In Miller v. Alabama, 567 U.S. 460 (2012), the Supreme Court held that a person who commits a homicide when he or she is under 18 may not be mandatorily sentenced to life without parole; the sentencing judge must have discretion to impose a lesser punishment. In Montgomery v. Louisiana, 577 U.S. 190 (2016), the Court held that Miller applies retroactively. When Montgomery was decided, I wondered (here) whether it did more than merely address Miller’s retroactive application. Language in the case indicated that a sentence of life without parole would be constitutionally permissible for only the most the most troubling young defendants—“those whose crimes reflect permanent incorrigibility.” Id. at 209. In Jones v. Mississippi, 593 U.S. ___ (2021), decided last week, the Court made clear that the Constitution does not require a sentencer to make a separate factual finding of permanent incorrigibility before sentencing a defendant to life without parole.
Like so many homicide cases involving young defendants, the facts of Jones are troubling. In 2004, Brett Jones—age 15 at the time—stabbed his grandfather eight times after an argument, killing him. Jones didn’t call 911; he tried to cover up the crime and then fled. He was captured, charged with murder, and convicted. At the time, murder carried a mandatory sentence of life without parole (LWOP) in Mississippi, and that’s what Jones got.
In 2012, in the wake of Miller, the Mississippi Supreme Court concluded that Jones’s mandatory LWOP sentence was unconstitutional and remanded the case for a resentencing hearing. At that hearing the judge considered Jones’s youth but nonetheless determined that LWOP was still the appropriate sentence. Jones appealed again, arguing that Miller and Montgomery required a sentencing court to make a specific factual finding that he was “permanently incorrigible” before imposing a sentence of life without parole. Slip op. at 4. The Mississippi Court of Appeals disagreed and affirmed the sentence. Recognizing disagreement on the issue in the lower courts, the Supreme Court of the United States granted certiorari.
The Court affirmed. Though language from Miller appeared to limit the class of young defendants for whom life without parole is permissible to those “whose crime reflect irreparable corruption,” the Court in Jones rejected the defendant’s argument that an explicit finding of “permanent incorrigibility” is required to open the door to a sentence of juvenile LWOP. Just having an alternative sentence available, the Court said, is enough for a sentencing regime for young defendants to pass muster under the Eighth Amendment. Slip op. at 5 (“[A] State’s discretionary sentencing system is both constitutionally necessary and constitutionally sufficient.”). Writing for the five-justice majority, Justice Kavanaugh again and again pointed out that Miller and Montgomery did not impose a formal factfinding requirement (by my count he said it twelve times in 22 pages). A court must follow a process in which it considers the defendant’s youth and its attendant circumstances, but no specific finding of incorrigibility is required.
If you’ve been paying attention to the Court’s juvenile LWOP jurisprudence since Miller, you may recognize that Jones presents a bit of conceptual pretzel. Jones says Miller doesn’t require a specific finding of incorrigibility, because Miller simply required a procedure in which the sentencer has discretion. But Montgomery deemed Miller to be substantive enough that it had to be applied retroactively, because it took LWOP off the table as a permissible punishment for all but the permanently incorrigible. (If it were merely procedural, it would apply retroactively only if it were a watershed rule under the retroactivity framework established in Teague v. Lane, 489 U.S. 288 (1989), and it isn’t a watershed rule.) If Montgomery is right that there are few young defendants for whom LWOP is permissible (those who are irreparably corrupt) and many for whom it is not (those whose crimes reflect transient immaturity), then it would make sense to require a sentencer to make a substantive determination as to which camp a particular defendant belongs. Pointing out the tension, Justice Thomas concurred in the judgment only, writing that the only way to harmonize Jones with Miller is to recognize that Montgomery was wrongly decided and explicitly reject it.
Justice Sotomayor, joined by Justice Breyer and Justice Kagan, dissented. She wrote that a sentencing process that doesn’t require the sentencer to determine whether the young defendant is one of “those rare children whose crimes reflect irreparable corruption” misses the essential holding of Miller: that “[n]o set of discretionary sentencing procedures can render a sentence of LWOP constitutional for a juvenile whose crime reflects ‘unfortunate yet transient immaturity.’” Jones, slip op. at 9 (Sotomayor, J., dissenting).
After Jones, a sentencing regime for juveniles convicted of a homicide is constitutional if it gives the sentencer discretion to sentence the defendant to something other than life without parole after considering the defendant’s youth and its attendant circumstances. A separate factual finding of permanent incorrigibility is not required.
Many readers of this blog know that North Carolina enacted a statutory fix immediately after Miller in 2012, allowing the court to sentence a defendant who was under 18 at the time of the offense convicted of first-degree murder to life with the possibility of parole after 25 years after a hearing at which the court considered factors related to the defendant’s youth. G.S. 15A-1340.19A through -1340.19D. (A sentence of life with the possibility of parole is required for defendants convicted under the felony murder rule.) One of the statutory factors spelled out in that statute is the “[l]ikelihood that the defendant would benefit from rehabilitation in confinement,” which is obviously related to the finding of “permanent incorrigibility” discussed—but not required as a federal constitutional matter—in Jones.
Applying Miller and its progeny to our revised sentencing regime, our state supreme court has already reached a result similar to Jones. In State v. James, 371 N.C. 77 (2018), the court held that our Miller-fix statute satisfied the Eighth Amendment without the need for specific “narrowing findings” that the juvenile was irreparably corrupt or permanently incorrigible. The Court of Appeals, on the other hand, called “permanent incorrigibility” a threshold determination, a sine qua non for a sentence of LWOP under the Miller-fix law—at least as understood in light of Miller at the time. State v. Williams, 261 N.C. App. 516 (2018). Williams is pending before the Supreme Court of North Carolina, which allowed discretionary review, 372 N.C. 358 (2019), and one could imagine the Court’s decision in Jones will inform the state high court’s analysis in the case.