State of Tennessee v. Tyshon Booker (Dissent)

11/18/2022

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

February 24, 2022 Session Heard at Nashville

STATE OF TENNESSEE v. TYSHON BOOKER

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Knox County

No. 108568 G. Scott Green, Judge

___________________________________

No. E2018-01439-SC-R11-CD

___________________________________

JEFFREY S. BIVINS, J., with whom ROGER A. PAGE, C.J., joins, dissenting.

I respectfully dissent from the result reached by a majority of the Court today. Quite

frankly, I find the policy adopted as a result of the plurality opinion of Justice Lee and the

concurring opinion of Justice Kirby to be sound. However, it is just that. It is a policy

decision by which the majority today has pushed aside appropriate confines of judicial

restraint and applied an evolving standards of decency/independent judgment analysis that

impermissibly moves the Court into an area reserved to the legislative branch under the

United States and Tennessee Constitutions.

I. FACTUAL AND PROCEDURAL BACKGROUND1

On November 15, 2015, then sixteen-year-old Tyshon Booker (“Mr. Booker”) shot

and killed G’Metrick Caldwell (“the victim”) while sitting in the victim’s car on a

residential street in East Knoxville. Mr. Booker and then seventeen-year-old Bradley

Robinson (“Mr. Robinson”) left the victim for dead in the vehicle, and Mr. Booker fled

with the victim’s cellphone, which he eventually discarded. Mr. Booker’s finger and palm

prints were found at the scene of the shooting along with shell casings from his nine-

millimeter handgun.

Two days later, Mr. Booker was charged by petition in the Knox County Juvenile

Court related to his involvement in the victim’s death. The next day, he was arrested at the

home of his neighbor, Linda Hatch (“Ms. Hatch”).

1

This opinion discusses only those facts relevant to the issue granted appeal by this Court. A full

recitation of the facts is set out in the Court of Criminal Appeals’ opinion. State v. Booker, No. E2018-

10439-CCA-R3-CD, 2020 WL 1697367 (Tenn. Crim. App. Apr. 8, 2020), perm. app. granted, (Tenn. Sept.

16, 2020).

A. Juvenile Court

Following Mr. Booker’s arrest, the State filed a “Notice and Motion to Transfer,”

seeking to transfer Mr. Booker to the Knox County Criminal Court to be tried as an adult.

During the hearing that followed, the State put on forensic evidence linking Mr. Booker to

the victim’s vehicle. Additionally, Ms. Hatch testified that, the day after the shooting, Mr.

Booker confessed to her that he and Mr. Robinson shot the victim in a failed robbery

attempt.

In response, Mr. Booker attacked Ms. Hatch’s credibility. He argued that she

fabricated part of his confession to protect herself because she maintained an inappropriate

relationship with him that included smoking marijuana together, helping him sell crack

cocaine, and engaging in sexual activities. Dr. Keith Cruise, clinical psychologist, testified

that Mr. Booker suffered from Post-Traumatic Stress Disorder, Moderate Cannabis Use

Disorder, and Conduct Disorder stemming from numerous traumatic events he experienced

during childhood, including witnessing both the death of a close relative and the shooting

of a neighborhood child, as well as experiencing the murder of his paternal grandfather

when Mr. Booker was in his early teens. Dr. Cruise explained that Mr. Booker was likely

amenable to treatment but that adult correctional facilities were “ill equipped” to help him.

At the close of the hearing, the juvenile court considered the transfer factors required

by Tennessee Code Annotated section 37-1-134(b).2 In its oral ruling, the juvenile court

explicitly found: (1) there were reasonable grounds to believe Mr. Booker committed the

murder, (2) Mr. Booker was not committable to an institution for the developmentally

disabled or mentally ill, (3) his prior delinquency records were “not of great importance

here,” (4) he received minimal past treatment efforts, (5) the nature of the alleged offense

weighed heavily in favor of transfer, (6) any gang affiliation had little impact in the case,

and (7) there was little hope of rehabilitating Mr. Booker in the twenty-one months

remaining before his nineteenth birthday when he would be released from juvenile state

custody. The juvenile court expressed reservations but, ultimately, based on its findings,

the judge transferred Mr. Booker to criminal court to be tried as an adult.

2

In making the [transfer] determination . . ., the court shall consider, among other matters:

(1) The extent and nature of the child’s prior delinquency records;

(2) The nature of past treatment efforts and the nature of the child’s response thereto;

(3) Whether the offense was against person or property, with greater weight in favor of transfer

given to offenses against the person;

(4) Whether the offense was committed in an aggressive and premeditated manner;

(5) The possible rehabilitation of the child by use of procedures, services and facilities currently

available to the court in this state; and

(6) Whether the child’s conduct would be a criminal gang offense, as defined in § 40-35-121, if

committed by an adult.

Tenn. Code Ann. § 37-1-134(b) (2014) (amended 2022).

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B. Criminal Court

A Knox County Grand Jury indicted Mr. Booker on two counts of felony murder

and two counts of especially aggravated robbery related to the victim’s death. The case

proceeded to a jury trial. At trial, the State’s evidence was consistent with its presentation

at the juvenile transfer hearing, including evidence of Mr. Booker’s confession to Ms.

Hatch and their improper relationship.

Mr. Booker took the stand and testified at trial that he shot the victim in self-defense.

According to Mr. Booker, there was a fight between the victim and Mr. Robinson in the

vehicle, during which Mr. Booker believed the victim reached for a gun. Mr. Booker denied

telling Ms. Hatch that he and Mr. Robinson planned to rob the victim, but rather stated that

the three planned only to drive around and smoke marijuana together.

The jury convicted Mr. Booker as charged on all counts. The felony murder

convictions merged, and the trial court imposed the mandatory sentence of life

imprisonment.3 Following a sentencing hearing, the trial court sentenced Mr. Booker to

twenty years for the especially aggravated robbery convictions, to be served concurrently

with his life sentence.

C. The Appeal

On appeal to the Court of Criminal Appeals, Mr. Booker raised, inter alia,

constitutional challenges to Tennessee’s automatic life sentence for first-degree murder.

After briefing and oral argument, the Court of Criminal Appeals found no reversible error

and affirmed Mr. Booker’s convictions. State v. Booker, No. E2018-01439-CCA-R3-CD,

2020 WL 1697367, at *33 (Tenn. Crim. App. Apr. 8, 2020), perm. app. granted, (Tenn.

Sept. 16, 2020). As to Mr. Booker’s claim that his mandatory life sentence is

unconstitutional under the Eighth Amendment to the United States Constitution and United

States Supreme Court precedent, the court stated, “While we understand [Mr. Booker]’s

argument, we must reject his invitation as we are bound by court precedent.” Id. (citing

State v. Collins, No. W2016-01819-CCA-R3-CD, 2018 WL 1876333, at *20 (Tenn. Crim.

