Amicus Curiae Brief — Brett Jones, Petitioner v. Mississippi

No. 18-1259

In the Supreme Court of the United States

BRETT JONES,

Petitioner,

v.

MISSISSIPPI,

Respondent.

On Writ of Certiorari to the

Mississippi Court of Appeals

BRIEF OF THE

AMERICAN BAR ASSOCIATION

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

CHRISTOPHER M. MURPHY

LAWRENCE A. WOJCIK

MICHAEL S. STANEK

ETHAN H. TOWNSEND

GARRET R. ATHERTON

McDermott Will & Emery

LLP

444 W Lake St

Chicago, IL 60606

JUDY PERRY MARTINEZ

Counsel of Record

American Bar Association

321 North Clark Street

Chicago, IL 60654

(312) 988-5000

abapresident@

americanbar.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Table of Authorities.................................................... ii

Interest of the Amicus Curiae .....................................1

Summary of the Argument .........................................4

Argument .....................................................................6

I.

Sentencing courts must ask and answer the

question whether a juvenile’s crime reflects

irreparable corruption before sentencing

that juvenile to life without parole. .................6

II.

The Court can prescribe boundaries for State

procedures to make the Miller inquiry without

encroaching on federalism interests. .............11

A.

Courts can answer the Miller

question by making a factual

finding as to whether a juvenile

defendant is irreparably corrupt. ........13

B.

Alternatively, courts can answer

the Miller question by requiring the

prosecution to rebut the presumption

that a juvenile is not irreparably

corrupt. .................................................17

III.

The Missippi courts below failed to answer

the question whether Jones is irreparably

corrupt before sentencing him to life

without parole. ................................................22

Conclusion .................................................................24

ii

TABLE OF AUTHORITIES

Cases

Adams v. Alabama,

136 S. Ct. 1796 (2016) ............................ 5, 8, 21, 22

Atkins v. Virginia,

536 U.S. 304 (2002) .............................. 8, 11, 12, 18

Bailey v. Alabama,

219 U.S. 219 (1911) .............................................. 21

Caperton v. A.T. Massey Coal Co.,

556 U.S. 868 (2009) ................................................ 9

Commonwealth v. Batts,

163 A.3d 410 (Pa. 2017) ................................. 14, 20

Conley v. State,

972 N.E.2d 864 (Ind. 2012) .................................. 20

Davis v. State,

415 P.3d 666 (Wyo. 2018) .................................... 15

Ford v. Wainwright,

477 U.S. 399 (1986) ...................................... passim

Gall v. United States,

552 U.S. 38 (2007) ................................................ 10

Graham v. Florida,

560 U.S. 48 (2010) ................................ 4, 11, 18, 20

Hall v. Florida,

572 U.S. 701 (2014) .............................. 5, 12, 19, 21

Landrum v. State,

192 So.3d 459 (Fla. 2016) .............................. 10, 15

Luna v. State,

387 P.3d 956 (Okla. Crim. App. 2016) ................ 14

Malvo v. Mathena,

893 F.3d 265 (4th Cir. 2018) ................................ 14

Mathena v. Malvo,

No. 18-217 .............................................................. 4

iii

Cases—continued

McCleskey v. Zant,

499 U.S. 467 (1991) ................................................ 9

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) ...................................... 5, 12

Panetti v. Quarterman,

551 U.S. 930 (2007) .............................................. 12

Perry v. Lynaugh,

492 U.S. 302 (1989) .............................................. 11

Republican Party of Minn. v. White,

536 U.S. 765 (2002) ................................................ 9

Roper v. Simmons,

543 U.S. 551 (2005) ...................................... 4, 8, 20

Seminole Tribe of Florida v. Florida,

517 U.S. 44 (1996) ................................................ 20

Stanford v. Kentucky,

492 U.S. 361 (1989) ............................................... 3

State v. Hart,

404 S.W.3d 232 (Mo. 2013) .................................. 20

State v. Houston,

353 P.3d 55 (Utah 2015) ...................................... 20

State v. Riley,

110 A.3d 1205 (Conn. 2015) ................................. 20

State v. Seats,

865 N.W.2d 545 (Iowa 2015)................................ 19

State v. Sweet,

879 N.W.2d 811 (Iowa 2016).......................... 15, 21

iv

Cases—continued

Tatum v. Arizona,

137 S. Ct. 11 (2016) .............................................. 10

Thompson v. Oklahoma,

487 U.S. 815 (1988) ................................................ 3

United States v. Barkley,

369 F. Supp.2d 1309 (N.D. Okla. 2005) ................ 9

United States v. Briones,

929 F.3d 1057 (9th Cir. 2019) .............................. 10

United States v. Martinez-Cruz,

736 F.3d 999 (D.C. Cir. 2013) ................................ 9

Veal v. State,

784 S.E. 2d 403 (Ga. 2016) .................................. 14

Other Authorities

ABA, Youth in the Criminal Justice System:

An ABA Task Force Report (2002) ......................... 3

ABA, Youth in the Criminal Justice System:

Guidelines for Policymakers and Practitioners

(2001) ...................................................................... 3

Alexander Hamilton, The Federalist No. 78 .............. 9

Alice Reichman Hoesterey, Confusion in

Montgomery’s Wake: State Responses, the

Mandates of Montgomery, and Why a Complete

Categorical Ban on Life Without Parole for

Juveniles Is the Only Constitutional Option,

45 Fordham Urb. L.J. 149 (2017) .................. 13, 15

Harold A. Ashford & D. Michael Risinger,

Presumptions, Assumptions, and Due Process

in Criminal Cases: A Theoretical Overview,

79 Yale L.J. 165 (1969) ........................................ 17

v

Other Authorities—continued

Jessica S. Henry, Death-in-Prison Sentences:

