Legal Docket: Jones v Mississippi - S2.E2

GOOGLE MAPS: Continue on Mississippi 460-A East for one mile.

JENNY ROUGH, SOUND ON TAPE: Okay, here it is. Coming upon it. I see fences. 

GOOGLE MAPS: Turn right in 350 feet. 

JR SOT: Barbed wire. Okay, kind of a line of cars going into Central Mississippi Correctional Facility. Wow, all the employees I guess.

JENNY ROUGH, HOST: It is 8 o’clock in the morning … near the end of April and I’m about to get a crash course in incarceration. A guard at the prison’s front gate checks my i.d. and searches my rental car.

AUDIO: TRUNK POPPING, RENTAL CAR KEYS.
JR SOT: Okay, where do I go?
SOT: Go down here, make the curve, go around…

JR: Call it a “correctional facility” all you like. It’s prison. And prison is barren, cold, bleak. Abundant with nothing but stainless steel. Today, about a dozen men arrive by bus for their first of many days … in prison.

AUDIO: HALLWAY DOORS IN RECEPTION AND CLASSIFICATION BUILDING UNLOCKING AND LOCKING

They’re confined in the Reception and Classification room. The door is secure. Windows give a clear view inside. The men have already been strip-searched. Clothing and personal property confiscated. They each wear a yellow jumpsuit. Next, a checklist of to-dos. Fingerprinting. Photographs. A medical exam. And a psychological one. The inmates receive a few hygiene items, pretty much just soap and a towel. Finally, each is locked in a cell.

BROWN: A violent offender would be placed in the restrictive housing unit.

Keith Brown is Chief of Security here at the Central Mississippi Correctional Facility. When he says “restrictive housing” he means “lockdown.” All movements under strict supervision. Watched. Regulated.

BROWN: He wouldn’t be able to go to the cafeteria like other offenders. He wouldn’t be able to go shower freely like he could. ... Each meal is brought to his cell and then we go back and get the trays, get his trash.

Commissioner Burl Cain is head of the Mississippi Department of Corrections.

CAIN: The cells are going to be 8 feet by 10 or 8 by 12, usually 8 feet wide, and that’s how cells are. And the cells have a little desk in them. They have a bed, and it’s going to be a steel bed. It’s going to have recessed light, and it’s going to be so that you can’t hardly find a place to tie a sheet or something if you want to commit suicide.

In 2005, Brett Jones was sent to Mississippi state prison. For murder. He went through the routine you just heard. The shocking reality of his future must have sunk in at some point. Especially given his sentence: life without the possibility of parole. Commissioner Cain’s job is to enforce that sentence...but over his 40 year career in the corrections system, he’s discovered that most inmates have the capacity to rehabilitate. So, he says nearly everyone should at least have a shot at parole.

CAIN: Now I’m a believer that you should have a hearing for most everybody.

In the years that followed Brett Jones’ trial, he filed long-shot appeal after long-shot appeal: challenging his life without parole sentence. His persistence eventually paid off. His case made it to the U.S. Supreme Court.

CBS NEWS REPORTER: The specific case before the justices involved Mississippi inmate Brett Jones, who was 15 and living with his grandparents when he reportedly stabbed and killed his grandfather. Jones had argued he’s not permanently incorrigible and should therefore be eligible for parole.

When he killed his grandfather, Jones was 15 years old. So his age and immaturity raise constitutional questions about that life without parole sentence. The question before the court is whether that is cruel and unusual punishment.

THEME MUSIC

JENNY ROUGH, HOST: Welcome to Season 2 of Legal Docket, I’m Jenny Rough.

MARY REICHARD, HOST: And I’m Mary Reichard. This podcast is from the team that brings you The World and Everything In It.

JR: Come with us inside the world of the Supreme Court as we look more deeply into current disputes and how they make a difference to your life.

MR: Today, a case about the Eighth Amendment and cruel and unusual punishment.

