Over the past two decades, the Supreme Court has transformed juvenile sentencing. A key line of Eighth Amendment cases1 broke down the traditional barrier between capital and noncapital punishment review and imposed new Eighth Amendment proportionality limitations on juvenile noncapital punishments.2 But last Term, in Jones v. Mississippi,3 the Court may have halted this expansive trend: it held that a separate factual finding of permanent incorrigibility4 is not required before a juvenile can be sentenced to life without parole.5 The decision, which purports to apply prior precedent, yet divided along ideological lines, may signal that the Court is giving more deference to the democratically elected institutions initially tasked with sentencing decisions. If so, Jones would be a welcome return to the Court’s traditionally deferential posture in noncapital punishment cases.
At fifteen, Brett Jones murdered his grandfather.6 Jones had been living with his grandparents in Mississippi at the time to escape an unstable situation at home, where his mother battled mental health issues and his stepfather abused him.7 On August 9, 2004, Jones’s grandfather discovered Jones’s girlfriend in Jones’s bedroom and forced her to leave the house.8 This incident upset Jones, and later that day, he and his grandfather got into a physical altercation.9 Jones stabbed his grandfather with a steak knife he had been using to make a sandwich and then stabbed him again with a nearby filet knife.10 With his grandfather no longer breathing, Jones dragged him into the laundry room, attempted to clean up the blood, and left the property.11 Jones was apprehended at a nearby gas station and quickly confessed.12
Jones was sentenced to life without parole under a Mississippi law that made the sentence mandatory.13 After Miller v. Alabama14 prohibited the mandatory imposition of this sentence, the Mississippi Supreme Court granted Jones’s petition for postconviction relief and ordered resentencing.15 At resentencing, Jones offered new details regarding his circumstances at the time of the murder, including evidence of his family’s abusive behavior, his own mental health, and his postconviction rehabilitation.16 Nonetheless, Jones was again sentenced to life without parole.17 The sentencing judge stated that he had considered each of the Miller factors and provided an on-the-record explanation of the sentence.18
Jones primarily appealed the resentencing on the ground that the sentencing judge did not discuss each Miller factor on the record.19 The Mississippi Court of Appeals declined to adopt this argument, holding that Miller did not require on-the-record discussion of each and every factor. Rather, the sentencing judge held an appropriate Miller hearing: he stated that he had considered the applicable factors, made findings of fact that were supported by substantial evidence, and did not act arbitrarily.20 The Mississippi Supreme Court granted certiorari following Montgomery v. Louisiana,21 which applied Miller retroactively.22 However, in a related decision, the state high court held that Miller and Montgomery did not impose any specific factfinding requirements on lower courts,23 and, as a result, dismissed the writ of certiorari in Jones’s case.24
The United States Supreme Court granted certiorari to resolve a split among courts on whether Miller and Montgomery require a formal finding of permanent incorrigibility.25 Writing for the Court, Justice Kavanaugh26 held that a separate factual finding of permanent incorrigibility is not required before a juvenile can be sentenced to life in prison without opportunity for parole.27 The Court viewed the issue to be already decided by clear language in both Miller and Montgomery.28 Miller mandated “only that a sentencer follow a certain process — considering an offender’s youth and attendant characteristics — before imposing” a life sentence without opportunity for parole.29 And Montgomery affirmed that “‘Miller did not impose a formal factfinding requirement’ and that ‘a finding of fact regarding a child’s incorrigibility . . . is not required.’”30 Mississippi’s discretionary sentencing scheme was thus “constitutionally necessary and constitutionally sufficient.”31
The Court dismissed Jones’s arguments to the contrary. First, Justice Kavanaugh distinguished Jones from cases “recogniz[ing] certain eligibility criteria, such as sanity or a lack of intellectual disability, that must be met before an offender can be sentenced to death.”32 The Court reasoned that it would be too difficult to differentiate between juvenile offenders whose crimes reflect irreparable corruption from those whose crimes reflect “unfortunate yet transient immaturity,” and there were no “objective indicia of society’s standards” to support such eligibility criteria.33 Instead, the Court reasoned that a juvenile defendant’s youth is “akin to a mitigating circumstance.”34 Miller cited Roper v. Simmons35 and Graham v. Florida36 for the proposition that “[y]outh matters in sentencing,” but not to create a categorical bar.37 And, the Court stated, “Montgomery did not purport to add to Miller’s requirements.”38
