Petitioners Brief — Brett Jones, Petitioner v. Mississippi

Supreme Court briefJun 5, 2020

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No. 18-1259

IN THE

Supreme Court of the United States

___________

BRETT JONES,

MISSISSIPPI,

___________

Petitioner,

Respondent.

On Writ of Certiorari

to the Mississippi Court of Appeals

___________

BRIEF FOR PETITIONER

___________

JACOB HOWARD

RODERICK & SOLANGE

MACARTHUR JUSTICE

CENTER

767 North Congress

Street

Jackson, MS 39202

(769) 233-7538

DAVID M. SHAPIRO *

RODERICK & SOLANGE

MACARTHUR JUSTICE

CENTER

NORTHWESTERN PRITZKER

SCHOOL OF LAW

375 E. Chicago Avenue

Chicago, IL 60611

(312) 503-0711

david.shapiro@

law.northwestern.edu

JEFFREY T. GREEN

DAVID A. GOLDENBERG

SIDLEY AUSTIN LLP

1501 K Street, NW

Washington, D.C. 20005

(202) 736-8000

Additional counsel on inside cover

Counsel for Petitioner

June 5, 2020

* Counsel of Record

AMIR H. ALI

ELIZA MCDUFFIE†

RODERICK & SOLANGE

MACARTHUR JUSTICE

CENTER

777 6th Street, NW,

11th Floor

Washington, D.C. 20001

(202) 869-3434

MARLOW SVATEK

ANDREW F. RODHEIM

SIDLEY AUSTIN LLP

One South Dearborn

Chicago, IL 60603

(312) 853-7000

†Admitted only in New York; not admitted in D.C. Practicing

under the supervision of the Roderick & Solange MacArthur Justice Center

QUESTION PRESENTED

Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is

permanently incorrigible before imposing a sentence

of life without parole.

(i)

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT

Petitioner is Brett Jones. Respondent is the State of

Mississippi. No party is a corporation.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...................................

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT ............................................

TABLE OF AUTHORITIES .................................

INTRODUCTION .................................................

OPINIONS BELOW .............................................

JURISDICTION....................................................

CONSTITUTIONAL PROVISION

INVOLVED ........................................................

STATEMENT........................................................

SUMMARY OF ARGUMENT ..............................

ARGUMENT .........................................................

I. For Juveniles, The Eighth Amendment Restricts Life Without Parole To Permanently

Incorrigible Homicide Offenders ..................

II. Sentencing A Juvenile Homicide Offender

To Life Without Parole Requires Finding

That He Is Permanently Incorrigible ..........

A. Eligibility Rules Require Finding That

The Defendant Does Or Does Not Belong

To The Eligible Class ...............................

B. Miller And Montgomery’s Eligibility

Rule Requires Finding That The Defendant Does Or Does Not Belong To

The Eligible Class ....................................

III. At A Minimum, Petitioner Is Entitled To A

Remand For A Finding As To Whether He

Is Permanently Incorrigible .........................

TABLE OF CONTENTS—continued

IV. Petitioner

Not

Permanently

Incorrigible ...................................................

CONCLUSION .....................................................

Page

CASES

TABLE OF AUTHORITIES

Page

Adams v. Alabama, 136 S. Ct. 1796

(2016) .........................................................

Ali v. Roy, 950 F.3d 572 (8th Cir. 2020) ......

Atkins v. Virginia, 536 U.S. 304

(2002) ................................................. 16, 21, 30

Bell v. Wolfish, 441 U.S. 520 (1979) ............

Cabana v. Bullock, 474 U.S. 376 (1986),

abrogated by Pope v. Illinois, 481 U.S.

497 (1987) .................................................. 22, 23

Chandler v. State, 242 So. 3d 65 (Miss.

2018) .......................................................... 11, 26

Coker v. Georgia, 433 U.S. 584 (1977) .........

Enmund v. Florida, 458 U.S. 782

(1982) ............................................. 16, 17, 22, 30

Ford v. Wainwright, 477 U.S. 399

(1986) .................................................. 16, 21, 30

Foucha v. Louisiana, 504 U.S. 71

(1992) .........................................................

Graham v. Florida, 560 U.S. 48

(2010) .................................................. 16, 31, 36

Hall v. Florida, 572 U.S. 701 (2014) ...........

Illinois v. Gates, 462 U.S. 213 (1983) ..........

Jones v. State, 122 So. 3d 698 (Miss.

2013) ......................................................... 4, 5, 29

Jones v. State, 938 So. 2d 312 (Miss. Ct.

App. 2006) ................................................. 3, 4

Jones v. State, 122 So. 3d 725 (Miss. Ct.

App. 2011) ................................................. 3, 4

Jones v. State, 285 So. 3d 626 (Miss. Ct.

App. 2017) .................................................

Kennedy v. Louisiana, 554 U.S. 407

(2008) .........................................................

TABLE OF AUTHORITIES—continued

Page

Malvo v. Mathena, 893 F.3d 265 (4th Cir.

2018), cert. granted, 139 S. Ct. 1317

(2019), and cert. dismissed, 140 S. Ct.

919 (2020) ..................................................

Miller v. Alabama, 567 U.S. 460 (2012) ... passim

Montgomery v. Louisiana, 136 S. Ct. 718

(2016) ...................................................... passim

Moore v. Texas, 137 S. Ct. 1039 (2017) ........

Panetti v. Quarterman, 551 U.S. 930

(2007) .........................................................

Parker v. State, 119 So. 3d 987 (Miss.

2013) .......................................................... 5, 29

Roper v. Simmons, 543 U.S. 551

(2005) .................................................. 16, 30, 34

Tatum v. Arizona, 137 S. Ct. 11 (2016) .......

Tison v. Arizona, 481 U.S. 137 (1987) ......... 17, 22

United States v. Briones, 890 F.3d 811 (9th

Cir. 2018), on reh’g en banc, 929 F.3d

1057 (9th Cir. 2019) ...................... 14, 25, 28, 31

United States v. Briones, 929 F.3d 1057

(9th Cir. 2019) ...........................................

CONSTITUTION AND STATUTES

U.S. Const. amend. VIII ...............................

Miss. Code Ann. § 97-3-25............................

OTHER AUTHORITIES

Miss. R. App. P. 16 .......................................

INTRODUCTION

This case is easily resolved under the plain rule of

Miller v. Alabama and Montgomery v. Louisiana: The

Eighth Amendment “bar[s] life without parole . . . for

all but the rarest of juvenile offenders, those whose

crimes reflect permanent incorrigibility.” Montgomery

v. Louisiana, 136 S. Ct. 718, 734 (2016); Miller v. Alabama, 567 U.S. 460, 479–80 (2012). To enforce that

rule, a court must determine whether a juvenile homicide offender is permanently incorrigible. If the court

finds that he is, then a life-without-parole sentence

complies with the Eighth Amendment. If the court

finds he is not permanently incorrigible, that sentence is an “unconstitutional penalty.” Montgomery,

136 S. Ct. at 734. The Court should vacate the lifewithout-parole sentence in this case for the simple

reason that Mississippi’s courts refused to make this

essential determination.

Brett Jones was barely fifteen when he killed his

grandfather during a fight about Brett’s girlfriend.

He was convicted of murder and sentenced to life

without parole. In the proceedings below, Brett presented substantial evidence of his capacity for rehabilitation—evidence supporting his claim that he is

not permanently incorrigible. No court even purported to resolve that question. Instead, the Mississippi

courts maintained that Miller and Montgomery only

require a sentencing court to follow a procedure—

considering a set of factors related to youth—before

sentencing a juvenile to life without parole.

Under Miller and Montgomery, courts must “d[o]

more than . . . consider a juvenile offender’s youth before imposing life without parole”—they must determine whether a juvenile homicide offender is one of

“the rarest of juvenile offenders[] . . . whose crimes

reflect permanent incorrigibility.” Id. at 734. To be

sure, States have some discretion to craft the procedures that apply in making that essential determination. But they cannot dispense with the finding altogether. Otherwise, state courts would be “free to sentence a child whose crime reflects transient immaturity to life without parole” and would thereby “demean the substantive character of the federal right.”

See id. at 735.