UNDERWRITER: Support for the Legal Docket podcast comes from listeners like you. Additional support comes from Samaritan Ministries, a Biblical solution to health care, connecting Christians across the nation who care for one another spiritually and financially when a medical need arises. More at Samaritan Ministries dot org slash world podcast.

JR: What should be done when young people commit violent crimes?

LEVICK: So this is the debate that we’re having in America right now.

JR: Marsha Levick is the chief legal officer of the Juvenile Law Center, a nonprofit that advocates for youth in the criminal justice system.

LEVICK: We lock up more people than any other country in the world. We lock up a lot of kids. We lock up a lot of teens under the age of 18 in adult prisons. And the reality is the research doesn’t support incarceration as a tool for crime control. It doesn’t reduce recidivism. It does traumatize youth.

MR: That’s not to say young people shouldn’t be held responsible...

LEVICK: They should all be held accountable for what they do. I don’t think any of us disagree with that.

MR: But she says the United States is unique when it comes to sentencing young offenders.

LEVICK: We are the only country in the world, as a matter of formal statutory law, that imposes life without parole on children.

JR: Throughout this episode, you’ll hear Jones’ sentence referred to as J-L-WOP. That’s juvenile life without parole. What exactly does the law require before a court imposes on a young person a sentence of life without parole? That’s the question in this case, Jones v. Mississippi. David Shapiro argued on behalf of Jones.

SHAPIRO: Most children, even those who commit grievous crimes, are capable of redemption.

JR: Shapiro pointed out that because of so much time left to develop, young offenders have great capacity to change. And as a result, the law requires the state court first to determine that the youth is permanently incorrigible. Meaning, incapable of redemption.[9] [10] Only then can a court impose a J-L-WOP sentence.

MR: Listen to Justice Samuel Alito’s reaction.

JUSTICE SAMUEL ALITO: This is fascinating. You want us to take the courts of this country into very deep theological and psychological waters. Do you think that there are any human beings who are not capable of redemption? There are a lot of people who think that every human being is capable of redemption. There's actually a famous quote by Gandhi, who says exactly that. There are a lot of Christians who believe that. You think of the good thief on the cross.

MR: Well, before unpacking that, let’s review what happened.

JR: Brett Jones lived with his mother and stepfather in Florida. His stepfather abused him. Beat him with belts and paddles. Called him cruel names, names we’d never repeat on this podcast. The summer Jones turned 15, he moved out of his mother and stepfather’s house. He relocated to a different state—to Mississippi—to live with his grandparents.

MR: Jones had a girlfriend, Michelle Austin. One morning, Jones’ grandfather found Austin in Jones’ bedroom. The grandfather disapproved and confronted Jones in the kitchen. They began to fight. First, pushing and shoving. Then the grandfather attempted to punch Jones. So Jones threw a steak knife at his grandfather and wounded him. Then he grabbed a second knife and stabbed his grandfather again … and again … and again. In total, eight times. At his trial, Jones argued self defense. But the jury didn’t buy it. It found Jones guilty.

JR: The state of Mississippi tried Jones as an adult. Why and how that happens depends on the state. Here’s Levick again:

LEVICK: The U.S. is 50 jurisdictions. It’s 50 different juvenile justice systems. It’s very variable depending upon where you are. There is the potential, in virtually every jurisdiction across the country, for a youth who commits a violent crime to be prosecuted as an adult.

Like Mississippi. Lawyer Krissy Nobile used to work at the Mississippi Attorney General’s Office. She’s the one who argued on behalf of the state of Mississippi on the day of oral arguments. I talked with her by Zoom. She explained how the law works in her state.

NOBILE: Like many states, Mississippi has statutes for when a juvenile will be tried in circuit court versus our youth court, and that determination takes into account the age of the offenders.

JR: In Mississippi, age 13 is the cutoff for serious crimes.

NOBILE: … as well, as the nature of the case.

In this instance, murder.