Overutilized and Underscrutinized, in Charles

J. Ogletree, Jr. & Austin Sarat, Life Without

Parole: America’s New Death Penalty? (2012) ... 11

Merril Sobe & John D. Elliott, The IJA-ABA

Juvenile Justice Standards, Crim. Justice

(Fall 2014) .............................................................. 2

Standards for Criminal Justice Sentencing

(Am. Bar Ass’n 1994)

18-5.18(b) ........................................................ 13, 15

18-5.18 cmt. .................................................... 13, 16

18-5.19(b)-(b)(i) ..................................................... 16

18-5.19 cmt. .......................................................... 17

Zachary Crawford-Pechukas, Sentence for the

Damned: Using Atkins to Understand the

“Irreparable Corruption” Standard for Juvenile

Life Without Parole,

75 Wash. & Lee L. Rev. 2147 (2018) ................... 15

1

INTEREST OF THE AMICUS CURIAE 1

Pursuant to Supreme Court Rule 37.3, the

American Bar Association (ABA), as amicus curiae,

respectfully submits this brief in support of the

Petitioner. The ABA is the largest voluntary

organization of attorneys and legal professionals in

the world. Its members come from all fifty States and

other jurisdictions. They include prosecutors, public

defenders, and private defense counsel, as well as

attorneys in law firms, corporations, non-profit

organizations, and government agencies. The ABA’s

membership also includes judges, legislators, law

professors, law students, and non-lawyer associates in

related fields. 2

Promoting the rule of law is central to the ABA’s

mission. Specifically, Goal IV of the ABA is to advance

the rule of law. 3 In furtherance of this goal, in 2006,

the ABA adopted as policy a commitment to core ruleof-law principles. 4

All parties to this matter have provided written consent for this

amicus curiae brief. No counsel for a party authored this brief in

whole or in part, and no party or counsel for a party made a

monetary contribution intended to fund the preparation or

submission of this brief. No one other than amicus curiae, its

members, or its counsel made a monetary contribution to the

preparation or submission of this brief.

2

Neither this brief nor the decision to file it should be

interpreted as reflecting the views of any judicial member. No

member of the ABA Judicial Division Council participated in this

brief’s preparation or in the adoption or endorsement of its

positions.

3

See, e.g., Goal IV, available at https://perma.cc/5UFF-JX2Q.

4

ABA Policy #111 (adopted midyear 2006), available at

https://perma.cc/Z6YX-AJJ8. In addition, the ABA has

established a Rule of Law Initiative that works, particularly in

developing countries, to “promote justice, economic opportunity

1

2

The rule of law is enforced when States adopt

procedures that give effect to the substantive rule of

constitutional law the Court announced in Miller v.

Alabama, 567 U.S. 460 (2012), and reaffirmed in

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

a sentence of life without parole is a disproportionate

sentence for all but the rarest of children whose

crimes reflect irreparable corruption. A ruling

reversing the Mississippi Supreme Court decision

below and prohibiting States from adopting

procedures that would allow them to circumvent the

Miller rule would be consistent not only with the rule

of law, but also with the ABA policy of supporting

juvenile justice. For over 40 years, the ABA has

worked to ensure appropriate protections for juvenile

defendants when transferred to the adult criminal

justice system and has taken positions against

imposing capital punishment and life without the

possibility of parole on juvenile offenders. In 1980,

after ten years of work, the ABA promulgated a

comprehensive body of Juvenile Justice Standards,

addressing the entire juvenile justice continuum, from

police handling and intake to adjudication,

disposition, and juvenile corrections. 5

Concerned with the growing imposition of capital

punishment on juvenile offenders, the ABA adopted

policy in 1983 that opposed “the imposition of capital

punishment upon any person for an offense committed

and human dignity through the rule of law.” ABA, Rule of Law

Initiative Program Book 4 (2016).

5

Merril Sobe & John D. Elliott, The IJA-ABA Juvenile Justice

Standards, Crim. Justice, 24 (Fall 2014). The ABA policies

dating from 1988 onward that are discussed in this brief are

available online at https://perma.cc/22CZ-C5Q4. Policies dated

prior to 1988 are available from the ABA.

3

while under the age of eighteen.” 6 The ABA did so

while maintaining its long-standing policy of taking

no position on the death penalty as a general matter,

after concluding that the arguments used to support

capital punishment for adults, including retribution

and deterrence, did not apply in the same manner to

juveniles.

The ABA has repeatedly reaffirmed its position

that “children are different.” 7 And the ABA drew upon

its expertise and efforts to protect children in the

6

ABA Policy #117A (adopted Aug. 1983) and its accompanying

report are available from the ABA. The policy was cited in

Stanford v. Kentucky, 492 U.S. 361, 388 (1989) (Brennan, J.,

dissenting), and in Thompson v. Oklahoma, 487 U.S. 815, 830

(1988).

7

ABA Policy #119 (adopted Feb. 1991) (endorsing the United

Nations Convention on the Rights of the Child), available at

https://perma.cc/RMM7-N97G; ABA Policy #107 (adopted Feb.

1997) (supporting moratorium on death penalty until

jurisdictions implemented procedures that, inter alia,

“prevent[ed] execution of * * * persons who were under the age

of 18 at the time of their offenses.”), available at

https://perma.cc/CAR5-Y7GV; ABA, Youth in the Criminal

Justice System: An ABA Task Force Report (2002) (citing ABA,

Youth in the Criminal Justice System: Guidelines for

Policymakers and Practitioners (2001)), available at

https://perma.cc/MH5M-97LP; ABA Policy #105C (adopted Feb.

