An increasing number of Americans now believe US Supreme Court decision-making is based more on political ideology than the rule of law. Evidence that this disturbing trend is true can be found when taking a closer look at the shift in how the Court has dealt with juvenile cases dating back to 2005.
Prior to 2005, twenty-two people who were executed in the United States were tried as adults after committing crimes as juveniles. At the time, only two countries in the world, US and Iran, allowed the death penalty for juveniles.
In 2005, 22 American states, including Texas, permitted executions of juveniles. In fact, Texas by far led the nation in killing juveniles with 13 juvenile executions. Its nearest competitor was Virginia with three juvenile executions.
Juvenile executions came to a halt in 2005 when the Supreme Court in Roper v. Simmons held that executing a child whose crime was committed when they were under age 18 violated the cruel and unusual punishment provisions of the 8 th Amendment and the due process provisions of the 14 th Amendment. Roper was decided by a 5-4 vote—four liberal justices and one moderate justice casting the deciding votes over the four conservative justices.
The views expressed by the dissenting opinions, led by Justice Antonin Scalia, reflected the political ideology of the justices regarding the death penalty more so than their constitutional views about the rule of law.
Five years after Roper , the Supreme Court handed down another juvenile justice decision, Graham v. Florida . Graham held that juvenile offenders could not be sentenced to life without parole for non-homicide offenses; that such a punishment was disproportionate to the offenses in violation of the 8 th Amendment.
Once again, four liberal justices and one moderate justice cast the deciding votes over four conservative justices. And, once again, the views expressed by the dissenting justices, led by Justices Clarence Thomas and Justice Scalia, could be read as political ideology more so than the rule of law.
Two years after Graham , the Supreme Court decided yet another juvenile justice case, Miller v. Alabama —a decision finding that sentencing juvenile offenders to a mandatory life without parole for homicide offenses also violates the cruel and unusual punishment provisions of the 8 th Amendment.
Again, four liberal justices and one moderate justice cast the deciding votes over four conservative justices. Although the dissenting justices, led by Chief Justice John Roberts, attempted to analyze the case from a constitutional perspective, the dissent still boiled down to an ideological perspective of how a society should punish its juveniles.
Four years after Miller (2016), the Supreme Court continued its efforts to define juvenile justice in America in Montgomery v. Louisiana —a decision that effectively held Miller had to be applied retroactively to those juveniles sentenced to mandatory life without parole before Miller .
The Montgomery decision was significant because the four liberal and one moderate justice were joined by one conservative justice, Chief Justice Roberts over the remaining three conservative justices
In the wake of Miller and Montgomery, states adopted a wide array of resentencing options, including life without parole for the most heinous juvenile murder cases after a factual determination is made that the offender is “permanently incorrigible.”
This judicial confusion was created because neither Miller nor Montgomery established a “categorical ban on the practices of imposing life imprisonment without parole for juveniles.” Instead, the two decisions required an “ individualized sentencing determination to identify those rare instances when a life without parole sentence would be appropriate.”
Some courts, wishing to avoid future challenges of life without parole sentences, opted to impose what are known as “virtual life sentences”—sentences with a specific number of years that must be served without the benefit of parole which exceed the life expectancy of the offender.
These new types of juvenile life without parole sentences were effectively given constitutional blessing in 2021 when the Supreme Court decided Jones v. Mississippi . Jones held courts need not make an independent factual finding of “permanent incorrigibility” as a prerequisite to imposing a life without parole sentence on a juvenile offender.
The Jones decision was decided by six conservative justices, led by Justice Brett Kavanaugh, over the three liberal justices who voted in favor of Miller and Montgomery .
The Jones decision effectively gutted the Miller prohibition that, as a matter of constitutional principle, life without parole sentences should not be imposed on juvenile offenders—a decision that now personifies the ideological conservative views of the current Supreme Court.,
The defendant in the Jones case, Brett Jones, was 15 years old in 2004 when he stabbed his grandfather to death during a household fistfight started by the grandfather who was angry because Jones had let his teenage girlfriend spend the night in his bedroom at the grandfather’s house.
