Home / General / Brett Kavanaugh writes opinion holding that crimes committed by teenagers should allow them to be confined for life irrespective of their ability to be rehabilitated

Brett Kavanaugh writes opinion holding that crimes committed by teenagers should allow them to be confined for life irrespective of their ability to be rehabilitated


The Roberts Court delivered one of its trademark dishonest sub silentio overrulings of precedent today, and Roberts’s opinion assignment in this case is…something:

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.

The Supreme Court strictly curtailed the imposition of juvenile life without parole in two landmark decisions: 2012’s Miller v. Alabamaand 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.”

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 noindication that they actually considered the defendant’s youth, gauged their potential for rehabilitation, and nonetheless decided their crime reflected “permanent incorrigibility.”

A lot of people are going to die in prison for crimes committed as teenagers because Anthony Kennedy retired strategically and Ruth Bader Ginsburg did not. This will, to put it mildly, not be the last time these decisions have huge material consequnces.

Sotomayor’s dissent is merciless and unanswerable:

Today, the Court guts Miller v. Alabama, ,and Montgomery v. Louisiana. Contrary to explicit holdings in both decisions, the majority claims that the Eighth Amendment permits juvenile offenders convicted of homicide to be sentenced to life without parole (LWOP) as long as “the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment.” In the Court’s view, a sentencer never need determine, even implicitly, whether a juvenile convicted of homicide is one of “those rare children whose crimes reflect irreparable corruption.” Even if the juvenile’s crime reflects “ ‘unfortunate yet transient immaturity,” he can be sentenced to die in prison.

This conclusion would come as a shock to the Courts in Miller and MontgomeryMiller’s essential holding is that “a lifetime in prison is a disproportionate sentence for all but the rarest children, those whose crimes reflect ‘irreparable corruption.’” Sentencing discretion is “necessary to separate those juveniles who may be sentenced to life without parole from those who may not,” but it is far from sufficient. A sentencer must actually “make th[e] judgment” that the  juvenile in question is one of those rare children for whom LWOP is a constitutionally permissible sentence.  The Court has thus expressly rejected the notion that sentencing discretion, alone, suffices: “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transient immaturity.” 

 Today, however, the Court reduces Miller to a decision requiring “just a discretionary sentencing procedure where youth [is] considered.” Such an abrupt break from precedent demands “special justification.” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (Kavanaugh, J., concurring in part) (slip op., at 6) The Court offers none. Instead, the Court attempts to circumvent stare decisis principles by claiming that “[t]he Court’s decision today carefully follows both Miller and Montgomery.” The Court is fooling no one. Because I cannot countenance the Court’s abandonment of Miller and Montgomery, I dissent.


Instead of addressing these factors, 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. The Court knows what it is doing. It admits as much. Rather than try to harmonize its decision today with Montgomery’s retroactivity holding, it confesses in a footnote that its rewriting of precedent is inconsistent with Montgomery and basic retroactivity principles. The Court’s solution? It urges lower courts to simply ignore Montgomery going forward. (“[T]he Court’s retroactivity precedents that both pre-date and post-date Montgomery . . . and not Montgomery . . . must guide the determination of whether rules other than Miller are substantive”). Instead of “disturb[ing]” Montgomery’s retroactivity holding, the Court attempts to bury it.

How low this Court’s respect for stare decisis has sunk. Not long ago, that doctrine was recognized as a pillar of the “ ‘rule of law,’ ” critical to “keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion.” Ramos, 590 U. S., at ___–___ (opinion of Kavanaugh, J.) (slip op., at 1–2) Given these weighty interests, the Court “usually require[d] that a party ask for overruling, or at least obtain[ed] briefing on the overruling question,” and then “carefully evaluate[d] the traditional stare decisis factors.”  Now, it seems, 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 is “founded in the law rather than in the proclivities of individuals.” Ramos, 590 U. S., at ___ (opinion of Kavanaugh, J.) (slip op., at 2)


Brett Jones, like all juvenile offenders facing a sentence of LWOP, deserves an answer to Miller’s essential question: whether his crime demonstrates that he is permanently incorrigible. Ordinarily, an appellate court should not pass on that question in the first instance. But the Court today guarantees that the state sentencing court will never have to give Jones an answer. It thus bears acknowledging that, based on the evidence presented below, 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.”


At his resentencing hearing, Jones provided evidence that not only is he capable of rehabilitation, but he had in fact already matured significantly since his crime. In more than five years in prison, Jones committed only two disciplinary infractions. While incarcerated, Jones earned his GED and sought out work, becoming a “very good employee.”  Jones and his prison unit manager often discussed the Bible, and in time, his unit manager came to think of Jones “almost like [a] son.” Jones confided in him that Jones “regretted” what he had done. 

 Jones’ grandmother (Bertis Jones’ widow) testified at Jones’ resentencing hearing and submitted an amicus brief to this Court. She remains “steadfast in her belief that Brett is not and never was irreparably corrupt.” She speaks with Jones weekly, encouraging him as he takes college courses and serves in the prison ministry. Jones’ younger brother, Marty, and his other family members have also stayed by his side.

 This significant body of evidence does not excuse Jones’ crime. It does mean, however, that under Miller and Montgomery, there is a strong likelihood that Jones is constitutionally ineligible for LWOP. His crime, while terrible, appears to have been the product of “unfortunate yet transient immaturity.” Notably, the State called no witnesses and offered no evidence at the resentencing hearing to rebut Jones’ proof that his crime reflected the “recklessness” and “impulsivity” characteristic of juveniles. 


At his resentencing hearing, Jones told the court, “I’m not the same person I was when I was 15. . . . I’ve become a pretty decent person in life. And I’ve pretty much taken every avenue that I could possibly take in prison to rehabilitate myself.” “Minors do have the ability to change,” he reflected. He noted in closing, “If you decide to send me back without the possibility of parole, I will still do exactly what I’ve been doing for ten years. But all I can do is ask you . . . please give me just one chance to show the world, man, like, I can be somebody. I’ve done everything I could over the past ten years to be somebody. . . . I can’t change what was already done. I can just try to show . . . I’ve become a grown man.”  Today, Jones is 31. His time spent in prison has now eclipsed the childhood he had outside of it.

Jones should know that, despite the Court’s decision today, what he does in life matters. So, too, do the efforts of the 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 he has grown up. For most, the answer is yes.

This is a cruel and inhumane decision, and the bad faith bullshit-minimalism makes it even worse. (I exempt Thomas, who issued a concurrence observing that Kavanaugh’s holding is plainly inconsistent with Montgomery, from the latter charge but not the former.)

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