2008) (urging that all jurisdictions implement sentencing laws

and procedures that appropriately recognize the mitigating

considerations of age and maturity of offenders under the age of

18 at the time of their offenses), available at

https://perma.cc/3ZLV-PBTV; ABA Policy #107C (adopted Feb.

2015) (urging that all jurisdictions “[e]liminate life without the

possibility of release or parole for youthful offenders both

prospectively and retroactively,” and provide them “with

meaningful periodic opportunities for release based on

demonstrated maturity and rehabilitation beginning at a

reasonable point into their incarceration, considering the needs

of the victims.”), available at https://perma.cc/4BKH-NQ6Z.

4

juvenile justice system when it filed its amicus curiae

briefs in Roper v. Simmons, 543 U.S. 551 (2005); 8

Graham v. Florida, 560 U.S. 48 (2010); 9 Miller; 10

Montgomery; 11 and Mathena v. Malvo, No. 18-217. 12

ABA support for adherence to previously articulated

standards in this case fosters the rule of law and

continues the ABA’s consistent support for what the

Court

recognized

in

Miller—that

juveniles’

diminished culpability and greater prospects for

reform make them different from adults for

sentencing purposes, and that juveniles whose crimes

reflect transient immaturity, rather than irreparable

corruption, should not be subject to life imprisonment

without parole.

SUMMARY OF THE ARGUMENT

Under Miller and Montgomery, the Eighth

Amendment prohibits a sentence of life without parole

for juvenile offenders except for the rare juvenile

whose crime reflects irreparable corruption rather

than transient immaturity of youth. This case

concerns the procedures States must adopt to

“separate those juveniles who may be sentenced to life

without parole from those who may not.” Montgomery

v. Louisiana, 136 S. Ct. 718, 735 (2016). To implement

the substantive guarantee of the Eighth Amendment,

without intruding more than necessary upon the

The ABA’s amicus curiae

https://perma.cc/6FJ9-APFA.

9

The ABA’s amicus curiae

https://perma.cc/DPZ8-TEUU.

10

The ABA’s amicus curiae

https://perma.cc/4YJY-CLU3.

11

The ABA’s amicus curiae

https://perma.cc/HH6Y-HBTK.

12

The ABA’s amicus curiae

https://perma.cc/JW4H-CXDV.

8

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is

available

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5

States’ sovereign administration of their criminal

justice systems, the Court should require that

sentencing courts at a minimum, must ask and

answer correctly the question whether a juvenile

offender’s “crime reflects irreparable corruption.”

Adams v. Alabama, 136 S. Ct. 1796, 1799 (2016)

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

vacate, and remand).

Important rule of law considerations underpin

the conclusion that lower courts must focus their

inquiry on the specific distinction between transient

immaturity and irreparable corruption. Mere

consideration of the juvenile offender’s age “poses too

great a risk of disproportionate punishment.” Miller,

567 U.S. at 479. And although States “have some

flexibility” in the design of their own procedures, their

“‘discretion’” is “not ‘unfettered.’” Moore v. Texas, 137

S. Ct. 1039, 1052 (2017) (quoting Hall v. Florida, 572

U.S. 701, 719 (2014)). A sentencing court’s failure to

decide whether the juvenile defendant before it is

among those rare children whose crimes reflect

irreparable corruption carries the too great risk that

this Court’s substantive constitutional rule in Miller

will go unheeded.

Thus, to ensure compliance with the Miller rule in

accordance with the rule of law, the Court should

impose a guardrail on the States’ discretion to design

their own procedures by requiring sentencers to ask

the “essential question whether [the defendant is]

among the very ‘rarest of juvenile offenders, those

whose crimes reflect permanent incorrigibility.’”

Adams, 136 S. Ct. at 1800–1801 (Sotomayor, J.,

concurring in the decision to grant, vacate, and

remand) (quoting Montgomery, 577 U.S. at 734).

Sentencing courts can answer that essential question

by make a finding on the record of permanent

6

incorrigibility—indeed, that is the best way to ensure

adherence to the holding of Miller and Montgomery.

Alternatively, States may assign the prosecution the

burden of rebutting a presumption against permanent

incorrigibility. Regardless, States still will retain

considerable leeway in the “task of developing

appropriate ways to enforce the constitutional

restriction upon [their] execution of sentences.” Ford

v. Wainwright, 477 U.S. 399, 416–417 (1986).

The ABA urges the Court to reverse the judgment

below because there is no indication that the

sentencing judge even asked the question Miller

required him to answer correctly: whether Mr. Jones’

crime reflected irreparable corruption.

ARGUMENT

I. Sentencing courts must ask and answer the

question whether a juvenile’s crime reflects

irreparable corruption before sentencing

that juvenile to life without parole.

In Miller, the Court required sentencing courts “to

take into account how children are different, and how

those differences counsel against irrevocably

sentencing them to a lifetime in prison” and concluded

that that no juvenile may be sentenced to life without

parole for a crime that reflects “unfortunate yet

transient immaturity,” rather than “irreparable

corruption.” Miller, 567 U.S. at 479-480. Miller also

announced the Court’s belief that “appropriate

occasions for sentencing juveniles to” life in prison

without parole “will be uncommon.” Id. at 479. The

States can impose this “harshest possible penalty” on

only the “rare juvenile offender whose crime reflects

irreparable corruption” as opposed to “unfortunate yet

transient immaturity.” Id. at 479-480.