OPINIONS BELOW

The order of the Circuit Court of Lee County, Mississippi sentencing Petitioner to life in prison without

eligibility for parole (Pet. App. 57a) and the court’s

oral statement of reasons (Joint Appendix (“J.A.”)

148–53) are unpublished. The Mississippi Court of

Appeals’ opinion affirming the sentence (Pet. App.

31a–56a) is published at 285 So. 3d 626. The Supreme Court of Mississippi’s orders granting certiorari (Pet. App. 30a) and dismissing the writ (Pet. App.

1a–29a) are unpublished.

JURISDICTION

The Supreme Court of Mississippi dismissed its

previously-granted writ of certiorari on November 29,

2018. Justice Alito extended the time to petition this

Court for certiorari to March 29, 2019, and Petitioner

timely filed a petition on that date. This Court granted certiorari on March 9, 2020 and has jurisdiction

under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

The Eighth Amendment states: “Excessive bail

shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.”

STATEMENT

1. Brett Jones turned fifteen on July 17, 2004. J.A.

71. Twenty-three days later, he killed his paternal

grandfather, Bertis Jones, during a fight about

Brett’s girlfriend, Michelle Austin. Jones v. State, 122

So. 3d 725, 728 (Miss. Ct. App. 2011). Brett had come

to stay with his grandparents in Mississippi approximately two months earlier to escape his mother and

stepfather’s violent household in Florida. J.A. 47, 58–

60, 64; Pet. App. 37a–38a. In early August, Michelle

ran away from her family’s home in Florida and secretly joined Brett in Mississippi. Pet. App. 13a;

Jones v. State, 938 So. 2d 312, 313 (Miss. Ct. App.

2006).

On the morning of August 9, 2004, Mr. Jones discovered Michelle in Brett’s bedroom and angrily ordered her out of his house. Jones, 122 So. 3d at 728.

Later that day, Brett was making a sandwich when

his grandfather entered the kitchen. Jones, 938 So.

2d at 314. The two began to argue. Id. Brett “sassed”

Mr. Jones, and Mr. Jones pushed him. Id. Brett

pushed him back. Id.

Mr. Jones then swung at Brett. Id. Brett “had a

steak knife in his hand from making [the] sandwich”

and “he ‘threw the knife forward,’ stabbing his grandfather.” Id. When Mr. Jones continued to come at

Brett, Brett grabbed a different knife, and stabbed

Mr. Jones a total of eight times. Id. at 314–15.

Brett later testified that he stabbed Mr. Jones because he “was afraid” and “didn’t know anything else

to do because he was so huge.” Id. at 314. Brett explained that his grandfather is “not really a big looking man until he gets in your face with his hands up

and swinging at you, and then he turns into a giant.

And you just feel like there’s no way out, no way to

get away from him.” Id.

When the altercation ended, Brett found Michelle,

and the two set out for the Walmart in nearby Tupelo, Mississippi, where Brett’s grandmother worked.

Id. at 315. Brett wanted to tell his grandmother what

happened. Id. Brett and Michelle were arrested at a

gas station while trying to get a ride to the Walmart.

Id. Brett admitted to police officers that he stabbed

his grandfather. Jones, 122 So. 3d at 728–29.

Brett stood trial for murder in the Circuit Court of

Lee County, Mississippi. Michelle Austin testified

that after Mr. Jones ordered her out of the house,

Brett told her that he was in trouble and that he was

going to hurt his grandfather. Jones, 938 So. 2d at

314. The jury rejected Brett’s self-defense claim and

found him guilty of murder. Id. at 316. The circuit

court imposed the mandatory minimum penalty, under which Brett would spend the rest of his life in

prison without the possibility of parole. Jones v.

State, 122 So. 3d 698, 699–701 (Miss. 2013) (en banc).

2. In 2013, following this Court’s decision in Miller

v. Alabama, 567 U.S. 460 (2012), the Mississippi Supreme Court granted Brett’s motion for postconviction relief, vacated his mandatory life-withoutparole sentence, and remanded to the circuit court for

a new sentencing hearing. Jones, 122 So. 3d at 703.

The Mississippi Supreme Court did not interpret

Miller to restrict life-without-parole sentences only to

permanently incorrigible juvenile homicide offenders.

Instead, it opined that a court may impose a lifewithout-parole sentence on a juvenile so long as the

court considers a set of youth-related factors when

making its sentencing determination: “Miller rendered our present sentencing scheme unconstitution-

al if, and only if, the sentencing authority fails to

take into account characteristics and circumstances

unique to juveniles.” Id. at 702 (emphasis added). The

Mississippi Supreme Court therefore directed the circuit court to hold a hearing and consider a set of “juvenile characteristics and circumstances”—not to determine whether Brett is permanently incorrigible.

Id. at 700. The Mississippi Supreme Court calls these

considerations the “Miller factors.”1

3. On remand to the circuit court, the State advocated for a sentence of life without parole. J.A. 147.

Brett sought a sentence of life with eligibility for parole. Id. The State rested on the existing record and

offered no new evidence. Id. at 23, 136. The defense

called six witnesses: Brett, his paternal grandmother

(Mr. Jones’ widow), his mother, his younger brother,

his cousin, and a corrections officer. Id. at 36–135;

Pet. App. 37a.

Jerome Benton, the corrections officer, described

Brett’s rehabilitation while incarcerated, testifying

that Brett was a “good kid” who tried to “do the right

thing” and “got along with everybody.” J.A. 109. Ac1 According to the Mississippi Supreme Court the “Miller factors” are: (1) the juvenile offender’s “chronological age and its

hallmark features—among them, immaturity, impetuosity, and

failure to appreciate risks and consequences,” (2) his “family and

home environment,” and the fact that a juvenile “cannot usually

extricate himself [from his home]—no matter how brutal or dysfunctional,” (3) “the circumstances of the homicide offense, including the extent of his participation in the conduct and the

way familial and peer pressures may have affected him,” (4)

whether “he might have been charged and convicted of a lesser

offense if not for incompetencies associated with youth—for example his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own

attorneys,” and (5) “the possibility of rehabilitation.” Parker v.

State, 119 So. 3d 987, 998, 995–96 (Miss. 2013) (en banc).

cording to Officer Benton, Brett sought out opportunities to work and “was a very good employee.” Id. at

106. “Every time I looked up,” Officer Benton testified, “[Brett] was standing there waiting on a job to

do.” Id. Other staff, including the warden, sought

Brett out for jobs around the prison. Id. at 109.

Officer Benton testified that Brett had learned the

Bible well, and that Brett and Officer Benton would

discuss it. Id. at 107. Brett had earned his GED while

incarcerated and hoped to take college courses. Id. at

108–09. In a prison rife “with violence and gang violence,” Brett “didn’t participate in none of that.” Id. at

115.

Brett also testified about his development in prison,

explaining that he has “tr[ied] to stay out of trouble.”

Id. at 134. Despite having served nearly a decade of a

sentence that offered no possibility of release, Brett

was “involved in only one significant disciplinary incident.” Pet. App. 39a.

Brett stated: “My grandfather was my dad in my

eyes . . . . He was the stable one. . . . I mean, I

loved my grandfather to death . . . . I—yeah, I regret

it.” J.A. 132–33. Officer Benton confirmed that Brett

had expressed remorse and “regret[]” for his crime.

Id. at 112.

The other witnesses testified about challenges Brett

faced in his childhood. Brett’s father, a violent alcoholic who spent part of Brett’s youth in prison,

“knocked teeth out of [his mother’s] face [and] . . .

broke [her] nose several times.” Id. at 71–72. His

mother abused alcohol and “suffered from depression,

bipolar disorder, manic depressive disorder, and a

self-injury disorder,” and often left Brett and his

brother “alone and unattended when they were

young.” Pet. App. 38a. Residents of their apartment

building would call Brett’s grandmother, complaining

that Brett, left alone as a baby, “was screaming all

night long.” J.A. 40–41.

