# State of Tennessee v. Tyshon Booker (Concur)

> Tennessee Supreme Court · November 18, 2022

URL: https://www.frixlaw.com/law-library/cases/8487761

## Case

- **Court:** Tennessee Supreme Court
- **Decided:** November 18, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Justice Holly Kirby
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8487761

## Opinion text

11/18/2022
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 24, 2022 Session Heard at Nashville1

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

___________________________________

HOLLY KIRBY, J., concurring in the judgment.

Not so long ago, it was commonplace for states to require juveniles convicted of
homicide to serve sentences of over fifty years. Now, that practice has vanished. A review
of sentencing statutes enacted by state legislatures and court decisions shows that there is
now only one state where juvenile offenders face a mandatory non-aggregated sentence of
more than 50 years for first-degree murder with no aggravating factors—Tennessee. In the
entirety of the nation, Tennessee stands alone.

This is strong objective evidence that a national consensus has formed against
juvenile sentencing statutes like Tennessee’s. My concurrence in the holding in Justice
Lee’s plurality opinion is based on this unequivocal objective data. In the absence of solid
objective indicia, I would not be able to concur in the plurality’s judgment in favor of Mr.
Booker.

In this case, the Court granted permission to appeal on the question of whether a
mandatory sentence of life imprisonment for juvenile offenders for first-degree murder,
with no aggravating factors, under Tennessee Code Annotated sections 39-13-208(c) and
40-35-501(h)(2) violates the provisions in the United States and Tennessee Constitutions
forbidding cruel and unusual punishment. In Tennessee, the mandatory sentence of life
imprisonment is a term sentence of sixty years, with a minimum service of fifty-one years.

1 We first heard oral argument on February 24, 2021. In light of the untimely death of Justice
Cornelia A. Clark and by order of this Court filed December 17, 2021, retired Tennessee Supreme Court
Justice William C. Koch, Jr., was designated to participate in this appeal. The case was re-argued on
February 24, 2022.
See Brown v. Jordan, 563 S.W.3d 196, 202 (Tenn. 2018).2 I concur in the holding in the
plurality opinion that Tennessee Code Annotated section 40-35-501(h)(2), when imposed
on a juvenile homicide offender, violates the prohibition against cruel and unusual
punishment in the Eighth Amendment to the United States Constitution. I also concur in
the remedy adopted in the plurality opinion and agree it is limited to offenders who were
juveniles at the time of the offense. Accordingly, I concur in the judgment in the plurality
opinion. I write separately to explain the importance of objective indicia of national
consensus to the Eighth Amendment analysis in this case.

I. EIGHTH AMENDMENT ANALYSIS

The Eighth Amendment “bars not only those punishments that are ‘barbaric’ but
also those that are ‘excessive’ in relation to the crime committed.” Coker v. Georgia, 433
U.S. 584, 592 (1977). The United States Supreme Court’s decision in Gregg v. Georgia
requires us to consider whether a particular punishment is “disproportionate in relation to
the crime for which it is imposed.” 428 U.S. 153, 187 (1976). In doing so, Gregg described
the substantive, but limited, responsibility imposed on the judiciary under the Eighth
Amendment:

Of course, the requirements of the Eighth Amendment must be applied with
an awareness of the limited role to be played by the courts. This does not
mean that judges have no role to play, for the Eighth Amendment is a
restraint upon the exercise of legislative power.
....
[W]hile we have an obligation to [e]nsure that constitutional bounds are not
overreached, we may not act as judges as we might as legislators.

Id. at 174–75. The legislature has the “power to define crimes and fix their punishment,
unless that power encounters in its exercise a constitutional prohibition. In such [a] case,
not our discretion, but our legal duty, strictly defined and imperative in its direction, is
invoked.” Weems v. United States, 217 U.S. 349, 378 (1910).

