Jones v. Mississippi

(Slip Opinion) OCTOBER TERM, 2020 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

JONES v. MISSISSIPPI

CERTIORARI TO THE COURT OF APPEALS OF MISSISSIPPI

No. 18–1259. Argued November 3, 2020—Decided April 22, 2021

A Mississippi jury convicted petitioner Brett Jones of murder for killing

his grandfather. Jones was 15 years old when he committed the crime.

Under Mississippi law at the time, murder carried a mandatory sen-

tence of life without parole. The trial judge duly imposed that sen-

tence, which was affirmed on direct appeal. This Court subsequently

decided Miller v. Alabama, 567 U. S. 460, which held that the Eighth

Amendment permits a life-without-parole sentence for a defendant

who committed a homicide when he or she was under 18, but only if

the sentence is not mandatory and the sentencer therefore has discre-

tion to impose a lesser punishment. In the wake of that decision, the

Mississippi Supreme Court ordered that Jones be resentenced in ac-

cordance with Miller. At the resentencing, the sentencing judge

acknowledged that he had discretion under Miller to impose a sentence

less than life without parole. The judge determined, however, that life

without parole remained the appropriate sentence for Jones. Jones

again appealed his sentence, citing both Miller and the then-recently

decided case of Montgomery v. Louisiana, 577 U. S. 190, which held

that Miller applied retroactively on collateral review. Jones contended

that, under Miller and Montgomery, a sentencer must make a separate

factual finding that a murderer under 18 is permanently incorrigible

before sentencing the offender to life without parole. The Mississippi

Court of Appeals rejected Jones’s argument.

Held: In the case of a defendant who committed a homicide when he or

she was under 18, Miller and Montgomery do not require the sentencer

to make a separate factual finding of permanent incorrigibility before

sentencing the defendant to life without parole. In such a case, a dis-

cretionary sentencing system is both constitutionally necessary and

constitutionally sufficient. Pp. 5–22.

2 JONES v. MISSISSIPPI

Syllabus

(1) A sentencer need not make a separate factual finding of perma-

nent incorrigibility before sentencing a murderer under 18 to life with-

out parole. In Miller, the Court mandated “only that a sentencer follow

a certain process—considering an offender’s youth and attendant char-

acteristics—before imposing” a life-without-parole sentence. 567

U. S., at 483. And in Montgomery, the Court stated that “a finding of

fact regarding a child’s incorrigibility . . . is not required.” 577 U. S.,

at 211. Miller and Montgomery require consideration of an offender’s

youth but not any particular factual finding. Miller and Montgomery

therefore refute Jones’s argument that a finding of permanent incorri-

gibility is constitutionally necessary. Pp. 5–14.

(2) Nor must a sentencer provide an on-the-record sentencing expla-

nation with an “implicit finding” of permanent incorrigibility before

sentencing a murderer under 18 to life without parole. An on-the-rec-

ord sentencing explanation is not necessary to ensure that a sentencer

considers a defendant’s youth. Nor is an on-the-record sentencing ex-

planation required by or consistent with Miller or Montgomery, neither

of which said anything about a sentencing explanation. Pp. 14–19.

(3) The Court’s decision does not disturb Miller’s holding (that a

State may not impose a mandatory life-without-parole sentence on a

murderer under 18) or Montgomery’s holding (that Miller applies ret-

roactively on collateral review). The resentencing in Jones’s case com-

plied with Miller and Montgomery because the sentencer had discre-

tion to impose a sentence less than life without parole in light of

Jones’s youth. The Court’s decision today should not be construed as

agreement or disagreement with Jones’s sentence. In addition, the

Court’s decision does not preclude the States from imposing additional

sentencing limits in cases involving murderers under 18. Nor does the

Court’s decision prohibit Jones from presenting his moral and policy

arguments against his life-without-parole sentence to the state offi-

cials who are authorized to act on those arguments. Pp. 19–22.

285 So. 3d 626, affirmed.

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS,

C. J., ALITO, GORSUCH, and BARRETT, JJ., joined. THOMAS, J., filed an

opinion concurring in the judgment. SOTOMAYOR, J., filed a dissenting

opinion, in which BREYER and KAGAN, JJ., joined.

Cite as: 593 U. S. ____ (2021) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order that

corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 18–1259

_________________

BRETT JONES, PETITIONER v. MISSISSIPPI

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF

MISSISSIPPI

[April 22, 2021]

JUSTICE KAVANAUGH delivered the opinion of the Court.

Under Miller v. Alabama, 567 U. S. 460 (2012), an indi-

vidual who commits a homicide when he or she is under 18

may be sentenced to life without parole, but only if the sen-

tence is not mandatory and the sentencer therefore has dis-

cretion to impose a lesser punishment. In this case, a Mis-

sissippi 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 af-

firmed, concluding that the discretionary sentencing proce-

dure 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

2 JONES v. MISSISSIPPI

Opinion of the Court

of permanent incorrigibility is inconsistent with the Court’s

precedents. In Miller, the Court mandated “only that a sen-

tencer follow a certain process—considering an offender’s

youth and attendant characteristics—before imposing” a

life-without-parole sentence. Id., at 483. And in Montgom-

ery v. Louisiana, which held that Miller applies retroac-

tively on collateral review, the Court flatly stated that “Mil-

ler did not impose a formal factfinding requirement” and

added that “a finding of fact regarding a child’s incorrigibil-

ity . . . 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. We affirm the judgment of

the Mississippi Court of Appeals.

I

A

In August 2004, Brett Jones was living with his grand-

parents, Bertis and Madge, in Shannon, Mississippi. Shan-

non is a small town of about 2,000 in northern Mississippi

near Tupelo, about halfway between Memphis and Bir-

mingham off I–22.

At the time, Jones was only 15 years old. On the morning

of August 9, 2004, Bertis discovered Jones’s girlfriend,

Michelle Austin, in Jones’s bedroom. Bertis and Jones got

into an argument, and Bertis ordered Austin out of the

house. A few hours later, Jones told Austin that he “ ‘was

going to hurt’ ” his grandfather. 938 So. 2d 312, 314 (Miss.

App. 2006).

That afternoon, Jones was in the kitchen making himself

something to eat. Jones and Bertis began arguing again.

The clash escalated from shouts to shoves to punches.

Jones then stabbed his grandfather with a kitchen knife.

When that knife broke, Jones picked up a second knife and

continued stabbing Bertis. In total, Jones stabbed his

grandfather eight times.

Bleeding profusely, Bertis staggered outside, fell to the

Cite as: 593 U. S. ____ (2021) 3

Opinion of the Court

ground, and died. Jones did not call 911. Instead, he hap-

hazardly attempted to cover up his role in the murder. He

dragged Bertis’s body back inside. Jones then washed the

blood off his arms with a water hose, changed out of his

bloody shirt, and moved Bertis’s car over some blood stains

on the carport floor.

While Jones was outside, he was seen by a neighbor. The

neighbor called the police. Shortly thereafter, another

neighbor saw Jones and Austin leaving the house together

on foot. Later that night, police located Jones and Austin

at a gas station several miles away. When questioned,

Jones and Austin provided fake names to the officer. After

a police pat down revealed a knife in Jones’s pocket, the of-

ficer asked Jones whether it was the knife that he “ ‘did it

with.’ ” Id., at 315. Jones responded, “ ‘No, I already got rid

of it.’ ” Ibid.

B

Jones was charged with murder. The trial judge in-

structed the jury on murder and the lesser included offense

of manslaughter. Jones claimed that he was not guilty be-

cause he acted in self-defense. The jury rejected that de-

fense and found Jones guilty of murder.

Under Mississippi law at the time, murder carried a man-

datory sentence of life without parole. Miss. Code Ann.

§97–3–21 (2000), §47–7–3(g) (2004); see Parker v. State, 119

So. 3d 987, 996–997 (Miss. 2013). The trial judge therefore

imposed that sentence. In 2006, the Mississippi Court of

Appeals affirmed. See 938 So. 2d 312.

Jones later moved for post-conviction relief in state court,

asserting among other things that his mandatory life-with-

out-parole sentence violated the Cruel and Unusual Pun-

ishments Clause of the Eighth Amendment. The trial court

denied the motion, and the Mississippi Court of Appeals af-

firmed. See 122 So. 3d 725 (2011).

4 JONES v. MISSISSIPPI

Opinion of the Court

In 2012, while the Mississippi Supreme Court was con-

sidering whether to review Jones’s case, this Court decided

Miller v. Alabama, 567 U. S. 460. Miller held that the Cruel

and Unusual Punishments Clause of the Eighth Amend-

ment prohibits mandatory life-without-parole sentences for

murderers under 18, but the Court allowed discretionary

life-without-parole sentences for those offenders.

In the wake of Miller, the Mississippi Supreme Court con-

cluded that Miller applied retroactively on state collateral

review. In Jones’s case, the State Supreme Court ordered

a new sentencing hearing where the sentencing judge could

consider Jones’s youth and exercise discretion in selecting

an appropriate sentence. See 122 So. 3d 698 (2013).

At the resentencing, Jones’s attorney argued that Jones’s

“chronological age and its hallmark features” diminished

the “penological justifications for imposing the harshest

sentences.” App. 25, 27 (quoting Miller, 567 U. S., at 472,

477; emphasis deleted). Jones’s attorney added that “noth-

ing in this record . . . would support a finding that the of-

fense reflects irreparable corruption.” App. 143–144.

At the end of the hearing, the sentencing judge acknowl-

edged that he had discretion under Miller to impose a sen-

tence less than life without parole. But after considering

the factors “relevant to the child’s culpability,” App. 149,

the judge determined that life without parole remained the

appropriate sentence for Jones, id., at 152.

Jones appealed his sentence to the Mississippi Court of

Appeals, citing both Miller and the then-recently decided

case of Montgomery v. Louisiana, 577 U. S. 190 (2016),

which in the interim had held that Miller applied retroac-

tively on collateral review. According to Jones, in order to

impose a life-without-parole sentence on a defendant who

committed a murder when he or she was under 18, the sen-

tencer must make a separate factual finding that the de-

fendant is permanently incorrigible. The Mississippi Court

of Appeals rejected Jones’s argument, relying on this

Cite as: 593 U. S. ____ (2021) 5

Opinion of the Court

Court’s express statement in Montgomery that “ ‘Miller did

not require trial courts to make a finding of fact regarding

a child’s incorrigibility.’ ” 285 So. 3d 626, 632 (2017) (quot-

ing Montgomery, 577 U. S., at 211).

In light of disagreement in state and federal courts about

how to interpret Miller and Montgomery, we granted certi-

orari. 589 U. S. ___ (2020). Compare, e.g., Malvo v.

Mathena, 893 F. 3d 265 (CA4 2018), Commonwealth v.

Batts, 640 Pa. 401, 163 A. 3d 410 (2017), and Veal v. State,

298 Ga. 691, 784 S. E. 2d 403 (2016), with, e.g., United

States v. Sparks, 941 F. 3d 748 (CA5 2019), People v. Skin-

ner, 502 Mich. 89, 917 N. W. 2d 292 (2018), and State v.

Ramos, 187 Wash. 2d 420, 387 P. 3d 650 (2017).

II

According to Jones, a sentencer’s discretion to impose a

sentence less than life without parole does not alone satisfy

Miller. In Jones’s view, a sentencer who imposes a life-

without-parole sentence must also either (i) make a sepa-

rate factual finding of permanent incorrigibility, or (ii) at

least provide an on-the-record sentencing explanation with

an “implicit finding” of permanent incorrigibility. Tr. of

Oral Arg. 32; see id., at 6, 14.

As we will explain, the Court has already ruled that a

separate factual finding of permanent incorrigibility is not

required. In Montgomery, the Court unequivocally stated

that “Miller did not impose a formal factfinding require-

ment” and added that “a finding of fact regarding a child’s

incorrigibility . . . is not required.” 577 U. S., at 211. In a

case involving an individual who was under 18 when he or

she committed a homicide, a State’s discretionary sentenc-

ing system is both constitutionally necessary and constitu-

tionally sufficient.1

——————

1 Both Miller and Montgomery generated vigorous dissents. The dis-

sents in Miller stated that the Eighth Amendment does not prohibit

mandatory life-without-parole sentences and asserted that the Court’s

6 JONES v. MISSISSIPPI

Opinion of the Court

A

In 2004, the year that Jones murdered his grandfather,

about 16,000 individuals committed a homicide in the

United States. See Dept. of Justice, Federal Bureau of In-

vestigation, Crime in the United States 2004, Murder Of-

fenders by Age, Sex, and Race 17 (Table 2.5). About 850 of

the individuals who committed a homicide were known to

be under 18—meaning that, on average, more than two

homicides were committed every day by individuals under

18. Ibid.

The States authorize strict punishments for homicide, in-

cluding for homicides committed by individuals under 18.

But this Court has held that sentencing an offender who

was under 18 at the time of the crime raises special consti-

tutional considerations.

Ratified in 1791, the Eighth Amendment provides that

“cruel and unusual punishments” shall not be “inflicted.”

Ratified in 1868, the Fourteenth Amendment incorporates

the Cruel and Unusual Punishments Clause against the

States.