Second, the Court rejected Jones’s argument that the Montgomery Court must have assumed that a separate factual finding was required when it held Miller to be a substantive rule for retroactivity purposes.39 The Court again heeded the explicit language in Montgomery that such a finding “is not required.”40 In a footnote, the Court expressly limited Montgomery’s precedential value in future retroactivity cases by declaring that “the Court’s retroactivity precedents that both pre-date and post-date Montgomery . . . — and not Montgomery — must guide the determination of whether rules other than Miller are substantive.”41
Third, the Court rejected Jones’s contention that a separate factual finding of incorrigibility was required to achieve Miller’s objective of making juvenile life-without-parole sentences relatively rare.42 Instead, Justice Kavanaugh reasoned that a discretionary sentencing procedure — without a mandated factual finding — can achieve this outcome.43 And in conclusion, Justice Kavanaugh addressed the dissent’s claim that the majority decision implicitly overruled Miller and Montgomery.44 He reaffirmed that “Miller held that a State may not impose a mandatory life-without-parole sentence on a murderer under 18” and that Montgomery “held that Miller applies retroactively on collateral review.”45 Instead of relying on what Miller and Montgomery “must have done,” as the dissent insisted, the Court asserted that it relied on the explicit language of the opinions.46
Justice Thomas concurred in the judgment. He suggested that the Court adopted a “strained reading” of Montgomery in order to reach the correct result and would have been better off acknowledging that Montgomery is inconsistent with Miller.47 If Montgomery were correct in holding that Miller was a substantive rule — and thus created a class of defendants who could not be sentenced to life without opportunity for parole — a determination of whether the defendant fell within that class must be required.48 Otherwise, Justice Thomas reasoned, the distinction would be “more fanciful than real.”49 Since Montgomery is a “demonstrably erroneous” decision, Justice Thomas would have overturned it.50 Nonetheless, he argued that the Court “[o]verrule[d] Montgomery in substance but not in name”51 and “recognize[d] that Montgomery’s analysis is untenable and not to be repeated.”52
Justice Sotomayor vigorously dissented.53 She argued that the Court “gut[ted]” Miller and Montgomery.54 Miller’s “essential holding,” she explained, is that “a lifetime in prison is a disproportionate sentence for all but the rarest children, those whose crimes reflect ‘irreparable corruption.’”55 Under this broad reading, sentencing discretion is a necessary but not sufficient condition. In response to the language relied on by the majority, Justice Sotomayor pointed to “equally explicit” language elsewhere: Montgomery stated that “Miller . . . did more than require a sentencer to consider a juvenile offender’s youth before imposing life without parole.”56 And “[e]ven if a court considers a child’s age before sentencing him or her to a lifetime of prison, that sentence still violates the Eighth Amendment for a child whose crime reflects ‘unfortunate yet transient immaturity.’”57 Thus more than just a discretionary sentencing procedure is required. Similar to Justice Thomas’s reasoning, Justice Sotomayor argued that, if Montgomery characterized Miller as a substantive holding, some sort of factual determination is required.58
Justice Sotomayor criticized the majority for not explaining why stare decisis did not demand a contrary holding.59 She noted that the Court did not attempt to offer, nor could it have offered, a “special justification”60 for overturning Miller or Montgomery because both cases satisfied traditional stare decisis factors.61 As such, Justice Sotomayor chided the majority for urging lower courts to ignore Montgomery’s retroactivity analysis62 and walked through the evidence presented at Jones’s resentencing to argue that “it is hard to see how Jones is one the of rare juvenile offenders ‘whose crime reflects irreparable corruption.’”63
Eighth Amendment jurisprudence has long been defined by the refrain “death is different.”64 And because death is different, the Court’s review is generally more demanding in capital cases than in noncapital cases.65 Over the past two decades, however, this division broke down in juvenile sentencing cases under the guise that “children are different.”66 The Court has been willing to apply the same rigorous review to juvenile sentencing cases as it does to capital cases.67 The majority’s holding and reasoning in Jones, however, signal that the Court could be returning to a more deferential posture in its juvenile noncapital punishment cases. This would be a welcome return to the democratic values underlying Eighth Amendment deference and could forestall predictions that the Court’s juvenile sentencing cases would be used to effect a dramatic judicial overhaul of criminal sentencing.