In this case, Mr. Booker was convicted of a most serious offense, first-degree
murder. “[W]hen a life has been taken deliberately by the offender,” that is considered

2
Tennessee Code Annotated § 39-13-208(c) provides that, when the State does not seek the death
penalty or life without the possibility of parole, a defendant convicted of murder in the first degree “shall
be sentenced to imprisonment for life.” Tennessee Code Annotated § 40-35-501(h)(2) provides that such
a defendant “shall serve one hundred percent (100%) of sixty (60) years less sentence credits earned and
retained,” but “no sentence reduction credits . . . shall operate to reduce the sentence imposed by the court
by more than fifteen percent (15%).” In Brown, the Court interpreted these provisions to mean that “[a]
defendant convicted of first-degree murder that occurred on or after July 1, 1995, may be released after
service of at least fifty-one years if the defendant earns the maximum allowable sentence reduction credits.”
563 S.W.3d at 202.
-2-
“the most extreme of crimes.” Gregg, 428 U.S. at 187. The length of Mr. Booker’s
sentence, in and of itself, is not inherently grossly disproportionate to either the crime or
the offender, and does not offend the Eighth Amendment. Indeed, in Miller v. Alabama,
the U.S. Supreme Court expressly permitted sentencers to impose life-without-parole
sentences on juvenile homicide offenders, so long as the sentence was not mandatory, that
is, so long as there was discretion to consider the defendant’s youth and impose a lesser
punishment. See 567 U.S. 460, 479–80 (2012). And life without parole is an even more
severe sentence than Mr. Booker received.

In this type of Eighth Amendment case, where the punishment is not barbaric and
not inherently disproportionate to either the crime or the offender, objective indicia of
national consensus is a threshold issue. That is, without objective indicia of national
consensus against the punishment contained in the statute at issue, the analysis would go
no further. This is explained below.

1. As Applied to Juvenile Offenders

Here, Mr. Booker asserts that Tennessee’s mandatory sentence of life imprisonment
violates the Eighth Amendment to United States Constitution as applied to juvenile
homicide offenders. As to a category of offenders, the Eighth Amendment does not
guarantee there will be no risk of a disproportionate sentence in a specific case. The
question instead is whether Tennessee’s statutory framework creates an unacceptably high
risk of a disproportionate sentence in a given case with a juvenile defendant. See Jones v.
Mississippi, 141 S. Ct. 1307, 1317 (2021) (“[Miller] stated that a mandatory life-without-
parole sentence for an offender under 18 ‘poses too great a risk of disproportionate
punishment.’” (quoting Miller, 567 U.S. at 479)).

The question of whether the risk of a disproportionate sentence is so high that it
offends the Constitution is assessed under the analysis set forth in the United States
Supreme Court’s Eighth Amendment jurisprudence on juvenile offenders. Justice Lee’s
plurality opinion describes in detail the Supreme Court’s Eighth Amendment cases on
juvenile offenders, demonstrating the Court’s increasingly firm conviction that children are
different when it comes to sentencing. See Thompson v. Oklahoma, 487 U.S. 815, 835
(1988) (“[L]ess culpability should attach to a crime committed by a juvenile than to a
comparable crime committed by an adult.”). The three general differences between
juveniles and adults consistently cited by the Supreme Court are (1) “lack of maturity and
an underdeveloped sense of responsibility,” (2) “more vulnerab[ility] or susceptib[ility] to
negative influences and outside pressures, including peer pressure,” and (3) that “the
character of a juvenile is not as well formed as that of an adult.” Roper v. Simmons, 543
U.S. 551, 569–70 (2005) (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)); see also
Graham v. Florida, 560 U.S. 48, 86 (2010) (Roberts, C.J., concurring in the judgment)
(“[J]uvenile offenders are generally less culpable than adults who commit the same
crimes.”).

-3-
In Miller, these three significant differences between juveniles and adults were the
foundation for the Court’s conclusion that “children are constitutionally different from
adults for purposes of sentencing” and its holding that mandatory life-without-parole
sentences for juveniles violated the Eighth Amendment. 567 U.S. at 471. More recent
Eighth Amendment cases on juvenile offenders reaffirm these precepts. See Montgomery
v. Louisiana, 577 U.S. 190, 206 (2016) (“[C]hildren are constitutionally different from
adults for purposes of sentencing.” (quoting Miller, 567 U.S. at 471)); see also Jones, 141
S. Ct. at 1314 (“In a series of Eighth Amendment cases applying the Cruel and Unusual
Punishments Clause, this Court has stated that youth matters in sentencing.”).