In a series of Eighth Amendment cases applying the

Cruel and Unusual Punishments Clause, this Court has

stated that youth matters in sentencing. In Roper v. Sim-

mons, 543 U. S. 551 (2005), the Court concluded that the

Eighth Amendment prohibits capital punishment for mur-

derers who were under 18 at the time of their crimes. And

in Graham v. Florida, 560 U. S. 48 (2010), the Court held

that the Eighth Amendment prohibits life without parole

for offenders who were under 18 and committed non-

homicide offenses. Importantly, however, Graham did not

prohibit life without parole for offenders who were under 18

——————

decision contravened this Court’s precedents. See 567 U. S., at 493–502

(ROBERTS, C. J., dissenting); id., at 502–509 (THOMAS, J., dissenting); id.,

at 509–515 (ALITO, J., dissenting). The lead dissent in Montgomery ar-

gued that Miller should not apply retroactively on collateral review. 577

U. S., at 224–227 (Scalia, J., dissenting).

Cite as: 593 U. S. ____ (2021) 7

Opinion of the Court

and committed homicide. The Graham Court stated:

“There is a line between homicide and other serious violent

offenses against the individual.” Id., at 69 (internal quota-

tion marks omitted).

And then in Miller in 2012, the Court allowed life-with-

out-parole sentences for defendants who committed homi-

cide when they were under 18, but only so long as the sen-

tence is not mandatory—that is, only so long as the

sentencer has discretion to “consider the mitigating quali-

ties of youth” and impose a lesser punishment. 567 U. S.,

at 476 (internal quotation marks omitted). Four years

later, Montgomery held that Miller applied retroactively to

cases on collateral review. 577 U. S., at 206, 212.

Jones argues that Miller requires more than just a dis-

cretionary sentencing procedure. According to Jones, the

sentencer must also make a separate factual finding of per-

manent incorrigibility before sentencing a murderer under

18 to life without parole.

The problem for Jones is that Miller and Montgomery

squarely rejected such a requirement. Miller mandated

“only that a sentencer follow a certain process—considering

an offender’s youth and attendant characteristics—before

imposing” a life-without-parole sentence. 567 U. S., at 483.

Montgomery then flatly stated that “Miller did not impose

a formal factfinding requirement” and that “a finding of fact

regarding a child’s incorrigibility . . . is not required.” 577

U. S., at 211.2

——————

2 The key paragraph from Montgomery is as follows:

“Louisiana suggests that Miller cannot have made a constitutional dis-

tinction between children whose crimes reflect transient immaturity and

those whose crimes reflect irreparable corruption because Miller did not

require trial courts to make a finding of fact regarding a child’s incorri-

gibility. That this finding is not required, however, speaks only to the

degree of procedure Miller mandated in order to implement its substan-

tive guarantee. When a new substantive rule of constitutional law is

established, this Court is careful to limit the scope of any attendant pro-

cedural requirement to avoid intruding more than necessary upon the

8 JONES v. MISSISSIPPI

Opinion of the Court

Notwithstanding that clear language in Miller and Mont-

gomery, Jones advances three distinct arguments for why

this Court should require a sentencer to make a finding of

permanent incorrigibility before sentencing a murderer un-

der 18 to life without parole.

First, Jones analogizes to cases where the Court has rec-

ognized certain eligibility criteria, such as sanity or a lack

of intellectual disability, that must be met before an of-

fender can be sentenced to death. See Ford v. Wainwright,

477 U. S. 399 (1986); Atkins v. Virginia, 536 U. S. 304

(2002). Jones argues that the Constitution similarly re-

quires a sentencer to find permanent incorrigibility before

sentencing a murderer under 18 to life without parole.

The State responds that permanent incorrigibility is not

an eligibility criterion akin to sanity or a lack of intellectual

disability. We agree with the State. For one thing, the

Court has recognized that it “is difficult even for expert psy-

chologists to differentiate between the juvenile offender

whose crime reflects unfortunate yet transient immaturity,

and the rare juvenile offender whose crime reflects irrepa-

rable corruption.” Roper, 543 U. S., at 573. In addition,

when the Court has established such an eligibility criterion,

the Court has considered whether “ ‘objective indicia of so-

ciety’s standards, as expressed in legislative enactments

and state practice,’ ” demonstrated a “national consensus”

in favor of the criterion. Graham, 560 U. S., at 61 (quoting

——————

States’ sovereign administration of their criminal justice systems. See

Ford v. Wainwright, 477 U. S. 399, 416–417 (1986) (“[W]e leave to the

State[s] the task of developing appropriate ways to enforce the constitu-

tional restriction upon [their] execution of sentences”). Fidelity to this

important principle of federalism, however, should not be construed to

demean the substantive character of the federal right at issue. That Mil-

ler did not impose a formal factfinding requirement does not leave States

free to sentence a child whose crime reflects transient immaturity to life

without parole. To the contrary, Miller established that this punishment

is disproportionate under the Eighth Amendment.” 577 U. S., at 211.

Cite as: 593 U. S. ____ (2021) 9

Opinion of the Court

Roper, 543 U. S., at 563). But Miller did not identify a sin-

gle State that, as of that time, made permanent incorrigi-

bility an eligibility criterion for life-without-parole sen-

tences imposed on murderers under 18.

Given those two points, it comes as no surprise that Mil-

ler declined to characterize permanent incorrigibility as

such an eligibility criterion. Rather, Miller repeatedly de-

scribed youth as a sentencing factor akin to a mitigating

circumstance. And Miller in turn required a sentencing

procedure similar to the procedure that this Court has re-

quired for the individualized consideration of mitigating

circumstances in capital cases such as Woodson v. North

Carolina, 428 U. S. 280, 303–305 (1976) (plurality opinion),

Lockett v. Ohio, 438 U. S. 586, 597–609 (1978) (plurality

opinion), and Eddings v. Oklahoma, 455 U. S. 104, 113–115

(1982). Those capital cases require sentencers to consider

relevant mitigating circumstances when deciding whether

to impose the death penalty. And those cases afford sen-

tencers wide discretion in determining “the weight to be

given relevant mitigating evidence.” Id., at 114–115. But

those cases do not require the sentencer to make any par-

ticular factual finding regarding those mitigating circum-

stances.

Repeatedly citing Woodson, Lockett, and Eddings, the

Miller Court stated that “a judge or jury must have the op-

portunity to consider” the defendant’s youth and must have

“discretion to impose a different punishment” than life

without parole. 567 U. S., at 489; id., at 465; see id., at 470,

476, 483. Stated otherwise, the Miller 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. In

that process, the sentencer will consider the murderer’s “di-

minished culpability and heightened capacity for change.”

Id., at 479. That sentencing procedure ensures that the

sentencer affords individualized “consideration” to, among

10 JONES v. MISSISSIPPI

Opinion of the Court

other things, the defendant’s “chronological age and its

hallmark features.” Id., at 477.

To be sure, Miller also cited Roper and Graham. 567

U. S., at 471–475. Roper barred capital punishment for of-

fenders under 18. And Graham barred life without parole

for offenders under 18 who committed non-homicide of-

fenses. But Miller did not cite those cases to require a find-

ing of permanent incorrigibility or to impose a categorical

bar against life without parole for murderers under 18. We

know that because Miller said so: “Our decision does not

categorically bar a penalty for a class of offenders or type of

crime—as, for example, we did in Roper or Graham.” 567

U. S., at 483. Instead, Miller cited Roper and Graham for a

simple proposition: Youth matters in sentencing. And be-

cause youth matters, Miller held that a sentencer must

have discretion to consider youth before imposing a life-

without-parole sentence, just as a capital sentencer must

have discretion to consider other mitigating factors before

imposing a death sentence.

In short, Miller followed the Court’s many death penalty

cases and required that a sentencer consider youth as a mit-

igating factor when deciding whether to impose a life-with-

out-parole sentence. Miller did not require the sentencer to

make a separate finding of permanent incorrigibility before

imposing such a sentence. And Montgomery did not purport

to add to Miller’s requirements.3

Second, Jones contends that the Montgomery Court must

nonetheless have assumed that a separate factual finding

——————

3 If permanent incorrigibility were a factual prerequisite to a life-with-

out-parole sentence, this Court’s Sixth Amendment precedents might re-

quire that a jury, not a judge, make such a finding. See Ring v. Arizona,

536 U. S. 584 (2002); Apprendi v. New Jersey, 530 U. S. 466 (2000). If we

were to rule for Jones here, the next wave of litigation would likely con-

cern the scope of the jury right. The fact that neither Miller nor Mont-

gomery even mentioned the Sixth Amendment is further reason to doubt

that those cases implicitly required a finding of permanent incorrigibility

by the sentencer.

Cite as: 593 U. S. ____ (2021) 11

Opinion of the Court

of permanent incorrigibility was necessary because Mont-

gomery deemed Miller a substantive holding for purposes of

applying Miller retroactively on collateral review. See

Teague v. Lane, 489 U. S. 288, 310–311 (1989) (plurality

opinion).

In advancing that argument, Jones relies on language in

Montgomery that described Miller as permitting life-with-

out-parole sentences only for “those whose crimes reflect

permanent incorrigibility,” rather than “transient immatu-

rity.” 577 U. S., at 209. In other words, because the Mont-

gomery Court deemed Miller to be a substantive holding,

and because Montgomery said that life without parole

would be reserved for the permanently incorrigible, Jones

argues that the Montgomery Court must have envisioned a

separate factual finding of permanent incorrigibility, not

just a discretionary sentencing procedure where youth

would be considered.

That is an incorrect interpretation of Miller and Mont-

gomery. We know as much because Montgomery said as

much. To reiterate, the Montgomery Court explicitly stated

that “a finding of fact regarding a child’s incorrigibility . . .

is not required.” 577 U. S., at 211.

To break it down further: Miller required a discretionary

sentencing procedure. The Court stated that a mandatory

life-without-parole sentence for an offender under 18 “poses

too great a risk of disproportionate punishment.” 567 U. S.,

at 479. Despite the procedural function of Miller’s rule,

Montgomery held that the Miller rule was substantive for

retroactivity purposes and therefore applied retroactively

on collateral review. 577 U. S., at 206, 212.4 But in making

——————

4 As the Court has stated in cases both before and after Montgomery,

the Court determines whether a rule is substantive or procedural for ret-

roactivity purposes “by considering the function of the rule” itself—not

“by asking whether the constitutional right underlying the new rule is

substantive or procedural.” Welch v. United States, 578 U. S. 120, 130–

131 (2016). For purposes of Teague v. Lane, 489 U. S. 288 (1989), a rule

12 JONES v. MISSISSIPPI

Opinion of the Court

the rule retroactive, the Montgomery Court unsurprisingly

declined to impose new requirements not already imposed

by Miller. As Montgomery itself explained, the Court

granted certiorari in that case not to consider whether the

rule announced in Miller should be expanded, but rather

simply to decide whether Miller’s “holding is retroactive to

juvenile offenders whose convictions and sentences were fi-

nal when Miller was decided.” 577 U. S., at 194. On the

question of what Miller required, Montgomery was clear: “A

hearing where youth and its attendant characteristics are

considered as sentencing factors is necessary to separate

those juveniles who may be sentenced to life without parole

from those who may not.” Id., at 210 (internal quotation

marks omitted). But a separate finding of permanent in-

corrigibility “is not required.” Id., at 211.

The key assumption of both Miller and Montgomery was

that discretionary sentencing allows the sentencer to con-

sider the defendant’s youth, and thereby helps ensure that

life-without-parole sentences are imposed only in cases

——————

is procedural if it regulates “ ‘only the manner of determining the defend-

ant’s culpability.’ ” Welch, 578 U. S., at 129 (quoting Schriro v. Summer-

lin, 542 U. S. 348, 353 (2004); emphasis deleted). A rule is substantive

and applies retroactively on collateral review, by contrast, if it “ ‘alters

the range of conduct or the class of persons that the law punishes.’ ”

Welch, 578 U. S., at 129 (quoting Summerlin, 542 U. S., at 353). As the

Court’s post-Montgomery decision in Welch already indicates, to the ex-

tent that Montgomery’s application of the Teague standard is in tension

with the Court’s retroactivity precedents that both pre-date and post-

date Montgomery, those retroactivity precedents—and not Montgom-

ery—must guide the determination of whether rules other than Miller

are substantive. See Welch, 578 U. S. 120; Summerlin, 542 U. S. 348;

Lambrix v. Singletary, 520 U. S. 518 (1997); Saffle v. Parks, 494 U. S.

484 (1990). To be clear, however, our decision today does not disturb

Montgomery’s holding that Miller applies retroactively on collateral re-

view. By now, most offenders who could seek collateral review as a result

of Montgomery have done so and, if eligible, have received new discre-

tionary sentences under Miller.

Cite as: 593 U. S. ____ (2021) 13

Opinion of the Court

where that sentence is appropriate in light of the defend-

ant’s age. If the Miller or Montgomery Court wanted to re-

quire sentencers to also make a factual finding of perma-

nent incorrigibility, the Court easily could have said so—

and surely would have said so. But the Court did not say

that, or anything like it. On the contrary, the Montgomery

Court declared just the opposite: that the sentencer need

not make such a separate factual finding of permanent in-

corrigibility.