7

Montgomery confirmed that life without parole

was an unconstitutional penalty for a class of

defendants “whose crimes reflect the transient

immaturity of youth.” See Montgomery, 136 S. Ct. at

734; id. at 726 (“Miller * * * explained that a lifetime

in prison is a disproportionate sentence for all but the

rarest of children, those whose crimes reflect

‘irreparable corruption.’”) (quoting Miller, 567 U.S. at

479–480); id. at 734 (“Miller did bar life without

parole, however, for all but the rarest of juvenile

offenders, those whose crimes reflect permanent

incorrigibility.”); ibid. (“Miller drew a line between

children whose crimes reflect transient immaturity

and those rare children whose crimes reflect

irreparable corruption.”). As Montgomery explained,

Miller’s standard for separating the class of

defendants whose crimes reflect the transient

immaturity of youth from the irreparably corrupt thus

embodies a “substantive rule of constitutional law.”

Id. at 732.

The Court has, so far, left to the States the task of

developing appropriate procedures to implement

Miller’s substantive constitutional rule. But giving

the States unfettered leeway to fashion procedures to

implement the Miller rule creates the risk that

Miller’s substantive guarantee is not guaranteed at

all. The Court must now instruct the States in their

procedural

developments,

or

“risk”

the

“disproportionate punishment” of “children” by

“irrevocably sentencing them to a lifetime in prison.”

Miller, 567 U.S. at 479–480.

To avoid doubt as to the constitutionality of

juvenile life without parole sentences, the

“substantive change in the law” announced in Miller

“must be attended by a procedure that enables”

sentencing courts to determine whether a defendant

8

“falls within the category of persons whom the law

may no longer punish.” Montgomery, 136 S. Ct. at 735.

Indeed, “ascertainment of a prisoner’s” eligibility for

punishment “[i]s a predicate to lawful” imposition of

that punishment. Ford v. Wainwright, 477 U.S. 399,

411 (1986); see also id. at 424 (“[T]he question in this

case is whether Florida’s procedures for determining

petitioner’s

[eligibility

for

punishment

is

constitutional].”) (Powell, J., concurring) (emphasis

added); Atkins v. Virginia, 536 U.S. 304, 317 (2002)

(examining procedure for “determining which

offenders are in fact” ineligible for punishment).

Any procedure for determining constitutional

eligibility for punishment must be robust enough to

“implement

[that]

substantive

guarantee.”

Montgomery, 136 S. Ct. at 734. Mere consideration of

age does not suffice, because the Eighth Amendment

prohibits sentencing a 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.” Ibid.

(citing Miller, 567 U.S. at 479). Rather, a sentence

violates the Eighth Amendment unless it

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

whose crime reflects unfortunate yet transient

immaturity, and the rare juvenile offender whose

crime reflects irreparable corruption.’” Miller, 467

U.S. at 479–480 (quoting Roper v. Simmons, 543 U.S.

551, 573 (2005)). In other words, a sentencer must

“ask[]” and “answer correctly” into which

constitutional category the juvenile defendant

belongs. Adams, 136 S. Ct. at 1800 (Sotomayor, J.,

concurring in the decision to grant, vacate, and

remand).

A requirement that sentencing courts ask and

answer correctly the question as to whether the

juvenile’s crime reflects irreparable corruption is

9

consistent with three rule of law principles. First,

distinguishing transiently immature juveniles from

the irreparably corrupt decreases the likelihood that

the sentencer will arbitrarily sentence a defendant in

a manner the Eighth Amendment prohibits. The

Founders recognized: “To avoid an arbitrary

discretion in the courts, it is indispensable that they

should be bound down by strict rules and precedents,

which serve to define and point out their duty in every

particular case that comes before them.” Alexander

Hamilton, The Federalist No. 78. The Court endorsed

this foundational standard by its elaboration on the

“principles of law.” Caperton v. A.T. Massey Coal Co.,

556 U.S. 868, 889 (2009) (quoting Republican Party of

Minn. v. White, 536 U.S. 765, 793 (2002) (Kennedy, J.,

concurring)). “[U]niformity” in courts’ adherence to

Miller’s substantive guarantee “is critical to prevent

erosion of public confidence in the rule of law.” United

States v. Barkley, 369 F. Supp.2d 1309, 1316 (N.D.

Okla. 2005).

Second, the rule of law only prevails if “a lower

court in a system of absolute vertical stare decisis

headed by one Supreme Court * * * follow[s] both the

words and the music of Supreme Court opinions.”

United States v. Martinez-Cruz, 736 F.3d 999, 1006

(D.C. Cir. 2013) (Kavanaugh, J., dissenting). The

legitimacy of the Court’s teachings rests “in the end,

upon the respect accorded to its judgments.” Caperton,

556 U.S. at 889. It is axiomatic that “respect for the

rule of law must start with those who are responsible

for pronouncing the law.” McCleskey v. Zant, 499 U.S.

467, 529 (1991) (Marshall, J., dissenting). State

procedures that do not require a sentencing court to

answer the question of whether a juvenile offender is

irreparably corrupt ignore “the words and the music”

of Miller and Montgomery.

10

Third, appellate review is facilitated when the

“record * * * reflect[s] that the court meaningfully

engaged in Miller’s central inquiry.” United States v.

Briones, 929 F.3d 1057, 1067 (9th Cir. 2019) (en banc).

This is not to suggest that the sentencer must “use

any specific words,” ibid, to answer the Miller

question, but the sentencer “must adequately explain

the chosen sentence to allow for meaningful appellate

review and to promote the perception of fair

sentencing.” Gall v. United States, 552 U.S. 38, 50

(2007).