This Supreme Court caselaw suggests that, in a case with a juvenile offender, the
risk of a disproportionate sentence is higher than in a similar case with an adult offender.
But that proposition does not automatically mean that juvenile defendants must always be
sentenced under a separate, more lenient sentencing structure than adult offenders, in every
case and for every crime. The question is whether, under a particular sentencing
framework, the risk of a disproportionate sentence for a juvenile offender is so high that it
violates the Eighth Amendment.

2. Objective Indicia

To answer the question of whether the risk of a disproportionate sentence for a
juvenile offender under Tennessee sentencing statutes is unconstitutionally high, the
Supreme Court’s body of Eighth Amendment cases, taken as a whole, requires that we
consult objective data. The proportionality assessment under the Eighth Amendment “does
not call for a subjective judgment. It requires, rather, that we look to objective indicia that
reflect the public attitude toward a given sanction.” Gregg, 428 U.S. at 173. The Supreme
Court has repeatedly emphasized “the requirement that proportionality review be guided
by objective factors.” Ewing v. California, 538 U.S. 11, 23 (2003) (quoting Harmelin v.
Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring in part and concurring in
the judgment)).

The Supreme Court has looked to three kinds of objective indicia to determine
whether there is a national consensus against a challenged sentencing practice. First is the
number of states that have overtly rejected the challenged practice, either through
legislative or judicial action. See Atkins v. Virginia, 536 U.S 304, 312 (2002) (“We have
pinpointed that the clearest and most reliable objective evidence of contemporary values is
the legislation enacted by the country’s legislatures.” (quotation marks omitted) (citation
omitted)); Roper, 543 U.S. at 564 (“By a similar calculation in this case, 30 States prohibit
the juvenile death penalty, comprising 12 that have rejected the death penalty altogether
and 18 that maintain it but, by express provision or judicial interpretation, exclude juveniles
from its reach.”).

-4-
The next type of objective indicia is how frequently the challenged sentencing
practice is actually used. See Atkins, 536 U.S. at 316 (“[E]ven in those States that allow
the execution of [intellectually disabled] offenders, the practice is uncommon.”); Roper,
543 U.S. at 564 (“[E]ven in the 20 States without a formal prohibition on executing
juveniles, the practice is infrequent.”); Graham, 560 U.S. at 62 (“Here, an examination of
actual sentencing practices in jurisdictions where the sentence in question is permitted by
statute discloses a consensus against its use.”).

The final type is objective indicia of trends among the states, including the direction
and pace of change regarding the challenged sentencing practice. See, e.g., Atkins, 536
U.S. at 315 (“It is not so much the number of these States that is significant, but the
consistency of the direction of change.”); Roper, 543 U.S. at 565–66 (discussing both
consistency and pace of change compared to Atkins); Graham, 560 U.S. at 108–09
(Thomas, J., dissenting) (arguing that lack of consistency and direction of change
counseled against the majority’s decision).

Such objective indicia anchor any assessment of whether a statute violates the
Eighth Amendment to data that demonstrates the nation’s values and standards. This
underpinning ensures principled constitutional analysis that is not premised on the
subjective sensibilities of individual judges. See Gregg, 428 U.S. at 173.

To be sure, the Supreme Court’s analysis in Miller relied much less than previous
cases on this type of objective data. See 567 U.S. at 483 (distinguishing Miller “from the
typical [case] in which we have tallied legislative enactments”). At the time Miller was
decided, many states had the type of statute at issue in Miller, a mandatory sentence of life
without parole for juveniles convicted of homicide. For that reason, the Miller majority’s
finding of an Eighth Amendment violation drew a sharp dissent from the Chief Justice.3

3
Chief Justice Roberts first identified lack of objective indicia of national standards as the reason
for his dissent: “The pertinent law here is the Eighth Amendment to the Constitution, which prohibits ‘cruel
and unusual punishments.’ Today, the Court invokes that Amendment to ban a punishment that the Court
does not itself characterize as unusual, and that could not plausibly be described as such. I therefore
dissent.” Miller, 567 U.S. at 493 (Roberts, C.J., dissenting). He then summarized the Court’s Eighth
Amendment cases on objective indicia:

When determining whether a punishment is cruel and unusual, this Court typically begins
with “objective indicia of society's standards, as expressed in legislative enactments and
state practice.” We look to these “objective indicia” to ensure that we are not simply
following our own subjective values or beliefs. Such tangible evidence of societal
standards enables us to determine whether there is a “consensus against” a given sentencing
practice. If there is, the punishment may be regarded as “unusual.”

