by Dale Chappell

The Supreme Court of the United States (“SCOTUS”) held on April 22, 2021, that a sentencing court may impose life without parole (“LWOP”) on a juvenile without making a finding of incorrigibility on the record, as long as the sentencing judge has discretion to impose a lower sentence.

The Court’s decision came after Brett Jones was resentenced again to LWOP in light of the Court’s holding in Miller v. Alabama, 567 U.S. 460 (2012), that a person who commits homicide when he is under age 18 may be sentenced to LWOP but only if the court had discretion to impose a lower sentence. Jones was originally sentenced to LWOP for the stabbing death of his grandfather in Mississippi, and the judge imposed the same sentence after Miller but without finding that Jones was unable to be rehabilitated in prison.

The issue that Jones presented to SCOTUS was that because Miller made much of the fact that juveniles are normally prone to change as they mature and should not routinely be thrown in prison for the rest of their life, a sentencing judge must establish on the record that a juvenile is unable to be rehabilitated and should spend their entire life in prison. SCOTUS, however, disagreed and cited its prior cases that led up to Miller on why a finding of incorrigibility is not constitutionally required.

SCOTUS began by discussing that the Eighth Amendment, which prohibits “cruel and unusual punishments,” led it to rule in Roper v. Simmons, 543 U.S. 37 (2005), that the Eighth Amendment forbids the death penalty for those who were under 18 at the time they committed murder. SCOTUS then ruled in Graham v. Florida, 560 U.S. 48 (2010), that it also forbids LWOP for those under 18 who committed non-homicide offenses. Notably, SCOTUS had not prohibited LWOP for those under 18 found guilty of homicide.

Two years later, the high court decided Miller and made express what was not addressed in the foregoing line of cases, i.e., individuals under 18 at the time they committed murder can be sentenced to LWOP but only if the sentence is not mandatory and the judge has discretion to impose a lower sentence. Jones provided several arguments why a sentencing judge must consider incorrigibility on the record before imposing LWOP.

First, Jones pointed to prior SCOTUS cases that prohibit the execution of those found insane or intellectually disabled. He argued that the finding of incorrigibility is on the same constitutional level as those disabilities. Considering those cases, SCOTUS disagreed. “Youth matters in sentencing,” the Court said. “And because youth matters, Miller held that a sentencer must have discretion to consider youth before imposing a [LWOP] sentence, just as a capital sentencer must have discretion to consider other mitigating factors before imposing a death sentence.” Thus, a defendant’s youth and rehabilitative potential are merely “mitigating factors,” the Court said, unlike the “eligibility criteria” found in cases dealing with insanity and intellectual disability.

Second, Jones argued that because SCOTUS said LWOP for juveniles would only be for those who are found “permanently incorrigible,” this requires a finding by the sentencing court that he is in fact incorrigible. The Court disagreed. In holding that Miller is retroactive in Montgomery v. Louisiana, 577 U.S. 190 (2016), the Court stated: “A hearing where youth and its attendant characteristics are considered as sentencing factors is necessary to separate those juveniles who may be sentenced to [LWOP] from those who may not.” However, “a separate finding of permanent incorrigibility is not required,” the Court said in rejecting Jones’ argument.

Third, Jones argued that because SCOTUS has said that LWOP for those under 18 should be a “rare” event, this should require an incorrigibility finding on the record before imposing LWOP. This, too, was rejected by the Court. Miller “pointed to statistics from 15 states that used discretionary sentencing regimes to show that, when given the choice, sentencers impose [LWOP] on children relatively rarely,” the Court noted. It added that Miller reasoned that a discretionary sentencing procedure would ensure LWOP remains a rare event, consistent with the practices of the referenced states.

Fourth, Jones argued that a sentencing judge must at least “implicitly” make a finding of incorrigibility before imposing LWOP on a juvenile. This too was rejected by the Court, citing practical reasons. “If the sentencer has discretion to consider the defendant’s youth, the sentencer necessarily will consider the defendant’s youth,” Justice Kavanaugh wrote for the majority, assuming that the sentencing judge would have to account for the defendant’s young age at the time of the crime and his chances for rehabilitation in prison. In a footnote, the Court expanded on the idea that it would be counsel’s responsibility to make sure a sentencing judge was aware of the defendant’s youth and that counsel could be found ineffective for failing to do so.

Nothing in Miller “hinted” at a sentencing judge “implicitly” finding on the record that a juvenile defendant was or was not incorrigible, the Court said. “If the Miller Court believed that a sentence explanation with an implicit finding of permanent incorrigibility was constitutionally unnecessary, the Court easily could have and surely would have said so,” the Court reasoned.

As a policy concern, the Court stated that a finding of incorrigibility on the record is not supported by SCOTUS’ 45 years of precedent on procedures for mitigating factors at sentencing. “Because the Constitution does not require an on-the-record explanation of mitigating circumstances by the sentencer in death penalty cases, it would be incongruous to require an on-the-record explanation of the mitigating circumstances of youth by the sentencer in [LWOP] cases,” the Court explained and stated that “Jones offers no persuasive answer for that incongruity in his argument.”

The Court also noted that Miller has resulted in “numerous sentences less than [LWOP] for defendants who otherwise would have received mandatory [LWOP] sentences.” As an example, the Court noted that Mississippi, where Jones was sentenced, saw a decrease of 75% in LWOP sentences for juveniles.

The Court recognized that Jones’ arguments had some teeth. “Determining the proper sentence in [LWOP cases] raises profound questions of morality and social policy,” the Court observed. “The state, not the federal courts, make those broad moral and policy judgments in the first instance when enacting their sentencing laws. And state sentencing judges and juries then determine the proper sentence in individual cases in light of the facts and circumstances of the offense, and the background of the offender.” The Court continued, “Our holding today does not preclude the states from imposing additional sentencing limits in cases involving defendants under 18 convicted of murder.”

Accordingly, the Court affirmed the Mississippi court’s ruling upholding Jones’ LWOP sentence. See: Jones v. Mississippi, 141 S. Ct. 1307 (2021). 

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