Amicus Curiae Brief — Brett Jones, Petitioner v. Mississippi

No. 18-1259

In the

Supreme Court of the United States

__________________

BRETT JONES,

v.

MISSISSIPPI,

__________________

Petitioner,

Respondent.

On Writ of Certiorari to the United States Court

of Appeals for the Supreme Court of Mississippi

__________________

BRIEF OF AMICUS CURIAE

AMICUS POPULI

IN SUPPORT OF RESPONDENT

__________________

MITCHELL KEITER

Counsel of Record

KEITER APPELLATE LAW

The Beverly Hills Law Building

424 South Beverly Drive

Beverly Hills, CA 90212

310.553.8533

mitchell.keiter@gmail.com

Counsel for Amicus Curiae

AUGUST 21, 2020

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

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

STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I. Neither “irretrievable depravity,” “irreparable

corruption,” nor “permanent incorrigibility” is

required for a constitutional sentence of life

without possibility of parole for a juvenile

offender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. Objective factors guide the review of both

capital and noncapital sentences . . . . . . . . . . 8

B. Miller v. Alabama had a prescriptive,

predictive, and descriptive component . . . . . 10

C. A court need not find irretrievable depravity

before sentencing a juvenile murderer to

LWOP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

1. No finding is necessary to impose an

LWOP sentence because if one were

required, a jury would need to make it . . 12

2. Irretrievable depravity, irreparable

corruption, or permanent incorrigibility

are not prescriptive elements of a

maximum sentence but descriptions of

maximally culpable offenders . . . . . . . . . 13

ii

3. Irretrievable depravity is not an

intelligible standard for a sentencer, who

can assess the present magnitude of

depravity but not its future duration . . . 14

II. Balancing the costs of overconfinement and

underconfinement is a task for the democratic

process, not litigation . . . . . . . . . . . . . . . . . . . . . 20

A. Both overconfinement and underconfinement

impose costs on the public. . . . . . . . . . . . . . . 21

B. The democratic process should determine

how to balance the risks of underconfinement

and overconfinement . . . . . . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