To avoid a “risk of disproportionate punishment”

greater than the Constitution tolerates, Miller, 567

U.S. at 479, the Court must instruct lower courts that

a sentencer’s task is to “decide whether the juvenile

offender before it is a child ‘whose crimes

reflect transient immaturity’ or is one of ‘those rare

children whose crimes reflect irreparable corruption.’”

Tatum v. Arizona, 137 S. Ct. 11, 13 (2016) (quoting

Montgomery, 136 S. Ct. at 734). Until then, “[f]ail[ure]

to make this distinction * * * w[ill] mean life sentences

for juveniles w[ill] not be exceedingly rare, but

possibly commonplace.” Landrum v. State, 192 So.3d

459, 467 (Fla. 2016). 13

The ABA thus agrees with Petitioner Jones that a

determination of irreparable corruption must be made on the

record to ensure that the question of irreparable corruption be

asked and answered correctly before a sentence of life without

parole is imposed on a juvenile offender. As discussed below,

States can fulfill that mandate by requiring an express finding

of fact on the record of irreparable corruption or, at the very least,

by imposing a rebuttable presumption of transient immaturity.

Either course would ensure that the necessary determination

has been made.

13

11

II. The Court can prescribe boundaries for State

procedures to make the Miller inquiry

without

encroaching

on

federalism

interests.

The Court can clarify the Miller inquiry for the

States without encroaching upon federalism interests.

When the Court recognized in Montgomery that Miller

had announced a substantive rule, it followed the

pattern of two earlier cases that had announced

similar substantive rules: Ford v. Wainwright, 477

U.S. 399 (1986) (holding the Eighth Amendment

barred capital punishment of insane individuals), and

Atkins v. Virginia, 536 U.S. 304 (2002) (holding the

same with respect to the intellectually disabled). Like

Miller, Ford and Atkins each “prohibit[ed] a certain

category of punishment for a class of defendants

because of their status or offense.” Montgomery, 136

S. Ct. at 728 (quoting Perry v. Lynaugh, 492 U.S. 302,

330 (1989)). 14 Therefore, when Montgomery

announced that lower courts were required to uphold

Miller’s substantive guarantee, it followed the pattern

of respecting state sovereignty set by the capital cases

Ford and Atkins and allowed the States to “develop[]

appropriate ways to enforce” the new constitutional

rule. Id. at 735 (quoting Ford, 477 U.S. at 416).

Miller drew parallels from the Court’s death penalty

jurisprudence, Miller, 567 U.S. at 474, because “life without

parole sentences share some characteristics with death

sentences that are shared by no other sentences.” Graham v.

Florida, 560 U.S. 48, 69 (2010). That is fitting, as a sentence to

life in prison without the possibility of parole is itself a form of

death sentence. See, e.g., Jessica S. Henry, Death-in-Prison

Sentences: Overutilized and Underscrutinized, in Charles J.

Ogletree, Jr. & Austin Sarat, Life Without Parole: America’s

New Death Penalty? 69 (2012).

14

12

But, while “States have some flexibility” in how to

implement Ford and Atkins, they do not have

“unfettered discretion.” Moore, 137 S. Ct. at 1052. The

Court has prescribed the limits of that discretion in

both lines of cases. It has directed that lower courts,

in making their Ford inquiry, are not free to ignore

certain evidence of a prisoner’s inability to

understand their punishment. Panetti v. Quarterman,

551 U.S. 930, 950 (2007). It has also twice curtailed

States’ procedures for making the Atkins inquiry

when those procedures “create[d] an unacceptable

risk that persons with intellectual disability w[ould]

be executed.” Moore, 137 S. Ct. at 1051 (States must

observe current medical standards); Hall, 572 U.S. at

704 (States cannot employ an overly restrictive

definition of intellectual disability).

The Court should again follow the pattern of Ford

and Atkins by limiting the discretion of the States to

implement procedures that “pose[] too great a risk”

that juveniles who are not irreparably corrupt are

being sentenced to die in prison. The Court need not

feel torn between federalism and the rule of law.

Miller, 567 U.S. at 479. “Fidelity to th[e] important

principle of federalism * * * does not leave States free

to sentence a child whose crime reflects transient

immaturity to life without parole.” Montgomery, 136

S. Ct. at 735. If, as it should, this Court instructed

lower courts to ask and answer correctly whether a

defendant’s crime reflected transient immaturity or

irreparable corruption, states would still maintain

considerable leeway to decide how that crucial

question is asked and answered.

13

A. Courts can answer the Miller question by

making a factual finding as to whether a

juvenile

defendant

is

irreparably

corrupt.

The simplest and best way to ensure that a

sentencing court has asked and answered correctly

the Miller question is to require the sentencing court

to make a finding of fact regarding a child’s

incorrigibility and whether the crime reflects the

transient immaturity of youth. For over 50 years, the

ABA has drawn upon its expertise in criminal justice

to urge that “that the sentencing court make express

findings on all disputed issues of fact material to the

determination of the sentence imposed.” Standards

for Criminal Justice Sentencing, Standard 18-5.18(b)

(Am. Bar Ass’n 1994). A formal finding of fact

increases the chances the sentencer correctly answers

whether the defendant is irreparably corrupt by

fostering “the discipline of thought necessary for a

court’s reasoned determination.” Standard 18-5.18

cmt. Further, without a finding of fact, “meaningful

appellate review” of the sentencer’s Miller inquiry is

not possible. Ibid.