3

Tennessee law mandates a sentence of death, imprisonment for life without possibility of parole,

or imprisonment for life for those convicted of felony murder. See Tenn. Code Ann. §§ 39-13-202(a)(2),

(c)(1)–(3) (2014) (amended 2018, 2021 & 2022). The State must send notice to the defendant of its intent

to seek the death penalty or life without parole. See Tenn. Code Ann. § 39-13-208(a)–(c) (2014) (amended

2021 & 2022). If the State seeks either the death penalty or life without parole, the sentencer has discretion

to choose between the alternative sentences during a sentencing hearing. Tenn. Code Ann. § 39-13-204

(2014) (amended 2019, 2021 & 2022). When the State declines to pursue the death penalty or life without

parole, the law mandates a sentence of life imprisonment if the defendant is convicted of first-degree

murder. See Tenn. Code Ann. § 39-13-208(c) (2014). Mr. Booker was not eligible for the death penalty,

see Roper v. Simmons, 543 U.S. 551, 568 (2005), and the record indicates that the State did not give notice

of intent to seek life without parole. Therefore, Mr. Booker’s sentence of life imprisonment was mandatory.

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App. Apr. 18, 2018), perm. app. denied, (Tenn. Aug. 8, 2018), cert. denied, 139 S. Ct. 649

(2018)).

Mr. Booker then appealed to this Court. We granted the application only as to the

issue of whether Tennessee’s sentence of life imprisonment, as applied to juveniles,

violates the United States or Tennessee Constitutions. Order, State v. Booker, No. E2018-

01439-SC-R11-CD (Tenn. Sept. 16, 2020) (granting the application for permission to

appeal). We also directed the parties to address what sentencing options may be available

under Tennessee law if the sentence of life imprisonment is improper. Id. Approximately

two months after oral argument in this case, the United States Supreme Court issued its

opinion in Jones v. Mississippi, 141 S. Ct. 1307 (2021), which analyzed a related juvenile

sentencing issue. We ordered the parties to submit supplemental briefing regarding whether

Jones affects the analysis or outcome in this case.4 Order, State v. Booker, No. E2018-

01439-SC-R11-CD (Tenn. June 10, 2021) (directing the parties to submit supplemental

briefs).

II. ANALYSIS

The proper analysis for this challenge requires examination of the issue of whether

the Eighth Amendment to the United States Constitution, as interpreted in Miller v.

Alabama, 567 U.S. 460 (2012), requires this Court to hold that Tennessee’s life sentence

is unconstitutional as applied to juveniles. The Eighth Amendment, applicable to the States

through the Fourteenth Amendment, states: “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend.

VIII. Further, the United States Supreme Court has explained, “The Eighth Amendment

guarantees individuals the right not to be subjected to excessive sanctions[, which] flows

from the basic ‘precept of justice that punishment for crime should be graduated and

proportioned to [the] offense.’” Roper v. Simmons, 543 U.S. 551, 560 (2005) (second

alteration in original) (quoting Atkins v. Virginia, 536 U.S. 304, 311 (2002); Weems v.

United States, 217 U.S. 349, 367 (1910)).

When our Court is asked to interpret the Eighth Amendment, we are bound by the

existing interpretations of the United States Supreme Court. West v. Schofield, 519 S.W.3d

4

Both parties agree that the holding in Jones does not directly control the outcome in Mr. Booker’s

case. However, each party’s supplemental brief argues that Jones ultimately supports that party’s position

in this case. Mr. Booker argues that his position rests on applying the principles of Graham v. Florida, 560

U.S. 48 (2010) and Miller v. Alabama, 567 U.S. 460 (2012), and because Jones explicitly upholds Graham

and Miller as good law, Jones supports his position that Tennessee’s life sentence is unconstitutional as

applied to juveniles. The State maintains that Miller is distinguishable and that Jones implicitly approves

of Tennessee’s first-degree-murder sentencing scheme in a footnote. See Jones, 141 S. Ct. at 1318 n.5.

Further, because Tennessee’s sentencing scheme can result in discretion if the State pursues a life-without-

parole sentence, the State argues that a life sentence is the lesser, not equal, punishment when compared to

a life-without-parole sentence.

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550, 566 (Tenn. 2017) (citing James v. City of Boise, 577 U.S. 306, 307 (2016) (per

curiam) (“The Idaho Supreme Court, like any other state or federal court, is bound by this

Court’s interpretation of federal law.”); Marmet Health Care Ctr., Inc. v. Brown, 565 U.S.

530, 531 (2012) (per curiam) (“When this Court has fulfilled its duty to interpret federal

law, a state court may not contradict or fail to implement the rule so established.”)). We

may not “interpret the United States Constitution to provide greater protection than [the

United States Supreme Court’s] own federal constitutional precedents provide.” Arkansas

v. Sullivan, 532 U.S. 769, 772 (2001) (citing Oregon v. Hass, 420 U.S. 714, 719 (1975)).5

A. The Roper/Graham/Miller Trilogy

Over the last twenty years, the United States Supreme Court has held that the Eighth

Amendment prohibits certain punishments and requires special procedural protections in

the context of juvenile sentencing. See Roper, 543 U.S. at 568; Graham v. Florida, 560

U.S. 48, 74–75 (2010); Miller, 567 U.S. at 465; Montgomery v. Louisiana, 577 U.S. 190,

212 (2016). In Roper, the Court barred the use of the death penalty on any juvenile

offender, regardless of the crime of conviction, as cruel and unusual under the Eighth

Amendment. Roper, 543 U.S. at 568. First, the Court determined that a national consensus

had formed against the juvenile death penalty supported by the understanding that juveniles

are “categorically less culpable than the average criminal.” Id. at 567 (citing Atkins, 536

U.S. at 316) (summarizing the objective indicia of national consensus against the juvenile

death penalty as “the rejection of the juvenile death penalty in the majority of States; the

infrequency of its use even where it remains on the books; and the consistency in the trend

toward abolition of the practice” (Id. at 552)). The Court also reasoned that the usual

penological justifications for the death penalty, such as retribution and deterrence, no

longer carried the same weight when considering the harshness of the penalty compared to

certain inescapable characteristics of youth, such as immaturity and irresponsibility,

vulnerability and susceptibility to negative influences coupled with a lack of control over

their environment, and personality traits that are more transient and amenable to

rehabilitation. Id. at 569–73. For these reasons, the Court concluded that the death penalty

is disproportional when applied to any juvenile offender and violates the Eighth

Amendment. Id. at 575.

