. Kavanaugh wrote that these precedents do not require a judge to “make a separate factual finding of permanent incorrigibility” before imposing JLWOP. Nor, Kavanaugh wrote, do they compel a judge to “at least provide an on-the-record sentencing explanation with an implicit finding of permanent incorrigibility.” Instead, a judge need only be granted “discretion” to sentence a child to less than life without parole. So long as that discretion exists, Kavanaugh held, the 8th Amendment is satisfied—even if the judge provides no indication that they actually considered the defendant’s youth, gauged their potential for rehabilitation, and nonetheless decided their crime reflected “permanent incorrigibility.”

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As Sotomayor noted in her extraordinary dissent, “this conclusion would come as a shock to the Courts in Miller and Montgomery.” Those decisions explicitly required the judge to “actually make the judgment” that the child is incorrigible. They also “expressly rejected the notion that sentencing discretion, alone, suffices.” Kavanaugh claimed that he followed these precedents, Sotomayor wrote, but he “is fooling no one.” (Justice Clarence Thomas, writing separately, was more honest than Kavanaugh: He acknowledged that the majority had subverted Montgomery, and supported openly killing it off instead of quietly overruling it while pretending to follow it.)

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“The Court distorts Miller and Montgomery beyond recognition,” Sotomayor continued. (Remember: When she writes about “the Court,” Sotomayor means Kavanaugh and the conservative jurists who signed onto this opinion.) “The Court attempts to paper over its mischaracterization,” she explained; it “pretends” that these past decisions required only an individualized sentencing procedure. But that is simply false: Miller and Montgomery “set forth a substantive proportionality principle” that outlawed JLWOP for all but the “rarest of children” whose crimes “reflect irreparable corruption.” Kavanaugh ignored—and, by extension, abolished—this “substantive limit on the imposition of LWOP on juvenile offenders.” Instead, as Sotomayor put it, he reprised “Justice Scalia’s dissenting view” and turned it into the law. The upshot is that the substantive limit on JLWOP has been lifted; judges may resume doling out these sentences without any real constitutional constraint.

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“The Court simply rewrites Miller and Montgomery to say what the Court now wishes they had said, and then denies that it has done any such thing,” Sotomayor declared. “The Court knows what it is doing.” Then she used Kavanaugh’s own words against him, quoting his past statements claiming to support stare decisis, or respect for precedent, to illustrate how he has abandoned his own purported principles. “How low this Court’s respect for stare decisis has sunk,” Sotomayor wrote. “The Court is willing to overrule precedent without even acknowledging it is doing so, much less providing any special justification. It is hard to see how that approach”—and here, she quoted Kavanaugh himself—“is ‘founded in the law rather than in the proclivities of individuals.’ ”

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In the final portion of her dissent, Sotomayor recounted the story of the defendant in this case, Brett Jones, to show how “many aspects of Jones’ crime seem to epitomize unfortunate yet transient immaturity.” 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. One day in 2004, when Jones’ grandfather tried to hit him, Jones stabbed him repeatedly, killing him. He had turned 15 just 23 days earlier. Jones tried to save his grandfather with CPR but failed. After making minimal efforts to conceal the crime, he confessed to the police.

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Jones’ experience is depressingly common among people sentenced to JLWOP. His crime was clearly the consequence of a traumatic childhood. He has been a near-model prisoner, earning his GED, working behind bars, and studying the Bible. His grandmother—the widow of his victim—has urged the courts to release him. Jones’ experience bears out the Supreme Court’s pronouncements in Miller and Montgomery that juvenile crimes often reflect immaturity, the product of underdeveloped brains and severe childhood trauma rather than permanent corruption. As Jones himself put it at his resentencing hearing: “Minors do have the ability to change. … Please give me just one chance to show the world, man, like, I can be somebody. … I can’t change what was already done. I can just try to show … I’ve become a grown man.”

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On Thursday, Kavanaugh and the rest of the court’s conservatives denied that opportunity to Jones. At his resentencing, the judge did not consider whether Jones’ crime reflected permanent incorrigibility, and Kavanaugh blessed that miscarriage of justice. His decision will prevent hundreds of other juvenile defendants from securing early release. And as Sotomayor pointed out, the burden will fall disproportionately on racial minorities: “70 percent of all youths sentenced to LWOP are children of color,” and “the trend has worsened” since the court’s decision in Miller.” Once again, Sotomayor forced her colleagues to confront the racial inequities that their decisions exacerbate.

“Jones should know that, despite the Court’s decision today, what he does in life matters,” Sotomayor concluded. “So, too, do the efforts of the almost 1,500 other juvenile offenders like Jones who are serving LWOP sentences.” These lives certainly mattered to Justice Anthony Kennedy, who authored Montgomery and endorsed strong constitutional protections for juvenile offenders. But they do not matter to his successor, Kavanaugh—who has now undone a key part of Kennedy’s legacy—or to the rest of the court’s conservatives. These justices have destroyed landmark precedents safeguarding the rights of children without owning up to their own handiwork. They have condemned hundreds, perhaps thousands more fully rehabilitated people to die in prison because of crimes they committed as teenagers. Sotomayor’s expressions of disgust for the conservative majority’s barbarous deceptions are incredibly powerful. But they will be cold comfort for people like Brett Jones, who lost their hope of a second chance the moment conservatives captured the Supreme Court.

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