Brett’s mother left his father when Brett was

around two and a half, but her next husband was also

a violent man. Id. at 71, 77. He would whip Brett

with “the buckle end of a belt,” beat him with a

switch, and smack him with a Ping Pong paddle he

called “The Punisher.” Id. at 58, 78, 81. He would

“poke” Brett “in the face” and “grab [him] by the

neck.” Pet. App. 37a. This brutality “left marks quite

a few times” and could break the skin. J.A. 52, 68,

121.

Brett’s only prior contact with the criminal justice

system resulted from an incident in which he

punched his abusive stepfather, who had grabbed

Brett by the throat, “pulled a belt,” and threatened to

“beat the s***” out of him. Id. at 93–94; Pet. App. 38a.

Brett was required to attend a mediation program for

first-time juvenile offenders. J.A. 91–92; Pet. App.

38a.

Brett was prescribed medication for mental health

conditions including attention deficit hyperactivity

disorder and depression, and he sometimes experienced psychosis. Pet. App. 39a. See also J.A. 92–93,

95, 123–24. Brett also “had issues with cutting himself.” Pet. App. 39a. See also J.A. 55–56, 130. Approximately two months before Brett killed his grandfather, Brett’s mother allowed him to discontinue his

prescribed psychotropic medication cold turkey rather

than gradually tapering the dosage. J.A. 38–39, 125–

26. In prison, Brett worked with a “psych doctor” to

address the mental health conditions that affected his

childhood. Id. at 134.

At the close of the sentencing hearing, Brett’s attorney argued that Miller precluded a life-withoutparole sentence because “[t]here is nothing in this

record that would support a finding that the offense

reflects irreparable corruption.” J.A. 143–44.

4. On April 17, 2015, the circuit court resentenced

Brett to life without parole. Pet. App. 57a; J.A. 152.

The court did not find Brett permanently incorrigible

or address his capacity for rehabilitation. See J.A.

148–52. Instead, consistent with the instructions

from the Mississippi Supreme Court, the court

viewed its task as assessing aggravating and mitigating circumstances: “Miller requires that the

sentencing authority consider both mitigating and

the aggravating circumstances. And I would note that

these are not really terms used in the Miller opinion,

but I think they are an easy way for us to identify

those considerations.” Id. at 149.

The circuit court focused principally on the nature

of the crime, which it described as “particularly brutal.” Id. at 150. The court noted that the jury rejected

Brett’s self-defense claim, that he stabbed his grandfather eight times, that he “was forced to resort to a

second knife when the first knife broke,” and that he

moved the body and tried to clean up the blood. Id.

The court made only passing references to the fact

that Brett was barely fifteen years old at the time of

the offense. Id. at 149–51. The court’s only direct reference to Brett’s “maturity” was a commentary on his

sexual relationship with Michelle Austin. The court

stated: “The evidence presented at the sentencing

hearing indicates that their relationship was intimate and that at some time before the incident she

thought she was pregnant. That suspicion proved to

be untrue, but demonstrates that the defendant had

reached some degree of maturity in at least one area.”

Id. at 151.

Although the court noted that Brett “grew up in

troubled circumstance,” it found there was “no evidence of brutal or inescapable home circumstances,”

because his grandparents “had ‘provide[d] him a

home away from’ his troubled family environment in

Florida” some two months before the murder. Pet.

App. 46a.

5. Brett appealed, and the case was assigned to the

Mississippi Court of Appeals.2 While the appeal was

pending, this Court decided Montgomery v. Louisiana, 136 S. Ct. 718 (2016). In concluding that Miller

applied retroactively, Montgomery rejected Louisiana’s argument that Miller “mandates only that a

sentencer follow a certain process—considering an

offender’s youth and attendant characteristics—

before imposing a particular penalty.” 136 S. Ct. at

734. The Court explained that Miller “bar[red] life

without parole . . . for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” Id. Therefore, Miller announced a “substantive rule” that “prohibits ‘a certain category of

punishment for a class of defendants because of their

status or offense.’” Id. at 732.

On appeal, Brett asserted that because the circuit

court failed to make a finding of permanent incorrigibility, the court of appeals should vacate his sentence

and remand to the circuit court. See, e.g., Appellant’s

Ct. App. Br. 42–44; Ct. App. Reply Br. 6–14; Appellant’s Supp. Ct. App. Br. 2–9. Alternatively, he ar2 The Mississippi Rules of Appellate Procedure provide: “All

appeals from final orders of trial courts shall be filed in the Supreme Court and the Supreme Court shall assign cases, as appropriate, to the Court of Appeals.” Miss. R. App. P. 16(a).

gued that the Eighth Amendment exempted him from

life without parole because the existing record established his corrigibility. See, e.g., Appellant’s Ct. App.

Br. 52–57; Ct. App. Reply Br. 18–22.

In its court-ordered supplemental brief addressing

Montgomery, the State conceded that “Montgomery

requires . . . a proceeding in which the defendant can

put on proof that he is not irreparably corrupt and

permanently incorrigible.” Appellee’s Supp. Ct. App.

Br. 4. The State, however, did not contend that Brett

is permanently incorrigible, or that the circuit court

had considered the question. See generally Appellee’s

Ct. App. Br.; Appellee’s Supp. Ct. App. Br. Instead,

the State argued that the sentencing court need not

make any finding regarding a juvenile offender’s corrigibility. Appellee’s Supp. Ct. App. Br. 3–4.

The court of appeals affirmed. It concluded that

“[t]he sentencing judge must consider the factors discussed in Miller, and the judge must ‘apply [those]

factors in a non-arbitrary fashion.’ However, the sentencing judge is not required to make any specific

‘finding of fact.’” Pet. App. 42a (second alteration in

original) (citation omitted). The court found that the

“[sentencing] judge expressly stated that he had ‘considered each of the Miller factors,’” and that the

judge’s “bench ruling was sufficient to explain the

reasons for the sentence.” Id. at 47a. The court also

opined that the “judge recognized the correct legal

standard,” which the court described as “the Miller

factors.” Id.

Two judges dissented on the ground that Montgomery announced a constitutional rule that forbids lifewithout-parole sentences “for all but the rare juvenile

offender whose crime reflects irreparable corruption.”

Id. at 53a. Given this rule, the dissenting judges

maintained that “[t]he entire purpose of conducting a

proper Miller analysis is to determine whether a juvenile defendant represents the rare juvenile offender

who exhibits such irretrievable depravity and permanent incorrigibility that rehabilitation is impossible

and life without parole is justified.” Id. at 52a (footnote omitted). Because the circuit court failed to determine whether Brett “is among the rarest of juvenile offenders under Miller and Montgomery,” the dissenting judges would have remanded for that determination. Id. at 56a.

6. Brett moved for rehearing in the state court of

appeals. While the motion was pending, the Mississippi Supreme Court decided Chandler v. State, 242

So. 3d 65 (Miss. 2018) (en banc). In Chandler, the

court reiterated its pre-Montgomery holding that Miller “render[s]” a life-without-parole sentence for a juvenile “unconstitutional if, and only if, the sentencing

authority fails to take into account characteristics

and circumstances unique to juveniles.” Id. at 69

(quoting Jones, 122 So. 3d at 702) (emphasis added).

In Chandler, the Mississippi Supreme Court did

not acknowledge this Court’s holding that only permanently incorrigible juveniles may be sentenced to

life without parole. Indeed, the court’s only reference

to incorrigibility was its statement that “Montgomery

. . . confirmed that Miller does not require trial courts

to make a finding of fact regarding a child’s incorrigibility” before imposing a life-without-parole sentence.

Id. (citing Montgomery, 136 S. Ct. at 735). Chandler

affirmed the defendant’s life-without-parole sentence

because the circuit court “held a hearing” and “took

into account the characteristics and circumstances

unique to juveniles.” Id. at 70–71.

Following Chandler, the court of appeals denied

Brett’s motion for rehearing.

7. The Supreme Court of Mississippi granted

Brett’s petition for certiorari. Pet. App. 30a. In that

court, Brett again requested a remand “so that the

circuit court may determine, in the first instance,

whether [he] is permanently incorrigible and thus eligible for a [life-without-parole] sentence.” Miss. Cert.

Pet. 7. See also id. at 1–2; Appellant’s Miss. Sup. Ct.