iii

TABLE OF AUTHORITIES

CASES

Atkins v. Virginia,

536 U.S. 304 (2002). . . . . . . . . . . . 5, 10, 20, 21, 23

Bobby v. Bies,

556 U.S. 825 (2009). . . . . . . . . . . . . . . . . . . . . . . 23

Bonanno v. Central Contra Costa Trans. Auth.,

65 P.3d 807 (Cal. 2002). . . . . . . . . . . . . . . . . . . . 26

Briscoe v. Reader’s Digest Assn., Inc.,

483 P.2d 34 (Cal. 1971). . . . . . . . . . . . . . . . . . . . 17

Buck v. Davis,

137 S. Ct. 759 (2017). . . . . . . . . . . . . . . . . . . . 4, 16

Case of Vinter and Others v. United Kingdom,

[Eur. Ct. H.R.] 66069/09 (2013) . . . . . . . . . . . . . 27

Commonwealth v. Batts,

163 A.3d 410 (Pa. 2017) . . . . . . . . . . . . . . . . 18, 20

Cook v. State,

242 So.3d 865 (Miss. Ct. App. 2017) . . . . . . . . . 19

Ford v. Wainwright,

477 U.S. 399 (1986). . . . . . . . . . . . . . . . . . . . . . . 23

Gates v. Discovery Comms., Inc.,

101 P.3d 552 (Cal. 2004). . . . . . . . . . . . . . . . . . . 17

Glossip v. Gross,

135 S. Ct. 2726 (2015). . . . . . . . . . . . . . . . . . . . . 26

Graham v. Florida,

560 U.S. 48 (2010). . . . . . . . . . . . . . . . . . . . passim

iv

Hall v. Florida,

572 U.S. 701 (2014). . . . . . . . . . . . . . . . . . . . . . . 23

Johnson v. Texas,

509 U.S. 350 (1993). . . . . . . . . . . . . . . . . . . . . . . 14

Kahler v. Kansas,

140 S. Ct. 1021 (2020). . . . . . . . . . . . . . . . 5, 23, 28

Kennedy v. Louisiana,

554 U.S. 407 (2008). . . . . . . . . . . . . . . . . . . . . . . 10

Lockett v. Ohio,

438 U.S. 586 (1978). . . . . . . . . . . . . . . . . . . 3, 8, 10

Malvo v. Mathena,

893 F.3d 265 (4th Cir. 2018). . . . . . . . . . . . . . . . 10

Miller v. Alabama,

567 U.S. 460 (2012). . . . . . . . . . . . . . . . . . . passim

Montgomery v. Louisiana,

136 S. Ct. 718 (2016). . . . . . . . . . . . . . . . . . . 12, 18

Moore v. Texas,

137 S. Ct. 1039 (2017). . . . . . . . . . . . . . . . . . 15, 23

Penry v. Lynaugh,

492 U.S. 302 (1989). . . . . . . . . . . . . . . . . . . . . . . 21

People ex rel. Gallo v. Acuna,

929 P.2d 596 (Cal. 1996). . . . . . . . . . . . . . . . . . . . 1

People v. Padilla,

209 Cal.Rptr.3d 209 (Cal. Ct. App. 2016) . . . . . 12

People v. Rogers,

18 N.Y. 9 (1858) . . . . . . . . . . . . . . . . . . . . . . . 1, 21

v

Ring v. Arizona,

536 U.S. 584 (2002). . . . . . . . . . . . . . . . . . . . . . . 12

Roper v. Simmons,

543 U.S. 551 (2005). . . . . . . . . . . . . . . . . . . passim

Solem v. Helm,

463 U.S. 277 (1983). . . . . . . . . . . . . . . . . 3, 8, 9, 10

South Bay United Pentacostal Church v. Newsom,

140 S. Ct. 1613 (2020). . . . . . . . . . . . . . . . . . . 6, 23

State v. Sweet,

879 N.W.2d 811 (Iowa 2016) . . . . . . . . . . . . . . . 18

United States v. Haymond,

139 S. Ct. 2369 (2019). . . . . . . . . . . . . . . . . . . 4, 12

Woodson v. North Carolina,

428 U.S. 280 (1976). . . . . . . . . . . . . . . . . . . 3, 8, 10

OTHER AUTHORITIES

Attitudes toward the EU, Chatham House - Kantar

Public Survey (2017), https://www.chathamhouse

.org/publication/future-europe-comparing-publicand-elite-attitudes . . . . . . . . . . . . . . . . . . . . . . . 25

Stephen Breyer, Breaking the Vicious Circle

(1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Erin Collins, Punishing Risk (2018) 107 Geo. L. J.

57 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

Jessica Eaglin, Constructing Recidivism Risk, 67

Emory L.J. 59 (2017) . . . . . . . . . . . . . . . . . . . . . 22

vi

Ipsos MORI Death Penalty Drama (2009),

https://www.ipsos.com/ipsos-mori/en-uk/survey-cha

nnel-4-attitudes-towards-death-penalty . . . . . . 25

IpsosMORI Death Penalty International Poll,

https://www.ipsos.com/ipsos-mori/en-uk/deathpenalty-international-poll . . . . . . . . . . . . . . . . . 27

Mitchell Keiter, Criminal Law Principles in

California: Balancing a “Right to be Forgotten”

with a Right to Remember, 13 Cal. Legal Hist.

421 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

C.S. Lewis, The Humanitarian Theory of

Punishment, 6 Res Judicatae 224 (1953) . . . . . . 15

John Locke, Two Treatises of Government (Mark

Goldie ed. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . 27

Model Penal Code, § 210.3 comm. (1962) . . . . . . . . 21

Ilene H. Nagel, Structuring Sentencing Discretion:

The New Federal Sentencing Guidelines, 80 J.

Crim. L. & Criminology 883 (1990) . . . . . 5, 16, 17

National Commission on Law Observance and

Enforcement (Wickersham Commission), Report

on Penal Institutions, Probation and Parole

(1931). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Pa. Comm. on Sentencing Risk/needs Assessment

Project, Interim Report 5: Developing Categories

of Risk (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Christopher Slobogin, The Civilization of the

Criminal Law,

58 Vand. L. Rev. 121 (2005) . . . . . . . . . . . . . 22, 23

vii

John Paul Stevens, On the Death Sentence, N.Y.

Rev. of Books (Dec. 23, 2010) . . . . . . . . . . . . . . . 28

Alexis de Tocqueville, Democracy in America

(Daniel Boorstin ed. 1990) . . . . . . . . . . . . . . . . . 28

1

STATEMENT OF INTEREST1

Amicus Populi represents individuals who worked

as prosecutors in California during the past three

decades, when California and the Nation became much

safer. From 1993 to 1998 alone, California’s homicide

rate was cut in half. From 1993 to 2014, the homicide

rate dropped from 12.9 to 4.4 (per 100,000), its lowest

in 50 years, and the violent crime rate dropped from

1059 to 393, so there were approximately 3,300 fewer

homicides and 250,000 fewer violent crimes in that

year than there would have been had crime remained

at its 1993 level. The decline saved tens of thousands of

lives and prevented millions of violent crimes in the

last quarter-century.