The Court’s Eighth Amendment jurisprudence has historically been divided between capital and noncapital cases. The Court’s review of noncapital sentences consisted only of “narrow proportionality” review conducted on a case-by-case basis.68 This deferential analysis first tasked courts with comparing “the gravity of the offense and the harshness of the penalty.”69 Only in the rare instance where this threshold comparison led to a finding of “gross disproportionality” would a court engage in rigorous intra- and inter-jurisdictional comparisons central to capital sentence review.70 Harmelin v. Michigan71 and Ewing v.California72 demonstrate how light the Court’s review of noncapital cases had been. Harmelin rejected a requirement of individualized sentencing for nonhomicidal offenses and upheld a life-without-parole sentence for an individual convicted of possessing 672 grams of cocaine.73 Ewing upheld a sentence of twenty-five years to life for a repeat offender convicted of attempting to steal three golf clubs.74 Neither of these cases led to a finding of gross disproportionality.75
The Court’s capital punishment jurisprudence diverged significantly. There, the Court embraced rigorous proportionality review.76 These cases were subject to a two-part test and were examined on a categorical basis, rather than a case-by-case basis.77 First, “the Court determine[d] whether ‘objective indicia of society’s standards’ demonstrate[d] a national consensus against the death penalty” for that type of crime.78 Second, the Court made a subjective judgment about whether the crime was proportionate to the capital punishment.79 At this step of the analysis, judges considered the same factors as at the first stage of the noncapital analysis, often looking to penological justifications and international comparators as well.80
The Court’s decision in Graham v. Florida upended this divide and, for the first time, created a categorical prohibition in a noncapital case. After holding in Roper that the imposition of the death penalty on juvenile offenders violated the Eighth Amendment,81 the Court held in Graham that juvenile defendants categorically cannot be sentenced to life without parole for nonhomicidal offenses.82 Since Graham, the Court has continued to tighten restrictions on juvenile criminal sentencing under the Eighth Amendment. Miller restricted the state’s ability to impose a life-without-parole sentence for juveniles convicted of homicide by prohibiting its mandatory imposition.83 And Montgomery recast Miller as a substantive rule in order to apply it retroactively to juvenile offenders whose sentences were final at the time of Miller.84
Together, these juvenile sentencing cases embody a principle that, for Eighth Amendment purposes, “children are different.”85 They recognize that “juveniles have diminished culpability and greater prospects for reform.”86 The Miller Court identified three relevant distinctions between juveniles and adults: (1) children are immature and irresponsible, (2) children are more vulnerable to negative outside pressures and lack full control over their environment, and (3) children lack a fully formed character and are capable of change.87 Combined, these considerations support a more rigorous Eighth Amendment review for juveniles because the penological justifications are diminished.88
The Court abandoned the more deferential review it had applied in noncapital juvenile sentencing cases. In Graham, the Court struck down a punishment authorized in thirty-nine jurisdictions89 and, in Miller, twenty-nine jurisdictions.90 Just as “death is different,” the Court relied on the fact that “children are different” to impose more rigorous review on juvenile, noncapital punishments.
