“In a case involving [sentencing] an individual who was under 18 when he or she committed a homicide [to life without parole], a State’s discretionary sentencing system is both constitutionally necessary and constitutionally sufficient.” (Slip op. at 5) (emphasis added).
Under Miller v. Alabama, 567 U.S. 460 (2012), an individual who commits a homicide when he or she is under 18 may be sentenced to life without parole, but only if the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment. In this case, a Mississippi trial judge acknowledged his sentencing discretion under Miller and then sentenced petitioner Brett Jones to life without parole for a murder that Jones committed when he was under 18. The Mississippi Court of Appeals affirmed, concluding that the discretionary sentencing procedure satisfied Miller.
Jones argues, however, that a sentencer’s discretion to impose a sentence less than life without parole does not alone satisfy Miller. Jones contends that a sentencer who imposes a life-without-parole sentence must also make a separate factual finding that the defendant is permanently incorrigible, or at least provide an on-the-record sentencing explanation with an implicit finding that the defendant is permanently incorrigible. And Jones says that the trial judge did not make such a finding in his case.
Jones’s argument that the sentencer must make a finding of permanent incorrigibility is inconsistent with the Court’s precedents. In Miller, the Court mandated “only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing” a life-without-parole sentence. Id., at 483. And in Montgomery v. Louisiana, which held that Miller applies retroactively on collateral review, the Court flatly stated that “Miller did not impose a formal factfinding requirement” and added that “a finding of fact regarding a child’s incorrigibility … is not required.” 577 U.S. 190, 211 (2016). In light of that explicit language in the Court’s prior decisions, we must reject Jones’s argument. …. (Slip op. at 1-2).
The dissent (Sotomayor, joined by Kagan and Breyer) correctly observes the majority “guts” Miller and Montgomery:
…. Contrary to explicit holdings in both decisions, the majority claims that the Eighth Amendment permits juvenile offenders convicted of homicide to be sentenced to life without parole (LWOP) as long as “the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment.” …. In the Court’s view, a sentencer never need determine, even implicitly, whether a juvenile convicted of homicide is one of “those rare children whose crimes reflect irreparable corruption.” Montgomery, 577 U.S. at 209. Even if the juvenile’s crime reflects “‘unfortunate yet transient immaturity,’” Miller, 567 U.S. at 479, he can be sentenced to die in prison.
This conclusion would come as a shock to the Courts in Miller and Montgomery. Miller’s essential holding is that “a lifetime in prison is a disproportionate sentence for all but the rarest children, those whose crimes reflect ‘irreparable corruption.’” Montgomery, 577 U.S. at 195 (quoting Miller, 567 U.S. at 479–480). Sentencing discretion is “necessary to separate those juveniles who may be sentenced to life without parole from those who may not,” Montgomery, 577 U.S. at 210, but it is far from sufficient. A sentencer must actually “make th[e] judgment” that the juvenile in question is one of those rare children for whom LWOP is a constitutionally permissible sentence. Miller, 567 U.S. at 480. The Court has thus expressly rejected the notion that sentencing discretion, alone, suffices: “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, 577 U.S. at 208 (internal quotation marks omitted).
Today, however, the Court reduces Miller to a decision requiring “just a discretionary sentencing procedure where youth [is] considered.” …. Such an abrupt break from precedent demands “special justification.” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (Kavanaugh, J., concurring in part)(internal quotation marks omitted). The Court offers none. Instead, the Court attempts to circumvent stare decisis principles by claiming that “[t]he Court’s decision today carefully follows both Miller and Montgomery.” Ante, at [??]. The Court is fooling no one. …. (Dissent at 1-2).
Amongst those not fooled is Thomas, who agrees with the majority’s holding but chides it for overruling Montgomery and its elaboration of Miller (which Thomas decries) “in substance but not in name.” (Thomas, J., concurring, at 7).
The arguments Jones made here have been advanced in Wisconsin, as we’ve described in noting the certification in State v. Walker and State v. Ninham and decision in State v. Jackson. All of these case appear to be on hold awaiting the decision in this case, and the decision here effectively knocks the legs out from under the defendants’ claims—unless, perhaps, the sentencing court in those cases (or any others that might be working their way through the trial and appellate courts) managed to be demonstrably ignorant of the defendant’s age or said absolutely nothing about that factor at sentencing. In that event there might be an argument for resentencing to ensure that the court does, indeed, take youth and its attendant circumstances into account. Short of that scenario, it seems that, hereafter, even the most cursory reference to a defendant’s youth will be sufficient to clear the risibly low hurdle erected by the decision in this case.
Of course, as the majority is keen to point out (slip op. at 21-22), states could elect to do more to assure sentencing courts consider a defendant’s youth and avoid imposing life without parole except on the most incorrigible of the lot. Some states have. But will Wisconsin? A recent Legislative Council report (at 35 et seq.) outlines some possible approaches. Alas, dear reader, we must with regret advise you not to hold your breath for either the legislature or the supreme court to make any modifications to our wide-open, barely-reviewable, maximum-exercise-of-discretion thank-you-very-much sentencing practices, even when it comes to juveniles.