Id. at 494 (first quoting Graham, 560 U.S. at 61; and then quoting Gregg, 428 U.S. at 173).
-5-
In a subsequent case, however, the Court’s description of past Eighth Amendment
caselaw on juvenile offenders reaffirmed its traditional emphasis on objective indicia. In
Jones v. Mississippi, the Court considered whether Miller and Montgomery required
sentencing authorities to make a separate factual finding that a juvenile offender was
permanently incorrigible before sentencing him to life without parole. 141 S. Ct. at 1311.
In considering whether permanent incorrigibility would be an eligibility criterion for a
sentence, similar to sanity or competence, the Jones Court recounted that, “when the Court
has established such an eligibility criterion, the Court has considered whether ‘objective
indicia of society’s standards, as expressed in legislative enactments and state practice,’
demonstrated a ‘national consensus’ in favor of the criterion.” Id. at 1315 (quoting
Graham, 560 U.S. at 61). Describing Miller’s discussion of whether a discretionary
sentencing procedure would result in fewer life-without-parole sentences for juveniles,
Jones commented: “Importantly, . . . the Court [in Miller] relied on data, not speculation.
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.’” Id. at 1318 (quoting Miller, 567 U.S. at 483 n.10).4

Thus, the body of Supreme Court Eighth Amendment cases counsel us to base any
finding of unconstitutionality on solid data illuminating the nation’s values and standards
on the sentencing framework at issue, “objective indicia that reflect the public attitude
toward a given sanction.” Gregg, 428 U.S. at 173. Our review must be “guided by
objective factors.” Ewing, 538 U.S. at 23 (quoting Harmelin, 501 U.S. at 1001 (Kennedy,
J., concurring in part and concurring in the judgment)). This approach provides a limiting
principle to ensure that findings of a violation of the Eighth Amendment are reserved for
punishments that may fairly be regarded as “unusual.” Miller, 567 U.S. at 494 (Roberts,
C.J., dissenting).

In this case, the elevated risk of a disproportionate sentence for a juvenile convicted
of first-degree murder arises because of Tennessee’s unique combination: (1) a mandatory
sentence, allowing the sentencer no discretion, plus (2) a very lengthy minimum
imprisonment of fifty-one years. Consistent with the facts in this case, it is appropriate to
focus our review on how many states still subject juvenile offenders convicted of first-
degree murder, with no aggravating factors, to a mandatory non-aggregated sentence of
more than 50 years.

4
See also Jones, 141 S. Ct. at 1320 (“Miller highlighted 15 existing discretionary state sentencing
systems as examples of what was missing in the mandatory Alabama regime before the Court in that case.”
(citing Miller, 567 U.S. at 484 n.10)). Indeed, Jones itself used statistics to show that Miller and
Montgomery had in fact accomplished the stated objective of drastically reducing the number of juvenile
homicide offenders sentenced to life without parole. See id. at 1322 (“Those statistics bear out Miller’s
prediction: A discretionary sentencing procedure has indeed helped make life-without-parole sentences for
offenders under 18 ‘relatively rar[e].’” (alteration in original) (quoting Miller, 567 U.S. at 484 n.10)).
-6-
Two objective indicia tell the story best: (1) legislative enactments, i.e., sentencing
statutes, and (2) state court decisions holding state sentencing statutes unconstitutional.
Taken together, these provide strong objective evidence of the nation’s contemporary
standards for sentencing juvenile homicide offenders who fit Mr. Booker’s circumstances.

Here, those objective indicia demonstrate that now, almost ten years after Miller,
sentencing statutes like Tennessee’s have disappeared. Now, only one state sentences
juvenile offenders to a mandatory non-aggregated sentence of more than fifty years for
first-degree murder with no aggravating factors—Tennessee.5 This is compelling data that
Tennessee’s sentencing framework for juvenile defendants convicted of first-degree
murder, with no aggravating factors, stands far apart from the rest of the nation.

