Summary of Argument
Because at a minimum the vast majority of children cannot be sentenced to life without parole, the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole. This conclusion follows directly from the Court’s recent precedents.
In Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Court recognized that children are categorically different from adults in ways that almost always make lifetime imprisonment for wrongs they commit as children cruel and unusual punishment. Children’s “diminished culpability and heightened capacity for change” generally defeat the penological justifications for a life-without-parole sentence. Miller, 567 U.S. at 479; Montgomery, 136 S. Ct. at 733. Therefore, the Court held, the Eighth Amendment bars imposition of life without parole on “a class of defendants”—namely, “juvenile offenders whose crimes reflect the transient immaturity of youth.” Montgomery, 136 S. Ct. at 734. Almost all juveniles are in this class and so cannot be sentenced to life without parole.
The Court allowed that, at least in theory, there may be extremely rare children who do not share the reduced culpability and elevated capacity for change that characterize juveniles generally. Such individuals, whom the Court has described as permanently incorrigible, may therefore be sentenced to life without parole. Given this principle, which draws a sharp line between most children and the rare “permanently incorrigible” exception, the only way the sentencing authority can distinguish a juvenile offender who can be given a life-without parole sentence from the vast majority who cannot is to make a finding that the particular offender is “permanent[ly] incorrigib[le].” Id.
If a state chooses to pursue a life-without parole sentence, it must conduct a hearing to determine whether a particular juvenile offender is permanently incorrigible. The purpose of the hearing is to determine whether the offender is an exception, one who does not reflect the characteristics that typically make life without parole an unconstitutional penalty for children. A finding of permanent incorrigibility is a condition precedent to the imposition of a life-without-parole sentence on a juvenile offender.
The Mississippi Court of Appeals affirmed Brett Jones’ sentence even though the trial court had not found him to be permanently incorrigible. See Jones v. State, 285 So. 3d 626, 634 (Miss. Ct. App. 2017). The state court denied that the Eighth Amendment requires such a finding. Instead, according to the state court, any juvenile can receive a life-without-parole sentence if the sentencing authority first considers the characteristics associated with youth. The state court’s holding that no finding of permanent incorrigibility is necessary renders the Eighth Amendment’s protection of juveniles from this punishment toothless.
The Mississippi court’s decision and reasoning flatly contradict this Court’s precedents. The Court has not held merely that youthful characteristics must be considered as a procedural matter in sentencing. Instead, Miller held, and Montgomery affirmed, that the distinctive attributes of youth make life without parole unconstitutional as a substantive matter for a large class of juveniles. Concomitantly, such a sentence is valid only if a juvenile does not have those characteristics and so is outside the class.
The state court’s error lay in misreading a passage in Montgomery, in which this Court recognized that the opinion in Miller did not state explicitly that a finding of permanent incorrigibility is required. But the relevant passage in Montgomery, 136 S. Ct. at 735, merely acknowledges that Miller was silent on this question. The Mississippi court pulled that observation out of context, isolated it from the rest of the Montgomery opinion, and adopted it as a categorical answer to the question presented in this case. The state court treated the acknowledgment of Miller’s silence regarding a finding requirement to mean that Miller actually reached a dispositive holding that a finding is not required.
But there is a critical difference between granting, on the one hand, that Miller did not expressly refer to a finding of incorrigibility, and asserting, on the other, that Miller held that a finding is not required. The Court did the former in Montgomery, not the latter. Indeed, the latter interpretation is directly at odds with the logic of both Miller and Montgomery.
In essence, the Mississippi court resurrected an argument this Court had already rejected in Montgomery itself. In Montgomery, Louisiana contended that, if Miller had meant that life without parole is confined to the permanently incorrigible, Miller would have expressly required a finding of incorrigibility. This Court conceded Miller’s silence, but did so in the course of dismissing Louisiana’s argument. The Court explained that the omission did not cast doubt on the Eighth Amendment principle that Miller established: Only juveniles outside the constitutionally exempt class—because they are “permanently incorrigible”—can be sentenced to life without parole. That rule of substantive law plainly entails a finding of incorrigibility.
The Court explained in Montgomery that, when the Court establishes a new substantive rule, it typically allows states to incorporate the new rule into their systems. Miller’s silence regarding the finding requirement is explained by the Court’s prudent policy of letting states choose effective means of putting the Miller rule into practice.
For example, a state might effectuate the Miller rule with respect to juvenile offenders already serving invalid sentences in either of two ways: by giving them new sentencing hearings consistent with Miller or by making them eligible for parole. Similarly, a state might implement the Miller rule either by eliminating life without parole for juveniles or by establishing a process for identifying the rare juveniles who can receive such a sentence.
What is non-negotiable, however, is that any arrangement a state adopts must respect the substantive rule to be enforced—here the rule barring life-without-parole sentences for all but the rare children found to be permanently incorrigible.
This conclusion is reinforced by Montgomery’s holding that Miller announced not a procedural requirement that youth be considered, but a substantive rule prohibiting life without parole for the vast majority of youthful offenders. The question before the Court was whether the Miller rule is substantive and so enforceable in collateral proceedings. To resolve that issue, the Court had to examine and describe the rule. The description of Miller as substantive was therefore essential to the decision in Montgomery.
The substantive Miller rule logically entails distinguishing juveniles who are in the constitutionally exempt class from the rare youths who are not. It follows that the sentencing authority must find that a particular juvenile is permanently incorrigible before imposing a life-without-parole.
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