NOBILE: So, those two things are going to be governed by statute, and under our statute given the age that Brett Jones committed homicide he was tried in circuit court as opposed to youth court, so, in this instance it was just all handled by state law.

MR: Straightforward. But after Jones’ guilty verdict, the next question: How do you hold him accountable?? Again, Mississippi law at the time dictated a straightforward answer. The mandatory minimum penalty for murder was life without parole. Which is the sentence Jones received.

NOBILE: In Mississippi, it does mean what it sounds like. So, it means that the person will stay in prison until the person dies.

JR: A punishment, any punishment—no matter the crime, no matter youth or adult—cannot violate the Eighth Amendment of the U.S Constitution. It prohibits cruel and unusual punishment. To understand what that means, we turn to another expert in Mississippi law.

BERRY: My name is Will Berry. I’m a professor of law at the University of Mississippi.

Berry says cruel and unusual is hard to pin down.

BERRY: It's not clear. It’s very open-ended language. But what is clear is that the meaning of those terms—cruel and unusual—are to evolve over time as society matures and progresses. For example, the death penalty used to be allowed for robbery. Or rape. Not anymore. And over time in this country, we’ve narrowed this to murder.

MR: Okay. So murder is the only crime punishable by death. But that wasn’t the sentence in Jones’s case. In fact, the year Jones killed his grandfather was the same year the Supreme Court ruled that no one under 18 who committed a murder could receive the death penalty. So Jones received a life without parole sentence instead.

JR: But a few years later—after Jones was already in prison—the law evolved again. The Supreme Court came down with a new ruling: A juvenile cannot get life without parole in most cases. It’s almost always considered cruel and unusual punishment. Almost. The single exception: J-L-WOP sentences are permitted when a juvenile kills. So Jones’s sentence did not change. He stayed in prison with no hope of a parole hearing.

MR: The law continued to evolve. In 2012, the Supreme Court handed down yet another new Eighth Amendment rule in a case called Miller v. Alabama.

BERRY: Miller looked at mandatory sentences. And so the question is, can you give someone a life juvenile life without parole sentence without a judge looking at it, it's automatic, that if you've crossed this line, you automatically get that punishment. And 28 states were doing that at the time of Miller—

Including Mississippi.

BERRY: And so Miller said you can't do that. You can't have a mandatory juvenile life without parole sentence.

So here’s an exception to the exception: The court said a mandatory life sentence is simply too harsh for juveniles because it doesn’t take into account family and environmental factors. And, again, children have a heightened capacity to change. The court went on to say it’s rare for a juvenile to be “irreparably corrupt.” So, the court issued a new rule: When a youth commits murder, the state court must have discretion to impose a lesser punishment. The court can impose life without parole, but does not have to.

JR: Instead, the state court must make an individual, case-by-case decision based on various factors, such as age, immaturity of judgment, family environment, peer pressure, and the potential for rehabilitation.

Those factors are now known as Miller factors, from Miller v. Alabama.

MR: That new Miller rule applied retroactively. The Court made that ruling in a case called Montgomery v. Louisiana. So you’ll often hear the two cases paired together: Miller and Montgomery. Together, they meant that any juvenile in the United States who was already serving a mandatory life without parole sentence got a new hearing. A re-sentencing. Including Brett Jones. In many cases, those new sentences were not as harsh. Juvenile Law Center’s Marsha Levick again.

LEVICK: About 75 percent of all the juvenile lifers who were in that group at the time that Miller came down, have been re-sentenced. The number who have received new life without parole sentences is a fraction, a very small number. About 5, 600 folks have come home.

In other words, some courts re-sentenced offenders to life with parole. But few others reimposed their original sentence.

LEVICK: And this brings us to Jones, obviously. Because for Brett Jones, he did receive a second sentence of life without parole. And the issue that is before the Supreme Court now is essentially this question of what is the level of finding that a sentencer has to make in order to justify constitutionally this reimposition of life without parole?