Turning to actual sentencing practices, assessing the frequency with which a
mandatory sentence is imposed reveals little about community standards because by
definition there are no other available options. It is instructive to recall, however, that
defendants resentenced under the Supreme Court’s decisions in Miller and Montgomery
were rarely given sentences of life without parole. See Jones, 141 S. Ct at 1322. This
shows that, in actual practice, such severe sentences for juveniles convicted of homicide
are disfavored.

The direction and pace of change regarding the challenged sentencing practice is
also illuminating. Ten years ago, before the U.S. Supreme Court decided Miller, twenty-
eight states had mandatory life-without-parole statutes applicable to juveniles. See Miller,
560 U.S. at 513–14 (Alito, J., dissenting). As amici have shown, many states changed their
laws in the last decade, post-Miller.6 The consistent direction of the changes, by either
legislative enactment or state court decision, has been to either reduce the mandatory
sentence applicable to juveniles or insert discretion into sentencing for juveniles.7 Most
5
The gap between Tennessee and the rest of the country is substantial. As noted by the plurality
opinion, the next longest mandatory sentences, in Oklahoma and Texas, are over ten years shorter than the
term set forth in Tennessee Code Annotated § 40-35-501(h)(2). In twelve other states, the maximum
mandatory sentence with no discretionary review is between one third to one half less than Tennessee’s
mandated sentence. In twenty-three other states and the District of Columbia, a juvenile convicted of first-
degree murder serves less than half the time as in Tennessee before becoming eligible for some type of
individualized consideration. Twelve other states may impose a sentence as long as Tennessee’s, but their
sentencing authorities have discretion to impose a lesser sentence. See Plurality Op. nn.12–16.
6
Asked at oral argument about the startling level of change in state laws through either legislative
enactment or court decision, the State observed that many of the changes were prompted by the Miller
decision. The dissent echoes this observation. The State conceded, however, that the great majority of
changes in other states went considerably further than was needed to come into strict compliance with
Miller’s holding.
7
The change in national consensus on sentencing juvenile homicide offenders recalls the change
that occurred over twenty years ago regarding the execution of intellectually impaired offenders, as
recognized by the U.S. Supreme Court in Atkins, which held that imposing the death penalty on persons
-7-
states went well beyond Miller’s explicit requirements. In a relatively short number of
years, societal standards on juvenile homicide offenders have consistently moved away
from mandatory sentences of over fifty years.

These objective indicia are compelling. Considered as a whole, they do more than
demonstrate that Tennessee’s sentencing practice is unusual. These objective indicia
suggest that every other state in the nation has decided that a mandatory sentence of more
than fifty years for juveniles convicted of first-degree murder, with no aggravating factors,
creates an unacceptable risk of a disproportionate sentence. In other words, there is now a
national consensus against the type of statute Tennessee has.

3. Proportionality

In our analysis, the seriousness of Mr. Booker’s crime must weigh heavily. The
Eighth Amendment’s proportionality principle does not just implicate the status of the
offender and the severity of the punishment; it also addresses the nature of the crime. See
Graham, 560 U.S. at 86 (Roberts, C.J., concurring in the judgment). Moreover, there are
clearly some juvenile offenders from whom society needs and deserves protection for fifty-
one years—or even longer.

But there are other juvenile offenders convicted of first-degree murder for whom
such a lengthy incarceration is not warranted. A mandatory sentence, coupled with a
minimum service in excess of fifty years, presents a serious risk of a disproportionate
sentence. Is the risk of a disproportionate sentence so high for juvenile offenders that
Tennessee’s statutes violate the Eighth Amendment? The objective indicia in this case
provide a solid foundation for making that assessment. Considering the qualities of youth
the U.S. Supreme Court has recognized, as well as the compelling objective indicia of a
national consensus, I agree with the plurality’s conclusion that an automatic life sentence
with a minimum of fifty-one years, when imposed on juveniles convicted of first-degree
murder with no aggravating factors, violates the Eighth Amendment.