Supp. Br. 1–9. He also continued to assert, in the alternative, that there was no need for a remand because the record shows he is not permanently incorrigible. Miss. Cert. Pet. 4–6.

In its briefing, the State again acknowledged that

Montgomery held that Miller established a substantive rule of constitutional law and that the relevant

“question” in this case is “[w]hether [Brett]’s crime

reflected irreparable corruption.” Appellee’s Sup. Ct.

Supp. Br. 4–5. Nonetheless, the State also asserted

that the circuit court had no obligation to answer that

question, stating that “[t]he law does not require the

trial court to make specific findings of fact.” Id. at 3.

And once again, the State declined to argue that

Brett is, in fact, permanently incorrigible.

After oral argument, five justices voted to dismiss

the petition. Pet. App. 1a. Four justices dissented,

criticizing the majority for “wav[ing] aside the United

States Supreme Court’s decision in Montgomery and

allow[ing] an unconstitutional sentence to stand.” Id.

at 2a.

The dissenting justices maintained that “no state

may, consistent with the Eighth Amendment, sentence a juvenile to life without parole eligibility if the

crime reflects transient immaturity rather than permanent incorrigibility.” Id. at 24a (citing Montgomery, 136 S. Ct. at 734). The dissenters concluded that

the “evidence adduced in the circuit court fell short of

establishing that [Brett] was one of those ‘rare chil-

dren whose crimes reflect irreparable corruption.’” Id.

at 25a (quoting Montgomery, 136 S. Ct. at 734).

Therefore they would have ordered that Brett “be resentenced to life imprisonment with eligibility for parole.” Id. at 29a.

SUMMARY OF ARGUMENT

I. Miller v. Alabama, 567 U.S. 460 (2012), and

Montgomery v. Louisiana, 136 S. Ct. 718 (2016), set

forth the clear rule that governs this case: The Eighth

Amendment prohibits life-without-parole sentences

for juvenile homicide offenders unless their crimes

reflect permanent incorrigibility. Miller established

that sentencing a juvenile to life without parole requires “distinguishing . . . between ‘the juvenile offender whose crime reflects unfortunate yet transient

immaturity, and the rare juvenile offender whose

crime reflects irreparable corruption.’” Miller, 567

U.S. at 479–80 (2012) (quoting Roper v. Simmons,

543 U.S. 551, 573 (2005); Graham v. Florida, 560

U.S. 48, 68 (2010)).

Montgomery confirmed that “Miller . . . bar[red] life

without parole . . . for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” 136 S. Ct. at 734. That rule—repeated seven times in Montgomery—constitutes its ratio decidendi. Montgomery held that Miller announced a

substantive rule that applies retroactively precisely

because Miller prohibited a penalty (life without parole) for a class of offenders (corrigible juvenile homicide offenders). See id. at 732–34.

II. As with any rule that bans a penalty for a category of offenders, Miller and Montgomery’s permanent-incorrigibility rule requires a court to resolve

the question of whether an offender is, or is not, a

member of the eligible class. Courts resolve questions

by making findings. Thus, to sentence a juvenile

homicide offender to life without parole, a court must

find him permanently incorrigible.

States certainly have discretion to craft the procedure for making this essential finding. But courts

may not dispense with the permanent incorrigibility

finding altogether. At a bare minimum, courts must

make an “evident ruling on [the] question” of permanent incorrigibility. United States v. Briones, 890

F.3d 811, 827 (9th Cir. 2018) (O’Scannlain, J., concurring in part and dissenting part), on reh’g en banc,

929 F.3d 1057 (9th Cir. 2019). If that basic determination were optional, the permanent-incorrigibility

rule would mean nothing, Montgomery’s retroactivity

analysis would make no sense, and States would be

“free to sentence a child whose crime reflects transient immaturity to life without parole,” and thereby to

“demean the substantive character of the federal

right.” Montgomery, 136 S. Ct. at 735.

III. At every stage of the proceedings below, Brett

asserted that he is not permanently incorrigible and

thus that life without parole is an unconstitutional

sentence. He produced substantial evidence in support of this assertion. Nonetheless, no court has ever

asked or answered the question of whether Brett is

permanently incorrigible. Instead, the Mississippi

courts maintained that Miller requires sentencing

courts only to follow a procedure—considering a set of

youth-related factors—before imposing a life-withoutparole sentence.

This Court has already decided that a procedure

like Mississippi’s will not do: “Even if a court considers a child’s age before sentencing him or her to a

lifetime in prison, that sentence still violates the

Eighth Amendment for a child whose crime reflects

‘unfortunate yet transient immaturity.’” Id. at 734

(quoting Miller, 567 U.S. at 479). Therefore, at a minimum, this Court should vacate the sentence and remand the case so Mississippi’s courts can determine

whether Brett is the rare, permanently incorrigible

juvenile homicide offender who may be sentenced to

life without parole.

IV. This unique case demands more, however, because the record conclusively demonstrates Brett’s

corrigibility. Thus, under Miller and Montgomery’s

rule, he may not be sentenced to life without parole.

The uncontroverted testimony of the State’s own correctional officer makes this plain. J.A. 103–16. As Officer Benton explained, even while serving nearly a

decade of a sentence that offered no meaningful opportunity for release or incentive to reform, Brett became a committed worker and model inmate.

Despite repeated opportunities in the courts below,

the State has not demonstrated, or even attempted to

argue, that Brett is incapable of rehabilitation. At

this point, prolonging the litigation would only belabor the obvious: Brett Jones is not among “the rarest

of juvenile offenders, those whose crimes reflect permanent incorrigibility.” Montgomery, 136 S. Ct. at

734.

ARGUMENT

I. For Juveniles, The Eighth Amendment Restricts Life Without Parole To Permanently

Incorrigible Homicide Offenders.

In Miller v. Alabama and Montgomery v. Louisiana,

the Court repeatedly stated the constitutional rule

that governs this case: The Eighth Amendment prohibits sentencing juvenile homicide offenders to life

without parole unless they are permanently incorri-

gible. See Miller, 567 U.S. at 479–80; Montgomery,

136 S. Ct. at 726, 732–34.

1. In Miller, the Court concluded that mandatory

life-without-parole sentences for juvenile homicide

offenders violate the Eighth Amendment. 567 U.S. at

465, 479. That outcome followed from the permanentincorrigibility rule: Only “the rare juvenile offender

whose crime reflects irreparable corruption” is eligible for life without parole. Id. at 479–80 (quoting

Roper v. Simmons, 543 U.S. 551, 573 (2005); Graham

v. Florida, 560 U.S. 48, 68 (2010)).

Miller “implicate[d] two strands of precedent reflecting [the Court’s] concern with proportionate punishment.” Id. at 470. One line recognizes “categorical

bans on sentencing practices based on mismatches

between the culpability of a class of offenders and the

severity of a penalty.” Id. The cases in this line that

Miller cited all establish rules that exempt a class of

offenders from a punishment. See Graham v. Florida,

560 U.S. 48, 82 (2010) (barring life without parole for

juvenile non-homicide offenders); Roper v. Simmons,

543 U.S. 551, 578 (2005) (barring the death penalty

for juvenile offenders); Coker v. Georgia, 433 U.S.

584, 592 (1977) (barring the death penalty for offenders convicted of raping an adult); Kennedy v. Louisiana, 554 U.S. 407, 437–38 (2008) (barring the death

penalty for offenders convicted of nonhomicide crimes

against individuals); Atkins v. Virginia, 536 U.S. 304,

321 (2002) (barring the death penalty for intellectually disabled murderers). “Several of the cases in this

group,” the Court noted, “have specially focused on

juvenile offenders.” Miller, 567 U.S. at 470.3

3 Three other decisions in this line of cases, not addressed in

Miller’s discussion, are Ford v. Wainwright, 477 U.S. 399 (1986),

which bars the execution of insane defendants, Enmund v. Flor-

The second strand of precedent examined in Miller

“require[s] individualized sentencing for defendants

facing the most serious penalties.” Id. at 465. The

Court has “insisted . . . that a sentencer have the ability to consider the ‘mitigating qualities of youth’” and

has emphasized that youth’s ‘“signature qualities’ are

all ‘transient.’” Id. at 476 (quoting Johnson v. Texas,

509 U.S. 350, 367 (1993)). In contrast to individualized sentencing, a “mandatory punishment” of life

without parole for a juvenile necessarily “disregards

the possibility of rehabilitation.” Id. at 478.