In short, Jones’s Montgomery-based argument for requir-

ing a finding of permanent incorrigibility is unavailing be-

cause Montgomery explicitly stated that “Miller did not im-

pose a formal factfinding requirement” and that “a finding

of fact regarding a child’s incorrigibility . . . is not required.”

Montgomery, 577 U. S., at 211.

Third, Jones relatedly argues that Miller and Montgom-

ery sought to ensure that life without parole for murderers

under 18 would be relatively rare. According to Jones, a

separate factual finding of permanent incorrigibility is nec-

essary to achieve that goal.

But in Miller, the Court stated that a discretionary sen-

tencing procedure—where the sentencer can consider the

defendant’s youth and has discretion to impose a lesser sen-

tence than life without parole—would itself help make life-

without-parole sentences “relatively rar[e ]” for murderers

under 18. 567 U. S., at 484, n. 10.

Importantly, in concluding that a discretionary sentenc-

ing procedure would help make life-without-parole sen-

tences relatively rare, the Court relied on data, not specu-

lation. The Court pointed to statistics from 15 States that

used discretionary sentencing regimes to show that, “when

given the choice, sentencers impose life without parole on

children relatively rarely.” Ibid.5 In light of those statis-

tics, the Court reasoned that a discretionary sentencing

——————

5 See Cal. Penal Code Ann. §190.5 (West 2014); Ga. Code Ann. §16–5–

14 JONES v. MISSISSIPPI

Opinion of the Court

procedure would make life-without-parole sentences rela-

tively rare for juvenile offenders. But the Court did not sug-

gest that the States with discretionary sentencing regimes

also required a separate factual finding of permanent incor-

rigibility, or that such a finding was necessary to make life-

without-parole sentences for juvenile offenders relatively

rare. Therefore, to remain true to Miller’s reasoning, we

cannot now require a separate factual finding of permanent

incorrigibility. (Moreover, to reiterate, Montgomery explic-

itly stated that such a finding is not required.)

In sum, the Court has unequivocally stated that a sepa-

rate factual finding of permanent incorrigibility is not re-

quired before a sentencer imposes a life-without-parole sen-

tence on a murderer under 18. To borrow the apt words of

the Michigan Supreme Court: “Given that Montgomery ex-

pressly held that ‘Miller did not require trial courts to make

a finding of fact regarding a child’s incorrigibility,’ we like-

wise hold that Miller does not require trial courts to make

a finding of fact regarding a child’s incorrigibility.” People

v. Skinner, 502 Mich. 89, 122, 917 N. W. 2d 292, 309 (2018)

(citation omitted).

B

Even if a separate factual finding of permanent incorrigi-

bility is not required, Jones alternatively contends that a

sentencer must at least provide an on-the-record sentencing

explanation with an “implicit finding” of permanent incor-

rigibility. Tr. of Oral Arg. 32; see id., at 6, 14. Jones argues

——————

1 (2011), §17–10–31 (2013); Ind. Code §35–50–2–3 (2009); Me. Rev. Stat.

Ann., Tit. 17–A, §1251 (2006); Md. Crim. Law Code Ann. §§2–201 to 2–

203, 2–304 (2012); Nev. Rev. Stat. §200.030 (2012); N. M. Stat. Ann.

§§31–18–13, 31–18–14, 31–18–15.2 (2010); N. D. Cent. Code Ann.

§§12.1–32–01, 12.1–32–09.1 (2012); Okla. Stat., Tit. 21, §§13.1, 701.9

(2011); R. I. Gen. Laws §11–23–2 (2002); S. C. Code Ann. §16–3–20

(2015); Tenn. Code Ann. §§39–13–202, 39–13–204, 39–13–207 (2018);

Utah Code §§76–3–206, 76–3–207 (2012); W. Va. Code Ann. §62–3–15

(Lexis 2014); Wis. Stat. §939.50 (2005), §973.014 (2007).

Cite as: 593 U. S. ____ (2021) 15

Opinion of the Court

that such an explanation is necessary to ensure that the

sentencer actually considers the defendant’s youth. And

Jones further asserts that the sentencing judge did not pro-

vide such an explanation at his resentencing.

We reject Jones’s alternative argument because an on-

the-record sentencing explanation with an implicit finding

of permanent incorrigibility (i) is not necessary to ensure

that a sentencer considers a defendant’s youth, (ii) is not

required by or consistent with Miller, (iii) is not required by

or consistent with this Court’s analogous death penalty

precedents, and (iv) is not dictated by any consistent histor-

ical or contemporary sentencing practice in the States.

First, and most fundamentally, an on-the-record sentenc-

ing explanation is not necessary to ensure that a sentencer

considers a defendant’s youth. Jones’s argument to the con-

trary rests on the assumption that meaningful daylight ex-

ists between (i) a sentencer’s discretion to consider youth,

and (ii) the sentencer’s actual consideration of youth. But

if the sentencer has discretion to consider the defendant’s

youth, the sentencer necessarily will consider the defend-

ant’s youth, especially if defense counsel advances an argu-

ment based on the defendant’s youth. Faced with a con-

victed murderer who was under 18 at the time of the offense

and with defense arguments focused on the defendant’s

youth, it would be all but impossible for a sentencer to avoid

considering that mitigating factor.6

——————

6 If defense counsel fails to make the sentencer aware of the defend-

ant’s youth, it is theoretically conceivable (albeit still exceedingly un-

likely in the real world) that the sentencer might somehow not be aware

of the defendant’s youth. But in that highly unlikely scenario, the de-

fendant may have a potential ineffective-assistance-of-counsel claim, not

a Miller claim—just as defense counsel’s failure to raise relevant miti-

gating circumstances in a death penalty sentencing proceeding can con-

stitute a potential ineffective-assistance-of-counsel problem, not a Wood-

son/Lockett/Eddings violation. Cf. Wiggins v. Smith, 539 U. S. 510,

533–538 (2003) (counsel in capital case was ineffective for failing to in-

vestigate and present mitigating evidence at sentencing); Williams v.

16 JONES v. MISSISSIPPI

Opinion of the Court

It is true that one sentencer may weigh the defendant’s

youth differently than another sentencer or an appellate

court would, given the mix of all the facts and circum-

stances in a specific case. Some sentencers may decide that

a defendant’s youth supports a sentence less than life with-

out parole. Other sentencers presented with the same facts

might decide that life without parole remains appropriate

despite the defendant’s youth. But the key point remains

that, in a case involving a murderer under 18, a sentencer

cannot avoid considering the defendant’s youth if the sen-

tencer has discretion to consider that mitigating factor.7

Second, turning to precedent, an on-the-record sentenc-

ing explanation with an implicit finding of permanent in-

corrigibility is not required by or consistent with Miller.

The Court’s thorough opinion in Miller did not even hint at

requiring an on-the-record sentencing explanation with an

implicit finding of permanent incorrigibility. Miller high-

lighted 15 existing discretionary state sentencing systems

as examples of what was missing in the mandatory Ala-

bama regime before the Court in that case. 567 U. S., at

484, n. 10. As the Court explained, those discretionary sen-

tencing regimes ensured individualized consideration of

youth.

——————

Taylor, 529 U. S. 362, 395–398 (2000) (same).

7 This Court’s death penalty cases recognize a potential Eighth Amend-

ment claim if the sentencer expressly refuses as a matter of law to con-

sider relevant mitigating circumstances. See Eddings v. Oklahoma, 455

U. S. 104, 114–115 (1982). By analogy here, if a sentencer considering

life without parole for a murderer who was under 18 expressly refuses as

a matter of law to consider the defendant’s youth (as opposed to, for ex-

ample, deeming the defendant’s youth to be outweighed by other factors

or deeming the defendant’s youth to be an insufficient reason to support

a lesser sentence under the facts of the case), then the defendant might

be able to raise an Eighth Amendment claim under the Court’s prece-

dents. In any event, we need not explore that possibility because the

record here does not reflect that the sentencing judge refused as a matter

of law to consider Jones’s youth.

Cite as: 593 U. S. ____ (2021) 17

Opinion of the Court

But the Court did not suggest that those discretionary

sentencing regimes required some kind of sentencing expla-

nation. Again, if the Miller Court believed that a sentenc-

ing explanation with an implicit finding of permanent in-

corrigibility was constitutionally necessary, the Court

easily could have and surely would have said so. But Miller

did not say a word about requiring some kind of particular

sentencing explanation with an implicit finding of perma-

nent incorrigibility, as Montgomery later confirmed.

Third, and just as telling, an on-the-record sentencing ex-

planation with an implicit finding of permanent incorrigi-

bility is not required by or consistent with this Court’s

death penalty cases. Those cases demonstrate that an on-

the-record sentencing explanation is not necessary to en-

sure that the sentencer considers relevant mitigating cir-

cumstances.

In a series of capital cases over the past 45 years, the

Court has required the sentencer to consider mitigating cir-

cumstances when deciding whether to impose the death

penalty. See Woodson, 428 U. S., at 303–305 (plurality

opinion); Lockett, 438 U. S., at 597–609 (plurality opinion);

Eddings, 455 U. S., at 113–115; see also Tennard v. Dretke,

542 U. S. 274, 285 (2004); Penry v. Lynaugh, 492 U. S. 302,

318–319 (1989).

But the Court has never required an on-the-record sen-

tencing explanation or an implicit finding regarding those

mitigating circumstances. The reason is evident: Under the

discretionary death penalty sentencing procedure required

by cases such as Woodson, Lockett, and Eddings, the sen-

tencer will necessarily consider relevant mitigating circum-

stances. A sentencing explanation is not necessary to en-

sure that the sentencer in death penalty cases considers the

relevant mitigating circumstances. It follows that a sen-

tencing explanation is likewise not necessary to ensure that

the sentencer in juvenile life-without-parole cases considers

the defendant’s youth.

18 JONES v. MISSISSIPPI

Opinion of the Court

Because the Constitution does not require an on-the-

record explanation of mitigating circumstances by the sen-

tencer in death penalty cases, it would be incongruous to re-

quire an on-the-record explanation of the mitigating cir-

cumstance of youth by the sentencer in life-without-parole

cases. Jones offers no persuasive answer for that incongru-

ity in his argument.

Fourth, an on-the-record sentencing explanation with an

implicit finding of permanent incorrigibility is not dictated

by any historical or contemporary sentencing practice in the

States. To be sure, when a state judge imposes a sentence

of imprisonment, particularly a lengthy sentence, the judge

often will explain both the sentence and the judge’s evalua-

tion of any mitigating circumstances. But many States tra-

ditionally have not legally required (and some States still

do not legally require) on-the-record explanations by the

sentencer. See, e.g., A. Campbell, Law of Sentencing §10:5,

pp. 473–480 (3d ed. 2004) (hereinafter Campbell). Indeed,

in some States, the jury is the sentencer for certain kinds of

crimes, and juries typically do not supply sentencing expla-

nations. See generally King & Noble, Felony Jury Sentenc-

ing in Practice: A Three-State Study, 57 Vand. L. Rev. 885

(2004). Even when state law requires a sentencer to supply

reasons, many States do not impose a formulaic checklist of

topics or a magic-words requirement with respect to partic-

ular mitigating circumstances. And appellate courts do not

necessarily reverse merely because the sentencer could

have said more about mitigating circumstances. See Camp-

bell 477; 22A Cal. Jur. 3d, Crim. Law: Posttrial Proceedings

§408, p. 234 (2017) (“[U]nless the record affirmatively re-

flects otherwise, the trial court will be deemed to have con-

sidered the relevant criteria, such as mitigating circum-

stances, enumerated in the sentencing rules”).

Those state practices matter here because, as the Court

explained in Montgomery, when “a new substantive rule of

constitutional law is established, this Court is careful to

Cite as: 593 U. S. ____ (2021) 19

Opinion of the Court

limit the scope of any attendant procedural requirement to

avoid intruding more than necessary upon the States’ sov-

ereign administration of their criminal justice systems.”

577 U. S., at 211. So it is here. Because Montgomery directs

us to “avoid intruding more than necessary” upon the

States, ibid., and because a discretionary sentencing proce-

dure suffices to ensure individualized consideration of a de-

fendant’s youth, we should not now add still more proce-

dural requirements.

In sum, Jones’s alternative argument fails. The Court’s

precedents do not require an on-the-record sentencing ex-

planation with an implicit finding of permanent incorrigi-

bility.

III

The Court’s decision today carefully follows both Miller

and Montgomery. The dissent nonetheless claims that we

are somehow implicitly overruling those decisions. We re-

spectfully but firmly disagree: Today’s decision does not

overrule Miller or Montgomery. Miller held that a State

may not impose a mandatory life-without-parole sentence

on a murderer under 18. Today’s decision does not disturb

that holding. Montgomery later held that Miller applies ret-

roactively on collateral review. Today’s decision likewise

does not disturb that holding.

We simply have a good-faith disagreement with the dis-

sent over how to interpret Miller and Montgomery. That

kind of debate over how to interpret relevant precedents is

commonplace. Here, the dissent thinks that we are unduly

narrowing Miller and Montgomery. And we, by contrast,

think that the dissent would unduly broaden those deci-

sions. The dissent draws inferences about what, in the dis-

sent’s view, Miller and Montgomery “must have done” in or-

der for the decisions to “make any sense.” Post, at 12

(opinion of SOTOMAYOR, J.). We instead rely on what Miller

20 JONES v. MISSISSIPPI

Opinion of the Court

and Montgomery said—that is, their explicit language ad-

dressing the precise question before us and definitively re-

jecting any requirement of a finding of permanent incorri-

gibility.