Amicus Populi works to preserve this improvement,

balancing the imperative of punishing offenders

according to their culpability with the imperative of

protecting public safety, the first duty of government.

See People ex rel. Gallo v. Acuna, 929 P.2d 596, 618

(Cal. 1996); People v. Rogers, 18 N.Y. 9 (1858).

1

Amicus files this brief with all parties’ consent. Pursuant to Rule

37.6, counsel for amicus authored this brief in whole, no party’s

counsel authored this brief in whole or in part, and no person or

entity—other than amicus and its counsel—contributed monetarily

to preparing or submitting the brief.

2

SUMMARY OF ARGUMENT

This case illustrates Yogi Berra’s wisdom in

observing “it is hard to make predictions, especially

about the future.” After a jury convicts a juvenile of

murder, sentencers in most states must make an

individualized determination about whether to

sentence the defendant to life imprisonment without

possibility of parole (LWOP) or some lesser sentence.

An LWOP sentence denies the juvenile the chance to

demonstrate growth and maturity, and alters his life

with a forfeiture that is irrevocable. Graham v. Florida,

560 U.S. 48, 69, 73 (2010). But a juvenile murderer who

is later released and repeats his crime produces the

death of an innocent person. As with COVID-19, both

overconfinement and underconfinement impose social

costs.

Courts must therefore sort those who deserve a

chance for release from those who warrant permanent

confinement. This Court has described the former as

juvenile offenders whose crimes reflect “transient

immaturity” and the latter as those whose character

reflects “irreparable corruption” or “irretrievable

depravity.” Miller v. Alabama, 567 U.S. 460, 471, 47980 (2012). The imperative of preventing cruel and

unusual punishment requires the former have an

opportunity for release. The imperative of protecting

human life requires the latter never again have the

opportunity to prey upon the public.

The sentencer’s determination concerns a prediction

about the future, but must turn on facts discernible in

the present. Objective factors like the “character and

record of the individual offender” and the

3

“circumstances of the particular offense” rather than

subjective ones have long informed the decision

whether to impose a discretionary maximum sentence

in both capital and noncapital proceedings. Woodson v.

North Carolina, 428 U.S. 280, 302-05 (1976) (plurality

opinion); Graham, 560 U.S. at 87 (Roberts, C.J.,

concurring); see also Solem v. Helm, 463 U.S. 277

(1983). These current, objective factors can and should

govern the sentencing of juvenile murderers.

The decision in Miller v. Alabama, 567 U.S. 460

(2012) broke new ground as the first to diverge from

the principle that “death is different.” Prior cases had

applied special scrutiny when the penalty was death

(Lockett v. Ohio, 438 U.S. 586 (1978); Woodson, 428

U.S. 280), or when the punishment was permanent

(LWOP) but the crime did not inflict death. Graham,

560 U.S. 48; Solem, 463 U.S. 277. Miller was the first

case to apply that scrutiny to a noncapital sentence

punishing a capital crime. Nonetheless, the same

factors, objectively discernible to the sentencer at the

time of conviction, must govern the sentencing choice.

Miller had a prescriptive component, as it held the

“Eighth Amendment forbids a sentencing scheme that

mandates life in prison without possibility of parole for

juvenile offenders.” Miller, 567 U.S. at 479. It had a

predictive component: “[W]e think appropriate

occasions for sentencing juveniles to this harshest

possible penalty will be uncommon.” Id, emphasis

added. And there was a descriptive component,

recalling the “great difficulty . . . of distinguishing at

this early age between ‘the juvenile offender whose

crime reflects unfortunate yet transient immaturity,

4

and the rare juvenile offender whose crime reflects

irreparable corruption.’ Id. at 479-80, quoting Roper v.

Simmons, 543 U.S. 551, 573 (2005).

This latter contrast did not compel sentencers to

determine before imposing an LWOP sentence whether

the defendant acted out of irreparable corruption, or

“irretrievable depravity.” If it had, a jury, not a court,

would need to make that determination. United States

v. Haymond, 139 S. Ct. 2369, 2379 (2019).

Furthermore, the contrasts between adults and

juveniles concerning maturity, vulnerability, and

character permanence involve differences of degree

rather than kind. Roper concluded these general

contrasts preclude categorizing juveniles among the

worst offenders, who deserve death, but even if certain

traits render adults more culpable generally,

irretrievable depravity is not a prerequisite for

imposing a death sentence on adult offenders. It is not

necessary for an LWOP sentence for juveniles.