Like every case in the first strand of precedent, Miller identified a penalty (life without parole) and exempted a class (corrigible juveniles who commit murder) from it. As Miller explained, a sentencer must

“distinguish[] . . . between ‘the juvenile offender

whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’” Id. at 479–80 (quoting

Roper, 543 U.S. at 573).

2. In Montgomery, the Court considered whether

Miller applies retroactively and, in analyzing that

question, reiterated Miller’s permanent-incorrigibility

rule at least seven times. One: “[A] lifetime in prison

is a disproportionate sentence for all but the rarest of

children, those whose crimes reflect ‘irreparable corruption.’” 136 S. Ct. at 726 (quoting Miller, 567 U.S.

at 479–80). Two: “[Miller] recognized that a sentencer

might encounter the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation

is impossible and life without parole is justified.” Id.

at 733. Three: “Even if a court considers a child’s age

ida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137

(1987), both of which restrict the death penalty for offenders

convicted of felony murder who lack a sufficiently culpable mental state with respect to the homicide.

before sentencing him or her to a lifetime in prison,

that sentence still violates the Eighth Amendment for

a child whose crime reflects ‘unfortunate yet transient immaturity.’” Id. at 734 (quoting Miller, 567 U.S.

at 479). Four: “Miller determined that sentencing a

child to life without parole is excessive for all but the

‘rare juvenile offender whose crime reflects irreparable corruption.’” Id. (quoting Miller, 567 U.S. at 479–

80). Five: “Miller drew a line between children whose

crimes reflect transient immaturity and those rare

children whose crimes reflect irreparable corruption.”

Id. Six: “[P]risoners like Montgomery must be given

the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for

some years of life outside prison walls must be restored.” Id. at 736–37. And perhaps most bluntly,

seven: “Miller did bar life without parole . . . for all

but the rarest of juvenile offenders, those whose

crimes reflect permanent incorrigibility.” Id. at 734.

The permanent-incorrigibility rule was essential to

Montgomery’s ultimate conclusion that Miller applies

retroactively. A rule is substantive, and thus retroactive, if it “prohibit[s] a certain category of punishment

for a class of defendants because of their status or offense.” Id. at 729 (quoting Penry v. Lynaugh, 492 U.S.

302, 330 (1989)). In Montgomery, the Court found

Miller’s rule retroactive because it prohibits lifewithout-parole sentences for corrigible juvenile homicide offenders: “[Miller] rendered life without parole

an unconstitutional penalty for a class of defendants

because of their status—that is, juvenile offenders

whose crimes reflect the transient immaturity of

youth. As a result, Miller announced a substantive

rule of constitutional law.” Id. at 734 (citation and

quotation marks omitted).4

Unsurprisingly, federal appellate decisions describe

the permanent-incorrigibility rule as “clear,” “stated

clearly,” and “clearly established.”5 Indeed, even the

State acknowledged below that “Miller announced a

substantive rule of constitutional law,” and thus the

“question” is “[w]hether [Brett’s] crime reflected irreparable corruption.” Appellee’s Sup. Ct. Supp. Br.

4, 5 (quoting Montgomery, 136 S. Ct. at 725).

II. Sentencing A Juvenile Homicide Offender

To Life Without Parole Requires Finding

That He Is Permanently Incorrigible.

Miller and Montgomery’s permanent-incorrigibility

rule operates like any other constitutional rule that

“prohibits a particular form of punishment for a class

4 See also Montgomery, 136 S. Ct. at 732 (“A substantive rule

. . . prohibits ‘a certain category of punishment for a class of defendants because of their status or offense.’ Under this standard

. . . Miller announced a substantive rule that is retroactive in

cases on collateral review.” (citations omitted)).

5 E.g., Ali v. Roy, 950 F.3d 572, 574 (8th Cir. 2020) (“We begin

by laying out the ‘clearly established Federal law’ regarding the

Eighth Amendment. According to Montgomery v. Louisiana and

Miller v. Alabama, sentencing a juvenile to life-without-parole

violates the Eighth Amendment ‘for all but “the rare juvenile

offender whose crime reflects irreparable corruption.”’” (citation

omitted)); United States v. Briones, 929 F.3d 1057, 1064 (9th

Cir. 2019) (en banc) (“Montgomery made clear that, after Miller,

juvenile defendants who are not permanently incorrigible or irreparably corrupt are constitutionally ineligible for a sentence of

life without parole.” (emphasis in original)); Malvo v. Mathena,

893 F.3d 265, 274 (4th Cir. 2018) (“Montgomery stated clearly

that, under Miller, the Eighth Amendment bars life-withoutparole sentences for all but those rare juvenile offenders whose

crimes reflect permanent incorrigibility.”), cert. granted, 139 S.

Ct. 1317 (2019), and cert. dismissed, 140 S. Ct. 919 (2020).

of persons.” Montgomery, 136 S. Ct. at 735. That is, a

court has to find whether the person is, or is not, eligible under the substantive rule. For example, because the Eighth Amendment bans executing the insane, a defendant is “entitle[d] to an adjudication to

determine” his sanity if he “makes the requisite preliminary showing that his current mental state would

bar execution.” Panetti v. Quarterman, 551 U.S. 930,

934–35 (2007). So too with the rule of Miller and

Montgomery: When a juvenile homicide offender asserts that he is not permanently incorrigible, as Brett

did, a court must resolve the question of corrigibility

before it may impose a life-without-parole sentence.

States certainly have some discretion in crafting

the procedure for making the permanent incorrigibility finding: “When a new substantive rule of constitutional law is established, this Court is careful to limit

the scope of any attendant procedural requirement to

avoid intruding more than necessary upon the States’

sovereign administration of their criminal justice systems.” Montgomery, 136 S. Ct. at 735. But States

cannot ignore the critical permanent-incorrigibility

finding altogether, as Mississippi’s courts did here.

That would “leave States free to sentence a child

whose crime reflects transient immaturity to life

without parole” in violation of the Eighth Amendment. Id. Power to shape procedure is not license to

eviscerate a settled rule of law.

A. Eligibility Rules Require Finding That

The Defendant Does Or Does Not Belong

To The Eligible Class.

Where the Court has set out a substantive rule barring a punishment for a class of offenders and left the

procedure for enforcing that rule to the States’ discretion, the procedure must at least determine that an

individual defendant is, or is not, a member of the

class of offenders for whom the punishment is permissible. This is the only way to ensure that an offender does not receive an unconstitutional sentence.

1. Like Miller and Montgomery, Ford v. Wainwright, 477 U.S. 399 (1986), prohibited a penalty for

a category of offenders. Specifically, Ford barred execution of the insane. Id. at 410. The Court in Ford left

to the States “the task of developing appropriate

ways to enforce the constitutional restriction.” Id. at

416 (plurality opinion). However, the four-Justice

plurality emphasized that “ascertainment of a prisoner’s sanity [i]s a predicate to lawful execution.” Id.

at 411. After all, “if the Constitution renders the fact

or timing of his execution contingent upon establishment of a further fact, then that fact must be determined.” Id. Concurring in the judgment, Justice Powell likewise acknowledged the indispensable determination: “[T]he question in this case is whether Florida’s procedures for determining petitioner’s sanity

comport with the requirements of due process.” Id. at

424 (Powell, J., concurring in the judgment).

2. Atkins barred the death penalty for intellectually

disabled offenders. 536 U.S. at 321. As in Ford, the

Court assigned States “the task” of crafting a procedure to enforce the rule. Id. at 317 (quoting Ford, 477

U.S. at 416–17). However, Atkins also made clear

that the procedure must “determin[e] which offenders

are in fact [intellectually disabled].” Id. Subsequent

cases have refined the Atkins determination. For example, this Court has held that medical science must

inform a “court’s intellectual-disability determination,” Moore v. Texas, 137 S. Ct. 1039, 1048 (2017),

and that States cannot “bar[] consideration of evidence that must be considered in determining whether a defendant in a capital case has intellectual disability.” Hall v. Florida, 572 U.S. 701, 723 (2014).