While Montgomery stated “this finding is not

required,” it did not hold that a formal factfinding is

incompatible with Miller. Montgomery, 136 S. Ct. at

735. This statement in Montgomery is better read as

the Court not directing the States exactly how they

must make this determination. Alice Reichman

Hoesterey, Confusion in Montgomery’s Wake: State

Responses, the Mandates of Montgomery, and Why a

Complete Categorical Ban on Life Without Parole for

Juveniles Is the Only Constitutional Option, 45

Fordham Urb. L.J. 149, 174 (2017). Many courts and

commentators have found it impossible for sentencers

14

to perform their Miller duties without making a

formal finding of fact.

For example, the Supreme Court of Pennsylvania

held under Miller and Montgomery that “a sentencing

court has no discretion to sentence a juvenile offender

to life without parole unless it finds that the

defendant is one of the ‘rare’ and ‘uncommon’ children

possessing the [requisite] characteristics, permitting

its imposition.” Commonwealth v. Batts, 163 A.3d 410,

435 (Pa. 2017).

The highest courts of Georgia and Oklahoma

similarly concluded that sentencing courts must make

a formal finding of fact of irreparable corruption

before sentencing a juvenile to life without parole.

Veal v. State, 784 S.E. 2d 403, 412 (Ga. 2016)

(sentencer must make a “distinct determination on

the record that [a juvenile] is irreparably corrupt or

permanently incorrigible, as necessary to put him in

the narrow class of juvenile murderers for whom an

LWOP sentence is proportional under the Eighth

Amendment as interpreted in Miller as refined by

Montgomery.”); Luna v. State, 387 P.3d 956, 963 &

n.11 (Okla. Crim. App. 2016) (factfinder at sentencing

may not impose a life without parole sentence on a

juvenile “unless [it] find[s] beyond a reasonable doubt

that the defendant is irreparably corrupt and

permanently incorrigible.”); accord Malvo v. Mathena,

893 F.3d 265, 275 (4th Cir. 2018) (requiring a finding

of permanent corruption before imposing a lifewithout-parole sentence on a juvenile).

Other States have required sentencing courts to

make a determination of irreparable corruption

without any formal magic words. For example, the

Supreme Court of Wyoming has concluded that

because “Montgomery * * * emphasized that States

are not ‘free to sentence a child whose crime reflects

15

transient immaturity to life without parole’ * * * [t]his

constitutional standard cannot be satisfied unless the

sentencing court * * * make[s] a finding that in light

of all the Miller factors, the juvenile offender’s crime

reflects irreparable corruption resulting in permanent

incorrigibility, rather than transient immaturity.”

Davis v. State, 415 P.3d 666, 683–684 (Wyo. 2018)

(quoting Montgomery, 136 S. Ct. at 735) (emphasis

added). See also Landrum v. State, 192 So. 3d 459, 466

(Fla. 2016); State v. Sweet, 879 N.W.2d 811, 833 (Iowa

2016).

Scholars likewise have interpreted Miller and

Montgomery as implicitly necessitating a factfinding

requirement. See, e.g., Hoesterey, supra at 173–175;

Zachary Crawford-Pechukas, Sentence for the

Damned: Using Atkins to Understand the “Irreparable

Corruption” Standard for Juvenile Life Without

Parole, 75 Wash. & Lee L. Rev. 2147, 2182 (2018)

(“Montgomery made clear that the sentencer had to do

more than simply consider the mitigating effects of

youth, they had to make the factual determination

that the offender was irreparably corrupt.”).

Consistent with these authorities, the ABA has

long extolled the virtues of a formal finding of fact,

particularly the procedure’s beneficial impact on the

rule of law. Since 1968, the Sentencing Standards

require: “The rules should provide that the sentencing

court make express findings on all disputed issues of

fact material to the determination of the sentence

imposed.” Standards for Criminal Justice Sentencing,

Standard 18-5.18(b) (Am. Bar Ass’n 1994).

The Commentary to this Sentencing Standard

explains its rule of law foundation. “[T]he discipline of

thought

necessary

for

a

court’s

reasoned

determination of a sentence is fostered by the process

of articulation of the factual bases for the judgment,”

16

and “findings of fact are essential to meaningful

appellate review of sentences.” Standard 18-5.18 cmt.

ABA Sentencing Standard 18-5.19(b) likewise

requires a finding on the record, especially in a case

where a sentencing court is considering imposing a

sentence beyond the presumptive sentence for the

crime:

(b) * * * [A] sentencing court, when imposing

sentence, should state or summarize the

court’s findings of fact, should state with care

the precise terms of the sentence imposed, and

should state the reasons for selection of the

type of sanction and the level of severity of the

sanction in the sentence,

(i) The statement of reasons may be relatively

concise when the level of severity and type of

sanction are consistent with the presumptive

sentence, but the sentencing court should

always provide an explanation of the court’s

reasons sufficient to inform the parties,

appellate courts, and the public of the basis for

the sentence.

Standard 18-5.19(b), (b)(i).

The Commentary to this Standard explains it

relevance to the rule of law and this matter in

particular:

A more extensive statement would be

necessary to explain the reasons for a

sentence that departs from the presumptive

sentence. Explanations given by sentencing

courts are vital to achievement of appropriate

individualization of sentences with a

sentencing system that is reasonably

determinate and that seeks to avoid

17

unwarranted

disparities

imposed.

Standard 18-5.19 cmt.

in

sentences

For these reasons, the ABA advocates for a

requirement that sentencing courts fulfill their Miller

duty by making a formal fact finding of irreparable

corruption on the record. Such a procedure is the most

reliable means of ensuring that States do not sentence

juveniles whose crimes merely reflect the transient

immaturity of youth to die in prison.

B. Alternatively, courts can answer the

Miller question by requiring the

prosecution to rebut the presumption

that a juvenile is not irreparably corrupt.