Jones’s re-sentencing came after Miller but before Montgomery. In other words, the state of Mississippi treated Miller as retroactive even before the Supreme Court required it.

JR: Still, Jones claimed the re-sentencing judge made an error. One that became clearer with the Montgomery ruling. Based on the Supreme Court’s own language in Miller and Montgomery, Jones claimed the judge failed to make the necessary finding that he is permanently incorrigible. Again, permanently incorrigible means incapable of rehabilitation. Berry again:

BERRY: So then he comes to the Supreme Court and says if you read Miller and Montgomery, there’s actually a requirement there. That you have to make a factual finding explicitly, or alternatively, it has to be implicit, that I am permanently incorrigible.

The Montgomery opinion—the one decided after Jones’ re-sentencing—used phrases such as “permanent incorrigibility” or “irreparable corruption” eight times to describe when a young offender should receive life without parole.

BERRY: And the majority opinions used a lot of language saying J-L-WOP is a really, really bad idea.

MR: Lower courts disagreed about the correct interpretations of Miller and Montgomery, and whether Montgomery expanded Miller. That’s why the Supreme Court took up the case. Let’s go there and listen as the argument unfolds. At the high court, David Shapiro argued for Jones. We’ve edited a bit to make the argument easier to follow, and note arguments happened over the phone.

SHAPIRO: Only juvenile homicide offenders who are permanently incorrigible may be sentenced to life without parole. The judge has to distinguish the transiently immature from the irreparably corrupt. And the only way for that to happen, one must infer, is the court has to decide which side of the line the defendant is on.

Shapiro said the state court did not do that at Jones’s re-sentencing. So, he argued, Jones is entitled to yet another sentencing hearing in order that the state court can make that specific determination.

SHAPIRO: The Court should enforce settled law by remanding for an answer to the decisive question: Is Brett Jones, who committed a crime just weeks after turning 15, permanently incorrigible?

JR: At least three justices pointed out to Shapiro that the language in both the Miller and Montgomery opinions made it clear that the state court judge does not need to expressly state a finding of permanent incorrigibility on the record. Here’s Justice Brett Kavanaugh:

KAVANAUGH: You started today by referring to settled law. The paragraph in Montgomery. It seems very clear in saying multiple times in that paragraph that a finding of fact about incorrigibility is not required. First question: Do you agree that a finding of fact regarding incorrigibility is not required.

SHAPIRO: No. Because that paragraph is referring to a formal finding. … The modifier, formal, a formal finding is what the court is referring to in that paragraph.

So if a formal finding of fact is not required, what is? Chief Justice John Roberts wanted to know.

ROBERTS: Mr. Shapiro, I'm having just a little trouble figuring out what exactly it is that you're looking for. We know it can't be a formal finding as I think you indicated because of Miller and Montgomery statements. What exactly do you need?

Shapiro tried to wiggle out of that predicament—that a formal declaration is not needed. Not express words, he agreed. Not explicit words...

SHAPIRO: Not magic words—but words that convey in substance the idea that the defendant is permanently incorrigible, going to commit more crimes, going to recidivate, etc.

Justice Roberts suggested the state court judge did do that.

ROBERTS: Well, at the hearing that took place here. The judge certainly referred to Miller, said he considered each and every factor that is identifiable in Miller, and concluded that the Petitioner was not entitled to the benefit of the leniency provided in Miller.

Justice Sonia Sotomayor wondered about that too.

SOTOMAYOR: Here the judge said I’ve considered Miller and all the factors it talks about one of them is incorrigibility. So, under those circumstances, why isn't that the beginning and end of this case, i.e., the judge made an adequate finding under Miller?

SHAPIRO: Considering the Miller factors is not the same—this is a critical point—is not the same as a bottom-line determination of permanent incorrigibility.

MR: When Mississippi attorney Krissy Nobile took her turn, she argued the sentencing judge applied Miller correctly.