3. Enmund v. Florida barred the death penalty for

felony-murderers who did not themselves kill, attempt to kill, or intend a killing or the use of lethal

force. 458 U.S. 782, 797 (1982).6 Once again, this

Court left it to the States to craft the procedure for

enforcing this rule: “Enmund does not impose any

particular form of procedure upon the States. The

Eighth Amendment is satisfied so long as the death

penalty is not imposed upon a person ineligible under

Enmund for such punishment.” Cabana v. Bullock,

474 U.S. 376, 386 (1986) (emphasis in original), abrogated by Pope v. Illinois, 481 U.S. 497 (1987). But

again, the Court has also emphasized that States

“must at some point provide for a finding of

[Enmund’s] factual predicate.” Id. at 390–91.

4. Rules of the same logical form are certainly not

unique to the death penalty, or even sentencing. Indeed, the fundamental principle is so commonplace it

is often left unsaid: If the constitutionality of a deprivation depends on a condition, a court authorizing the

deprivation must first find that the condition obtains.

For example, criminal punishment “may not constitutionally be imposed prior to a determination of guilt,”

Bell v. Wolfish, 441 U.S. 520, 537 (1979), a magistrate

must “determin[e] the existence of probable cause”

before issuing a warrant to search a home, Illinois v.

Gates, 462 U.S. 213, 239 (1983), and “keeping [a person] against his will in a mental institution is improper absent a determination in civil commitment

proceedings of current mental illness and dangerousness,” Foucha v. Louisiana, 504 U.S. 71, 78 (1992). If

6 This Court later qualified Enmund’s rule by holding that the

Eighth Amendment permits the death penalty for a felonymurderer who did not kill or attempt to kill, but who was a “major participa[nt] in the felony committed” and who demonstrated

“reckless indifference to human life.” Tison, 481 U.S. at 158.

the government could deprive people of liberty without finding that those constitutional conditions were

satisfied, the conditions would mean nothing at all.

B. Miller And Montgomery’s Eligibility Rule

Requires Finding That The Defendant

Does Or Does Not Belong To The Eligible Class.

The same analysis that applies to the insanity rule

of Ford, the intellectual disability rule of Atkins, and

the killed or intended to kill rule of Enmund—as well

as any number of other constitutional rules that depend on a condition being satisfied—also applies to

the permanent-incorrigibility rule of Miller and

Montgomery. To enforce the substantive constitutional rule set forth in Ford, a court must find that the

capital offender is or is not insane. To enforce the

substantive constitutional rule set forth in Atkins, a

court must find that the defendant is or is not intellectually disabled. To enforce the substantive constitutional rule set forth in Enmund, a court must determine whether the defendant “killed, attempted to

kill, or intended that a killing take place or that lethal force be used.” Cabana, 474 U.S. at 386. And to

enforce the substantive constitutional rule set forth

in Miller and Montgomery and determine if a juvenile

“falls within the category of persons” eligible for a

life-without-parole sentence, a court must find that

the defendant is or is not permanently incorrigible.

Montgomery, 136 S. Ct. at 735.

1. Miller and Montgomery make plain that a court

must determine that a juvenile defendant is permanently incorrigible before imposing a life-withoutparole sentence. Miller, for example, described the

necessity of “distinguishing . . . between ‘the juvenile

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

crime reflects irreparable corruption.’” Miller, 567

U.S. at 479–80. By definition, making such a distinction requires determining whether a particular juvenile offender is, or is not, irreparably corrupt. See id.

A court must “make that judgment in homicide cases.” Id.

Montgomery further explains that “Miller drew a

line between children whose crimes reflect transient

immaturity and those rare children whose crimes reflect irreparable corruption.” Montgomery, 136 S. Ct.

at 734. The very existence of a line implies the necessity of determining on which side of the line the defendant falls. Montgomery also stated that a court

must “separate those juveniles who may be sentenced

to life without parole from those who may not.” Id. at

735. Again, such a separation requires finding

whether a juvenile is permanently incorrigible, and

therefore eligible for a life-without-parole sentence.

The very purpose of holding a hearing is to “give[]

effect to Miller’s substantive holding that life without

parole is an excessive sentence for children whose

crimes reflect transient immaturity” by allowing the

defendant to “show that he belongs to the protected

class.” Id. at 735. Therefore, “prisoners like Montgomery must be given the opportunity to show their

crime did not reflect irreparable corruption; and if it

did not, their hope for some years of life outside prison walls must be restored.” Id. at 736–37 (emphasis

added). If a court could impose life without parole

without finding that the defendant belonged to the

eligible class, the opportunity to “show” corrigibility

would mean nothing. A juvenile could be condemned

to spend the rest of his life in prison no matter how

clearly he demonstrated his corrigibility.

Even the principal dissent in Montgomery recognized that the substantive rule requires courts to “re-

solve” the “question” of whether a juvenile is permanently incorrigible. Id. at 744 (Scalia, J., dissenting).

Other members of this Court have reached the same

conclusion post-Montgomery. See, e.g., Tatum v. Arizona, 137 S. Ct. 11, 12 (2016) (Sotomayor, J., concurring in the decision to grant, vacate, and remand)

(“On the record before us, none of the sentencing

judges addressed the question Miller and Montgomery require a sentencer to ask: whether the petitioner

was among the very ‘rarest of juvenile offenders,

those whose crimes reflect permanent incorrigibility.’” (quoting Montgomery, 136 S. Ct. at 734)). See

also Adams v. Alabama, 136 S. Ct. 1796, 1800 (2016)

(Sotomayor, J., concurring in the decision to grant,

vacate, and remand).

This is not to say that Miller and Montgomery require a court to “utter [some] ‘magic phrase’ to justify

its sentence.” See Briones, 890 F.3d at 827

(O’Scannlain, J., concurring in part and dissenting in

part). Nor must a court gild its finding with a formal

preface such as “I find” or “the Court hereby finds.”

This Court has spoken in terms including “permanent

incorrigibility,” “irreparable corruption,” “irretrievable depravity,” and “transient immaturity.” See Miller, 567 U.S. at 471, 479–80; Montgomery, 136 S. Ct.

at 733–34. For purposes of enforcing Miller and

Montgomery’s substantive rule, however, what matters is not the precise words used by a court but a

finding in the most basic sense—an “evident ruling

on [the] question” of permanent incorrigibility. Briones, 890 F.3d at 822 (O’Scannlain, J., concurring in

part and dissenting in part). If state courts were not

required to find in any form whether a defendant is

or is not permanently incorrigible, they could not possibly “separate those juveniles who may be sentenced

to life without parole from those who may not.” Montgomery, 136 S. Ct. at 735.

2. In reaching the conclusion that a sentencing

judge is not required to make a finding of permanent

incorrigibility to impose a life-without-parole sentence on a juvenile, Mississippi’s courts mistakenly

believed that Montgomery held as much. See Jones v.

State, 285 So. 3d 626, 632 (Miss. Ct. App. 2017) (quoting Cook v. State, 242 So. 3d 865, 876 (Miss. Ct. App.

2017) (quoting Montgomery, 136 S. Ct. at 735)); see

also Chandler, 242 So. 3d at 69 (citing Montgomery,

136 S. Ct. at 735). But the statements Mississippi’s

courts relied on are not rulings of this Court. Rather,

the Court made those statements in describing—and

rejecting—Louisiana’s argument that Miller would

have explicitly required a finding of permanent incorrigibility had it announced a new substantive rule of

constitutional law:

Louisiana suggests that Miller cannot have made

a constitutional distinction between children

whose crimes reflect transient immaturity and

those whose crimes reflect irreparable corruption

because Miller did not require trial courts to

make a finding of fact regarding a child’s incorrigibility. That this finding is not required, however, speaks only to the degree of procedure Miller

mandated in order to implement its substantive

guarantee. When a new substantive rule of constitutional law is established, this Court is careful to limit the scope of any attendant procedural

requirement to avoid intruding more than necessary upon the States’ sovereign administration of

their criminal justice systems. See Ford v.

Wainwright, 477 U.S. 399, 416–17, 106 S. Ct.