Notwithstanding our disagreement about whether Miller

and Montgomery require a finding of permanent incorrigi-

bility, we and the dissent both recognize that Miller and

Montgomery have been consequential. Miller’s discretion-

ary sentencing procedure has resulted in numerous sen-

tences less than life without parole for defendants who oth-

erwise would have received mandatory life-without-parole

sentences. For example, in Miller resentencings in Missis-

sippi where Jones was convicted and sentenced, Miller has

reduced life-without-parole sentences for murderers under

18 by about 75 percent. See The Campaign for the Fair

Sentencing of Youth, Tipping Point: A Majority of States

Abandon Life-Without-Parole Sentences for Children 7

(2018). Those statistics bear out Miller’s prediction: A dis-

cretionary sentencing procedure has indeed helped make

life-without-parole sentences for offenders under 18 “rela-

tively rar[e ].” 567 U. S., at 484, n. 10.

Moreover, as a result of Montgomery, many homicide of-

fenders under 18 who received life-without-parole sen-

tences that were final before Miller have now obtained new

sentencing proceedings and have been sentenced to less

than life without parole.

Despite the significant changes wrought by Miller and

Montgomery, the dissent now wants more—an additional

constitutional requirement that the sentencer must make a

finding of permanent incorrigibility before sentencing a

murderer under 18 to life without parole. But to reiterate,

in Miller and Montgomery, the Court unequivocally stated

that such a finding is not required. And we will not now

rewrite those decisions to impose a requirement that the

Court twice rejected.

To be clear, our ruling on the legal issue presented here

Cite as: 593 U. S. ____ (2021) 21

Opinion of the Court

should not be construed as agreement or disagreement with

the sentence imposed against Jones. As this case again

demonstrates, any homicide, and particularly a homicide

committed by an individual under 18, is a horrific tragedy

for all involved and for all affected. Determining the proper

sentence in such a case raises profound questions of moral-

ity and social policy. The States, 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 circum-

stances of the offense, and the background of the offender.

Under our precedents, this Court’s more limited role is to

safeguard the limits imposed by the Cruel and Unusual

Punishments Clause of the Eighth Amendment. The

Court’s precedents require a discretionary sentencing pro-

cedure in a case of this kind. The resentencing in Jones’s

case complied with those precedents because the sentence

was not mandatory and the trial judge had discretion to im-

pose a lesser punishment in light of Jones’s youth. Moreo-

ver, this case does not properly present—and thus we do not

consider—any as-applied Eighth Amendment claim of dis-

proportionality regarding Jones’s sentence. See Brief for

United States as Amicus Curiae 23; Harmelin v. Michigan,

501 U. S. 957, 996–1009 (1991) (Kennedy, J., concurring in

part and concurring in judgment).

Importantly, like Miller and Montgomery, our holding to-

day does not preclude the States from imposing additional

sentencing limits in cases involving defendants under 18

convicted of murder. States may categorically prohibit life

without parole for all offenders under 18. Or States may

require sentencers to make extra factual findings before

sentencing an offender under 18 to life without parole. Or

States may direct sentencers to formally explain on the rec-

ord why a life-without-parole sentence is appropriate not-

22 JONES v. MISSISSIPPI

Opinion of the Court

withstanding the defendant’s youth. States may also estab-

lish rigorous proportionality or other substantive appellate

review of life-without-parole sentences. All of those options,

and others, remain available to the States. See generally J.

Sutton, 51 Imperfect Solutions (2018). Indeed, many States

have recently adopted one or more of those reforms. See,

e.g., Brief for Former West Virginia Delegate John Ellem

et al. as Amici Curiae in Mathena v. Malvo, O. T. 2019, No.

18–217, pp. 29–36. But the U. S. Constitution, as this

Court’s precedents have interpreted it, does not demand

those particular policy approaches.

Finally, our holding today is far from the last word on

whether Jones will receive relief from his sentence. Jones

contends that he has maintained a good record in prison

and that he is a different person now than he was when he

killed his grandfather. He articulates several moral and

policy arguments for why he should not be forced to spend

the rest of his life in prison. Our decision allows Jones to

present those arguments to the state officials authorized to

act on them, such as the state legislature, state courts, or

Governor. Those state avenues for sentencing relief remain

open to Jones, and they will remain open to him for years

to come.

* * *

We affirm the judgment of the Mississippi Court of Ap-

peals.

It is so ordered.

Cite as: 593 U. S. ____ (2021) 1

THOMAS

THOMAS , J., concurring

, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 18–1259

_________________

BRETT JONES, PETITIONER v. MISSISSIPPI

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF

MISSISSIPPI

[April 22, 2021]

JUSTICE THOMAS, concurring in the judgment.

The Court correctly holds that the Eighth Amendment

does not require a finding that a minor be permanently in-

corrigible as a prerequisite to a sentence of life without pa-

role. But in reaching that result, the majority adopts a

strained reading of Montgomery v. Louisiana, 577 U. S. 190

(2016), instead of outright admitting that it is irreconcilable

with Miller v. Alabama, 567 U. S. 460 (2012)—and the Con-

stitution. The better approach is to be patently clear that

Montgomery was a “demonstrably erroneous” decision wor-

thy of outright rejection. Gamble v. United States, 587 U. S.

___, ___ (2019) (THOMAS, J., concurring) (slip op., at 2).

I

Brett Jones, then 15, murdered his grandfather. At the

time of his trial and sentencing, Mississippi law automati-

cally punished his crime with life without parole. A few

years later, however, this Court held that youthful offend-

ers are constitutionally entitled to an “individualized sen-

tencing” process. Miller, 567 U. S., at 465. The Mississippi

Supreme Court thus ordered a new hearing at which the

judge dutifully considered the factors “relevant to [Jones’]

culpability” before again sentencing him to life without pa-

role. App. 149.

Jones appealed, citing yet another new decision—Mont-

gomery—in which this Court held that Miller’s rule was

2 JONES v. MISSISSIPPI

THOMAS, J., concurring in judgment

“substantive” and hence had to be retroactively applied to

cases on collateral review. 577 U. S., at 212. Without more,

the fact that Miller was now retroactive did not help Jones,

as he had already received the “individualized” hearing Mil-

ler required. 567 U. S., at 465. Therefore, Jones argued

that Montgomery further required the sentencing judge to

“make a specific ‘finding’ that he is irretrievably depraved,

irreparably corrupt, or permanently incorrigible.” 285 So.

3d 626, 632 (Miss. App. 2017). That theory was not neces-

sarily a stretch—as Montgomery explained that a life-with-

out-parole sentence “violates the Eighth Amendment for a

child whose crime reflects ‘ “unfortunate yet transient im-

maturity.” ’ ” 577 U. S., at 208. But the Mississippi Court

of Appeals disagreed, noting that Montgomery also “stated

that ‘Miller did not require trial courts to make a finding of

fact regarding a child’s incorrigibility’ [or] ‘impose a formal

factfinding requirement.’ ” 285 So. 3d, at 632.

II

Miller and Montgomery are from the same lineage of prec-

edent that refashions the Eighth Amendment to accommo-

date this Court’s views of juvenile justice.1 The similarities

end there, however, because the decisions cannot be recon-

ciled.

A

Miller announced a purely procedural rule: A State may

not automatically sentence a juvenile to life without parole,

but must instead provide an individualized sentencing pro-

cess. In reaching this conclusion, the Court explicitly cab-

——————

1 See, e.g., Roper v. Simmons, 543 U. S. 551, 556, 578 (2005) (prohibit-

ing the execution of a (barely) juvenile murderer who had bragged that

his age would allow him to “ ‘get away with it’ ”); Graham v. Florida, 560

U. S. 48, 74 (2010) (prohibiting life-without-parole sentences for juvenile

nonhomicide offenders).

Cite as: 593 U. S. ____ (2021) 3

THOMAS, J., concurring in judgment

ined its holding to cases in which the sentencer lacked “dis-

cretion to impose a different punishment.” Miller, 567

U. S., at 465; accord, e.g., id., at 479–480. Were there any

doubt that Miller focused only on the availability of individ-

ualized sentencing, the Court stressed that it was “not cat-

egorically bar[ring] a penalty for a class of offenders or type

of crime” but instead “mandat[ing] only that a sentencer fol-

low a certain process.” Id., at 483.

Miller’s descriptions of its procedural holding track with

the opinion’s mode of analysis. At one point, for example,

Miller discussed a line of precedents that condition the

death penalty on an individualized sentencing process. Id.,

at 475–476. Reasoning by analogy, the Court explained

that “mandatory penalties” for juveniles “preclude a sen-

tencer from taking account of an offender’s age and the

wealth of characteristics and circumstances attendant to

it.” Id., at 476. The Court also canvassed the jurisdictions

that had some form of mandatory life-without-parole, id., at

482–487, and nn. 9–10, 13–14, which would have been an

unusual detour if the opinion were concerned with anything

more than nondiscretionary punishments. And it declined

to “consider [the] alternative argument that the Eighth

Amendment requires a categorical bar on life without pa-

role for juveniles.” Id., at 479.

B

This narrow holding became inconvenient when the

Court decided to apply Miller retroactively to prisoners

whose sentences were already final. Under the approach

announced in Teague v. Lane, 489 U. S. 288 (1989), Miller

could have been retroactive only if it were a “watershed”

rule of criminal procedure or a “substantive” rule, Beard v.

Banks, 542 U. S. 406, 416–419, and n. 7 (2004).

Precedent foreclosed the first option. Miller “mandate[d]

only that a sentencer follow a certain process” as a prereq-

4 JONES v. MISSISSIPPI

THOMAS, J., concurring in judgment

uisite to life without parole, 567 U. S., at 483, but this di-

rective was hardly “watershed.” According to Teague, a pro-

cedural rule might have a claim to watershed status if it

were “ ‘ “implicit in the concept of ordered liberty.” ’ ” Banks,

542, U. S., at 417. So limited was this possibility that, in

“ ‘the years since Teague, we . . . rejected every claim that a

new rule satisfied the requirements for watershed status.’ ”

Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (KAVANAUGH,

J., concurring in part) (slip op., at 16). Or in more concrete

terms, we repeatedly suggested that a rule might be water-

shed only if it were akin to a defendant’s right to counsel as

articulated in Gideon v. Wainwright, 372 U. S. 335 (1963).

See Banks, 542 U. S., at 417–418. Whatever Miller might

have done, its narrow rule about juvenile sentencing “ ‘ha[d]

none of the primacy and centrality of the rule adopted in

Gideon.’ ” Banks, 542 U. S., at 420.

Rather than accept what was plainly the case—that Mil-

ler was procedural, not watershed, and thus not retroac-

tive—Montgomery proceeded to “rewrite” it into a substan-

tive rule. 577 U. S., at 224 (Scalia, J., dissenting). Despite

acknowledging that “Miller’s holding has a procedural com-

ponent,” the majority explained that this procedure was ac-

tually just a way “to implement a substantive guarantee.”

Id., at 209–210. This guarantee, according to Montgomery,

was that “all” juvenile offenders—except for a rare few

“whose crimes reflect permanent incorrigibility”—are cate-

gorically exempt from life without parole. Id., at 209.

That reimagined rule was substantive under our prece-

dents. Substantive rules include those that “ ‘prohibi[t ] a

certain category of punishment for a class of defendants be-

cause of their status or offense.’ ” Banks, 542 U. S., at 416.

For example—a rule that “life without parole is an exces-

sive sentence for children whose crimes reflect transient

immaturity.” Montgomery, 577 U. S., at 210. Montgomery

could not have been clearer that its rule transcended mere

procedure: “Even if a court considers a child’s age before

Cite as: 593 U. S. ____ (2021) 5

THOMAS, J., concurring in judgment

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.” ’ ” Id., at

208.

The problem with this new rule is that it had little to do

with Miller. Through a feat of legerdemain, Montgomery

began by acknowledging that Miller did “ ‘not categorically

bar a penalty for a class of offenders or type of crime,’ ” yet

just three sentences later concluded that “Miller did bar life

without parole . . . for all but the rarest of juvenile offend-

ers, those whose crimes reflect permanent incorrigibility.”

577 U. S., at 209. In a similar Janus-faced demonstration,

Montgomery reiterated Miller’s assurance that “trial courts

[need not] make a finding of fact regarding a child’s incorri-

gibility,” yet decided that “Miller drew a line between chil-

dren whose crimes reflect transient immaturity and those

rare children whose crimes reflect irreparable corruption.”

577 U. S., at 209–211.2 These statements cannot be recon-

ciled.

C

Just as the procedural rule of Miller created problems for

the majority in Montgomery, the substantive rule of Mont-

gomery creates problems for the majority in this case. If

——————

2 The Court’s language in this line of precedents is notable. When ad-

dressing juvenile murderers, this Court has stated that “ ‘children are

different’ ” and that courts must consider “a child’s lesser culpability.”