The decision in Jones may suggest that the Court is reconsidering its dramatic departure from the traditional deference it had shown in noncapital cases. At the end of the opinion, Justice Kavanaugh noted that “[d]etermining the proper sentence . . . raises profound questions of morality and social policy.”91 These profound questions are first to be answered by “[s]tates, not the federal courts.”92 The Supreme Court has the “more limited role” of safeguarding the limits imposed by the Eighth Amendment.93 Justice Kavanaugh then recognized the variety of options that states have if they do not agree with the Court’s opinion, ranging from imposing a factfinding requirement to prohibiting life-without-parole sentences for juveniles altogether.94 Moreover, this discussion signals that deference to the states in the administration of juvenile sentencing could regain prominence. Justice Kavanaugh subtly recast the juvenile sentencing cases as standing only for the proposition that “[y]outh matters in sentencing”95 rather than the stronger characterization in Miller that “children are different.”96
A return to a deferential framework would be a welcome shift in the doctrine. Rigorous Eighth Amendment review is inherently antimajoritarian because it requires the Court to overturn a sentence that has been authorized by a democratically elected legislature. The narrow proportionality review for noncapital cases repeatedly emphasizes the “primacy of the legislature in setting sentences, the variety of legitimate penological schemes, [and] the state-by-state diversity protected by our federal system.”97 This deference is particularly important given the fact that how society punishes its criminal offenders is a matter of ongoing moral and policy debate.98 In 1966, forty-two percent of Americans were in favor of the death penalty for people convicted of murder.99 By 1994, that number had increased to eighty percent.100 As of fall 2020, however, support has fallen to fifty-five percent.101 As Chief Justice Roberts has noted, judges “have no basis for deciding that progress toward greater decency can move only in the direction of easing sanctions on the guilty.”102
Without a renewed emphasis on judicial deference, these Eighth Amendment cases have “no discernible end point.”103 In Graham, the Court made only a minimal effort to justify its adoption of a categorical rule in a noncapital case.104 And in Miller, the Court reasoned that the unique attributes of juveniles are not crime specific, allowing their use in contexts outside of capital punishment.105 In the wake of these decisions, commentators began predicting massive changes to the criminal justice system brought about through the Eighth Amendment. These predictions included more rigorous review of adult life-without-parole sentences,106 lesser sentences applied to juveniles,107 and restrictions placed on convicted sex offenders.108 But by being more deferential to the legislative bodies authorizing these sentences, the Court leaves these difficult questions where they belong: in the hands of the people. The Eighth Amendment’s prohibition on “unusual” punishments should not be used to take down a wide range of duly authorized sentencing schemes. The Court’s signaled deference in Jones indicates that it is seeking an “end point” to the potentially expansive shift in Eighth Amendment doctrine.
It is possible that Jones will come to be seen as only a momentary detour on the Court’s march toward more rigorous Eighth Amendment review. Though the majority asserted that its decision was commanded by clear language in Montgomery, which articulated that a separate factual finding is not required, Justice Thomas noted that when Montgomery recast Miller into a substantive rule, it created an irreconcilable tension. A rule of criminal procedure is substantive and applies retroactively if it “alters the range of conduct or the class of persons that the law punishes.”109 If Miller is substantive, then it necessarily created a class of persons that the law cannot punish with life without parole. This reading seems to imply a factfinding requirement. Both principal opinions in Jones had ample support. That the Court chose not to adopt a factfinding requirement suggests that Justice Kavanaugh’s discussion of deference to legislative bodies should be considered a significant signal.
Brett Jones’s case demonstrates the heartbreaking nature of juvenile crime. On the one hand, his grandfather lost his life as a result of a rather ordinary confrontation. On the other, Jones’s freedom has been forever taken away from him because of the actions he took as a child. There is ample room for debate about whether Jones is a just outcome or if states should adopt any number of potential reforms to juvenile sentencing. But the Court’s role should be limited. The Eighth Amendment should not be used to end this debate or tie the hands of future generations.