2595, 91 L.Ed.2d 335 (1986) (“[W]e leave to the

State[s] the task of developing appropriate ways

to enforce the constitutional restriction upon

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

important principle of federalism, however,

should not be construed to demean the substantive character of the federal right at issue. That

Miller did not impose a formal factfinding requirement does not leave States free to sentence

a child whose crime reflects transient immaturity to life without parole.

Montgomery, 136 S. Ct. at 735.

In a nutshell, Louisiana’s argument was that if Miller had announced a substantive rule that barred lifewithout-parole for all but permanently incorrigible

juvenile offenders, it would have expressly stated

that courts must make a finding of incorrigibility before imposing such a sentence. Id. And since Miller

did not explicitly impose any such finding requirement, Miller could not have held that only permanently incorrigible juveniles may be condemned to die

in prison. Id.

The Court rejected Louisiana’s argument: “Miller

did bar life without parole . . . for all but the rarest of

juvenile offenders, those whose crimes reflect permanent incorrigibility.” Id. at 734. The fact that Miller

did not expressly impose a corresponding finding requirement does not undermine that conclusion. Instead, the Court explained that Miller’s silence with

respect to a finding requirement reflects the Court’s

usual practice: “When a new substantive rule of constitutional law is established,” this Court generally

“leave[s] to the State[s] the task of developing appropriate ways to enforce the constitutional restriction

upon [their] execution of sentences.” Id. at 735 (first

alteration added) (quoting Ford, 477 U.S. at 416–17).

Thus, rather than holding that no finding is required,

Montgomery simply made clear that Miller did not

address the issue.

The Mississippi courts also disregarded the word

“formal” in the statements excerpted above. Id. Even

assuming for argument’s sake that these statements

could be divorced from their context, they refer to a

“formal factfinding.” Id. (emphasis added). Therefore,

they still would not negate the requirement that a

court find in some way, formal or not, that a juvenile

homicide offender is permanently incorrigible before

it may impose a life-without-parole sentence. That

finding requires at least an “evident ruling on [the]

question.” See Briones, 890 F.3d at 822 (O’Scannlain,

J., concurring in part and dissenting in part). If state

courts were not required to make this essential determination, they would be “free to sentence a child

whose crime reflects transient immaturity to life

without out parole,” Montgomery, 136 S. Ct. at 735,

an outcome that would eviscerate the permanent incorrigibility rule.

III. At A Minimum, Petitioner Is Entitled To A

Remand For A Finding As To Whether He Is

Permanently Incorrigible.

At every relevant stage of the proceedings below,

Brett asserted that he is not one of the “rarest of juvenile offenders . . . whose crimes reflect permanent

incorrigibility,” and thus the Eighth Amendment

“bar[s]” the imposition of a life-without-parole sentence. Id. at 734. He produced substantial evidence in

support of this claim. Nonetheless, no court has ever

asked, or answered, whether Brett is eligible for a

life-without-parole sentence under Miller and Montgomery’s permanent-incorrigibility rule. Thus, this

Court should vacate his sentence and remand with

instructions for Mississippi’s courts to make this essential finding.

1. When the Mississippi Supreme Court remanded

Brett’s case to the circuit court in 2013, it opined:

“Miller rendered our present sentencing scheme unconstitutional if, and only if, the sentencing authority

fails to take into account characteristics and circumstances unique to juveniles.” Jones, 122 So. 3d at 702

(emphasis added).7 Under this interpretation of Miller, a life-without-parole sentence imposed on a juvenile satisfies the Eighth Amendment if the judge considers factors related to youth—even if the judge proceeds to sentence a corrigible juvenile to life without

parole. See id.

Consistent with the Mississippi Supreme Court’s

interpretation of Miller, the circuit court on remand

did not decide whether Brett was irreparably corrupt

or capable of reform nor recognize any substantive

limitation on its sentencing discretion. See J.A. 148–

52. Instead, the court believed it had discretion to

impose a life-without-parole sentence so long as it

considered youth-related factors in making the decision: “Miller requires that the sentencing authority

consider both mitigating and the aggravating circumstances. And I would note that these are not really

terms used in the Miller opinion, but I think they are

an easy way for us to identify those considerations.”

Id. at 149.

The court of appeals affirmed the sentence but also

declined to resolve whether Brett is permanently incorrigible. Instead, the appellate court concluded that

7 See also Parker, 119 So. 3d at 997 n.14 (A life-without-parole

sentence “can constitutionally be applied to juveniles provided

that the sentencing authority considers the Miller factors in sentencing.”); id. at 999 (“After consideration of all circumstances

required by Miller, the trial court may sentence [a juvenile offender], despite his age, to ‘life imprisonment [without parole].’”

(footnote omitted)).

the “judge recognized the correct legal standard,”

which it described as “the Miller factors,” not the

permanent-incorrigibility rule. Pet. App. 47a. The

Mississippi Supreme Court granted certiorari, held

oral argument, and dismissed the writ, prompting

four justices to criticize the majority for “wav[ing]

aside the United States Supreme Court’s decision in

Montgomery and allow[ing] an unconstitutional sentence to stand.” Id. at 2a.

2. Mississippi’s courts are not correct that mere

consideration of youth or youth-related factors satisfies the Eighth Amendment. Miller and Montgomery

make clear that only permanently incorrigible juveniles may be sentenced to life without parole. And

when the Eighth Amendment bars a penalty for a

class of offenders, no amount of judicial consideration

of sentencing factors can make a member of the exempt category eligible for the restricted punishment.

See, e.g., Montgomery, 136 S. Ct. at 730 (“[Even] the

use of flawless sentencing procedures [cannot] legitimate a punishment where the Constitution immunizes the defendant from the sentence imposed.”).

For example, if an offender is insane, a court is not

free to allow his execution to proceed simply because

it held a hearing at which his insanity was discussed.

See Ford, 477 U.S. at 409–10. If an offender is intellectually disabled, a court cannot merely take his intellectual disability into account and then sentence

him to death anyway. See Atkins, 536 U.S. at 321. If

an offender did not kill or intend to kill, assiduous

consideration of that fact does not make him eligible

for the death penalty. See Enmund, 458 U.S. at 801.

If a juvenile commits homicide, a court cannot sentence him to death even after “consider[ing]” his

youth. Roper, 543 U.S. at 572, 575. And if a juvenile

commits a crime other than homicide, he is constitu-

tionally exempt from life without parole no matter

how exhaustively the sentencing judge takes stock of

the offense, and no matter what other factors the

judge might believe weigh in favor of life without parole. See Graham, 560 U.S. at 82.

By the same token, if a juvenile homicide offender

is not permanently incorrigible, a court’s careful attention to his youth cannot make him eligible for a

penalty the Constitution prohibits. Montgomery, 136

S. Ct. at 734. The Court could not have been clearer

about this point: The Eighth Amendment forbids sentencing a corrigible juvenile to life without parole

“[e]ven if a court considers a child’s age before sentencing him or her to a lifetime in prison.” Id. (emphasis added) (citing Miller, 567 U.S. at 479).

The circuit court’s constitutional error resulted not

from a lack of formality or magic words but from its

failure to find in any form whether Brett is permanently incorrigible. See J.A. 148–52. There is not—in

any respect—an “evident ruling on [the] question” of

permanent incorrigibility. Briones, 890 F.3d at 822

(O’Scannlain, J., concurring in part and dissenting

part). The court did not even recognize that it was required to give effect to a substantive rule barring life

without parole for corrigible juveniles. In fact, the circuit court undertook a different analysis altogether—

a weighing of aggravating and mitigating factors that

focused on the nature of the crime itself. See J.A.

149–52. Brett presented substantial, unrebutted evidence of rehabilitation, including his evolution in

prison into a model inmate. Yet the court’s decision

did not even mention Brett’s capacity for reform,

much less recognize it as the dispositive issue.

In sum: Miller held that only permanently incorrigible juveniles may be sentenced to life without parole, Montgomery repeated that rule at least seven

times, this case has been through Mississippi’s appellate process twice, and despite Brett’s repeated assertion that he is not permanently incorrigible, and the

substantial evidence supporting that claim, no court

has found whether Brett satisfies the constitutional

standard established by this Court. At a minimum,

the Court should remand the case so Mississippi’s

courts can finally answer that question.