NOBILE: Jones received what this court and the Eighth Amendment requires. Jones now contends that his sentence is still unconstitutional because the sentencing court did not also make a finding that Jones is permanently incorrigible. 

But she also had to contend with some strong language from the court’s previous opinions in Miller and Montgomery. Here is Justice Sotomayor reading some more language, verbatim, from those opinions.

SOTOMAYOR: Montgomery says repeatedly that Miller did more than require a sentencer to consider a juvenile offender's youth before life without parole. So merely considering youth cannot be enough. More than once, it says: "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." Montgomery says it's the rare juvenile offender whose crime reflects irreparable corruption. Multiple, multiple times in Miller and in Montgomery, the Court says it should be rare.

NOBILE: I agree with that, Your Honor. And I think the best way to read that is to say that this Court, looking at the whole … was envisioning that many times mitigating circumstances would, the mitigating circumstances of youth and all the surrounding circumstances would, indeed…

So why not hold that an implied finding of permanent incorrigibility is required? Wouldn’t that honor the essence of those previous Supreme Court rulings? Indeed, Chief Justice Roberts said requiring an implied finding did not seem like a big ask here.

ROBERTS: I asked Mr. Shapiro starting out what exactly it was he was looking for, and I have to say it didn't seem like very much. Why isn’t that acceptable to the state?

And Justice Kavanaugh followed up on that.

KAVANAUGH: Why shouldn't we just require a finding of fact that the defendant is permanently incorrigible?
NOBILE: It's not an objective fact. It's going to be some type of judgment that a sentencer is going to have to make, and to get to that judgment, you're going to need an evaluative process and you're going to need to evaluate mitigating circumstances.

In other words, permanent incorrigibility is an abstract concept. It’s not a black and white objectificable fact that either exists or does not exist. The state court weighed the Miller factors and made a judgment call.

JR: Well, either approach leaves a glaring problem. One that oral arguments didn’t directly address. Here’s Professor Berry:

BERRY: There's a real question about, should we be making a decision right now, in the shadow of the crime, as to what this person's life will look like, and whether they will ever be someone who we should release? So we're making this decision in light of what just happened, without ever taking into account of over time that this person could change.

A parole hearing is simply that. A hearing. No guaranteed results.

BERRY: Now, if you gave a juvenile life with parole sentence as opposed to without parole sentence, it means we could come back in 10 years or 20 years or whenever and have a look. It doesn't mean that they get out.

MR: Remember the question Justice Alito asked?

ALITO: This is fascinating. You want us to take the courts of this country into very deep theological and psychological waters. Do you think that there are any human beings who are not capable of redemption?

That’s what the professor is asking, too. And the only way to know is to take the wait-and-see approach and not the shut-the-door forever approach. 

JR: The day at the Central Mississippi Correctional Facility, I didn’t meet Brett Jones. He is currently incarcerated at South Mississippi Correctional Institution in Leakesville. Two hours away. I did request a meeting there, but Cain lives on prison grounds at the Central facility. His work with Mississippi prisons began less than a year ago, and he says he has yet to focus his efforts on the Leakesville facility. I reached out to Brett Jones’ trial attorneys multiple times in an attempt to interview them, as well as Jones. One declined to speak with me and another didn’t respond to my requests.

But I did meet a handful of inmates at the Central prison, including Rachel, a lifer. She is a vivid demonstration of Burl Cain’s confidence that even the worst offenders can change. Rachel had a rough childhood.

RACHEL: My mother … she loved us, but she was one of them parents that didn’t know how to show love because she was never shown love, and it was really hard just the abuse…

Rachel started using drugs when she met her first husband. Then—

RACHEL: Harder drugs come on the scene. Then we divorced and I met my other husband. And it was you know, that’s the reason why I’m here because of stuff with him. I shot and I killed him. I’ve been locked up now for 20 years.