Montgomery, 577 U. S., at 207–208 (emphasis added). And yet, when

assessing the Court-created right of an individual of the same age to seek

an abortion, Members of this Court take pains to emphasize a “young

woman’s” right to choose. See, e.g., Lambert v. Wicklund, 520 U. S. 292,

301 (1997) (Stevens, J., joined by Ginsburg and BREYER, JJ., concurring

in judgment) (emphasis added); Planned Parenthood of Southeastern Pa.

v. Casey, 505 U. S. 833, 899 (1992) (joint opinion of O’Connor, Kennedy,

and Souter, JJ.); Ohio v. Akron Center for Reproductive Health, 497 U. S.

502, 532 (1990) (Blackmun, J., joined by Brennan and Marshall, JJ., dis-

senting). It is curious how the Court’s view of the maturity of minors

ebbs and flows depending on the issue.

6 JONES v. MISSISSIPPI

THOMAS, J., concurring in judgment

Montgomery is correct about the existence of a concrete

class of offenders who—as a matter of fundamental consti-

tutional law—are categorically exempt from a sentence of

life without parole, then there must be a determination as

to whether Jones falls within that protected class. Other-

wise, the “line” Miller ostensibly “drew . . . between children

whose crimes reflect transient immaturity and those rare

children whose crimes reflect irreparable corruption” is

more fanciful than real. Montgomery, 577 U. S., at 209.

Sure enough, this Court has often demanded factual find-

ings when it comes to other classes of criminals that this

Court has declared categorically exempt from certain pun-

ishments. See, e.g., Moore v. Texas, 586 U. S. ___, ___ (2019)

(per curiam) (slip op., at 10) (finding that an offender “ha[d]

shown [that] he is a person with intellectual disability”);

Madison v. Alabama, 586 U. S. ___, ___, ___–___ (2019) (slip

op., at 8, 17–18) (vacating and remanding “for renewed con-

sideration” of the record after a state court “found [a pris-

oner] mentally competent” and thus eligible for execution).

I doubt that a majority of this Court would tolerate the ex-

ecution of an offender who alleges insanity or intellectual

disability absent a satisfactory finding to the contrary.

In response, the majority suggests that insanity and in-

tellectual disability are legitimate “eligibility criteri[a]” be-

cause they are easy to evaluate, whereas “permanent incor-

rigibility . . . ‘is difficult even for expert psychologists to

[assess].’ ” Ante, at 8. This notion that the former catego-

ries are clear cut and predictable might come as news to the

States that have spent years chasing the ever-evolving def-

initions of mental incompetence promulgated by this Court

and its preferred experts. See, e.g., Moore, 586 U. S., at ___–

___ (slip op., at 2–10); Moore v. Texas, 581 U. S. ___, ___,

___–___ (2017) (slip op., at 2, 5–18) (courts must heed “the

force of the medical community’s consensus”); Hall v. Flor-

ida, 572 U. S. 701, 724 (2014). I trust, however, that future

decisions will contain simple and static rules.

Cite as: 593 U. S. ____ (2021) 7

THOMAS, J., concurring in judgment

D

Montgomery’s creation of a categorical exemption for cer-

tain offenders thus leaves us with two obvious options.

First, we could follow Montgomery’s logic and hold that the

“legality” of Jones’ sentence turns on whether his crime in

fact “reflect[s] permanent incorrigibility.” 577 U. S., at 205,

209. Or we could just acknowledge that Montgomery had

no basis in law or the Constitution.

The majority, however, selects a third way: Overrule

Montgomery in substance but not in name. The opinion

candidly admits both that Miller’s rule was “procedural”

and that Montgomery “ma[de] the rule retroactive.” Ante,

at 9, 11–12. The only way to reconcile these statements

with the bottom-line judgment in this case—that Jones is

not entitled to a determination whether he falls within a

constitutionally protected category of offenders—is to reject

Montgomery. And sure enough, the majority does just that,

albeit in a footnote. See ante, at 12, n. 4 (explaining that

Montgomery is “in tension” with many other decisions). But

because Montgomery’s freewheeling approach to the law is

ripe for abuse, the majority’s whisper is worth restating

above the line: Montgomery gave a good-for-one-ride ticket

to a class of juvenile offenders, and its errors will never be

repeated.

Firm condemnation of Montgomery is particularly appro-

priate because this Court is unable to fully repair the dam-

age it has caused. Although the majority closes the door to

courts following Montgomery in the future, in doing so it

tacitly admits that the horses have already left the barn:

“[M]ost offenders who could seek collateral review as a re-

sult of Montgomery have done so.” Ante, at 12, n. 4. Today’s

judgment thus offers cold comfort to the States that have

already faced the unenviable choice between “permitting ju-

venile homicide offenders to be considered for parole” and

relitigating murder sentences long after the fact. Montgom-

ery, 577 U. S., at 212; see also id., at 226–227 (Scalia, J.,

8 JONES v. MISSISSIPPI

THOMAS, J., concurring in judgment

dissenting). The least we can do is to fully own up to Mont-

gomery’s sins.

The majority also largely leaves untouched Montgomery’s

violation of the rule that the Constitution “ ‘ leaves the una-

voidably moral question of who “deserves” a particular

nonprohibited method of punishment to the judgment of the

legislatures that authorize the penalty. ’ ” Miller, 567 U. S.,

at 504 (THOMAS, J., dissenting). When the Eighth Amend-

ment was enacted, juveniles even younger than Jones could

be tried as adults, and mandatory death sentences were

available. See id., at 503, n. 2. “It is therefore implausible

that a [15]-year-old’s . . . prison sentence—of any length,

with or without parole—would have been viewed as cruel

and unusual.” Ibid. By failing to condemn Montgomery’s

expansion of Miller to an entire category of individuals, the

majority blesses yet another step “on the path to further ju-

dicial displacement of the legislative role in prescribing ap-

propriate punishment for crime.” 567 U. S., at 500

(ROBERTS, C. J., dissenting).

Finally, I would expressly reject the portion of Montgom-

ery that “purported to constitutionalize” the substantive ex-

ception “so that it would apply in [the petitioner’s] state

court proceeding.” Brief for Jonathan F. Mitchell et al. as

Amici Curiae in Edwards v. Vannoy, O. T. 2020, No. 19–

5807, pp. 5–6 (emphasis deleted). Despite this Court’s

longstanding recognition that “the Constitution neither

prohibits nor requires retrospective effect,” Linkletter v.

Walker, 381 U. S. 618, 629 (1965); cf. Teague, 489 U. S., at

302–310 (plurality opinion) (narrowing Linkletter even fur-

ther), the Montgomery Court demanded that the Louisiana

courts “recognize [Miller’s] retroactive effect.” 577 U. S., at

200, 205. That improper intrusion on state postconviction

review is also worth correcting.

* * *

Today’s majority labors mightily to avoid confronting the

Cite as: 593 U. S. ____ (2021) 9

THOMAS, J., concurring in judgment

tension between Miller and Montgomery. But though the

Court purports to leave Montgomery’s holding intact, it rec-

ognizes that Montgomery’s analysis is untenable and not to

be repeated. It would be simpler to reject Montgomery in

both name and substance.

Cite as: 593 U. S. ____ (2021) 1

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 18–1259

_________________

BRETT JONES, PETITIONER v. MISSISSIPPI

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF

MISSISSIPPI

[April 22, 2021]

JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and

JUSTICE KAGAN join, dissenting.

Today, the Court guts Miller v. Alabama, 567 U. S. 460

(2012), and Montgomery v. Louisiana, 577 U. S. 190 (2016).

Contrary to explicit holdings in both decisions, the majority

claims that the Eighth Amendment permits juvenile offend-

ers convicted of homicide to be sentenced to life without pa-

role (LWOP) as long as “the sentence is not mandatory and

the sentencer therefore has discretion to impose a lesser

punishment.” Ante, at 1. 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 “ ‘unfor-

tunate 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 ‘irrepa-

rable 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 sen-

tenced 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

2 JONES v. MISSISSIPPI

SOTOMAYOR, J., dissenting

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.” Ante, at 11. Such an abrupt break

from precedent demands “special justification.” Ramos v.

Louisiana, 590 U. S. ___, ___ (2020) (KAVANAUGH, J., con-

curring in part) (slip op., at 6) (internal quotation marks

omitted). The Court offers none. Instead, the Court at-

tempts to circumvent stare decisis principles by claiming

that “[t]he Court’s decision today carefully follows both Mil-

ler and Montgomery.” Ante, at 19. The Court is fooling no

one. Because I cannot countenance the Court’s abandon-

ment of Miller and Montgomery, I dissent.

I

Time and again, this Court has recognized that “children

are constitutionally different from adults for purposes of

sentencing.” Miller, 567 U. S., at 471. In Roper v. Sim-

mons, 543 U. S. 551 (2005), the Court held that the Eighth

Amendment forbids sentencing children to death because

“[c]apital punishment must be limited to those offenders . . .

whose extreme culpability makes them the most deserving

of execution.” Id., at 568 (internal quotation marks omit-

ted). Juvenile offenders “cannot with reliability be classi-

fied among the worst offenders” for several reasons. Id., at

569. First, “as any parent knows,” and as scientific and so-

ciological studies have confirmed, juveniles are less mature

Cite as: 593 U. S. ____ (2021) 3

SOTOMAYOR, J., dissenting

and responsible than adults, which “often result[s] in im-

petuous and ill-considered actions and decisions.” Ibid. (in-

ternal quotation marks omitted). Second, juveniles are

“more vulnerable or susceptible to negative influences and

outside pressures” and “have less control . . . over their own

environment.” Ibid. Finally, “the character of a juvenile”

is “more transitory” than that of an adult. Id., at 570. “[A]s

individuals mature, the impetuousness and recklessness

that may dominate in younger years can subside.” Ibid. (in-

ternal quotation marks omitted). Weighed against these

“signature qualities of youth,” the penological justifications

for the death penalty collapse. Id., at 570–571 (internal

quotation marks omitted).

Next, in Graham v. Florida, 560 U. S. 48 (2010), this

Court held that “[t]he Constitution prohibits the imposition

of a life without parole sentence on a juvenile offender who

did not commit homicide.” Id., at 82. “To justify life without

parole on the assumption that the juvenile offender forever

will be a danger to society requires the sentencer to make a

judgment that the juvenile is incorrigible.” Id., at 72. But

“incorrigibility is inconsistent with youth.” Id., at 73 (inter-

nal quotation marks omitted). Rather, “[m]aturity can lead

to that considered reflection which is the foundation for re-

morse, renewal, and rehabilitation.” Id., at 79. Graham

therefore insisted that sentencers not deprive juvenile non-

homicide offenders “of the opportunity to achieve ma-

turity . . . and self-recognition of human worth and poten-

tial” by sentencing them to die in prison. Ibid.

In Miller, this Court extended Graham’s logic to juveniles

convicted of homicide. Miller recognized that “none of what

[Graham] said about children . . . is crime-specific.” 567

U. S., at 473. Thus, taking Graham as its “foundation

stone,” Miller reiterated that “the distinctive attributes of

youth diminish the penological justifications for imposing

the harshest sentences on juvenile offenders, even when

they commit terrible crimes.” 567 U. S., at 470–471, n. 4,

4 JONES v. MISSISSIPPI

SOTOMAYOR, J., dissenting

472. Miller emphasized that LWOP is an “ ‘especially harsh

punishment for a juvenile.’ ” Id., at 475 (quoting Graham,

560 U. S., at 70). “Imprisoning an offender until he dies

alters the remainder of his life ‘by a forfeiture that is irrev-

ocable.’ ” 567 U. S., at 474–475 (quoting Graham, 560 U. S.,

at 69). It is the “denial of hope” itself. Id., at 70 (internal

quotation marks omitted).

Miller stopped short of prohibiting LWOP for all juveniles

convicted of homicide. Instead, it required sentencers to

distinguish “between the juvenile offender whose crime re-

flects unfortunate and transient immaturity, and the rare

juvenile offender whose crime reflects irreparable corrup-

tion.” 567 U. S., at 479–480 (internal quotation marks

omitted). Only those rare few in the latter category are con-

stitutionally eligible for LWOP under Miller. As such, be-

fore imposing a sentence of LWOP, a sentencer must actu-

ally “make that judgment,” and make it correctly. Id., at

480; see Adams v. Alabama, 578 U. S. 994, 999 (2016)

(SOTOMAYOR, J., concurring in decision to grant, vacate,

and remand).

Finally, in Montgomery, this Court confirmed the sub-

stantive nature of Miller’s prohibition on LWOP for most

juveniles. Montgomery held that Miller applies retroac-

tively in cases on collateral review because it “rendered life

without parole an unconstitutional penalty for . . . juvenile

offenders whose crimes reflect the transient immaturity of

youth.” 577 U. S., at 208. Under the retroactivity doctrine

in Teague v. Lane, 489 U. S. 288 (1989), a new constitu-

tional rule is considered “substantive,” and thus retroac-

tive, if it “alters the range of conduct or the class of persons

that the law punishes.” Montgomery, 577 U. S., at 206 (in-

ternal quotation marks omitted); see Teague, 489 U. S., at

311 (plurality opinion). A procedural rule, on the other

hand, “regulate[s] only the manner of determining the de-

fendant’s culpability.” Montgomery, 577 U. S., at 206 (em-

phasis deleted; internal quotation marks omitted). Such

Cite as: 593 U. S. ____ (2021) 5

SOTOMAYOR, J., dissenting

rules generally have not applied retroactively. Id., at 198.