Five years later, in Graham, the Supreme Court barred the use of life-without-parole

sentences for juveniles convicted of nonhomicide crimes. Graham, 560 U.S. at 74. The

Supreme Court determined that a national consensus had developed against the use of such

a harsh punishment for juvenile nonhomicide offenders and held, in that context, such a

sentence violates the Eighth Amendment. Id. at 67, 74. The Graham Court reiterated the

same characteristics associated with youth first stated in Roper: “juveniles have a ‘lack of

maturity and an underdeveloped sense of responsibility’; they ‘are more vulnerable and

5

In my view, the result reached by the majority today does just that: the majority has interpreted

the United States Constitution to provide greater protection than federal constitutional precedents provide.

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susceptible to negative influences and outside pressures, including peer pressure’; and their

characters are ‘not as well formed.’” Id. at 68 (quoting Roper, 543 U.S. at 569–70). In the

context of juvenile nonhomicide offenders, these same characteristics led the Supreme

Court to conclude that a juvenile’s already lowered moral culpability is twice diminished

when he or she “did not kill or intend to kill,” id. at 69, and, overall, juveniles cannot

reliably be classified as incorrigible at the time of conviction, id. at 72–73.

The Graham Court described a life-without-parole sentence as “the second most

severe penalty permitted by law,” id. at 69 (quoting Harmelin v. Michigan, 501 U.S. 957,

1001 (1991) (Kennedy, J., concurring)), and something akin to the death penalty, which

“alters the offender’s life by a forfeiture that is irrevocable . . . without giving hope of

restoration,” id. at 69–70. Therefore, a life-without-parole sentence is disproportional when

applied to juvenile nonhomicide offenders given the difficulty of differentiating between a

juvenile “whose crime reflects unfortunate yet transient immaturity, and the rare juvenile

offender whose crime reflects irreparable corruption.” Id. at 68 (quoting Roper, 543 U.S.

at 573). Similar to the reasoning in Roper, the Court concluded that deterrence and

retribution do not support life-without-parole sentences in the context of juvenile

nonhomicide offenders. Id. at 71–72. Further, while incapacitation may justify a lengthy

punishment for a serious nonhomicide crime, it does not support life without parole for

juvenile nonhomicide offenders because it requires a sentencer to make the decision that a

juvenile “forever will be a danger to society” at the outset, id. at 72, even though

“incorrigibility is inconsistent with youth,” id. at 73 (quoting Workman v. Commonwealth,

429 S.W.2d 374, 378 (Ky. 1968)). The Supreme Court also explained that such a

punishment is inconsistent with rehabilitation as a goal because life without parole

“forswears altogether the rehabilitative ideal[ ] [b]y denying the defendant the right to

reenter the community” despite a juvenile’s capacity for reform. Id. at 73–74. Therefore, a

sentence of life without parole is cruel and unusual and violates the Eighth Amendment as

applied to a juvenile convicted of a nonhomicide crime. Id. at 74.

Just two years later, the Court decided Miller, which held that life without parole

could be imposed on a juvenile convicted of homicide, but only under a discretionary

sentencing scheme. Miller, 567 U.S. at 465. Two fourteen-year-old offenders, Kuntrell

Jackson and Evan Miller, were convicted of capital murder and the only available sentence

under the law of their respective states was life without parole. Id. at 465–69; see Ark.

Code. Ann. § 5-4-104(b) (1997) (providing that “[a] defendant convicted of capital murder

. . . shall be sentenced to death or life imprisonment without parole”); Ala. Code §§ 13A-

5-40(a)(9), 13A-6-2(c) (1982) (fixing murder in the course of arson as a capital offense

subject to life without parole). Therefore, both Mr. Jackson and Mr. Miller were sentenced

under mandatory sentencing schemes, which did not allow for consideration of their youth

or an option to impose a lesser punishment than life without parole. Miller, 567 U.S at 465–

69. Their cases were consolidated on review.

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The Miller Court explained that there may be the type of rare incorrigible youth who

commits homicide and deserves a sentence of life without parole. Id. at 479–80. However,

given all that Roper and Graham said about youth, the “appropriate occasions for

sentencing juveniles [to life without parole] will be uncommon” and require a sentencing

scheme that allows for the sentencer to consider the offender’s “youth and attendant

characteristics.” Id. at 479, 483. If the sentencing scheme is mandatory and “mak[es] youth

(and all that accompanies it) irrelevant to imposition of that harshest prison sentence,” the

Supreme Court explained, the “scheme poses too great a risk of a disproportionate

punishment” and runs afoul of the Eighth Amendment. Id. at 479. Miller relied on the same

characteristics of youth announced in Roper and reiterated in Graham, that a juvenile’s

“transient rashness, proclivity for risk, and inability to assess consequences” leads to

diminished criminal culpability and an increased ability to reform and be rehabilitated, and

determined that “none of what [its precedents] said about children . . . is crime-specific.”

Id. at 471–73.

Building on Graham’s conclusion that life without parole “alters the offender’s life

by a forfeiture that is irrevocable,” the Miller Court reasoned that individualized sentencing

and consideration of “the ‘mitigating qualities of youth’” are particularly relevant when

considering the constitutionality of a life-without-parole sentence imposed on a juvenile.

Id. at 475–76 (first quoting Graham, 560 U.S. at 69; then quoting Johnson v. Texas, 509

U.S. 350, 367 (1993)). Both Roper and Graham, the Supreme Court acknowledged, “teach

that in imposing a State’s harshest penalties, a sentencer misses too much if he treats every

child as an adult.” Id. at 477. Therefore, mandatory imposition of life without parole, which

ignores the very attributes that make children constitutionally different from adults and

disregards the offender’s potential for rehabilitation, violates the Eighth Amendment. Id.

at 479. The Supreme Court clarified that its holding, unlike Graham, did not categorically

bar life-without-parole sentences for juvenile homicide offenders. Id. at 479–80. However,

after Miller, the Eighth Amendment requires that a sentencer “take into account how

children are different, and how those differences counsel against irrevocably sentencing [a

juvenile] to a lifetime in prison.” Id. at 480.

I do agree with the majority that the Roper/Graham/Miller trilogy6 centers around

one foundational principle: “children are constitutionally different from adults for purposes

of sentencing.” Id. at 471. In support of this principle, each holding builds off prior

precedent to support the conclusion: juvenile offenders generally are less culpable than

their adult counterparts and more responsive and amenable to rehabilitation, which makes

6

Following Miller, the United States Supreme Court held in Montgomery v. Louisiana, 577 U.S.

190, 212 (2016), that Miller established a new rule of constitutional law that applies retroactively on

collateral review. The Court also recently clarified that “[i]n light of th[e] explicit language” in Miller and

Montgomery, there is no formal factfinding requirement regarding a child’s incorrigibility before

sentencing a juvenile homicide offender to life without parole, so long as the overall sentencing scheme is

discretionary. Jones, 141 S. Ct. at 1311.

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them less deserving of the most severe punishments at law. Id. (citing Graham, 560 U.S. at

68); see also Roper, 543 U.S. at 569–71.