In the absence of a formal fact finding, state

sentencing courts can implement the Miller

substantive rule by adopting a rebuttable

presumption that juveniles are not irreparably

corrupt and by assigning the State the burden of

overcoming that presumption. 15 Such a presumption

has the benefit of being faithful to Miller and easy to

administer.

In both Miller and Montgomery, the Court

repeatedly recognized the rarity of the juvenile who

could be sentenced to life without parole. Montgomery,

136 S. Ct. at 726 (“Miller * * * explained that a lifetime

in prison is a disproportionate sentence for all but the

rarest of children, those whose crimes reflect

A presumption is a “legal mechanism,” to operate as proof of

an ultimate fact, which “unless sufficient evidence is introduced

to render the presumption inoperative, deems one fact to be true

when the truth of another fact has been established.” Harold A.

Ashford & D. Michael Risinger, Presumptions, Assumptions, and

Due Process in Criminal Cases: A Theoretical Overview, 79 Yale

L.J. 165 (1969).

15

18

‘irreparable corruption.’”) (quoting Miller, 567 U.S. at

479–480); id. at 734 (“Miller did bar life without

parole, however, for all but the rarest of juvenile

offenders, those whose crimes reflect permanent

incorrigibility.”). A presumption is apt because the

Miller rule requires the sentencing court to separate

the vast majority of juvenile offenders whose crimes

reflect the transient immaturity of youth from the

rare juveniles who are irreparably corrupt. Id. at 732.

The Court has acknowledged the “brutality or

cold-blooded nature” of a homicide may make it

difficult to “distinguish the few incorrigible juvenile

offenders from the many that have the capacity for

change” “with sufficient accuracy.” Graham, 560 U.S.

at 77–78 (internal quotation marks omitted).

Accordingly, the sentencer is therefore aided by the

use of a presumption as to whether any given juvenile

is permanently corrupt.

The burden of proof on the presumption should

depend on the likely frequency of irreparably corrupt

juveniles in the population. As noted above,

Montgomery emphasized that life without parole is

unconstitutional for the “vast majority” of juvenile

homicide defendants and should only be used in

“exceptional circumstances.” Montgomery, 136 S. Ct.

at 734, 736. The rarity of irreparably corrupt juveniles

means that a juvenile offender can be presumed not to

be among them.

This presumption is not inconsistent with the

burdens imposed on the States in Atkins and Ford

because those cases recognized that the vast majority

of the country’s population is neither intellectually

disabled nor insane. See, e.g., Atkins, 536 U.S. at 309

n.5 (finding it is estimated that between 1 and 3

percent of the population has an IQ between 70 and

75 or lower). The Court therefore allowed States to

19

place the burden on defendants to show that they are

different from the majority of their peers and thus

constitutionally ineligible for the death penalty due to

mental disability or insanity. See Ford, 477 U.S. at

417 (“It may be that some high threshold showing on

behalf of the prisoner will be found a necessary means

to control the number of nonmeritorious or repetitive

claims of insanity.”); see also Hall, 572 U.S. at 741

(Alito, J., dissenting) (“As Hall concedes, the Eighth

Amendment permits States to assign to a defendant

the burden of establishing intellectual disability by at

least a preponderance of the evidence.”). The Court

has found the opposite with respect to sentencing

juveniles. In this class of defendants, the vast

majority is constitutionally ineligible for a category of

punishment. See Montgomery, 136 S. Ct. at 734.

Accordingly, the opposite presumption and burden

must follow: States, not juvenile offenders, must rebut

the presumption that arises from Miller and

Montgomery.

Because of the rarity of irreparably corrupt

juvenile offenders, several state high courts have

adopted rebuttable presumptions against the

imposition of life without parole for juvenile offenders.

The Supreme Court of Iowa held that because Miller

dictates that life in prison without the possibility of

parole should be uncommon for juveniles, the

“presumption for any sentencing judge is that the

judge should sentence juveniles to life in prison with

the possibility of parole for murder * * * .” State v.

Seats, 865 N.W.2d 545, 555 (Iowa 2015).

Pennsylvania’s Supreme Court, noting the flexibility

Montgomery left to the states, announced that “in

Pennsylvania, a faithful application of the holding in

Miller, as clarified in Montgomery, requires the

creation of a presumption against sentencing a

20

juvenile offender to life in prison without the

possibility of parole.” Batts, 163 A.3d at 452. And the

highest courts of Connecticut, Indiana, Missouri,

Pennsylvania, and Utah have adopted similar

presumptions. See State v. Riley, 110 A.3d 1205, 1214

(Conn. 2015); Conley v. State, 972 N.E.2d 864, 871

(Ind. 2012); State v. Hart, 404 S.W.3d 232, 241 (Mo.

2013); State v. Houston, 353 P.3d 55, 77, 83 (Utah

2015).

If a juvenile is presumed not to be irreparably

corrupt, then the State should bear the burden of

rebutting that presumption. 16 As the Pennsylvania

Supreme Court recognized, “any suggestion of placing

the burden on the juvenile offender is belied by the

central premise of Roper, Graham, Miller and

Montgomery—that as a matter of law, juveniles are

categorically less culpable than adults.” Batts, 163

A.3d at 452. Indeed, the “features that distinguish

juveniles from adults also put them at a significant

disadvantage in criminal proceedings.” Graham, 560

U.S. at 78. It would defy Miller and Montgomery’s core

holdings and the Court’s longstanding teachings in

Roper and Graham if juvenile defendants were

required to prove that they were not irreparably

corrupt. Juveniles should not bear such a burden, due

in part to their inherent youth that the Court sought

to protect in Graham. See ibid.; see also Miller, 567

Any statement in Montgomery that may imply the burden

should be on the juvenile offender to show irreparable corruption,

see, e.g., Montgomery, 136 S. Ct. at 736-737 (“prisoners like

Montgomery must be given the opportunity to show their crime

did not reflect irreparable corruption * * *”), is dicta because it

was not a necessary step in the result of that opinion. See

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 66-67 (1996)

(explaining that when the Court issues an opinion, it is the result

and portions of the opinion necessary to that result which bind

the Court).