Montgomery recognized that Miller “has a procedural

component,” in that “[a] hearing where ‘youth and its at-

tendant characteristics’ are considered as sentencing fac-

tors is necessary to separate those juveniles who may be

sentenced to life without parole from those who may not.”

577 U. S., at 209–210 (quoting Miller, 567 U. S., at 465).

The Court made clear, however, that “[t]he hearing does not

replace . . . Miller’s substantive holding that life without pa-

role is an excessive sentence for children whose crimes re-

flect transient immaturity.” 577 U. S., at 210. Rather, the

hearing “gives effect” to Miller’s prohibition on LWOP by

“enabl[ing] a prisoner to show that he falls within the cate-

gory of persons whom the law may no longer punish [with

LWOP].” 577 U. S., at 210. Thus, under Miller, juvenile

offenders “must be given the opportunity to show their

crime did not reflect irreparable corruption; and, if it did

not, their hope for some years of life outside prison walls

must be restored.” 577 U. S., at 213.

II

A

Today, the Court distorts Miller and Montgomery beyond

recognition. According to the majority, “a State’s discre-

tionary sentencing system is both constitutionally neces-

sary and constitutionally sufficient” for a State to sentence

a juvenile convicted of homicide to LWOP. Ante, at 5. “[S]o

long as the sentencer has discretion to ‘consider the miti-

gating qualities of youth’ and impose a lesser punishment,”

any juvenile convicted of homicide may be sentenced to

LWOP, even if his crime reflects transient immaturity.

Ante, at 7 (quoting Miller, 567 U. S., at 476). It does not

matter whether the sentencer meaningfully considers

youth: The Court assumes it will, see ante, at 15, but ulti-

mately, the mere existence of “a discretionary sentencing

procedure suffices,” ante, at 19.

6 JONES v. MISSISSIPPI

SOTOMAYOR, J., dissenting

The Court rests its conclusion on Montgomery’s modest

statement that “Miller did not impose a formal factfinding

requirement,” and so “a finding of fact regarding a child’s

incorrigibility . . . is not required.” 577 U. S., at 211. This

statement is the linchpin of the Court’s opinion. See ante,

at 2, 5, 7, 11–14. As the Court quietly admits in a footnote,

however, Montgomery went on to clarify that the fact “[t]hat

Miller did not impose a formal factfinding requirement does

not leave States free to sentence a child whose crime re-

flects transient immaturity to life without parole. To the

contrary, Miller established that this punishment is dispro-

portionate under the Eighth Amendment.” Montgomery,

577 U. S., at 211; see ante, at 7–8, n. 2 (quoting the same).

Montgomery was equally explicit elsewhere: “Miller . . .

did more than require a sentencer to consider a juvenile of-

fender’s youth before imposing life without parole.” 577

U. S., at 208. Sentencing discretion and “[a] hearing where

‘youth and its attendant characteristics’ are considered as

sentencing factors” are necessary to “giv[e] effect to Miller’s

substantive holding that life without parole is an excessive

sentence for children whose crimes reflect transient imma-

turity,” but they “d[o] not replace” it. Id., at 210. “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.” ’ ” Id., at 208. If a juvenile of-

fender’s crime “did not reflect irreparable corruption,” his

“hope for some years of life outside prison walls must be re-

stored.” Id., at 213. The Court today never addresses Mont-

gomery’s clear articulation of Miller’s essential holding.

The lone statement on which the Court fixates recognizes

only that Miller does not mandate a particular procedure

for considering a defendant’s youth or explaining the sen-

tencer’s decision. Miller certainly does not require sen-

tencers to invoke any magic words. Using this procedural

Cite as: 593 U. S. ____ (2021) 7

SOTOMAYOR, J., dissenting

flexibility, States have adopted different approaches to Mil-

ler’s inquiry. For instance, in some States, the prosecution

must prove that a juvenile offender is permanently incorri-

gible beyond a reasonable doubt; in others, the sentencing

judge must make a formal finding of irreparable corruption

on the record. See Brief for American Bar Association as

Amicus Curiae 14–15, 19–21. As the Court correctly notes,

Miller does not require any one of “those particular policy

approaches.” Ante, at 22.

What is necessary, however, is “that a sentencer decide

whether the juvenile offender before it is a child whose

crimes reflect transient immaturity or is one of those rare

children whose crimes reflect irreparable corruption.” Ta-

tum v. Arizona, 580 U. S. ___, ___ (2016) (SOTOMAYOR, J.,

concurring in decision to grant, vacate, and remand) (slip

op., at 3) (internal quotation marks omitted). That is all

petitioner Brett Jones seeks. See Tr. of Oral Arg. 6 (“On the

most fundamental level . . . what we need is a sentencing

judge who understands that permanent incorrigibility is

the dispositive rule and determines whether the defendant

fits within that rule. And there are any number of ways

that it could be done”); Brief for Petitioner 31 (challenging

the “failure to find in any form whether Brett is perma-

nently incorrigible”). As JUSTICE THOMAS recognizes,

“there must be a determination as to whether Jones falls

within th[e] protected class” of children who are ineligible

for LWOP. Ante, at 6 (opinion concurring in judgment).

Otherwise, the line between those who may be sentenced to

LWOP and those who may not “is more fanciful than real.”

Ibid.

The Court attempts to paper over its mischaracterization

of Miller and Montgomery in several ways. First, it claims

that Miller barred only “mandatory life-without-parole sen-

tences,” not “discretionary life-without-parole sentences.”

Ante, at 4. Miller did prohibit mandatory LWOP sentences

for juveniles. See 567 U. S., at 465. To say that Miller is

8 JONES v. MISSISSIPPI

SOTOMAYOR, J., dissenting

limited to mandatory LWOP sentences, however, is to ig-

nore half of its reasoning. Miller relied on “the confluence

of . . . two lines of precedent.” Id., at 470. In one line of

cases, the Court had interpreted the Eighth Amendment to

require that sentencers make individualized, discretionary

decisions when imposing the death penalty. For instance,

in Lockett v. Ohio, 438 U. S. 586 (1978), a plurality of the

Court concluded that “the sentencer, in all but the rarest

kind of capital case, [can]not be precluded from considering,

as a mitigating factor, any aspect of a defendant’s character

or record and any of the circumstances of the offense.” Id.,

at 604 (emphasis deleted; footnote omitted). Miller ex-

plained that mandatory LWOP sentences violate “individu-

alized sentencing cases” like Lockett because they “preclude

a sentencer from taking account of an offender’s age and the

wealth of characteristics and circumstances attendant to

it.” 567 U. S., at 476–477.

The Court now pretends that Miller’s reasoning ended

there. It insists that all Miller required was “a sentencing

procedure similar to the procedure that this Court has re-

quired for the individualized consideration of mitigating

circumstances in capital cases such as Woodson v. North

Carolina, 428 U. S. 280, 303–305 (1976) (plurality opinion),

Lockett v. Ohio, 438 U. S. 586, 597–609 (1978) (plurality

opinion), and Eddings v. Oklahoma, 455 U. S. 104, 113–115

(1982).” Ante, at 9. Reading that conclusion, one would ex-

pect Miller to have announced that it rested solely on those

cases.

Miller was clear, however, that it drew primarily from a

different line of precedent headed by Roper and Graham,

which “adopted categorical bans on sentencing practices

based on mismatches between the culpability of a class of

offenders and the severity of a penalty,” regardless of the

procedures used to impose the sentences. Miller, 567 U. S.,

at 470. These cases set forth a substantive proportionality

principle that the individualized-sentencing cases did not:

Cite as: 593 U. S. ____ (2021) 9

SOTOMAYOR, J., dissenting

“[L]ife-without-parole sentences, like capital punishment,

may violate the Eighth Amendment when imposed on chil-

dren” because “the characteristics of youth, and the way

they weaken rationales for punishment, can render a life-

without-parole sentence disproportionate.” Id., at 473.

Mandatory and discretionary sentencing schemes alike

can produce disproportionate sentences. Regardless of how

it is imposed, a juvenile death sentence is unconstitutional

under Roper, and a juvenile sentence of LWOP for a non-

homicide offense is unconstitutional under Graham. See

Roper, 543 U. S., at 575 (holding “that the death penalty

cannot be imposed upon juvenile offenders”); Graham, 560

U. S., at 74 (drawing a “clear line” against “life without pa-

role for juvenile nonhomicide offenders”). So, too, with Mil-

ler: No set of discretionary sentencing procedures can ren-

der a sentence of LWOP constitutional for a juvenile whose

crime reflects “unfortunate yet transient immaturity.” 567

U. S., at 479 (internal quotation marks omitted).

The Court claims that Miller relied on Roper and Graham

“for a simple proposition: Youth matters in sentencing.”

Ante, at 10. That is true, but the Court conflates two ways

in which youth matters. When Miller was decided, the

Court’s individualized-sentencing cases had already firmly

established “that a defendant’s youth is a relevant mitigat-

ing circumstance that must be within the effective reach of

a capital sentencing jury.” Johnson v. Texas, 509 U. S. 350,

367 (1993); see also Eddings v. Oklahoma, 455 U. S. 104,

116 (1982) (requiring that sentencers consider “the chrono-

logical age of a minor” and “the background and mental and

emotional development of a youthful defendant”). The Mil-

ler Court thus did not need to cite Roper and Graham as a

separate “stran[d] of precedent,” Miller, 567 U. S., at 470,

for that long-recognized proposition. It drew on Roper and

Graham instead to set a substantive limit on the imposition

of LWOP on juvenile offenders, even when they commit

homicide. The Court today reverses course and concludes

10 JONES v. MISSISSIPPI

SOTOMAYOR, J., dissenting

that youth does not matter in this way.

Next, the Court exaggerates the meaning of two state-

ments from Miller, arguing that it “mandated ‘only that a

sentencer follow a certain process,’ ” rather than “ ‘categori-

cally bar[ring] a penalty for a class of offenders or type of

crime[,] as, for example, we did in Roper or Graham.’ ” Ante,

at 7, 10 (quoting Miller, 567 U. S., at 483). Again, Mont-

gomery already rejected this misinterpretation: “Miller, it

is true, did not bar a punishment for all juvenile offenders,”

or all juvenile offenders convicted of certain crimes, “as the

Court did in Roper or Graham.” 577 U. S., at 209. “Miller

did bar life without parole, however, for all but the rarest of

juvenile offenders, those whose crimes reflect permanent

incorrigibility.” Ibid. To “separate those juveniles who may

be sentenced to life without parole from those who may

not,” as Miller requires, sentencers must follow a certain

process: conducting a “hearing where ‘youth and its at-

tendant characteristics’ are considered.” 577 U. S., at 210.

That process is not an end in itself. Rather, it “gives effect

to Miller’s substantive holding that life without parole is an

excessive sentence for children whose crimes reflect transi-

ent immaturity.” Ibid.

Finally, the Court argues that Miller offered nothing

more than a prediction that “a discretionary sentencing pro-

cedure would help make life-without-parole sentences rela-

tively rare.” Ante, at 13. Miller’s substantive rule was not

a prediction. Rather, Miller held that juvenile LWOP sen-

tences must be rare because it is only “the rare juvenile of-

fender whose crime reflects irreparable corruption.” 567

U. S., at 479–480 (internal quotation marks omitted).

Simply put, there are very few juveniles for whom the “ ‘sig-

nature qualities’ ” of youth do not undermine the penologi-

cal justifications for LWOP. Id., at 476. Youth is “a time of

immaturity, irresponsibility, impetuousness, and reckless-

ness,” and, almost invariably, those “qualities are all tran-

Cite as: 593 U. S. ____ (2021) 11

SOTOMAYOR, J., dissenting

sient.” Ibid. (internal quotation marks and brackets omit-

ted).

In any event, the data since Miller prove that sentencing

discretion alone will not make LWOP a rare sentence for

juvenile offenders. Even after Montgomery, Mississippi

courts require only that a sentencer consider youth-related

factors “in a non-arbitrary fashion” before imposing a sen-

tence of LWOP. See, e.g., Miller v. State, ___ So. 3d ___, ___,

2020 WL 2892820, *5 (Miss. App., June 2, 2020). Unbound

by Miller’s essential holding, more than a quarter of Missis-

sippi’s resentencings have resulted in the reimposition of

LWOP. See Brief for Juvenile Law Center et al. as Amici

Curiae 20.1

Pennsylvania, in contrast, has recognized that “Miller re-

quires far more than mere consideration of an offender’s

age,” as “a life-without-parole sentence imposed on a juve-

nile is illegal” unless “the defendant will forever be incorri-

gible, without any hope for rehabilitation.” Commonwealth

v. Batts, 640 Pa. 401, 440, 444, 163 A. 3d 410, 433, 435

(2017). Pennsylvania has adopted a number of procedures

to guide sentencing courts in applying Miller’s rule, includ-

ing a presumption against juvenile LWOP that the State

must rebut through proof beyond a reasonable doubt. 640

Pa., at 476, 163 A. 3d, at 454–455. Fewer than 2 percent of

resentencings in Pennsylvania have resulted in the reimpo-

sition of LWOP. See The Campaign for the Fair Sentencing

of Youth, Tipping Point: A Majority of States Abandon Life-

Without-Parole Sentences for Children 7 (2018) (Tipping

——————

1 Elsewhere, the numbers are even more alarming. Like Mississippi

courts, Louisiana courts have concluded that “Miller requires the sen-

tencing court to consider an offender’s youth and attendant characteris-

tics as mitigating circumstances.” State v. Keith, 51,389, p. 3 (La. App.