Most importantly, irretrievable depravity is not an

intelligible standard for a sentencer, who can assess

the present magnitude of depravity but not its future

duration. Sentencing defendants based not on what

they have done but on what the sentencer thinks they

will do in the future inevitably entails speculation,

which can implement unfair bias. Buck v. Davis, 137 S.

Ct. 759, 776 (2017). When this Court first described the

contrast between transient immaturity and irreparable

corruption, it was to cite a contrast that even experts

could not be expected to make. Roper, 543 U.S. at 573.

Insofar as imprisonment seeks not to punish offenses

but to reform offenders, as the 1931 Wickersham

5

Commission observed, it is no more possible to predict

when (or if) an offender will be released from prison

than to predict when a medical patient will be released

from a hospital. Ilene H. Nagel, Structuring Sentencing

Discretion: The New Federal Sentencing Guidelines, 80

J. Crim. L. & Criminology 883, 893 n.62 (1990).

Sentencers must therefore decide based on objective,

current facts, not speculation about which defendants

will mature and which will remain incorrigible forever.

The standard cannot be that anyone with any

possibility of reform must receive an opportunity for

parole, so that only juveniles certain to re-offend may

receive an LWOP sentence; everyone poses a risk of

less than one hundred percent but more than zero

percent of future crime. This Court has not extended

Atkins v. Virginia, 536 U.S. 304 (2002), to restrict

LWOP sentences for mentally impaired murderers,

because the same factors rendering them less culpable

may also render them more dangerous in the future.

Similarly, even if it is harsher punishment to

permanently incarcerate a teenager than a senior

citizen, it provides a greater incapacitative protection

for society. Determining which juveniles should be

exempt from LWOP, like determining which mentally

incompetent offenders should be exempt from capital

punishment, is a project for democratic self-governance

rather than constitutional law. Kahler v. Kansas, 140

S. Ct. 1021, 1037 (2020).

States must act to prevent false positive findings

(whereby offenders remain incarcerated even though

they would not re-offend), and false negatives (whereby

offenders are released from custody but do re-offend).

6

The former can wrongly take the liberty of the guilty,

whereas the latter can wrongly take the lives of the

innocent. Because the Constitution entrusts the state

to protect people’s safety in the face of uncertain

danger, courts should not micromanage the decisions of

elected officials in protecting human life. South Bay

United Pentacostal Church v. Newsom, 140 S. Ct. 1613,

1613-14 (2020) (Roberts, C.J., concurring in denial for

injunctive relief.)

7

ARGUMENT

I. Neither “irretrievable depravity,” “irreparable

corruption,” nor “permanent incorrigibility”

is required for a constitutional sentence of life

without possibility of parole for a juvenile

offender.

The instant sentencing court did not consider

petitioner Brett Jones’ youth “irrelevant to its

sentencing determination.” Miller, 567 U.S. at 479. To

the contrary, it expressly observed, “The Court is

cognizant of the fact that children are generally

different; that consideration of the Miller factors and

others relevant to the child’s culpability might well

counsel against irrevocably sentencing a minor to life

in prison.” J. A. 149. The court observed Jones was

fifteen when he murdered his grandfather, and

considered Jones’ background “troubled” but not

“brutal.” J. A. 150-51. The court deemed the homicide

“particularly brutal,” as Jones stabbed his grandfather

eight times, using a second knife to continue the

assault when the first broke. J. A. 150. The court

further recalled Jones tried to conceal the murder,

acted alone in committing it, and did not act under

pressure from any relative or peer. J. A. 150-51. After

addressing these objective, individual factors, the court

concluded Jones’ crime warranted a sentence of LWOP.

J. A. 152. The court complied with Miller and imposed

a constitutional sentence.

8

A. Objective factors guide the review of both

capital and noncapital sentences.

More than four decades ago, this Court barred

mandatory capital sentences. Miller, 567 U.S. at 470,

citing Woodson, 428 U.S. 280, 302-05 see also Lockett,

438 U.S. 586. The absence of individualized

consideration harmed multiple actors. It prevented

defendants from presenting mitigating evidence, it

prevented sentencing juries from learning relevant

information, it denied courts the opportunity to check

the arbitrary and capricious exercise of sentencing

power, and it harmed prosecutors by inviting

nullification by jurors uncomfortable with the

prescribed penalty. Woodson, at 302-04. Woodson did

not bar all mandatory sentencing; only the

qualitatively different sentence of death required such

individualization. Id. at 304-05.

Factors that could determine the sentence included

the “character and record of the individual offender”

and the “circumstances of the particular offense.”