Additionally, the trilogy recognizes that “the distinctive attributes of youth diminish

the penological justifications for imposing the harshest sentences on juvenile offenders,

even when they commit terrible crimes.” Miller, 567 U.S. at 472. Retribution,

incapacitation, deterrence, and rehabilitation provide little support for either the death

penalty or life-without-parole sentences once a court considers that juveniles, in general,

have diminished culpability, are unlikely to contemplate the potential for punishment

before acting, and cannot with reliability be classified as incorrigible or irredeemable at

such a young age. See id. at 472–73; Graham, 560 U.S. at 71–73; Roper, 543 U.S. at 571.

The Supreme Court cemented the interconnectedness of this line of cases in Miller when it

stated that “none of what is said about children—about their distinctive (and transitory)

mental traits and environmental vulnerabilities—is crime-specific.” Miller, 567 U.S. at

473. Therefore, whether the crime of conviction is homicide or something less severe in

the eyes of the law, the rationale for limiting the imposition of these harsh sentencing

practices remains the same.

These cases and their collective underpinning are compelling. However, in

answering the federal constitutional question before the Court today, “our duty to follow

binding precedent is fixed upon case-specific holdings rather than general expressions in

an opinion that exceed the scope of any particular holding.” State v. Slocumb, 827 S.E.2d

148, 153 (S.C. 2019) (citing Vasquez v. Commonwealth, 781 S.E.2d 920, 926 (Va. 2016)).

Because Mr. Booker argues that the principles of both Graham and Miller compel this

Court to hold that Tennessee’s life sentence is unconstitutional as applied to juveniles, the

proper analysis narrows the focus to their specific holdings.

B. Graham and Miller

In Graham, the Supreme Court held that “for a juvenile offender who did not commit

homicide[,] the Eighth Amendment forbids the sentence of life without parole.” Graham,

560 U.S. at 74. The Supreme Court clarified its holding:

A State is not required to guarantee eventual freedom to a juvenile

offender convicted of a nonhomicide crime. What the State must do,

however, is give defendants like Graham some meaningful opportunity to

obtain release based on demonstrated maturity and rehabilitation. It is for the

State, in the first instance, to explore the means and mechanisms for

compliance. It bears emphasis, however, that while the Eighth Amendment

prohibits a State from imposing a life[-]without[-]parole sentence on a

juvenile nonhomicide offender, it does not require the State to release that

offender during his natural life. Those who commit truly horrifying crimes

as juveniles may turn out to be irredeemable, and thus deserving of

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incarceration for the duration of their lives. The Eighth Amendment does not

foreclose the possibility that persons convicted of nonhomicide crimes

committed before adulthood will remain behind bars for life. It does prohibit

States from making the judgment at the outset that those offenders never will

be fit to reenter society.

Id. at 75.

After Graham, a few points are clear: Tennessee is prohibited from sentencing

juvenile nonhomicide offenders to life without parole; juvenile nonhomicide offenders can

remain incarcerated for life so long as they are given a “meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation;” and it is for our State to decide

“the means and mechanisms for compliance” with Graham’s holding. Id. Less clear from

Graham, however, is how to define a “meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation.” Id. That question, while an important one, is not

determinative for the analysis today because Graham is distinguishable from this case.

Simply put, Graham applies to cases in which a juvenile is convicted of a nonhomicide

crime and sentenced to life without parole. In this case, Mr. Booker was convicted of

homicide and received a life sentence—not a sentence of life without parole.

In Miller, the Supreme Court held that the Eighth Amendment forbids mandatory

imposition of a life-without-parole sentence on juveniles convicted of homicide. Miller,

567 U.S. at 479–80; see Montgomery, 577 U.S. at 193 (“In Miller[], the Court held that a

juvenile convicted of a homicide offense could not be sentenced to life in prison without

parole absent consideration of the juvenile’s special circumstances in light of the principles

and purposes of juvenile sentencing.”); Jones, 141 S. Ct. at 1311 (“Under Miller[ ], an

individual who commits a homicide when he or she is under [eighteen] may be sentenced

to life without parole, but only if the sentence is not mandatory and the sentencer therefore

has discretion to impose a lesser punishment.”). Therefore, Miller does not prohibit life-

without-parole sentences, nor does it prohibit all mandatory sentencing schemes in the

juvenile context. Miller, 567 U.S. at 480. Miller requires that, before a juvenile homicide

offender is sentenced to life without parole, a sentencer must consider the offender’s youth

and its accompanying characteristics before deciding the juvenile is incorrigible and must

spend the rest of his days in prison. Id. at 479–80.

The Supreme Court has clarified that “Miller did not impose a formal factfinding

requirement” on the sentencer. Montgomery, 577 U.S. at 211. Rather, it is up to States to

determine the mechanisms to comply with Miller’s mandate. Id. This means that not only

is the sentencer relieved of making a specific finding of incorrigibility, but also he or she

is relieved of making any specific factual findings on the record. Jones, 141 S. Ct. at 1316,

1320 (stating “Miller did not require the sentencer to make a separate finding of permanent

incorrigibility before imposing [life without parole]” and “Miller did not say a word about

requiring some kind of particular sentencing explanation with an implicit finding of

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permanent incorrigibility, as Montgomery later confirmed”). The discretionary scheme

itself is sufficient, the Supreme Court explained, because it “allows the sentencer to

consider the [offender’s] youth, and thereby helps ensure that life-without-parole sentences

are imposed only in cases where that sentence is appropriate in light of the [offender’s]

age.” Id. at 1318.

After Miller (and Montgomery/Jones), two points are clear: (1) Tennessee can

impose a life-without-parole sentence on a juvenile homicide offender only if it does so

under a discretionary sentencing scheme; and (2) federal constitutional law, based upon

Supreme Court precedent, does not require a sentencer to make any specific findings on

the record before sentencing a juvenile homicide offender to life without parole, including

that the juvenile is incorrigible.7

Because Mr. Booker was under the age of eighteen at the time he committed a

homicide, and because his life sentence was mandatorily imposed,8 Miller’s holding could

be viewed as providing guidance in this case. One, however, cannot ignore an important

distinguishing fact: Mr. Booker was sentenced to life imprisonment, not life without parole.