2 Cir. 6/21/17), 223 So. 3d 767, 770. As of 2020, Louisiana has imposed

LWOP on an astonishing 57 percent of eligible juvenile offenders since

Miller was decided. See Louisiana Center for Children’s Rights, Louisi-

ana’s Compliance with Miller v. Alabama 1 (2020).

12 JONES v. MISSISSIPPI

SOTOMAYOR, J., dissenting

Point).

These States’ experiences show that juvenile LWOP sen-

tences will not be rare simply by virtue of sentencing dis-

cretion. Sentencers will not “necessarily . . . consider the

defendant’s youth,” ante, at 15, and they certainly will not

necessarily conduct Miller’s essential inquiry. If sentencing

discretion is all that is required, far too many juvenile of-

fenders will be sentenced to die in prison.2

B

The Court’s misreading of Miller and Montgomery is egre-

gious enough on its own. The Court twists precedent even

further, however, by distorting Miller in a way that cannot

be reconciled with Montgomery’s holding that Miller applies

retroactively under the Teague doctrine. See ante, at 7

(opinion of THOMAS, J.). That doctrine divides new rules of

constitutional law into two categories: substantive and pro-

cedural. As noted above, Montgomery held that Miller ap-

plies retroactively based solely on “Teague’s first exception

for substantive rules.” 577 U. S., at 200. For Montgomery

to make any sense, then, Miller must have done more than

mandate a certain procedure. Rather, it “eliminated a

State’s power to . . . impose a given punishment.” 577 U. S.,

——————

2 The harm from these sentences will not fall equally. The racial dis-

parities in juvenile LWOP sentencing are stark: 70 percent of all youths

sentenced to LWOP are children of color. See Tipping Point 10; see also

Brief for Juvenile Law Center et al. as Amici Curiae 21 (reporting that

“[i]n the years before Graham and Miller, courts sentenced Black juve-

nile offenders to life imprisonment without parole ten times more often

than white offenders”); Mills, Dorn, & Hritz, Juvenile Life Without Pa-

role in Law and Practice: Chronicling the Rapid Change Underway, 65

Am. U. L. Rev. 535, 579–580 (2016) (“Non-whites are overrepresented

among the JLWOP population in ways perhaps unseen in any other as-

pect of our criminal justice system”). The trend has worsened since Mil-

ler v. Alabama, 567 U. S. 460 (2012): 72 percent of children sentenced to

LWOP after Miller were Black, compared to 61 percent of children sen-

tenced before Miller. Tipping Point 10.

Cite as: 593 U. S. ____ (2021) 13

SOTOMAYOR, J., dissenting

at 201.3

Today, however, the Court transforms Miller into a deci-

sion requiring only a “discretionary sentencing procedure.”

Ante, at 19. At the same time, the Court insists that it “does

not disturb” Montgomery’s holding “that Miller applies ret-

roactively on collateral review.” Ante, at 19. In other

words, the Court rewrites Miller into a procedural rule and,

paradoxically, maintains that Miller was nevertheless “sub-

stantive for retroactivity purposes.” Ante, at 11.

That explanation undoes Teague’s distinction between

substantive and procedural rules. If a rule that requires

only a sentencing procedure is substantive for retroactivity

purposes, then this Court has improperly classified numer-

ous sentencing rules as procedural. To take one example,

in Mills v. Maryland, 486 U. S. 367 (1988), this Court inval-

idated a capital sentencing procedure requiring jurors to

disregard mitigating factors that were not found unani-

mously. That holding was procedural because it altered

only “the range of permissible methods for determining

whether a defendant’s conduct is punishable by death.”

Schriro v. Summerlin, 542 U. S. 348, 353 (2004). Under the

Court’s logic today, however, the rule in Mills and other

rules of sentencing procedure should have applied retroac-

tively, even though the Court has held that they do not. See

——————

3 JUSTICE THOMAS agrees that Montgomery mandates such a reading of

Miller, but he claims that Miller itself did not establish a substantive

rule. See ante, at 2–5. That is incorrect. As discussed, Miller prohibited

mandatory LWOP sentences not only because mandatory sentencing pre-

cludes individualized consideration of a juvenile’s youth, but also be-

cause “such a scheme poses too great a risk of disproportionate punish-

ment.” 567 U. S., at 479. Applying the principles of proportionality set

forth in Roper and Graham, Miller “rendered life without parole an un-

constitutional penalty for a class of defendants because of their status[,]

that is, juvenile offenders whose crimes reflect the transient immaturity

of youth.” Montgomery, 577 U. S., at 208 (internal quotation marks omit-

ted). As a result, “Miller is no less substantive than are Roper and Gra-

ham.” Id., at 209.

14 JONES v. MISSISSIPPI

SOTOMAYOR, J., dissenting

Beard v. Banks, 542 U. S. 406, 416–417 (2004) (holding that

Mills announced a procedural rule); Schriro, 542 U. S., at

354 (treating as procedural the rule set forth in Ring v. Ar-

izona, 536 U. S. 584 (2002), that a jury, rather than a judge,

must find aggravating circumstances necessary for the im-

position of the death penalty). If future litigants make such

arguments, it will be because the Court’s contortion of Mil-

ler and Montgomery paves the way for them to do so.

C

Rather than read Miller and Montgomery fairly, the

Court reprises Justice Scalia’s dissenting view in Montgom-

ery that Miller requires only a “youth-protective procedure.”

577 U. S., at 225 (emphasis deleted). Justice Scalia’s view

did not prevail, however. Montgomery’s interpretation of

Miller is binding precedent, just as Miller itself is.

Any doubts the Court may harbor about the merits of

those decisions do not justify overruling them. See June

Medical Services L. L. C. v. Russo, 591 U. S. ___, ___ (2020)

(ROBERTS, C. J., concurring in judgment) (slip op., at 3)

(“[F]or precedent to mean anything, the doctrine must give

way only to a rationale that goes beyond whether the case

was decided correctly”). As this Court has consistently re-

iterated, “a departure from precedent demands special jus-

tification.” Gamble v. United States, 587 U. S. ___, ___

(2019) (slip op., at 11) (internal quotation marks omitted);

accord, Kisor v. Wilkie, 588 U. S. ___, ___–___ (2019) (slip

op., at 25–26); Kimble v. Marvel Entertainment, LLC, 576

U. S. 446, 455–456 (2015).

The Court offers no such justification today. Nor could it.

The traditional stare decisis factors include the quality of

the precedent’s reasoning, its consistency with other deci-

sions, legal and factual developments since the precedent

was decided, and its workability. See Ramos, 590 U. S., at

___ (opinion of KAVANAUGH, J.) (slip op., at 7). None sup-

ports overturning Miller or Montgomery. As explained

Cite as: 593 U. S. ____ (2021) 15

SOTOMAYOR, J., dissenting

above, those decisions are firmly rooted in two lines of prec-

edent and fundamental principles of proportionality.4 Sub-

sequent legal and factual developments have reinforced

their reasoning. Fifteen state courts of last resort, for in-

stance, have recognized that Miller announced a substan-

tive rule barring LWOP for any juvenile whose crime does

not reflect permanent incorrigibility. See Reply Brief 18,

n. 6. Twenty States and the District of Columbia have

changed their policies to prohibit LWOP sentences for all

juvenile offenders, including a number of States that “had

discretionary sentencing schemes or a mixture of both man-

datory and discretionary sentences.” Brief for Former West

Virginia Delegate John Ellem et al. as Amici Curiae in

Mathena v. Malvo, O. T. 2019, No. 18–217, pp. 34–35; S.

256, 133d Gen. Assembly (Ohio 2020); Va. Code Ann. §53.1–

165.1 (2020). Finally, Miller and Montgomery have not

proved unworkable: To the contrary, they have spurred re-

forms across the country while “avoid[ing] intruding more

than necessary upon the States’ sovereign administration

of their criminal justice systems.” Montgomery, 577 U. S.,

at 211. Requiring sentencers to make an explicit or implicit

determination of permanent incorrigibility before sentenc-

ing a juvenile offender to LWOP imposes no costs that jus-

tify overturning precedent.

Instead of addressing these factors, the Court simply re-

writes Miller and Montgomery to say what the Court now

wishes they had said, and then denies that it has done any

such thing. See ante, at 19. The Court knows what it is

——————

4 JUSTICE THOMAS claims that Miller and Montgomery “refashio[n] the

Eighth Amendment to accommodate this Court’s views of juvenile jus-

tice.” Ante, at 2; see ante, at 8. In so doing, JUSTICE THOMAS “seek[s] to

relitigate old Eighth Amendment battles” based on “arguments this

Court has previously (and often) rejected.” Miller, 567 U. S., at 470–471,

n. 4; see Graham v. Florida, 560 U. S. 48, 58 (2010) (“To determine

whether a punishment is cruel and unusual, courts must look beyond

historical conceptions to the evolving standards of decency that mark the

progress of a maturing society” (internal quotation marks omitted)).

16 JONES v. MISSISSIPPI

SOTOMAYOR, J., dissenting

doing. It admits as much. Rather than try to harmonize its

decision today with Montgomery’s retroactivity holding, it

confesses in a footnote that its rewriting of precedent is in-

consistent with Montgomery and basic retroactivity princi-

ples. See ante, at 11–12, n. 4. The Court’s solution? It

urges lower courts to simply ignore Montgomery going for-

ward. Ante, at 11–12, n. 4 (“[T]he Court’s retroactivity prec-

edents that both pre-date and post-date Montgomery . . .

and not Montgomery . . . must guide the determination of

whether rules other than Miller are substantive”).5 Instead

of “disturb[ing]” Montgomery’s retroactivity holding, ante,

at 12, n. 4, the Court attempts to bury it.

How low this Court’s respect for stare decisis has sunk.

Not long ago, that doctrine was recognized as a pillar of the

“ ‘rule of law,’ ” critical to “keep the scale of justice even and

steady, and not liable to waver with every new judge’s opin-

ion.” Ramos, 590 U. S., at ___–___ (opinion of KAVANAUGH,

J.) (slip op., at 1–2) (internal quotation marks omitted).

Given these weighty interests, the Court “usually re-

quire[d] that a party ask for overruling, or at least ob-

tain[ed] briefing on the overruling question,” and then

“carefully evaluate[d] the traditional stare decisis factors.”

Barr v. American Assn. of Political Consultants, Inc., 591

U. S. ___, ___, n. 5 (2020) (slip op., at 9, n. 5). Now, it seems,

the Court is willing to overrule precedent without even ac-

knowledging it is doing so, much less providing any special

justification. It is hard to see how that approach is “founded

in the law rather than in the proclivities of individuals.”

Ramos, 590 U. S., at ___ (opinion of KAVANAUGH, J.) (slip

op., at 2) (internal quotation marks omitted).

For present purposes, sentencers should hold this Court

——————

5 Of course, as already discussed, the Court is perfectly content to rely

on Montgomery for its statement that a finding of fact regarding perma-

nent incorrigibility is not required. That isolated piece of Montgomery,

apparently, still carries the full weight of precedent. Anything more in-

convenient, however, the Court today discards.

Cite as: 593 U. S. ____ (2021) 17

SOTOMAYOR, J., dissenting

to its word: Miller and Montgomery are still good law.6 See

ante, at 19 (“Today’s decision does not overrule Miller or

Montgomery”). Sentencers are thus bound to continue ap-

plying those decisions faithfully. Thankfully, many States

have already implemented robust procedures to give effect

to Miller and Montgomery. In other States, the responsibil-

ity falls squarely on individual sentencers to use their dis-

cretion to “separate those juveniles who may be sentenced

to life without parole from those who may not.” Montgom-

ery, 577 U. S., at 210. Failing to do so violates the Eighth

Amendment.

III

Brett Jones, like all juvenile offenders facing a sentence

of LWOP, deserves an answer to Miller’s essential question:

whether his crime demonstrates that he is permanently in-

corrigible. Ordinarily, an appellate court should not pass

on that question in the first instance. But the Court today

guarantees that the state sentencing court will never have

to give Jones an answer. It thus bears acknowledging that,

based on the evidence presented below, it is hard to see how

Jones is one of the rare juvenile offenders “whose crime re-

flects irreparable corruption.” Miller, 567 U. S., at 479–480

(internal quotation marks omitted). In fact, many aspects

of Jones’ crime seem to epitomize “unfortunate yet transi-

ent immaturity.” Id., at 479 (internal quotation marks

omitted); see 2018 WL 10700848, *11 (Miss., Nov. 27, 2018)

——————

6 The Court leaves open the possibility of an “as-applied Eighth

Amendment claim of disproportionality.” Ante, at 21 (citing Harmelin v.