The evidence of national consensus in this case provides both the basis of the Eighth
Amendment proportionality analysis and its limiting principle. I would not join the
plurality’s judgment in favor of Mr. Booker in the absence of solid objective indicia of
national consensus.

with intellectual disabilities violated the United States Constitution. 536 U.S. at 314 (commenting that
“[m]uch has changed since” the Court issued its decision in Penry v. Lynaugh, 492 U.S. 302, 340 (1989),
holding that executing intellectually disabled people convicted of capital offenses did not contravene the
Eighth Amendment). See Coleman v. State, 341 S.W.3d 221, 234–35 (Tenn. 2011) (summarizing the
changes regarding intellectual disability).
-8-
II. REMEDY

Because the unconstitutionally high risk of a disproportionate sentence for juvenile
homicide offenders stems from Tennessee’s unique combination of (1) a mandatory
sentence plus (2) a minimum incarceration period of over fifty years, that risk can be
ameliorated by changing either parameter. In other words, the unacceptably high risk of
disproportionality can be reduced by either (a) giving sentencing authorities discretion to
sentence juveniles convicted of first-degree murder a lesser sentence, or (b) reducing the
mandatory sentence applicable to juveniles convicted of first-degree murder to a level that
comports with the national standards, as reflected in other states’ sentencing statutes.

The remedy adopted in Justice Lee’s plurality opinion accomplishes this, and is
consistent with the positions of the parties in the event of a finding of unconstitutionality.
As described in Justice Lee’s plurality opinion, the remedy applies the pre-1995 version of
Tennessee Code Annotated § 40-35-501(h) to Mr. Booker, a juvenile offender convicted
of first-degree murder with no aggravating factors.8 Thus, Mr. Booker will remain
sentenced to a sixty-year term, but he is eligible for—though not guaranteed—supervised
release on parole after serving between twenty-five and thirty-six years. For this reason, I
concur in the remedy adopted in Justice Lee’s plurality opinion.

This remedy leaves the General Assembly free, in its discretion, to enact a new
sentencing statute for juvenile offenders convicted of first-degree murder with no
aggravating factors, consistent with the national consensus.

III. REJOINDER

Justice Bivins’s well-stated dissent makes a number of important points that warrant
this respectful response.

The dissent first says the majority “impermissibly moves the Court into an area
reserved to the legislative branch.” It does not.

The view expressed in the dissent was rejected by the Founders in the earliest days
of our nation. The Federalist Papers explain that, when courts hold statutes
unconstitutional, it does not mean the judiciary has assumed superiority over the legislative
branch. It means instead that the Constitution is superior to both branches:

8
This appears consistent with the remedy suggested by the State in the event of a finding of
unconstitutionality, to elide the objectionable part of Tennessee Code Annotated § 40-35-501 that requires
service of at least fifty-one years in prison, as to juvenile offenders convicted of first-degree murder, and
hold that the remainder of the statute is enforceable.
-9-
If it be said that the legislative body are themselves the constitutional judges
of their own powers, and that the construction they put upon them is
conclusive upon the other departments, it may be answered, that this cannot
be the natural presumption, where it is not to be collected from any particular
provisions in the Constitution. . . . [T]he courts were designed to be an
intermediate body between the people and the Legislature, in order, among
other things, to keep the latter within the limits assigned to their authority. .
..

Nor does this conclusion by any means suppose a superiority of the judicial
to the legislative power. It only supposes that the power of the people is
superior to both; and that where the will of the Legislature, declared in its
statutes, stands in opposition to that of the people, declared in the
Constitution, the judges ought to be governed by the latter rather than the
former.

The Federalist No. 78 (Alexander Hamilton). In ruling on the constitutionality of a statute,
we do not usurp the job of the legislative branch; we do our own job.