Thus, the main issue Mr. Booker asks this Court to contemplate, and what is still left

unclear following Miller and its progeny, is: do the Eighth Amendment protections, as

interpreted by Miller, apply to sentences that are not life without parole in name but could

7

Few state courts have interpreted or applied Jones since it was released. Among the courts that

have, the above-mentioned rules are clear. See, e.g., Holmes v. State, 859 S.E.2d 475, 480–81 (Ga. 2021);

Elliott v. State, No. CR-20-407, 2021 WL 2012632, at *5 (Ark. May 20, 2021); Wynn v. State, No. CR-

19-0589, 2021 WL 2177656, at *8–9 (Ala. Crim. App. May 28, 2021); State v. Miller, 861 S.E.2d 373, 380

(S.C. Ct. App. 2021); Harned v. Amsberry, 499 P.3d 825, 833 (Or. Ct. App. 2021). However, Jones has left

some state court decisions now in question. See People v. Dorsey, 183 N.E.3d 715, 727 (Ill. 2021)

(determining that Illinois Supreme Court precedent, which held the protections of Miller and Montgomery

apply equally to mandatory and discretionary life-without-parole sentences is “questionable in light of

Jones,” but that, overall, Jones approves of the state’s discretionary sentencing scheme at issue in that case);

People v. Ruiz, No. 1-18-2401, 2021 WL 2102850, at *12 (Ill. App. Ct. May 25, 2021) (concluding that

the Illinois Supreme Court can require more fact finding procedures under Miller than those stated in Jones);

People v. Terry, No. 1-18-2084, 2021 WL 2290798, at *4 (Ill. App. Ct. May 28, 2021) (stating that the

impact of Jones is “unclear” on Illinois Supreme Court precedent).

8

As previously noted, although Tennessee’s first-degree murder sentencing scheme can result in

the sentencer having discretion, supra note 3, Mr. Booker’s sentence of life imprisonment was imposed

mandatorily because he is not eligible for the death penalty and the State did not seek a sentence of life

without parole. Had the State sought life without parole, under Tennessee law, a jury would have had

discretion to sentence Mr. Booker to either life without parole—if it unanimously determined that the State

proved at least one aggravating factor beyond a reasonable doubt—or life imprisonment. See Tenn. Code

Ann. § 39-13-207(a)–(c) (2014) (amended 2021 & 2022). In Tennessee, so long as the proper notice is

given, it appears that this type of sentencing discretion is what Miller suggests as a constitutionally

sufficient procedure for sentencing a juvenile to life without parole. Miller, 567 U.S. at 478–80, 489.

However, that is not the scenario presented today because the State did not seek a life-without-parole

sentence in this case.

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be considered the functional equivalent to a life-without-parole sentence? Stated another

way, does Tennessee’s life sentence—a sixty-year sentence that requires at least fifty-one

years imprisonment before an opportunity for release—offend the Eighth Amendment and

principles of Miller when applied to a juvenile convicted of homicide?

C. State and Federal Court Analysis of the Functional Equivalency Issue9

Tennessee clearly is not the only state court to contemplate whether Miller applies

to lengthy sentences that are not life without parole in name. Because the United States

Supreme Court has not answered this question, and it is an issue of first impression for this

Court, we consult the decisions of our lower courts, other state courts, and federal courts

for guidance. Overall, research shows there is no consensus on this issue.

Tennessee courts consistently have held that Tennessee’s life sentence is not

unconstitutional under the Eighth Amendment and Miller because it “permits release

eligibility after serving fifty-one years.” State v. Polochak, No. M2013-02712-CCA-R3-

CD, 2015 WL 226566, at *34 (Tenn. Crim. App. Jan. 16, 2015); see also State v. Douglas,

No. W2020-01012-CCA-R3-CD, 2021 WL 4480904, at *24–25 (Tenn. Crim. App. Sept.

30, 2021) (listing other Tennessee cases). Additionally, the courts have recognized that

“[w]hile the next logical next step may be to extend protection to these types of sentences,

that is not the precedent which now exists.” Polochak, 2015 WL 226566, at *34 (quoting

Perry v. State, No. W2013-00901-CCA-R3-PC, 2014 WL 1377579, at *5 (Tenn. Crim.

App. Apr. 7, 2014)); see also State v. Fitzpatrick, No. M2018-02178-CCA-R3-CD, 2021

WL 3876968, at *8 (Tenn. Crim. App. Aug. 31, 2021) (“The power to break with well-

established precedent does not lie with this court, and we are not prepared to expand the

parameters of the Eighth Amendment in this regard, notwithstanding the fact that the

Defendant’s sentence ‘may push, and possibly exceed, the bounds of his life

expectancy[.]’” (alteration in original) (quoting State v. King, No. W2019-01796-CCA-

R3-CD, 2020 WL 5352154, at *2 (Tenn. Crim. App. Sept. 4, 2020)).

9

The concurring opinion professes that our lengthy discussion of the functional equivalency issue

is a “puzzler” and “makes little sense” because neither the plurality nor the concurring opinion relies on

such an analysis. The answer as to why such a detailed discussion is necessary is two-fold and very simple.

First, Mr. Booker raised this issue as a primary argument to support his position. Indeed, Mr. Booker’s

counsel spent the majority of his time at the first oral argument of this appeal advocating for an application

of Miller to this case, while mentioning an evolving standards of decency/independent judgment analysis

only in passing during rebuttal. Second, the overwhelming number of other state and federal courts that

have invalidated juvenile sentences under the Eighth Amendment in similar cases have done so on the basis

of a functional equivalency analysis. Indeed, today this Court becomes the only court in the country to base

its holding on “the well-established Supreme Court [Eighth Amendment] analytical framework” in order to

find such a statute unconstitutional under the United States Constitution. Of course, this “well-established

framework” is an evolving standards of decency/independent judgment analysis. The fact that both the

plurality and the concurrence for some reason chose to ignore this important argument is their choice and

not binding or limiting upon us.

- 11 -

As for other state courts, some have decided that the protections of Miller apply

equally to a juvenile homicide offender sentenced to life without parole and to a lengthy

term of years when the lengthy term-of-years sentence is the functional equivalent of life

without parole or a de facto life-without-parole sentence.10 See Casiano v. Comm’r of

Corrs., 115 A.3d 1031, 1044 (Conn. 2015) (concluding that Miller applies to a sentence

not based on its label but rather because it is lengthy, does not offer parole, and requires

the juvenile to actually be imprisoned for the rest of his or her life); State v. Shanahan, 445

P.3d 152, 159 (Idaho 2019) (“Because the Supreme Court has ‘counsel[ed] against

irrevocably sentencing [juveniles] to a lifetime in prison’ without consideration of the

Miller factors, we conclude that the rationale[] of Miller . . . also extend[s] to lengthy fixed

sentences that are the functional equivalent of a determinate life sentence . . . .” (first and

second alteration in original) (citation omitted)); People v. Reyes, 63 N.E.3d 884, 888 (Ill.

2016) (per curiam) (“[W]e hold that sentencing a juvenile offender to a mandatory term of

years that is the functional equivalent of life without the possibility of parole constitutes

cruel and unusual punishment in violation of the [E]ighth [A]mendment.”); State v.