Woodson, 428 U.S. at 304. “[O]bjective, rather than

subjective” factors likewise govern the proportionality

of noncapital sentences, for which the maximum

sentence is LWOP. Graham, 560 U.S. at 87 (Roberts,

C.J., concurring). These objective factors include the

offender’s mental state and motive in committing the

crime, the harm caused to the victim and/or society by

the offender’s conduct, and any prior criminal history.

Id. at 88.

This Court has illustrated the objective nature of

these factors. See e.g. Solem v. Helm, 463 U.S. 277

(1983). Violent crimes, which harm or endanger people,

9

are more serious than nonviolent crimes, which harm

only property interests. Id. at 292-93. Another objective

factor is the magnitude of the crime, such as the

amount of property taken (or the number of victims

injured or killed). Id. at 293. The sentencer can also

measure the offender’s mental state with respect to the

harm, whether negligent, reckless, knowing, or

intentional. Id. And an offender’s motive is relevant;

someone who kills a stranger for payment could be a

greater danger to society than someone who kills due

to a particular animus against the victim. Id. at 293-94.

These objective factors, intelligible to any sentencer,

could have sufficed to preclude the maximum sentence

of LWOP in Miller. For example, Kuttrell Jackson did

not kill or intend to kill, rendering him less culpable

than other defendants convicted of murder. Miller, 567

U.S. at 490 (Breyer, J. concurring). Evan Miller had an

especially troubled background, in which his stepfather

abused him, his mother abused drugs, he had been in

and out of foster care, and he had attempted suicide

four times. Id. at 468. Miller also had consumed

marijuana and alcohol before committing the homicide.

Id.

Miller itself offered multiple issues for a sentencing

judge or jury to consider in deciding whether the

evidence warranted the maximum sentence. Miller, 567

U.S. at 476-77. It objected to mandatory sentencing

schemes that ignored distinctions based on age (“the

17–year–old and the 14–year–old”), participation in the

murder (“the shooter and the accomplice”), and familial

background (“the child from a stable household and the

child from a chaotic and abusive one.”) Id. at 477.

10

These objective factors all existed and were available

for consideration at the time of sentencing.

Petitioner may also cite objective factors to show he

is less deserving of LWOP than, for example, the

defendant in the case formerly presenting the instant

issue, Mathena v. Malvo, 18-217. Seventeen-year-old

Lee Malvo, along with John Muhammad, killed twelve

individuals, grievously injured six others, and

terrorized people in four different states over a sevenweek period, instilling a paroxysm of fear in millions of

people throughout an entire metropolitan area. Malvo

v. Mathena, 893 F.3d 265, 267-68 (4th Cir. 2018). By

contrast, fifteen-year-old petitioner confined his

violence to his own home, killing only one person, and

not threatening any others.

B. Miller v. Alabama had a prescriptive,

predictive, and descriptive component.

A second line of cases contributed to the Miller

holding. In addition to prohibiting mandatory

maximum punishments, the Court has categorically

excluded certain offenses (nonhomicide crimes) and

certain offenders (juveniles and the mentally impaired)

from capital punishment. Miller, at 469-70, citing

Kennedy v. Louisiana, 554 U.S. 407 (2008); Roper v.

Simmons, 543 U.S. 551 (2005); Atkins v. Virginia, 536

U.S. 304 (2002). Miller moved further, diverging from

the principle that “death is different.” Whereas prior

cases had applied special scrutiny when the penalty

was death (Lockett, 438 U.S. 586; Woodson, 428 U.S.

280), or when the punishment imposed an irrevocable

forfeiture through LWOP though the crime did not

inflict the irrevocable forfeiture of death (Graham, 560

11

U.S. 48; Solem, 463 U.S. 277), Miller applied that

scrutiny for a capital crime punished with a noncapital

sentence.

Miller had a prescriptive, predictive, and descriptive

component. Prescriptively, the Court forbade states

from deeming youth “irrelevant” to a LWOP decision,

and thus required them to “take into account how

children are different, and how those differences

counsel against irrevocably sentencing them to a

lifetime in prison.” Miller, 567 U.S. at 479-80. “We

therefore hold that the Eighth Amendment forbids a

sentencing scheme that mandates life in prison without

possibility of parole for juvenile offenders.” Id. at 479.

The Court also predicted the sentence would be

“uncommon.” Miller, 567 U.S. at 479. “[W]e think

appropriate occasions for sentencing juveniles to this

harshest possible penalty will be uncommon.” Id.,

emphasis added. This uncommonness was not

prescriptive; the Court expected this outcome but did

not insist on it, as it could have done.