MR: A murder crime. In Mississippi that means life without parole. Unlike Jones, Rachel was not a juvenile when she committed the crime. After going through the receiving and classification process, she was sent to the lockdown unit. Like the one described at the beginning of this episode. Isolated in a cell. Monitored closely.

JR: Typically, inmates convicted of a violent crime are moved out of lockdown after six months—if they behave. Rachel spent her first two years in lockdown.

RACHEL: I got here in March. Then in September, I had seven RVRs already.

RVRs. Rule Violation Reports.

RACHEL: Oh, yeah. I’m a fighter...

Not anymore. Now she’s in seminary. To even apply for seminary, a prisoner must be RVR-free for a year. Burl Cain, who you met earlier on this program, used to work at Angola Louisiana State Penitentiary. There, he transformed one of the bloodiest, most violent prisons in America into a peaceful culture. He implemented lots of different rehabilitation programs, including a seminary school. He is now doing the same thing here.

MR: Over 15 states have started similar programs. Money to run the seminary comes from the private sector to keep the church-and-state on the up and up.

JR: Cain pointed out that the Angola program altered the course of life for juvenile offenders.

CAIN: The inmates, the preachers, that started these churches at Angola, many were juvenile lifers. The governor and the parole board saw how wonderful they were, what they were doing to change, so they finally got a pardon. Never supposed to get out of prison, but they did.

MR: The rehabilitated inmates can then mentor other inmates. Spending time with them, talking, and listening.

CAIN: This preacher guy has had all these electives that are in counseling. Just like your pastor. ... So they’re more effective than the social worker. All these people that go home at 4:30 can’t do what this guy does as this inmate minister, or field minister, that’s cruising through this prison 24/7.

JR: In other words, those who have walked in similar shoes can relate in a way outsiders cannot. It’s known as the wounded healer model. Cain recalls one in particular:

CAIN: He’s lived in the cell block. He’s did 27 years for a life sentence for murder. It’s amazing. A head chaplain? So here’s the deal. He’s not afraid to go anywhere in that prison, down through the cell block, down through death row, everywhere amongst all those inmates. And he relates. They say he feels my pain, he’s lived my life. I understand you. You understand me. So he’s more effective. If you have a free-world chaplain that’s always had his tie and coat on and never been in prison and never felt that pain and you put him in as chaplain, he can’t go all through the prison like that. He wouldn’t even be safe maybe.

That’s not to say that people in the free world don’t have great influence, too. They can...and do. Just ask Rachel—the lifer who shot and killed her husband. She says she’s always loved the Lord. Her life just went sideways. But at some point, one of the prison staff opened Rachel’s eyes toward a different way of living.

RACHEL: I have a Lieutenant here that is—she is my mentor. Oh, gosh. She has helped me through so much. … Without some of her guidance there’s no telling where I’d be at right now.

Rachel learned how to handle her anger and keep her hands to herself.

RACHEL: And I got baptized here in 2018, and ever since then I’ve turned my life over to the Lord. And when this seminary came out I was like, yes, and seminary has really deepened my knowledge and it’s made me be a better person. And a lot of people have seen a lot of different change in me and I can see a change in me and that’s all that matters.

Rachel says she may be behind bars, but she’s a free woman now.

MR: South Mississippi Correctional Institution doesn’t have a seminary program...yet. But at Brett Jones’ re-sentencing hearing, a prison unit manager who oversaw Jones testified about his behavior. He noted Jones earned his GED. That Jones got along with others. Worked hard at various chores, like mopping and waxing floors. But Jones still received a J-L-WOP sentence. After his Supreme Court appeal, that didn’t change.

JR: The Supreme Court decided 6-3 in favor of the state of Mississippi. Justice Brett Kavanaugh wrote the opinion, joined by Justices Roberts, Alito, Gorsuch, and Barrett. Justice Thomas wrote a concurring opinion. The opinion said that the language of Miller and Montgomery is clear: There is no requirement to make a finding of permanent incorrigibility. And so the court is not going to do that here. Not going to add that requirement. Here’s a quote from the opinion: “In sum, the Court has unequivocally stated that a separate factual finding of permanent incorrigibility is not required before a sentencer imposes a life-without-parole sentence of a murderer under 18.”