Ragland, 836 N.W.2d 107, 121–22 (Iowa 2013) (holding under the Eighth Amendment

and Iowa state constitution that “Miller applies to sentences that are the functional

equivalent of life without parole”); Carter v. State, 192 A.3d 695, 725 (Md. 2018) (“The

initial question is whether a sentence stated as a term of years for a juvenile offender can

ever be regarded as a sentence of life without parole for purposes of the Eighth

Amendment. It seems a matter of common sense that the answer must be ‘yes.’”); State ex

rel. Carr v. Wallace, 527 S.W.3d 55, 60 (Mo. 2017) (en banc) (“Miller controls because

[the defendant] was sentenced to the harshest penalty other than death available under a

mandatory sentencing scheme without the jury having any opportunity to consider the

mitigating and attendant circumstances of his youth.”); State v. Kelliher, 873 S.E.2d 366,

370 (N.C. 2022) (holding that “any sentence or combination of sentences which,

considered together, requires a juvenile offender to serve more than forty years in prison

before becoming eligible for parole is a de facto sentence of life without parole within the

meaning of article I, section 27 of the North Carolina Constitution because it deprives the

juvenile of a genuine opportunity to demonstrate he or she has been rehabilitated and to

establish a meaningful life outside of prison”); State v. Zuber, 152 A.3d 197, 201 (N.J.

2017) (“We find that the same concerns apply to sentences that are the practical equivalent

of life without parole . . . . The proper focus belongs on the amount of real time a juvenile

will spend in jail and not on the formal label attached to [the] sentence.”); Ira v. Janecka,

419 P.3d 161, 167 (N.M. 2018) (“We conclude that the analysis contained within Roper

and its progeny should be applied to a multiple term-of-years sentence.”); White v. Premo,

443 P.3d 597, 605 (Or. 2019) (“We know of no state high court that has held that a sentence

in excess of [fifty] years for a single homicide provides a juvenile with a meaningful

opportunity for release. Given those particular circumstances, we conclude that petitioner’s

[fifty-four-year-mandatory-minimum] sentence is sufficiently lengthy that a Miller

10

Curiously, neither Justice Lee’s plurality opinion nor Justice Kirby’s concurring opinion relies

on a conclusion that Tennessee’s statute constitutes a de facto sentence of life without parole.

- 12 -

analysis is required.” (footnote and citation omitted)); State v. Ramos, 387 P.3d 650, 659

(Wash. 2017) (“We now join the majority of jurisdictions that have considered the question

and hold that Miller does apply to juvenile homicide offenders facing de facto life-without-

parole sentences.”).

However, there is no clear line to determine when a sentence becomes the functional

equivalent of life without parole. Compare Carter, 192 A.3d at 727–30, 734 (discussing

five benchmarks courts have used to determine when a sentence becomes the functional

equivalent to life without parole and concluding that fifty years before parole eligibility is

equivalent to life without parole for purposes of the Eighth Amendment); Zuber, 152 A.3d

at 212–13 (stating that Miller applies to a minimum sentence of fifty-five years

imprisonment); Casiano, 115 A.3d at 1045–47 (stating that a sentence of fifty years

imprisonment without parole triggers Miller protections); Reyes, 63 N.E.3d at 888

(concluding that a mandatory minimum sentence of eighty-nine years is a de facto life-

without-parole sentence), with Shanahan, 445 P.3d at 160–61 (determining a fixed thirty-

five-year sentence without the possibility of parole was not the functional equivalent of life

without parole); State v. Diaz, 887 N.W.2d 751, 768 (S.D. 2016) (concluding that forty

years in prison before parole eligibility was not a de facto life sentence); People v. Dorsey,

183 N.E.3d 715, 728–29 (Ill. 2021) (determining that a seventy-six-year sentence was not

a de facto life-without-parole sentence because good-time credits made release after thirty-

eight years a possibility).

Other state courts have reached the opposite conclusion, that Miller’s holding is

narrower and applies only to sentences that are life without parole in name. See Lucero v.

People, 394 P.3d 1128, 1132 (Colo. 2017) (“Graham and Miller apply only where a

juvenile is sentenced to the specific sentence of life without the possibility of parole for

one offense.”); Wilson v. State, 157 N.E.3d 1163, 1176 (Ind. 2020) (“Miller, Graham, and

Montgomery expressly indicate their holdings apply only to life-without-parole

sentences.”); Hobbs v. Turner, 431 S.W.3d 283, 289 (Ark. 2014) (“[The defendant] was

not subjected as a juvenile homicide offender to a mandatory life-without-parole sentence;

therefore, Miller, is inapplicable.”); Lewis v. State, 428 S.W.3d 860, 863–64 (Tex. Crim.

App. 2014) (holding that Miller did not apply to single sentence of life imprisonment with

the possibility of parole after forty years imposed mandatorily on a juvenile homicide

offender).

This debate is further complicated by the fact that the majority of states that have

answered the functional equivalency question have done so in the context of an aggregate

sentence for multiple crimes, rather than a single term-of-years sentence, as is the factual

scenario presented in this case. But see White, 443 P.3d at 603–04 (determining that Miller

applies to a determinate 800-month minimum sentence for a single murder); Parker v.

State, 119 So.3d 987, 996–99 (Miss. 2013) (concluding that Miller applies to a single

sentence for “natural life” that is not eligible for parole but allows for conditional release

at age sixty-five); Shanahan, 445 P.3d at 158–61 (acknowledging that Miller can apply to

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a single sentence that is the functional equivalent of life without parole but that thirty-five

years before parole eligibility was not the functional equivalent of life without parole).

To reinforce the fact that the answer to this particular question remains unclear,

federal jurisdictions have come down on both sides of this issue in the habeas corpus

context.11 Compare Starks v. Easterling, 659 Fed. Appx. 277, 280–81 (6th Cir. 2016)

(“Because the Supreme Court has not yet explicitly held that the Eighth Amendment

extends to juvenile sentences that are the functional equivalent of life, and given the fact

that lower courts are divided about the scope of Miller, we hold that the Tennessee courts’

decisions were not contrary to, or an unreasonable application of, clearly established

federal law . . . .”), cert. denied, (Jan. 17, 2017); Demirdjian v. Gipson, 832 F.3d 1060,

1076–77 (9th Cir. 2016) (upholding the state court’s decision that Miller’s ban on

mandatory life-without-parole sentences did not apply to defendant’s fifty-year sentence

with parole eligibility at sixty-six years of age); Webster v. Royce, No. 97-cv-2146 (NG),

2021 WL 3709287, at *17 (E.D.N.Y Aug. 20, 2021) (holding that it was not unreasonable

for a state court to deny petitioner relief from a sentence of fifty years before parole

eligibility because “the Supreme Court has not ‘clearly established’ that a sentence of

[fifty] years to life imposed on a juvenile is the ‘functional equivalent’ of life without

parole”), with McKinley v. Butler, 809 F.3d 908, 911 (7th Cir. 2016) (overturning a state

court decision and expressing reservations based on Miller about a 100-year sentence

imposed on a juvenile). In short, courts around the country are divided concerning Miller’s

application to lengthy sentences such as Mr. Booker’s.