16

21

U.S. at 478 (recognizing juveniles’ unique “incapacity

to assist [their] own attorneys”). Imposing a “rigid

rule” that required juvenile offenders to prove they

were not the rare juvenile whose crime reflected

irreparable corruption rather than transient maturity

would create an “unacceptable risk” that these

defendants would be subject to an unconstitutional

punishment. Cf. Hall, 572 U.S. at 704 (holding

Florida’s “rigid rule” for determining intellectual

disability created “an unacceptable risk that persons

with intellectual disability will be executed, and thus

is unconstitutional.”). And such a rule would violate

the longstanding proposition that a presumption

cannot operate to violate a substantive constitutional

right. See, e.g., Bailey v. Alabama, 219 U.S. 219

(1911). The State must therefore bear the burden of

rebutting the presumption that a juvenile defendant

is ineligible for life imprisonment without parole.

Accord, State v. Sweet, 879 N.W.2d 811, 833 (Iowa

2016) (“[T]he burden [is] on the state to show that an

individual

offender

manifest[s]

‘irreparable

corruption.’”).

Because children are “constitutionally different

from adults for purposes of sentencing,” see Miller,

567 U.S. at 471, either States must develop

procedures that recognize this presumption, or

sentencing courts must address it through an express

finding of fact. Courts must—at the very least under

the Eight Amendment—ask the question that Miller

requires them “not only to answer, but to answer

correctly:” whether a juvenile’s crimes reflected

“transient immaturity,” or was a rare instance

reflecting “irreparable corruption.” See Adams, 136 S.

Ct. at 1800 (Sotomayor, J., concurring in the decision

to grant, vacate and remand).

22

III. The Mississippi courts below failed to

answer the question whether Jones is

irreparably corrupt before sentencing him

to life without parole.

The problem giving rise to this case is that nobody

knows if the Mississippi courts have complied with

Miller’s substantive rule. As Judge Westbrooks of the

Mississippi Court of Appeals noted in his partial

dissent, the trial judge in this case “failed to analyze

on the record whether [Mr.] Jones was among the very

‘rarest of juvenile offenders, those whose crimes

reflect permanent incorrigibility.’” Pet. App. at 55a.

Simply put, “[t]here is no indication that, when the

factfinder[] in th[is] case[] considered petitioner[’s]

youth, [he] even asked the question Miller required

[him] not only to answer, but to answer correctly:

whether petitioner[’s] crime[] reflected ‘transient

immaturity’ or ‘irreparable corruption.’” Adams, 136

S. Ct. at 1800 (Sotomayor, J., concurring in the

decision to grant, vacate, and remand). That

uncertainty “necessarily carr[ies] a significant risk

that” Mr. Jones is enduring “a punishment that the

law cannot impose upon him.” Montgomery, 136 S. Ct.

at 734 (quotation marks and citation omitted).

Although Miller and Montgomery clarified that

the Eighth Amendment requires more than mere

consideration of a juvenile’s age before imposing a

sentence of life without parole, Mr. Jones’ sentencing

judge merely considered Jones’ age and other

mitigating factors in sentencing him to life without

parole. In the original sentencing order, the Court

stated: “the Court, having considered each of the

Miller factors, finds that the defendant, Brett Jones,

does not qualify as a minor convicted and sentenced to

life imprisonment without possibility of parole

consideration and entitled to be sentenced in such a

23

manner as to make him eligible for parole

consideration.” Pet. App. at 18a. On resentencing, the

court interpreted the Miller factors as merely grounds

for consideration of “leniency” for Mr. Jones. Pet. App.

at 57a (“The Court having conducted an evidentiary

hearing and considered those factors in Jones and

Miller, as to whether or not defendant is entitled to the

benefit of the leniency provided * * * .”) (emphasis

added). The substantive constitutional rule in Miller

is not about whether a juvenile is entitled to leniency;

rather, the rule is that only the rarest juvenile whose

crime reflects permanently incorrigibility can be

sentenced to the maximum penalty for a juvenile

offender, life without parole, which is essentially

death in prison. In fact, there is no reference in the

sentencing order to any evidence as to whether Mr.

Jones is irreparably corrupt. On the contrary, despite

the

introduction

of

extensive

evidence

of

rehabilitation by Mr. Jones, the sentencing court did

not address the issue of rehabilitation. The sentencing

judge instead relied on the heinous facts of the murder

and Mr. Jones’ youth at the time of the murder.

This case demonstrates that there is a substantial

risk that lower courts will continue to fail to ask and

answer Miller’s constitutionally required question

until this Court explicitly instructs them to do so.

24

CONCLUSION

The Court should reverse the judgment entered

below.

Respectfully submitted.

CHRISTOPHER M. MURPHY

LAWRENCE A. WOJCIK

MICHAEL S. STANEK

ETHAN H. TOWNSEND

GARRET R. ATHERTON

McDermott Will & Emery

LLP

444 W Lake St

Chicago, IL 60606

JUDY PERRY MARTINEZ

Counsel of Record

American Bar Association

321 North Clark Street

Chicago, IL 60654

(312) 988-5000

abapresident@

americanbar.org

Counsel for Amicus Curiae