IV. Petitioner Is Not Permanently Incorrigible.

In this extraordinary case, the record permits only

one reasonable answer to the question Mississippi’s

courts failed to address: Brett is not one of “the rarest

of juvenile offenders, . . . whose crimes reflect permanent incorrigibility.” Montgomery, 136 S. Ct. at 734.

The only jurists to consider that question—the four

members of the Supreme Court of Mississippi who

dissented from dismissal of the writ—reached the

correct conclusion. One need look no further than the

testimony of the State’s own correctional officer to see

Brett’s capacity for change. Having served nearly a

decade of a sentence that denied a meaningful opportunity for release and incentive to reform, Brett became a model inmate and a committed worker.

Despite repeated opportunities to do so in the

courts below, the State has never even claimed that

Brett is permanently incorrigible—a tacit concession

that the record does not allow such a conclusion. Further litigation over the issue thus would serve no

purpose. This Court should reach the issue head on

and hold that Brett cannot be sentenced to life without parole because he does not belong to the eligible

class.

Brett was barely fifteen years old at the time of the

crime. Thus, as this Court repeatedly has recognized,

his “character [was] not as ‘well-formed’ as an adult’s;

his traits [we]re ‘less fixed’ and his actions [we]re less

likely to be ‘evidence of irretrievabl[e] deprav[ity].’”

Miller, 567 U.S. at 471 (quoting Roper, 543 U.S. at

570). There are “fundamental differences between juvenile and adult minds—for example, in ‘parts of the

brain involved in behavior control.’” Id. at 471–72

(quotation mark omitted) (quoting Graham, 560 U.S.

at 68). And these differences “enhance[] the prospect

that, as the years go by and neurological development

occurs, [a juvenile offender’s] deficiencies will be reformed.” Id. at 472 (quotation marks omitted).

Nothing in the record suggests that Brett was more

mature than an average fifteen-year-old or that his

brain was more developed. The circuit court’s only direct reference to Brett’s “maturity” at the time of the

crime was its commentary on his sexual relationship

with his girlfriend: “The evidence presented at the

sentencing hearing indicates that [Brett’s relationship with Michelle] was intimate and that at some

time before the incident she thought she was pregnant. That suspicion proved to be untrue, but demonstrates that the defendant had reached some degree

of maturity in at least one area.” J.A. 151.

Contrary to the circuit court’s absurd analysis, underage sex does not indicate anything other than biological maturity. As the dissenting Mississippi Supreme Court justices put it: “[R]ather than demonstrating his maturity, as the circuit court thought,

[Brett’s] participation in this adult behavior before

the age of majority reflected immaturity and an utter

failure to consider the consequences of his actions.”

Pet. App. 27a.

No one could deny that Brett committed a “heinous”

and “tragic” crime. Id. at 29a. But “[i]n every case involving Miller sentencing, the [c]ourt will be confronted with a homicide committed by an underage

individual.” Id. (emphasis added). And this Court repeatedly has emphasized that “[t]he reality that juveniles still struggle to define their identity means it

is less supportable to conclude that even a heinous

crime committed by a juvenile is evidence of irretrievably depraved character.” Roper, 543 U.S. at 570.

Indeed, “Miller’s central intuition [is] that children

who commit even heinous crimes are capable of

change.” Montgomery, 136 S. Ct. at 736.

In its analysis of the crime, the circuit court fixated

on the jury’s rejection of self-defense and the lesser

charge of voluntary manslaughter. J.A. 149–50. But if

the jury had rejected a murder conviction on either

ground, Brett could not have been sentenced to life

without parole (or life with parole) at all.8 The jury’s

resolution of those issues against Brett was a prerequisite to either type of life sentence, but it had nothing to do with Brett’ corrigibility.

The circuit court also emphasized that Brett attempted to “conceal his act” by moving his grandfather’s body and trying to clean up the blood. Id. at

150. But as the dissenting justices explained, Brett’s

“efforts to hide the body were altogether inept and

ineffectual, evincing little or no pre-planning or calculation. The neighbor and his yard man observed a

bloody boy immediately after the deadly incident and

the yard man testified that the boy was trembling

and muttering ‘kill, kill.’” Pet. App. 26a. Brett then

attempted to “travel[] to Tupelo to explain what had

happened to his grandmother so she did not have to

8 If acquitted on the basis of self-defense, Brett could not have

been punished at all; if convicted of voluntary manslaughter, he

would have faced a maximum sentence of twenty years. See

Miss. Code Ann. § 97-3-25(1).

discover it on her own.” Id. These actions betray a boy

terrified by his horrific deed, not the icy calm of a

hardened, incorrigible killer.

Moreover, “[t]hat a teenager in trouble for having

been caught concealing his girlfriend at his grandparents’ home would attempt to solve the problem by

resorting to violence dramatically epitomizes immaturity, impetuosity, and failure to appreciate risks or

consequences,” rather than permanent incorrigibility.

Id.

Brett’s lack of any significant prior criminal record

indicates that his crime did not reflect a “fixed” aspect of his “character.” Miller, 567 U.S. at 471. Prior

to the murder, Brett had only one contact with the

juvenile justice system: A court required him to take

anger management classes for punching his abusive

stepfather, who had grabbed Brett by the throat,

“pulled a belt,” and threatened to “beat the s***” out

of him. J.A. 94; Pet. App. 38a.

Brett demonstrated that he is not permanently incorrigible through evidence of “his evolution from a

troubled, misguided youth to a model member of the

prison community.” See Montgomery, 136 S. Ct. at

736. The evidence produced at Brett’s sentencing

hearing—much of it from Officer Benton’s testimony—shows that Brett works hard, honors the rules,

has expressed remorse and “regret[]” for his crime,

and has become a “good kid” who “g[e]t[s] along with

everybody.” J.A. 109, 112.

Brett rejected the violence and gang activity that

surrounded him in prison, id. at 115, and “tr[ied] to

stay out of trouble,” id. at 134. Despite having served

nearly a decade in prison, he was “involved in only

one significant disciplinary incident.” Pet. App. 39a.

Brett also worked to improve himself by earning his

GED, trying to take college classes, and working with

a “psych doctor” to address the mental health conditions that originated in his childhood. J.A. 108–09,

134.

At least until Miller and Montgomery, Brett’s sentence eliminated any external incentive to reform. “A

young person who knows that he or she has no

chance to leave prison before life’s end has little incentive to become a responsible individual.” Graham,

560 U.S. at 79. The record plainly shows that Brett

became one nonetheless. He is not the rare, permanently incorrigible juvenile who may be sentenced to

life without parole.

CONCLUSION

For the reasons stated above, the judgment should

be reversed and the Court should direct on remand

that Brett Jones is ineligible for life without the possibility of parole.

Respectfully submitted,

JACOB HOWARD

RODERICK & SOLANGE

MACARTHUR JUSTICE

CENTER

767 North Congress

Street

Jackson, MS 39202

(769) 233-7538

JEFFREY T. GREEN

DAVID A. GOLDENBERG

SIDLEY AUSTIN LLP

1501 K Street, NW

Washington, D.C. 20005

(202) 736-8000

MARLOW SVATEK

ANDREW F. RODHEIM

SIDLEY AUSTIN LLP

One South Dearborn

Chicago, IL 60603

(312) 853-7000

DAVID M. SHAPIRO *

RODERICK & SOLANGE

MACARTHUR JUSTICE

CENTER

NORTHWESTERN PRITZKER

SCHOOL OF LAW

375 E. Chicago Avenue

Chicago, IL 60611

(312) 503-0711

david.shapiro@

law.northwestern.edu

AMIR H. ALI

ELIZA MCDUFFIE†

RODERICK & SOLANGE

MACARTHUR JUSTICE

CENTER

777 6th Street NW,

11th Floor

Washington, D.C. 20001

(202) 869-3434

†

Admitted only in New York; not admitted in D.C. Practicing

under the supervision of the Roderick & Solange MacArthur

Justice Center

Counsel for Petitioner

June 5, 2020

*Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.