The dissent next notes that the holding in Miller dealt only with sentences of life
without parole, and admonishes that the majority fails to apply the Supreme Court’s
holdings “as they are written, not what we wish were true.”9

And yet the dissent acknowledges that the Supreme Court has never addressed
whether a statute such as Tennessee’s violates the Eighth Amendment. Respectfully,
judicial restraint does not prohibit lower courts from taking up constitutional issues of first
impression. It’s been an everyday practice since the earliest days of our nation.10

9
The dissent cites cases such as Arkansas v. Sullivan, 532 U.S. 769 (2001). Sullivan says only that
states are not free to contradict the Court's “controlling precedent” on factual situations where the Court
has issued a definitive ruling. Id. at 771. Nothing in that opinion, or any other, prohibits states from
considering issues of first impression under the federal constitution.
10
Years before he penned his famous dissent in Plessy v. Ferguson, Justice John Marshall Harlan
wrote for the United States Supreme Court:

Upon the state courts, equally with the courts of the Union, rests the obligation to guard,
enforce, and protect every right granted or secured by the constitution of the United States
and the laws made in pursuance thereof, whenever those rights are involved in any suit or
proceeding before them; for the judges of the state courts are required to take an oath to
support that constitution, and they are bound by it. . . . If they fail therein . . . the party
aggrieved may bring the case from the highest court of the state in which the question could
be decided, to this court for final and conclusive determination.

-10-
The question of whether Tennessee’s mandatory life sentence statute, as applied to
juveniles, violates the Eighth Amendment has not yet been presented to the United States
Supreme Court. It has been presented to us. We are obliged to answer it as best we can.
Our decision is then subject to the High Court’s review.

Next, in its analysis, the dissent offers a lengthy discourse on why Tennessee’s
mandatory life sentence, as applied to juvenile offenders, is not the “functional equivalent”
of a life-without-parole sentence. The inclusion of this discussion is a puzzler.

Here’s why. In this appeal, Mr. Booker offered two theories for why Tennessee’s
statute violates the Eighth Amendment. First, Mr. Booker argued that, under the well-
established Eighth Amendment analysis in Roper, Graham, etc., and based on objective
indicia of a national consensus, Tennessee’s mandatory sentencing statute violates the
Eighth Amendment. Second, in the alternative, Mr. Booker contended that Tennessee’s
mandatory life sentence is the “functional equivalent” of a mandatory sentence of life
without parole, which was held unconstitutional in Miller.

In both the plurality opinion and this separate opinion, the majority of the Court
relies exclusively on the well-established Supreme Court analytical framework to hold that
Tennessee’s statute violates the Eighth Amendment. That pretermits Mr. Booker’s
alternative “functional equivalency” argument. There was no reason to even discuss it.

If the majority doesn’t even discuss the alternative functional equivalency argument,
there’s no reason for the dissent to spend pages and pages discrediting it.11 Meanwhile,
however, the dissent fails to refute the reasoning actually relied upon by the majority of
the Court.

Perhaps most troubling, the dissent virtually ignores the objective indicia of a
national consensus against a sentencing statute like Tennessee’s. The dissent’s only
response to it is to shrug—in a footnote—that there is no way to “predict with confidence
what the Supreme Court may say” if it were faced with the data Mr. Booker presents.

This is weak tea. The conclusion demonstrated by the objective indicia in this case
is irrefutable: Tennessee’s mandatory life sentence, as applied to juveniles, renders our
State an island in the nation. We must not simply shrug that off.

Robb v. Connolly, 111 U.S. 624, 637 (1884).
11
The only reason offered by the dissent is that the functional equivalency argument is used in
other state and federal court opinions. Perhaps they are dissenting from those other opinions. It makes
little sense for the dissent to fault the majority for failing to use the functional equivalency reasoning for
its holding, and then turn around and criticize that very same reasoning.

-11-
IV. CONCLUSION

For these reasons, I concur in the plurality’s holding that Tennessee Code Annotated
section 40-35-501(h)(2), when imposed on a juvenile homicide offender, violates the
prohibition against cruel and unusual punishment in the Eighth Amendment to the United
States Constitution. I concur in the remedy adopted by the plurality, to hold that Mr.
Booker remains sentenced to sixty years in prison but shall be allowed an individualized
parole hearing after he has served between twenty-five and thirty-six years in prison, based
on release eligibility in the previous version of Tennessee Code Annotated section 40-35-
501(h)(2) in effect from November 1, 1989, to July 1, 1995, as stated in section 40-35-
501(h)(1). I concur in the plurality’s holding that this ruling applies only to offenders who
were juveniles at the time of the offense.

___________________________________________
HOLLY KIRBY, JUSTICE

-12-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8487761. Public record. Not legal advice.