The teenager who made a mistake Brett Kavanaugh can’t forgive

It is easy to ignore the Brett Joneses — the poor, the troubled, the sick — rotting away in jail. But it smacks of moral cowardice to put this young man away for life, while children of privilege never pay any price for their own failings

US Supreme Court Justice Brett Kavanaugh is greeted by President Donald Trump at a Kavanaugh’s ceremonial swearing in (Getty Images)

Brett Jones celebrated his fifteenth birthday 23 days before he killed his grandfather. His previous fourteen years were marked by an all too common tangle of pathology, neglect, violence and mental illness. His father was an abusive alcoholic who knocked out his mother’s teeth and broke her nose multiple times. His stepfather appeared to be worse, physically abusing Brett and his brother with switches, belts and a paddle he called “The Punisher.” He rarely called Brett and his brother by name, preferring “little motherf***ers.” 

Finally, at fourteen, Brett had enough: He took a swing at his stepfather and split open his ear. The police were called; Brett, and not the abusive stepfather, was placed under arrest. The stepfather threatened to throw Brett’s mother and brother out of the house unless Brett was sent away, so his grandparents came to Florida and took Brett to their home in Mississippi. After the move, Brett no longer had access to the medicine he had been taking for severe depression and hallucinations.

Brett’s girlfriend followed him from Florida to Mississippi. His grandfather ordered her out and Brett and his grandfather began to argue, which led to pushing and his grandfather trying to hit him. Brett stabbed his grandfather with a steak knife. His grandfather came at him again and the fight continued.  Brett then stabbed his grandfather eight times and killed him. He was sentenced under Mississippi law to a mandatory sentence of Life Without Possibility of Parole (“LWOP”).  

There can be no doubt that this was a terrible crime. But Brett Jones was also an adolescent who had shown signs of severe mental illness, was off his meds, had been thrown out of his family of origin, and was a victim of ceaseless intra-familial violence and humiliation. The vast majority of adolescents don’t kill a relative. But the vast majority of adolescents did not live through the nightmare of being Brett Jones.

The Supreme Court has in recent years considered that minors are different from adults in a way that is both intuitively obvious and scientifically demonstrable. In 2005, the Supreme Court held that juveniles could not be executed, recognizing that“as any parent knows and as the scientific and sociological studies confirm, [a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.” The Court held that “from a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.”  

In subsequent decisions, the Court ruled mandatory LWOP sentences unconstitutional and required that anyone sentenced under such statutes be re-sentenced. Children could be punished for terrible crimes, but punishment should presumptively not be irrevocable. The LWOP sentence for juveniles should be reserved for only those “rare children whose crimes reflect irreparable corruption.” 

While the court made clear that such incorrigibility findings would only arise rarely, Mississippi has imposed an LWOP sentence in 25 percent of the re-sentencings and Louisiana has found 75 percent of those re-sentenced to fit the category of the rare child whose crimes reflect “irreparable corruption.” These statistics mask an even more troubling fact about how courts exercise their re-sentencing discretion : 70 percent of all youths sentenced to LWOP are children of color, worse than when LWOP sentences were statutorily required. 

Brett Jones petitioned the Supreme Court to implement meaningfully its decision that only in the rarest cases should LWOP sentences be imposed, requesting either that a separate hearing on incorrigibility be held or that, at the very least, the judge state reasons on the record for imposing an LWOP sentence. 

On April 22, Justice Brett Kavanaugh, writing for a 6-3 Supreme Court, decided that no hearing or statement of reasons were required. As long as a sentencing court has discretion over whether or not to order LWOP, it does not matter how often or why it imposes the LWOP sentence. In a blistering dissent, Justice Sonya Sotomayor said that the majority had “gutted” nearly two decades of recognition of the special status of children in criminal punishment.

What has changed in recent years?  The composition of the Supreme Court, as the three Trump-appointed justices joined with three conservatives to provide the decisive margin. Justice Kavanaugh insists that this is not a reversal of prior precedent, but just a good faith disagreement about the prior holdings.  Justice Thomas, who voted against any special consideration for juveniles in earlier cases, suggested that Justice Sotomayor was right that the majority was overruling these earlier cases, and he thought this was a good thing.  

What weight to give to prior decisions and whether one should confront honestly whether a new decision overrules precedent are important points of Supreme Court jurisprudence which will be debated by experts as the Trump-legacy court does its work. But a far more troubling aspect of this decision is its utter lack of empathy for troubled, damaged children. 

Brett Jones committed murder and he has spent more than half his life in prison; he will almost certainly die there. Brett Kavanaugh never killed a relative. Brett Kavanaugh had every advantage, and when credible allegations of rape when he was in high school were made against him, the outraged reaction from conservatives was that neither he nor anyone else should be judged as adults for their behavior as children. Brett Kavanaugh went off to Yale and never looked back.

Brett Jones can only look forward to a life behind bars for what he did three weeks after he turned fifteen. Adolescence is difficult enough for all children but it was hellish for Jones, as it is for very few. He never was going to Yale or to sit on the Supreme Court. He was already showing signs of psychosis. 

It is easy to ignore the Brett Joneses — the poor, the troubled, the sick — rotting away in jail. But it smacks of moral cowardice to put this young man away for life, while children of privilege never pay any price for the failings, or often crimes, during their own adolescence. 

We want our children to get through adolescence with as few scars as possible.  All our children. Brett Jones is one of our children.

Eric Lewis is a human rights lawyer who sits on the board of The Independent