And there was a descriptive component, which

recalled juveniles’ distinctive condition. “This is

especially so because of the great difficulty we noted in

Roper and Graham of distinguishing at this early age

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. Miller also

recalled Roper’s conclusion that a juvenile’s conduct

was less likely to evince “irretrievable depravity.”

Miller, at 471, citing Roper, 543 U.S. at 570. Juveniles

12

thus had an “enhanced . . . prospect” of reform. Miller,

at 472.

Petitioner contends Miller established a rule that

courts must find a defendant’s “permanent

incorrigibility,” “irreparable corruption,” or

“irretrievable depravity” (or as the California Court of

Appeal described it in People v. Padilla, 209

Cal.Rptr.3d 209, 220 (Cal. Ct. App. 2016), “irreparable

corruption resulting in permanent incorrigibility”)

before sentencing him to LWOP. No such requirement

exists.

C. A court need not find irretrievable

depravity before sentencing a juvenile

murderer to LWOP.

1. No finding is necessary to impose an

LWOP sentence because if one were

required, a jury would need to make it.

Most specifically, this Court has denied any finding

is necessary. Montgomery v. Louisiana, 136 S. Ct. 718,

735 (2016). If one were a prerequisite for the maximum

LWOP sentence, it would require a jury to make the

finding beyond a reasonable doubt. United States v.

Haymond, 139 S. Ct. 2369, 2379 (2019), citing Ring v.

Arizona, 536 U.S. 584, 602 (2002). Miller, however,

invited either a “judge or jury” to determine the

sentence. Miller, 567 U.S. at 489.

13

2. Irretrievable depravity, irreparable

corruption, or permanent incorrigibility

are not prescriptive elements of a

maximum sentence but descriptions of

maximally culpable offenders.

Other evidence supports the conclusion that

irretrievable depravity describes the condition of

maximally culpable offenders but is not a prescribed

element. Roper cited three disparities between

juveniles and adults, which concern differences of

degree rather than kind. First, immaturity and

irresponsibility are “found in youth more often than in

adults.” Roper, 543 U.S. at 569. Second, juveniles are

“more vulnerable” and exercise “less control” over their

environment than adults. Id. Finally, Roper observed

“the character of a juvenile is not as well formed as

that of an adult. The personality traits of juveniles are

more transitory, less fixed.” Id. at 569-70. Because

juveniles had more of the characteristics reducing

culpability and fewer of the ones enhancing it, Roper

denied juveniles belonged “among the worst offenders,”

who warrant the death penalty. Id. at 570.

Roper’s referred to irretrievable depravity as

signifying maximum culpability: Juveniles’ ongoing

struggle to define their identity makes it “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. The

import of this characteristic was that sentencing a

juvenile to death violated the Eighth Amendment.

Irretrievable depravity, however, was a description,

not prescription. Roper observed juveniles have a

14

“greater probability” of reform, and juveniles’

criminality tends to decline as they age, because “the

impetuousness and recklessness that may dominate in

younger years can subside.” Roper, 543 U.S. at 570,

citing Johnson v. Texas, 509 U.S. 350, 368 (1993),

emphasis added. Irretrievable depravity (or irreparable

corruption, or permanent incorrigibility) might be more

common among adults, but some juveniles murderers

are irretrievably depraved, and some adult murderers

are not. Though the term signifies a maximum

culpability, no jury (or court) has ever been charged

with finding it as a necessary element for a sentence of

death (or LWOP) for an adult. Irretrievable depravity,

therefore, characterizes a maximally culpable offender;

it is not a condition that must be found to render an

LWOP sentence constitutional.

3. Irretrievable depravity is not an

intelligible standard for a sentencer,

who can assess the present magnitude of

depravity but not its future duration.

The most important ground for rejecting

irretrievable depravity as a necessary element for

LWOP sentences is the impossibility of applying it

correctly. Roper shielded juveniles from sentences of

death due to their “objective immaturity, vulnerability,

and lack of true depravity.” Roper, 543 U.S. at 573. A

judge or jury could assess all these factors at the time

of sentencing. But the irretrievability of one’s depravity

(or the irreparabilty of one’s corruption or the

permanence of one’s incorrigibilty) is not something a

sentencer can meaningfully evaluate at the time of

sentencing. A court or jury can evaluate the facts

15

before it, but neither can have the “perfect foresight”

needed to evaluate how long the offender’s depravity

will endure into the future. Graham, 560 U.S. at 95

(Roberts, C.J. concurring).