At this time, given no controlling authority to the contrary, I would conclude that

we should remain consistent with Tennessee’s lower courts and join the other state courts

that have adopted a narrower interpretation of Miller’s holding and United States Supreme

Court Eighth Amendment precedent. See Slocumb, 827 S.E.2d at 156 (“Rather than predict

what the Supreme Court may or may not do, we believe the proper course is to respect the

Supreme Court’s admonition that lower courts must refrain from extending federal

constitutional protections beyond the line drawn by the Supreme Court.”); Turner, 431

S.W.3d at 289 (“Miller prohibits a sentencing scheme that mandates life in prison without

the possibility of parole for juveniles homicide offenders. [The defendant] was not

subjected . . . to a mandatory life-without-parole sentence; therefore, Miller is

inapplicable.” (citation omitted)); Wilson, 157 N.E.3d at 1175 (“And determining what

sentence constitutes a ‘de facto life sentence’ would be a task completely unmoored from

the language of Miller.”).

11

Under the Antiterrorism and Effective Death Penalty Act, a federal district court may grant relief

to a petitioner only if his or her claim was heard on the merits and “resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Therefore, the conclusion of the federal court

in the habeas corpus context is not necessarily a review of the petitioner’s claim on the merits and has

different weight or precedential value.

- 14 -

I reach this decision for two reasons. First, Miller’s holding expressly applies to life-

without-parole sentences, and Tennessee’s life sentence is not that.12 Under Tennessee law,

a life sentence guarantees release after sixty years and offers release as early as fifty-one

years, if the offender earns good-time credits. Brown v. Jordan, 563 S.W.3d 196, 200

(Tenn. 2018) (“[F]or first-degree murders committed on or after July 1, 1995, a defendant

must serve one hundred percent of sixty years less any sentence credits received, but the

sentence credits cannot operate to reduce the sentence imposed by more than fifteen

percent.”) (citing Tenn. Code Ann. § 40-35-501(i)). Therefore, not only does life

imprisonment under Tennessee law guarantee release at a certain point, the sentencing

scheme offers Mr. Booker the opportunity to obtain release nine years early through

earning good-time credits. See Tenn. Code Ann. § 40-35-501(h)(1), (i)(1), & (i)(2)(a)

(2014) (amended 2020); Tenn. Code Ann. § 41-21-236 (2014). For a juvenile like Mr.

Booker, who is sentenced to life imprisonment at the age of sixteen or seventeen, he or she

can expect to remain incarcerated until at least age sixty-seven and at most age seventy-

seven. While quite lengthy, I cannot say that Tennessee’s life sentence, considered under

the current Eighth Amendment jurisprudence of the United States Supreme Court, is

equivalent to a life-without-parole sentence with no meaningful opportunity to obtain

release.13 See United States v. Mathurin, 868 F.3d 921, 934–36 (11th Cir. 2017)

(determining that a sentencing scheme that offered the ability to earn good-time credits and

reduce a sentence by seven years gave a juvenile offender “a reason to pursue and exhibit

‘maturity and rehabilitation’” and thus served as a “‘meaningful opportunity to obtain

release’ during [the juvenile’s] lifetime” (quoting Graham, 560 U.S. at 75)); Dorsey, 183

N.E.3d at 733 (concluding that a sentence did not violate the Eighth Amendment or

constitute a de facto life-without-parole sentence because the state’s day-for-day

sentencing credit provided a defendant with “some meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation” (quoting Graham, 560 U.S. at

75)).

I do not believe it is wise or appropriate to extend Miller, or other existing Eighth

Amendment precedent, by predicting whether the United States Supreme Court would

extend its jurisprudence and hold unconstitutional a lengthy term-of-years sentence in this

12

Indeed, as previously noted, Tennessee law allows juveniles tried as adults to be subject to a

sentence of life without parole. There appears to be no issue regarding the constitutionality of the life-

without-parole statute.

13

Both Mr. Booker and the amici curiae parties argue that a person who spends the majority of his

or her life incarcerated has a lower overall life expectancy and that there is convincing data that a juvenile

incarcerated for fifty-one years or more is likely to die in prison before the opportunity for release. See

Brief of Amici Curiae National Association of Criminal Defense Attorneys, Tennessee Association of

Criminal Defense Attorneys, Amos Brown, and Charles Lowe-Kelly, State v. Booker, No. E2018-01439-

SC-R11-CD, at 23–25 (Tenn. Dec. 2, 2020). While this data may be compelling, evaluation of such research

and its impact on whether a particular sentence is appropriate punishment for a crime is a determination

best left to the legislature.

- 15 -

context. See, e.g., Wilson, 157 N.E.3d at 1175 (“[D]etermining the reach of the [Eighth

Amendment’s cruel and unusual punishment] clause is inherently a line drawing exercise

best left to the U.S. Supreme Court.”). This Court must apply the holdings of the United

States Supreme Court as they are written, not what we wish were true about the holding or

how far we would like for the holding to extend.14 See, e.g., Jones, 141 S. Ct. at 1321–22

(“The dissent draws inferences about what, in the dissent’s view, Miller and Montgomery

‘must have done’ in order for the decisions to ‘make any sense.’ We instead rely on what

Miller and Montgomery said . . . .” (citation omitted)).

The United States Supreme Court certainly could choose to extend its

aforementioned Eighth Amendment jurisprudence to a lengthy term-of-years sentence.

However, unlike the majority, I do not find it appropriate to extend its precedent further

than its own language. In no way do I wish to diminish the fact that Mr. Booker’s sentence

requires over half a century of incarceration before any opportunity for release.15 However,

for constitutional purposes, I cannot ignore that it not only offers the opportunity for release

but also guarantees it. Therefore, Miller does not apply.

14

Mr. Booker argues, and Justice Kirby’s concurring opinion concludes, that a new national

consensus has formed since Miller that sentences that require a minimum of fifty years of incarceration or

more, when applied to a juvenile, trigger the protections of Graham and Miller. The United States Supreme

Court may very well choose to take up this issue and hold in accord. However, the data relied on by the

Supreme Court in Roper and Graham to reach the conclusion that a new national consensus had formed

with regard to the particular punishment in those cases varies widely. See Roper, 543 U.S. at 564–68

(relying on legislative enactments and infrequent imposition of the juvenile death penalty in a majority of

states); Graham, 560 U.S. at 62–67 (relying on actual sentencing practices rather than legislative action or

inaction). Perhaps more importantly, the purported national consensus applied in this case in no way

developed in an organic manner as was the situation in Roper and Graham. Many of the legislative and

judicial decisions relied upon by the concurrence arose simply as responses to Miller. As a result, I do not

believe that we can predict with confidence what the Supreme Court may say when viewing the existing

data Mr. Booker highlights in his brief. Likewise, given these circumstances, I am not prepared to find that

a national consensus exists in this case similar to the ones found in Roper and Graham.