This was not a premeditated murder. It was a killing that occurred after a family fistfight escalated into a stabbing death.
It was certainly not the kind of “rare” instance envisioned by the Miller Court that would warrant a mandatory life without parole sentence for a juvenile offender as “appropriate” for the offense committed.
In the wake of Jones , States can enact pretty much any juvenile sentencing regime as long as the sentencing court considers the offender’s youth and any attendant circumstances surrounding that youth and the offense.
Rather than deliver constitutional certainty, the Jones Court simply created more judicial confusion leaving politically conservative states to take more hard-lined measures in the delivery of juvenile justice while in contrast, liberal states adopt more humane measures.
For example, Brett Jones would not have received a life without parole sentence in California for stabbing his grandfather to death after being attacked by the grandfather yet in Mississippi that is not only the “appropriate” but mandatory penalty.
In Texas, as another example, a juvenile tried in adult court faces the same penalties as an adult, except for the death penalty and mandatory life without parole. Texas follows what it calls a “14-year-old rule”—the minimum age that a juvenile can be tried as an adult while the minimum age in Kentucky is 10 years of age.
Texas, however, has a sordid history of fast-tracking juveniles from juvenile court to adult courts for capital offenses, some drug offenses and certain felonies if the offenders, particularly those of color, have extended criminal histories and are charged with a serious violent offense.
These are the kind of ideological-driven juvenile sentencing practices Jones v. Mississippi gives constitutional blessing to.
Thanks for your article. I’ve been by Brett Jones side for the past 18 years helping him file his appeals. We have become good friends. We figured out his appeals together. I found him in the bowels of violent Walnut Grove Juvenile Correctional Facility, a place closed by federal lawsuit which a federal judge described as a “picture of such horror as should be unrealized anywhere on the civilized world”, just surviving and unaware of any appeals available to him, all but abandoned by everyone. He had just turned 16 years old. I did some investigating and hired him a Post Conviction lawyer. Brett was railroaded into prison by the State of Mississippi. He was an 8th grade indigent child who was assigned a court-appointed attorney who did no investigation and had not interviewed or prepared a single witness for trial including Brett and his crucial corroborating witnesses Madge Jones, Brett’s grandmother widow of the deceased and Brett’s father Tony Jones. Both were at the house the day of the attack. They were ignored by the sheriff, DA and legal counsel, even though they could have provided material corroborating evidence that Brett was attacked by a mentally ill man in a rage who was prone to violent outbursts, had declining mental health, and was diagnosed with PTSD. Instead, no witnesses testified for the defense. Brett’s counsel decided it would be a good idea to just put 15 y.o. Brett up on the stand presumably to defend himself. So young Brett was raked over the coals by over-zealous prosecutors while his corroborating witnesses were ignored and kept out of the courtroom. Shyster lawyer claims adults Madge and Tony wouldn’t have survived cross examination. But 15 year old Brett would. On post conviction we were able to get affidavits from both Madge and Tony about Brett’s grandfather’s violent outbursts, aggression and PTSD that the jury never heard because counsel never investigated. A Mississippi Supreme court 3 judge panel (1 liberal 2 conservatives) gave Brett summary judgment based on the new evidence as well as the only state witness, Brett’s 15 y.o. friend, to provide “intent” recanted her testimony on the stand. There was no evidence to support the conviction. Brett’s grandfather was not mad about Brett’s friend being there. That was all made up out of whole cloth by the prosecutor. The transcripts make it clear she and Brett both said he was not mad about her being there. No one testified Brett’s grandfather was mad about Brett’s friend being there. He was mad about a $400 phone bill that Brett racked up calling his friends in Florida where he lived with his Mom and brother. That’s when he attacked Brett as he was eating a sandwich in the tiny kitchen. He was showing signs of PTSD, black eyes, etc during the attack. The sandwich was found on the table with a bite taken out of it. Brett’s grandmother and father’s testimony would have matched that of Brett’s. He was attacked and defended himself almost until he