The Court first contrasted “transient immaturity”

and “irreparable corruption” to describe a distinction

the sentencer could not be expected to make. “It is

difficult even for expert psychologists to differentiate

between the juvenile offender whose crime reflects

unfortunate yet transient immaturity, and the rare

juvenile offender whose crime reflects irreparable

corruption.” Roper, 543 U.S. at 573. These are not

binary, exclusive options; not all immaturity is

transient, not all corruption is irreparable, and not all

criminal behavior is attributable to either immaturity

or corruption, let alone that of the transient or

irreparable variety. The Court even cited a medical

policy not to diagnose juveniles as having antisocial

personality disorder, i.e. irreparable corruption. Id. But

unless the Court was formally delegating Eighth

Amendment determinations to medical professionals,

their reluctance to distinguish “transient immaturity”

from “irreparable corruption” did not create a

constitutional hurdle. “[J]udges, not clinicians, should

determine the content of the Eighth Amendment.”

Moore v. Texas 137 S. Ct. 1039, 1054 (2017) (Roberts,

C.J., dissenting); see also C.S. Lewis, The

Humanitarian Theory of Punishment, 6 Res Judicatae

224, 225-26 (1953) [therapeutic punishment “removes

sentences from the hands of jurists whom the public

conscience is entitled to criticize and places them in the

hands of technical experts whose social sciences do not

even employ such categories as rights and justice.”]

16

There are special problems in judging defendants

based not on what they have done but on what the

sentencer thinks they will do in the future. The

potential for bias increases where the inquiry concerns

not a historical fact concerning the defendant’s conduct

but a “predictive judgment inevitably entailing a

degree of speculation.” Buck v. Davis, 137 S. Ct. 759,

776.

Sentencing based on projections regarding future

behavior contradicts the very premise of rehabilitative

punishment, which developed with special focus on the

juvenile offender. Nagel, Structuring Sentencing

Discretion: The New Federal Sentencing Guidelines,

supra, at 893 n.62. An indispensable component of

rehabilitation is the indeterminate sentence, whereby

the ultimate term of imprisonment is decided not by

judges or juries, at the time of conviction, but

correctional officers, upon successful completion of the

rehabilitation process.

Physicians, upon discovering disease, cannot

name the day upon which the patient will be

healed. No more can judges intelligently set the

day of release from prison at the time of

trial. . . .

....

. . . Boards of parole [on the other hand] can

study the prisoner during his confinement . . . .

Within their discretion they can grant a

comparatively early release to youths, to first

offenders, to particularly worthy cases who give

high promise of leading a new life. . . . [And they

can] keep vicious criminals in confinement as

long as the law allows.

17

Id., citing National Commission on Law Observance

and Enforcement (Wickersham Commission), Report on

Penal Institutions, Probation and Parole 142-43 (1931).

Rehabilitation theory posits the inmate, through

years, or, for serious cases like murder, perhaps

decades, of reformative programming, can become a

new person, not the same one who committed the

offense. Briscoe v. Reader’s Digest Assn., Inc., 483 P.2d

34, 41 (Cal. 1971), overruled in Gates v. Discovery

Comms., Inc., 101 P.3d 552 (Cal. 2004), cited in

Mitchell Keiter, Criminal Law Principles in California:

Balancing a “Right to be Forgotten” with a Right to

Remember, 13 Cal. Legal Hist. 421, 433-437 (2018).

This is precisely what Jones asserted below: “I’m not

the same person I was when I was 15. [¶.] “I’m a

completely different person today.” J. A. 152-53. Under

this theory, the duration of imprisonment depends on

how much the offender changes while in prison.

Accordingly, no one convicted of murder warrants a

mitigated sentence at the time of conviction; not unless

and until rehabilitation succeeds should the inmate be

guaranteed release.

The effect of rehabilitative efforts cannot be

determined before they begin; Graham faulted the

sentencer for finding the defendant “incorrigible” at the

“outset.” Graham, 560 U.S. at 73. Graham “may turn

out to be irredeemable,” but that was not a

determination that could be made at the outset. Id. at

75. If irredeemability is what a sentencer must find,

and that finding can not be made at the time of

sentencing but must await further developments, then

every defendant essentially has the opportunity to

18

show “redemption” in the future, and the sentence of

LWOP ceases to exist. Several amici expressly urge

this conclusion (see e.g. Brief of ACLU et al. at 14,

citing State v. Sweet, 879 N.W.2d 811, 839 (Iowa 2016)),

but Roper and Miller contemplate and authorize the

sentence, so there must be an effective way to

determine which defendants warrant it.

Both Montgomery and the instant case present

anomalous circumstances, so neither should shape the

law on this subject. Henry Montgomery committed a

murder in 1963; he sought collateral review a halfcentury later after Miller invalidated mandatory

LWOP sentences. Montgomery, 136 S. Ct. at 725-26.