15

Both the plurality and especially the concurring opinion make much of the fact that Tennessee

imposes the harshest sentence in the nation in terms of years of service. Yet, no less than Justice Anthony

Kennedy, the author of the majority opinions in Roper, Graham, and Montgomery, and one of the Justices

in the majority in Miller, has written very interestingly regarding a state having the most severe punishment

for a particular crime. In Harmelin v. Michigan, a case relied upon in the plurality opinion, Justice Kennedy

opines as follows:

[M]arked divergences . . . in the length of prescribed prison terms are the

inevitable, often beneficial, result of the federal structure. . . . Thus, the circumstance that

a State has the most severe punishment for a particular crime does not by itself render the

punishment grossly disproportionate. Our Constitution is made for people of

fundamentally differing views. . . . Absent a constitutionally imposed uniformity inimical

to traditional notions of federalism, some State will always bear the distinction of treating

particular offenders more severely than any other State.

501 U.S. 957, 999–1000 (1991) (Kennedy, J., concurring) (internal quotation marks and citation omitted).

- 16 -

Second, this Court has long recognized that it is the distinct job of the legislature to

make policy decisions and to determine the appropriate sentence or punishment for a crime.

See State v. Gentry, 538 S.W.3d 413, 420 (Tenn. 2017) (citing State v. Burdin, 924 S.W.2d

82, 87 (Tenn. 1996)); State v. Harris, 844 S.W.2d 601, 602 (Tenn. 1992) (citing Solem v.

Helm, 463 U.S. 277, 289–90 (1983)). In the specific context of Miller, the Supreme Court

has reiterated that States are not “preclude[d] . . . from imposing additional sentencing

limits in cases involving defendants under [eighteen] convicted of murder.” Jones, 141 S.

Ct. at 1323. In fact, since Miller, a majority of the state legislatures and the District of

Columbia have acted to reform their criminal sentencing laws as they relate to juvenile

homicide offenders.16 However, to date, Tennessee’s legislature is not among them. Even

very recently, the General Assembly has considered bills to reform Tennessee’s first-

degree-murder sentencing scheme not only for juveniles but also for all adult offenders.

See S.B. 1452, 112th Gen. Assem. (2021) (proposing to reduce the minimum amount of

time a juvenile convicted of first-degree murder is required to serve before becoming

release-eligible from fifty-one years to thirty years); S.B. 0561, 112th Gen. Assem. (2021)

(proposing to reduce the portion of a person’s sentence for first-degree murder that must

be served prior to becoming eligible for parole to sixty percent of sixty years if sentenced

to imprisonment for life for an offense committed during certain dates or 100 percent of

sixty years if sentenced to imprisonment for life without the possibility of parole). In fact,

Senate Bill 0561, which proposed parole eligibility after thirty-six years for offenders

convicted of first-degree murder during a certain time and sentenced to life imprisonment,

among other provisions, passed with only four dissenting votes in the Senate on April 22,

2021.17 However, this measure, and similar measures, have stalled at some point in the

legislative process. So, while I certainly recognize that Tennessee’s life sentence, as

applied to juveniles, is lengthy in comparison to other States, upon answering the

constitutional question in this case, this Court should defer to the legislative process and

the legislature’s distinct role in making “broad moral and policy judgments in the first

instance [by] enacting [the] sentencing laws.” Jones, 141 S. Ct. at 1322; see also State v.

Black, 815 S.W.2d 166, 178 (Tenn. 1991) (“Justice Fones, speaking for the Court, stated:

‘The validity and humanity of that complaint should be addressed to the Legislature. This

Court’s authority over punishment for crime ends with the adjudication of

constitutionality.’” (quoting State v. Adkins, 725 S.W.2d 660, 664 (Tenn. 1987))). I

continue to urge the legislature to take up this important issue.

16

See Josh Rovner, Juvenile Life Without Parole: An Overview, THE SENTENCING PROJECT, (May

24, 2021), https://www.sentencingproject.org/publications/juvenile-life-without-parole/ (summarizing

state legislative action since Miller).

17

See S.B. 0561, 112th Gen. Assem., Bill History,

https://wapp.capitol.tn.gov/apps/BillInfo/default.aspx?BillNumber=SB0561&GA=112 (last visited Nov.

16, 2022).

- 17 -

In response to this dissenting opinion, the plurality announces that it “will not shirk

[its] duty and ignore an injustice.” Respectfully, those of us in dissent are far from shirking

our duty and ignoring an injustice. To the contrary, I would submit that the exercise of

judicial restraint in the face of bad policy, particularly involving vulnerable juveniles, is

perhaps the ultimate exercise of our judicial responsibility. Indeed, the eloquent words of

Justice Felix Frankfurter directly address this point: “For the highest exercise of judicial

duty is to subordinate one’s personal pulls and one’s private views to the law of which we

are all guardians—those impersonal convictions that make a society a civilized community,

and not the victims of personal rule.” Tom C. Clark, Mr. Justice Frankfurter: “A Heritage

for All Who Love the Law,” 51 A.B.A. J. 330, 332 (1965).

I stress that I do not arrive at my conclusion today without serious concerns and

reservations. Although I cannot say that Mr. Booker’s sentence is unconstitutional under

the Eighth Amendment to the United States Constitution, the words of Justice Brett

Kavanaugh in Jones are equally or perhaps even more appropriate in the context of this

case:

To be clear, our ruling on the legal issue presented here 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 any individual under [eighteen], is a horrific tragedy

for all involved and for all affected. Determining the proper sentence in such

a case raises profound questions of morality 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 circumstances of the offense, and the background of the

offender.

Jones, 141 S. Ct. at 1322.

III. CONCLUSION

For these reasons, I am compelled to hold that Tennessee’s life sentence, as applied

to juveniles, does not violate the Eighth Amendment, as interpreted by the United States

Supreme Court in Miller. In reaching this conclusion, I suggest the parallel of Justice

Kavanaugh’s words in Jones applies here. State courts must not make broad moral and

social policy judgments. Our constitution leaves those decisions to the legislative branch.

The majority’s conclusion today to the contrary impermissibly crosses the parameters

imposed on our judiciary by our constitution. While perhaps representing good, sound

policy, the majority’s conclusion fails to allow this issue to be resolved appropriately “by

our Legislature as the representatives of the people.” State v. Barber, 753 S.W.2d 659, 670

(Tenn. 1988).

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For these reasons, I respectfully dissent.

_________________________________

JEFFREY S. BIVINS, JUSTICE

- 19 -