According to the Sentencing Project, there are more than 206,000 people serving life sentences in the United States—6,000 of whom are women. More than 53,000 of those life sentences are without the possibility of parole. In addition to these life sentences, another 44,000-plus individuals are serving what is called a “virtual life sentence”—a sentence of 50 or more years. Finally, more than 17,000 of the individuals serving life sentences were convicted of non-violent offenses, including 6,000 convicted of non-violent drug offenses.


Juveniles Sentenced to Life Without Parole


Worse yet, the Sentencing Project’s data shows that more than 7,000 of these life sentences involve juveniles tried and convicted as adults, with another 2,300 without the possibility of parole. Added to this particular life sentence reality is that another 2,000-plus juveniles tried and sentenced as adults are serving virtual life sentences.


Translated into raw reality terms, this means that virtually all of these young people will spend at least 55 to 65 years in prison before they die of natural (or unnatural) causes.


Two-Thirds of People Serving Life Sentences are Black and Brown


But the disturbing aspect about the life sentence numbers is this: two-thirds of the people serving these draconian sentences are people of color. And it was not crime rates, which have decreased for the last three decades, but changes in sentencing policies primarily targeting people of color that resulted in this systemic racism in the nation’s criminal sentencing process.


This backdrop about life sentences in the United States brings us to a recent decision by the U.S. Supreme—whose lead opinion was crafted by Associate Justice Bret Kavanaugh—dealing with the issue of life without parole sentences for juveniles tried and convicted as adults. The Court rendered the decision, Jones v. Mississippi, on April 22, 2021, almost nine years after the Court decided Miller v. Alabama.


“Mandatory” Life Sentences for Juveniles Violates 8th Amendment 


The Miller decision essentially held that mandatory life sentences without parole for juveniles tried and convicted as adults violated the cruel and unusual provision of the Eighth Amendment to the U.S. Constitution. The Equal Justice Initiative reported that Miller “requires [sentencing] courts to conduct new hearings where judges will have to consider children’s individual characters and life circumstances, including age, as well as the circumstances of the crime.”


The Miller court, however, held the sentencing judge maintained the discretion to impose a life without parole sentence on a juvenile who commits a murder when they are under 18 years of age if the heinousness of the offense, along with the juvenile’s personal history, supports a finding that the juvenile is “permanently incorrigible.”


SCOTUS Applies Prohibition to Mandatory Life Retroactively


Four years to the day that the Court decided Miller, the Court decided Montgomery v. Louisiana, which held that Miller should be applied retroactively. This opinion furthered the Court’s constitutional leaning that life sentences for juveniles tried and convicted as adults is repugnant not only to the U.S. Constitution but society’s evolving sense of decency about how children should be treated in comparison to adults in the nation’s legal system.


The Montgomery court explicitly held that a sentencing judge in a case in which a juvenile commits murder when he is under the age of 18 and is facing a sentence of life without parole, the judge must make a factual finding that the juvenile is “permanently incorrigible.”


Justice Kavanaugh Erases Decades of Juvenile Justice Reform


The juvenile, Brett Jones, in the Jones v. Mississippi decision, was 15 years old in 2004 when he stabbed his grandfather to death in Shannon, Mississippi. The sentencing judge imposed a mandatory life sentence without parole as required under Mississippi law. Jones’ case was pending before the Mississippi Supreme Court when the Miller decision was rendered. The state supreme court vacated Jones’ life sentence. It remanded the case back to the trial court with instructions that the sentencing judge consider Jones’ youth and exercise discretion in fashioning the appropriate punishment.


After the resentencing hearing, the trial judge found that after considering the factors “relevant to the child’s culpability,” although the judge had the discretion to impose a lesser sentence, a life without parole sentence was still appropriate. Jones was again sentenced to life in prison for the remainder of his life without opportunity for parole. The judge reached this conclusion by noting, in passing, that Jones had admitted that he believed he had gotten his girlfriend pregnant. This irrelevant fact prompted the judge to reinforce his decision by commenting such evidence “demonstrates that the defendant had reached some degree of maturity in at least one area.” The judge failed to make a factual finding that Jones was “permanently incorrigible.”  


Strange Irony of Justice Failing to Acknowledge Immaturity of Juveniles


Associate Justice Brett Kavanaugh was appointed to the Supreme Court by former President Donald J. Trump at the ultra-right Federalist Society’s recommendation. During his confirmation hearing, there were allegations that he had engaged in criminal activity as a juvenile.


In upholding the life without parole sentence, the Court held the state’s discretionary sentencing system was constitutionally sufficient as long as the sentencer had the discretion to consider the mitigating qualities of youth and ability to impose a lesser punishment. It does not matter whether the trial court gives meaningful consideration to the “immaturity of youth” or makes any findings supporting its conclusion. It is the discretion to consider all options that satisfied the Court.  


The irony in Justice Kavanaugh writing the Jones decision is inescapable. 


Brett Jones, a young Black youth, was not only charged with an adult crime but was sentenced as an adult to “life without parole” because his crime represented “irreparable corruption.” On the other hand, the allegations of sexual assault lodged against Brett Kavanaugh were minimized by his supporters as a “youthful indiscretion.” Fox News commentator Stephen Miller likened the criminal allegation against Justice Kavanaugh as “drunk teenagers playing seven minutes of heaven.”


The stark difference in the way the youthful criminal behavior of the two men boils down to this: Brett Kavanaugh was a white, privileged, and spoiled fraternity brat in an elite university; Brett Jones was a Black, poor, disadvantaged youth in a rural Mississippi community with a long history of systemic racism. One is “redeemable,” and one is “permanently incorrigible.”


Brett Kavanaugh is now an associate justice on the U.S. Supreme Court, while Brett Jones is an inmate in the Mississippi state penitentiary. Both men will keep their respective positions for life.


In legal terms, the Jones decision shreds the intent of both Miller and Montgomery.  The opinion is contrary to the holding in both decisions and uses semantics to circumvent the principles of stare decisis. It insults the Eighth Amendment’s prohibition against cruel and unusual punishment and fails to recognize the immaturity of children. As Justice Sotomayor wrote in the dissent: “The Eighth Amendment does not excuse children’s crimes, nor does it shield them from all punishment. It does, however, demand that most children be spared from punishments that give no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope.”