Michigan, 501 U. S 957, 996–1009 (1991) (Kennedy, J., concurring in

part and concurring in judgment)). In the context of a juvenile offender,

such a claim should be controlled by this Court’s holding that sentencing

“a child whose crime reflects transient immaturity to life without parole

. . . is disproportionate under the Eighth Amendment.” Montgomery, 577

U. S., at 211; see Miller, 567 U. S., at 481 (“Harmelin had nothing to do

with children and did not purport to apply its holding to the sentencing

of juvenile offenders”).

18 JONES v. MISSISSIPPI

SOTOMAYOR, J., dissenting

(Kitchens, P. J., dissenting) (“Jones’s actions reflect [the

hallmark] features [of youth] at every turn”).7

Jones killed his grandfather just 23 days after Jones’

15th birthday. App. 71. In his short life before the murder,

Jones was the victim of violence and neglect that he was too

young to escape. Jones’ biological father was an alcoholic

who physically abused Jones’ mother, knocking out her

teeth and breaking her nose on several occasions. Id., at

71–72. The two separated when Jones was two years old.

Id., at 71. Jones’ mother then married Jones’ stepfather,

who was also abusive, especially toward Jones. He beat

Jones with belts, switches, and a paddle labeled “The Pun-

isher.” Id., at 39–40, 78, 81. He rarely called Jones or his

brother by their names, preferring cruel epithets. Id., at 77,

81, 101 (“[H]is favorite thing to call them was little moth-

erf***ers”). According to Jones’ mother, Jones’ stepfather

“hated Brett more because Brett reminded him of [Jones’

biological father].” Id., at 78. According to Jones’ grand-

mother, he was simply “easier to hurt and beat.” Id., at 39.

In 2004, after Jones came home late one day, Jones’ step-

father flew into a rage and grabbed Jones by the neck, pre-

paring to beat him with a belt. Id., at 128–129. This time,

however, Jones fought back and told his stepfather, “No,

——————

7 Even as it disclaims any responsibility for evaluating permanent in-

corrigibility, the Court emphasizes the details of Jones’ crime and alludes

to other homicides committed by juveniles throughout the country. See

ante, at 2–3, 6. The gravity of these violent acts was not lost on the Court

in Miller, which set forth its substantive rule specifically for the subset

of juvenile offenders who commit homicide. See also Roper, 543 U. S., at

572 (“[W]e cannot deny or overlook the brutal crimes too many juvenile

offenders have committed”). Notwithstanding the unique “moral culpa-

bility and consequential harm” of homicide, Miller reasoned that Gra-

ham’s insights about children “are evident in the same way, and to the

same degree.” 567 U. S., at 473. The point of Miller and Montgomery is

that juveniles, even those who commit murder, have the capacity to grow

and mature, to rehabilitate. The Eighth Amendment requires that sen-

tencers (and reviewing courts) not presume that most juveniles will for-

ever remain the “murderers,” ante, at 10, they once were.

Cite as: 593 U. S. ____ (2021) 19

SOTOMAYOR, J., dissenting

you’re not going to hit me ever again.” Id., at 80. Jones

took a swing at his stepfather and split open his ear. Ibid.

The police were called, and Jones was arrested.8 Ibid.

Jones’ stepfather then threatened to kick out Jones’ mother

and brother if Jones did not move out. Id., at 81. As a re-

sult, Jones’ grandparents picked him up less than two

months before the murder and brought him to Mississippi.

Id., at 47.

When he moved, Jones lost access to medications that he

had been taking for mental health issues. Id., at 38–39.9

When he was 11 or 12 years old, Jones began cutting him-

self so that he “would not feel the panic and the hurt that

was inside of [his] head.” Id., at 75. He later experienced

hallucinations and was prescribed antidepressant medica-

tions. Id., at 92, 124. These medications were supposed to

be tapered off gradually. Id., at 38–39. When Jones left for

Mississippi, however, they were abruptly cut off.

The murder was precipitated by a dispute over Jones’

girlfriend. After Jones moved, his girlfriend ran away from

her home in Florida to stay at Jones’ grandparents’ home in

secret. 938 So. 2d 312, 313 (Miss. App. 2006). On the day

of the murder, Jones’ grandfather, Bertis Jones, discovered

that Jones’ girlfriend had been staying in their home. Ibid.

——————

8 This was Jones’ only prior contact with the juvenile justice system.

See Brief for Petitioner 35.

9 Jones’ mother has also been diagnosed with a number of conditions,

including posttraumatic stress disorder, bipolar disorder, and manic de-

pression. App. 74. As a result, throughout Jones’ life, she experienced

panic attacks and emotional breakdowns. Id., at 74–75. As a child, Jones

witnessed his mother cutting herself. Id., at 122–123. The types of ad-

verse childhood experiences that Jones endured, including physical

abuse, domestic violence, and mental illness in family members, are

strong predictors of negative outcomes for children, including violence.

J. Garbarino, Miller’s Children 10–12 (2018); see id., at 12 (“[E]levated

adversity scores are as common among killers as they are rare in the

general adolescent population”).

20 JONES v. MISSISSIPPI

SOTOMAYOR, J., dissenting

He ordered her out. Ibid. Later that day, Jones was mak-

ing a sandwich in the kitchen using a steak knife. Id., at

314. Jones said something disrespectful to his grandfather,

who started yelling. Ibid. The two began pushing each

other, and Jones’ grandfather tried to hit him. Ibid. Jones

stabbed his grandfather with the steak knife. Ibid. Jones’

grandfather came at Jones again, and the fight continued.

Ibid. Jones ultimately stabbed his grandfather eight times,

grabbing a second knife when the first one broke. 2018 WL

10700848, *7 (Kitchens, P. J., dissenting).

No one disputes that this was a terrible crime. Miller,

however, held that “the distinctive attributes of youth di-

minish the penological justifications for imposing the

harshest sentences on juvenile offenders, even when they

commit terrible crimes.” 567 U. S., at 472. Jones’ crime

reflects these distinctive attributes: “That a teenager in

trouble for having been caught concealing his girlfriend at

his grandparents’ home would attempt to solve the problem

by resorting to violence dramatically epitomizes immatu-

rity, impetuosity, and failure to appreciate risks or conse-

quences.” 2018 WL 10700848, *11 (Kitchens, P. J., dissent-

ing).

Jones then attempted to save his grandfather by admin-

istering CPR. 938 So. 2d, at 314. When that failed, he

clumsily tried to hide what he had done. 2018 WL

10700848, *11 (Kitchens, P. J., dissenting). He was spotted

walking around in plain sight, covered in blood, trembling

and muttering to himself. Ibid. When a neighbor ques-

tioned him, Jones told a feeble lie, claiming that his grand-

father had left and that the blood on his clothes was “ ‘a

joke.’ ” 938 So. 2d, at 314. Jones then met up with his girl-

friend and attempted to hitchhike, but not to make a geta-

way. Instead, he was trying to go see his grandmother to

tell her what had happened. Id., at 315. The police stopped

Jones, found that he was carrying a pocket knife, and asked

if it was the knife he “ ‘did it with.’ ” Ibid. Jones replied,

Cite as: 593 U. S. ____ (2021) 21

SOTOMAYOR, J., dissenting

“ ‘No, I already got rid of it.’ ” Ibid. He then agreed to be

interviewed by three police detectives, “without invoking

his right to silence or his right to counsel and without a par-

ent or guardian present.” 2018 WL 10700848, *11 (Kitch-

ens, P. J., dissenting). Thus, “Jones’s behavior in the im-

mediate aftermath of his tragic actions also demonstrated

his fundamental immaturity.” Ibid.

At his resentencing hearing, Jones provided evidence

that not only is he capable of rehabilitation, but he had in

fact already matured significantly since his crime. In more

than five years in prison, Jones committed only two disci-

plinary infractions. App. 134–135. While incarcerated,

Jones earned his GED and sought out work, becoming a

“very good employee.” Id., at 106, 109, 153. Jones and his

prison unit manager often discussed the Bible, and in time,

his unit manager came to think of Jones “almost like [a]

son.” Id., at 107. Jones confided in him that Jones “regret-

ted” what he had done. Id., at 112.

Jones’ grandmother (Bertis Jones’ widow) testified at

Jones’ resentencing hearing and submitted an amicus brief

to this Court. She remains “steadfast in her belief that

Brett is not and never was irreparably corrupt.” Brief for

Madge Jones et al. as Amici Curiae 4. She speaks with

Jones weekly, encouraging him as he takes college courses

and serves in the prison ministry. Ibid. Jones’ younger

brother, Marty, and his other family members have also

stayed by his side.

This significant body of evidence does not excuse Jones’

crime. It does mean, however, that under Miller and Mont-

gomery, there is a strong likelihood that Jones is constitu-

tionally ineligible for LWOP. His crime, while terrible, ap-

pears to have been the product of “unfortunate yet transient

immaturity.” Miller, 567 U. S., at 479 (internal quotation

marks omitted). Notably, the State called no witnesses and

offered no evidence at the resentencing hearing to rebut

Jones’ proof that his crime reflected the “recklessness” and

22 JONES v. MISSISSIPPI

SOTOMAYOR, J., dissenting

“impulsivity” characteristic of juveniles. Montgomery, 577

U. S., at 207 (internal quotation marks omitted); see App.

23, 136.

In resentencing Jones to LWOP, the sentencing court

failed to apply Miller properly. Instead, it followed the in-

structions of the Mississippi Supreme Court, which held

that “Miller rendered [Mississippi’s] sentencing scheme un-

constitutional if, and only if, the sentencing authority fails

to take into account characteristics and circumstances

unique to juveniles.” 122 So. 3d 698, 702 (2013). Thus, the

sentencing court simply considered the “Miller factors” as

part of the “mitigating and the aggravating circumstances.”

App. 149. It never addressed Miller’s central inquiry:

whether Jones is one of the rare juveniles whose crimes re-

flect irreparable corruption. 567 U. S., at 479–480. Be-

cause the sentencing court failed to ask and answer this

critical question, Jones’ sentence should not stand.

IV

It is important not to lose sight of what is at stake in this

case. “The Eighth Amendment’s prohibition of cruel and

unusual punishment guarantees individuals the right not

to be subjected to excessive sanctions.” Miller, 567 U. S., at

469 (internal quotation marks omitted). In Roper, Graham,

Miller, and Montgomery, the Court recognized that this

guarantee has special significance for children. The Eighth

Amendment does not excuse children’s crimes, nor does it

shield them from all punishment. It does, however, demand

that most children be spared from punishments that “giv[e]

no chance for fulfillment outside prison walls, no chance for

reconciliation with society, no hope.” Graham, 560 U. S., at

79.

Jones and other juvenile offenders like him seek only the

possibility of parole. Not the certainty of release, but the

opportunity, at some point in their lives, to show a parole

board all they have done to rehabilitate themselves and to

Cite as: 593 U. S. ____ (2021) 23

SOTOMAYOR, J., dissenting

ask for a second chance. Jones recognizes that the parole

board may ultimately decide he must spend his entire life

behind bars. He simply requests that the State not “mak[e]

the judgment at the outset that [he] never will be fit to

reenter society.” Id., at 75. The Eighth Amendment re-

quires that most juvenile offenders be given this small

“hope for some years of life outside prison walls.” Montgom-

ery, 577 U. S., at 213.10

At his resentencing hearing, Jones told the court, “I’m not

the same person I was when I was 15. . . . I’ve become a

pretty decent person in life. And I’ve pretty much taken

every avenue that I could possibly take in prison to rehabil-

itate myself.” App. 152. “Minors do have the ability to

change,” he reflected. Ibid. He noted in closing, “If you de-

cide to send me back without the possibility of parole, I will

still do exactly what I’ve been doing for ten years. But all I

can do is ask you . . . please give me just one chance to show

the world, man, like, I can be somebody. I’ve done every-

thing I could over the past ten years to be somebody. . . . I

can’t change what was already done. I can just try to show

. . . I’ve become a grown man.” Id., at 153. Today, Jones is

31. His time spent in prison has now eclipsed the childhood

he had outside of it.

Jones should know that, despite the Court’s decision to-

day, what he does in life matters. So, too, do the efforts of

the almost 1,500 other juvenile offenders like Jones who are

serving LWOP sentences. Of course, nothing can repair the

damage their crimes caused. But that is not the question.

——————

10 Having deprived Jones of his constitutional right, the Court gestures

at a potential lifeline from other institutions, including the Mississippi

Legislature or Governor. Ante, at 22. But “the remote possibility” of such

action “does not mitigate the harshness of the sentence” that Jones now

faces. Graham, 560 U. S., at 70. The Eighth Amendment guarantees

juvenile offenders like Jones a basic constitutional protection against dis-

proportionate punishments. The Court should not leave the vindication

of such important legal rights to others, or to chance.

24 JONES v. MISSISSIPPI

SOTOMAYOR, J., dissenting

The question is whether the State, at some point, must con-

sider whether a juvenile offender has demonstrated ma-

turity and rehabilitation sufficient to merit a chance at life

beyond the prison in which he has grown up. See Graham,

560 U. S., at 79. For most, the answer is yes.