MR: The opinion went on to say that an explanation on-the-record —meaning, an implicit finding—is also not required.

Justice Sotomayor filed a dissent, joined by Justices Breyer and Kagan. The dissent pointed out that although Miller and Montgomery did not say a finding is required, that is what they meant. To hold otherwise is to gut those cases. J-L-WOP should be off the table except in extreme circumstances. They do not want juveniles who are transiently immature to be punished forever by a snap decision.

The dissent went into great detail about the circumstances of Jones’ life. Like the trauma of his childhood. And what happened after the crime. Like the fact that he tried to revive his grandfather with C-P-R. And, when he couldn’t, went to find his grandmother to tell her what happened.

JR: We weren’t able to talk with Jones’ attorney David Shapiro. He said he’s not commenting on the case. But Krissy Nobile, who argued on behalf of Mississippi, shared her reaction to the opinion.

She has two. First, she’s pleased there is now clarity on the issue. The lower courts were confused about how to apply the law. But she also had this reaction:

NOBILE: My second reaction … is probably not the one you or your listeners would expect, but I was actually very extremely upset, and as someone who doesn’t cry very often … I cried a lot more than I would like to admit.

Not happy tears. This so-called “win” was harder to take than the losses.

NOBILE: Because really what the decision means is that Brett Jones, who was a kid that was truly let down every step of the way, and yes, committed a terribly, terribly tragic crime when he was 15, is going to die in prison, and that result is just deeply disquieting to me.

Two weeks after the Jones decision, Nobile resigned from the Attorney General’s office. She changed jobs; switched sides so to speak.

NOBILE: So now I work for the Mississippi Office of Capital Post-Conviction Counsel, which provides representation to indigent parties under sentences of death and post-conviction proceedings.

MR: Nobile says all Americans should care about juveniles in prison with no hope of a parole hearing

NOBILE: We of course have all been kids. And many of us have kids. I will personally say I hope my state legislature addresses the issue and abolishes juvenile life without parole. It’s something our legislature has tried to do and I hope one day will.

At the start of 2020, 1,465 people were serving a juvenile life without parole sentence. That’s according to a survey conducted by the Sentencing Project.

As Nobile mentioned, a state can pass a statute barring such sentences. Most have. Mississippi is only one of a few states that has not. That could change.

Even if it doesn’t, not all hope is lost. Law professor Berry:

BERRY: So he could always bring a habeas claim. And he could always ask for compassionate release. The governor could come pardon you. I mean, there's always a way out, maybe.

The court’s opinion also cracked a door open for Jones and those like him. To bring what is known as an Eighth Amendment as-applied claim. Meaning, he can argue the Eighth Amendment is unconstitutional in his specific, individual case.

JR: Byron Johnson is the head of Baylor Institute for Studies of Religion. He’s researched prisons for 30 years.

JOHNSON: A lot of people think that the system needs to be cancelled. I’m not one of them, I believe the system needs to be reformed.
One of those reforms: intermediate sanctions.

JOHNSON: Many judges feel like they don’t have a menu to look at in terms of what we do. So, it’s either give someone probation or lock them up for a significant amount of time. I think the vast majority of judges that I have interviewed would say I would love to have intermediate kinds of things that I could do but I feel like my hands are tied, and probation doesn’t give enough teeth.

Intermediate sanctions could include intensive probation.

JOHNSON: Where they’re not just checked in on once every month or two but they’re checked in you know, repeatedly and you stay with people.

Johnson says mentoring is critical.