could no longer breath in a chokehold. Brett’s grandfather suffered a fatal wound which caused him to let go of Brett before Brett went unconscious. Brett tried in vain to save his grandfather’s life frantically giving CPR and calling for help. Brett’s attorney knew nothing because he didn’t bother to interview Brett until the day of trial. Unfortunately, Brett’s trial judge, Judge Thomas Gardner III, refused the court order from the Mississippi Supreme Court. On a clarification, the original panel had been altered. The altered panel denied the summary judgment granted by the original panel, instead sent Brett back to the trial judge (the judge who refused the original order) to ask for a new trial. Not surprising, Judge Gardner denied the relief the Mississippi Supreme Court granted and denied Brett a new trial claiming Madge and Tony were not credible. The judge made no explanation as to why the wife of 47 years was not credible. She is a Christian woman who probably hasn’t told a lie in her life. On appeal, the Mississippi CoA covered for Gardner rather than protect Brett’s constitutional right to have effective assistance of counsel, affirming Judge Gardner. On a Writ of Cert the conviction was all but ignored in favor of the Miller issue which had come down during Brett’s PCR. That lead to a resentencing hearing by Judge Gardner. Surprise, Gardner gave Brett lwop again even though he had an almost perfect conduct record after 11 years in prison, a CO testify on his behalf and family testifying on his behalf. Brett was not found to be incorrigible but was still given that sentence. Brett appealed and lost. That’s when the MacArthur Justice Center appealed the sentence to the SCOTUS, by now stacked with Trump justices. As you point out, they gutted Miller, and the spirit of Miller. And the CoA was affirmed. Brett appealed pro se to the Northern District of Mississippi and the 5th Circuit and was denied due to AEDPA’s impossible standards. Thank you for getting the facts right. Most publications parade Brett around as a heinous murderer with no mention of being attacked unprovoked. It has been a disaster for Brett. His life ended the day he defended himself and wanted to live. For that he has spend 18 years in prison. We are still hoping we can get a firm to help us with his innocence claim and overturn this wrongful conviction. Brett is a wonderful person who wouldn’t hurt a fly. He has an IQ in the 120s which Gardner held against him keeping him in adult court. Of course, he was book smart, not street smart. He had no criminal record and certainly wasn’t trying to outsmart the authorities. Brett is a talented artist. He’s funny. He loves children and fuzzy animals. He loved his grandfather and wanted to be like him. He wouldn’t have purposely caused his grandfather’s death or anyone’s death. He doesn’t have a violent bone in his body. Brett is not at all what the prosecution painted him as. I talked to a juror and that’s a whole other story too long to tell here, but they used evidence not presented at trial. A theory made up by one of the jurors causing all 11 jurors to change their vote from acquittal to guilty. She was afraid to give an affidavit. This is what happens to a child in the adult criminal justice system who is assigned a shyster lawyer. A child giving a statement alone without counsel at midnight in a backroom of the sheriff’s department. Our PCR attorney believes Brett’s shyster lawyer threw the trial. Brett had a biased judge and an over zealous prosecutor trying to make a name for himself. The cops didn’t bother to obtain a search warrant before entering the residence and collecting evidence with no one home. The death of a child in prison who did nothing to deserve this conviction or punishment is the result of the draconian laws against children. To date, a jury still hasn’t heard from Brett’s corroborating witnesses whose testimony would have changed the outcome of the trial. Judge Gardner doesn’t want a jury to hear from them and has blocked it by denying a new trial where a jury would hear from his witnesses finally getting the whole story, not just what the prosecutors concocted. Judge Gardner also buried a confession in a case he presided over where the woman came within 24 hours of being executed. There were no consequences. Brett was a vulnerable child. The State used his friend, another vulnerable child, by holding her for 9 months until she agreed to testify against him in order to go home, to convict her middle school friend, Brett Jones. This whole trial was an abomination that so far they have gotten away with. Thank you for writing truthfully about Brett’s case.
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by Billy Sinclair, The Crime Report
November 2, 2023