JOHNSON: In one study that we did, the people that were successful post-release had mentors in their lives from visits that they had received in prison. So in other words I come visit you in prison and I’m going to stick with you when you get out. A lot of people make that promise but they’re not able to live up to it. For those inmates that had mentors in prison and then they carried over once they got out, they were much more likely to live crime-free.

MR: Continued mentorship after release is key—but often that’s when it stops.

JOHNSON: You have people that are willing to go into prisons but you very rarely have people that are willing to work with people on the outside and it’s a tragic irony. In some ways working with people in a correctional environment is much safer than working with people who were formerly incarcerated. And so that’s the bridge we have to cross.

Johnson says life without parole sentences cost large amounts of money. And for prisoners who have been model inmates for decades, keeping them locked up no longer makes sense.

JOHNSON: We need for the courts to revisit and change some of these sentencing laws from, you know, three or four decades ago, and we need to be smarter. So, I’m an advocate for smart justice. So I mean, I’ve interviewed many, many people that are serving life without parole who’ve been incarcerated for 30, 40 years and have been model inmates. What good is it now that they’re in their late 60s or early 70s and yet they’re still incarcerated with no hope of getting out.

As you heard earlier in this podcast, Commissioner Burl Cain believes most inmates should receive a parole hearing. But he acknowledges the victims might not agree.

CAIN: I’ve advocated that everybody should get a hearing. Now, we have to keep victims on our minds, the person he killed has a family and they’re victims and it ravages their lives. They’re prisoners, too.

JR: In this case, Jones’ grandmother lost her husband. Her name is Madge Jones. She filed an amicus brief in the case in support of Jones. In part, it read: “Despite her unspeakable loss, Madge is steadfast in her belief that Brett is not and never was irreparably corrupt. Madge speaks to [Brett] weekly and believes he has an undeniable calling to prison ministry, fostered by his close relationship with the prison’s minister, and he has grown spiritually and emotionally. She believes the sentence of life without parole was wrong.”

Cain says he has seen many criminals and victims heal—together. Especially in circumstances mentioned earlier, where an inmate goes through seminary and takes other prisoners under his wing, like a young juvenile offender.

CAIN: As he changed his life of being a violent teenager into being something positive, the victim saw something good come from something horrible. There came the point then when the victim’s family would finally visit with him and say, you know, he’s doing good. If my son hadn’t given his life, or my daughter, or what have you. Now this is far out. But they will do this. They will evolve to finally this point after 10 or 15 or maybe 20, 25 years. When he’s totally different and grown and he’s remorseful because he’s learned to be moral.

MR: He’s been rehabilitated.

JR: Byron Johnson, the Baylor expert, has studied how religion affects rehabilitation. He has been amazed at what he’s witnessed from the rehabilitated inmates he has come to know. The ones who have done the work. Faced the truth. Confessed their wrongdoing and found forgiveness. Worked through anger and bitterness. And most importantly, have come to understand they have value in the eyes of God.

JOHNSON: And I can tell you that some of the happiest people I know are people serving life, because they have made these profound changes. Inmates have a lot that that we can learn from on the outside because you know, people on the outside struggle with all kinds of emotional issues and these guys seem to have a joy and a peace that people on the outside don’t have.

THEME MUSIC

JR: Legal Docket is produced by the creative team at WORLD Radio. I’m Jenny Rough.

MR: And I’m Mary Reichard. We’re the hosts each week.

JR: Our script editors are Nick Eicher and Paul Butler, who is also our producer. Technical engineer is Rich Roszel

MR: Source material in this episode included CBS News and oral arguments from SupremeCourt.gov

JR: Thanks go to Will Berry, Keith Brown, Burl Cain, Byron Johnson, Marsha Levick, Krissy Nobile, and Rachel

MR: If you’ve written to us, thank you!. We love hearing from you. Our email address is: legaldocket@wng.org. If you’ve subscribed and left a review, thanks for doing that. It’s a big help for getting the word out about this very special podcast.

JR: Thanks for listening. The Legal Docket Podcast is a production of WORLD Radio.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.