Montgomery could thus present evidence suggesting he

had reformed over the fifty years since his conviction,

including his formation of a prison boxing team and his

contribution to the prison’s silkscreen department. Id.

at 736. Jones likewise has cited Miller in challenging

his sentence for a murder committed sixteen years ago,

and can thus adduce evidence regarding his postconviction behavior. But future defendants will have no

such evidence available; judges and juries will need to

evaluate them on the basis of the record at the time of

conviction and sentencing.

It is not as if there even can be perfect foresight at

the time of a future parole hearing. The Pennsylvania

Supreme Court held that rejecting an LWOP sentence

presents “minimal risk” because if the inmate failed to

rehabilitate, the authorities would deny future parole

requests. Commonwealth v. Batts, 163 A.3d 410, 475

(Pa. 2017). That presupposes that measuring an

inmate’s rehabilitation progress is as easy and certain

19

as measuring his height. But one can announce

remorse and volunteer for silkscreening yet still

present a danger to society if released. Though one

amicus brief recalls how a Mississippi court imposed

LWOP despite the absence of “data” suggesting

recidivism, no “data” can disprove this prospect either.

Cook v. State, 242 So.3d 865, 875 (Miss. Ct. App. 2017).

There will always be uncertainty, so the question is

how states may act in the face of it.

20

II. Balancing the costs of overconfinement and

underconfinement is a task for the democratic

process, not litigation.

Roper and Atkins addressed the punishment

justifications of retribution and deterrence, but not

incapacitation. Roper, 543 U.S. at 571-72; Atkins, 536

U.S. 304, 318-20. This was understandable, insofar as

LWOP provides almost as much incapacitative

protection for society as the death penalty. But a

sentence with the possibility (if not probability) of

parole may provide substantially less, so the Court

addressed the subject in Graham, 560 U.S. at 71-74.

The Court recognized incapacitation might be

necessary “for some time,” but questioned whether

Graham’s past crimes meant “he would be a risk to

society for the rest of his life.” Id. at 73. This analysis

presented the issue in binary terms; Graham either

would or would not be a “risk to society.” But it is not

an either-or determination; every convicted murderer,

every convicted criminal, even everyone who has never

committed a crime, presents some risk to others. No

one has a one hundred percent probability of future

criminality, but no one has a zero percent probability

either. If an LWOP sentence is unconstitutional unless

the court finds a certainty of recidivism upon release,

so there is “no possibility that the offender could be

rehabilitated at any point,” the sentence will become a

nullity. See Batts, 163 A.3d at 435, emphasis added.

This Court should not construe the requisite risk so

narrowly, especially as true recidivism in an LWOP

case would involve another murder, not just a robbery

as in Graham.

21

A. Both overconfinement and underconfinement

impose costs on the public.

Courts have long recognized the tension between

the competing imperatives of punishing offenders

according to their moral culpability and protecting

society from harm. People v. Rogers, 18 N.Y. 9 (1858).

Though Atkins preceded Roper by three years, this

Court has never restricted LWOP sentences on

mentally impaired offenders, due to this latter

imperative. See Penry v. Lynaugh, 492 U.S. 302, 324

(1989), emphasis added, overruled in Atkins, 536 U.S.

304: “Penry’s mental retardation . . . is thus a

two-edged sword: it may diminish his blameworthiness

for his crime even as it indicates that there is a

probability that he will be dangerous in the future.” The

Model Penal Code also acknowledges that for impaired

offenders, “the factors that call for mitigation . . . are

the very factors of an individual’s personality that

make us most fearful of his future conduct.” Model

Penal Code, § 210.3 comm., at 71-72 (1962). So while an

LWOP sentence does impose a greater cost on a 16year-old offender than a 75-year-old (Graham, 560 U.S.

at 70), it also provides greater protection for the public,

especially considering the higher crime rates of even

transiently immature teenagers as opposed to

septuagenarians’.

Experts can accurately predict the proportion of

individuals in a given pool who will recidivate, but

cannot identify the particular individuals within that

pool who will, so they do not know whose confinement

is unnecessary and whose release will endanger the

public. Erin Collins, Punishing Risk, 107 Geo. L. J. 57,

22

97 (2018); Christopher Slobogin, The Civilization of the

Criminal Law, 58 Vand. L. Rev. 121, 145 (2005).

Sentencers must balance the risk of false positives

(offenders who are incorrectly deemed likely to

recidivate) with the risk of false negatives (offenders

who are incorrectly deemed unlikely to inflict future

harms). Jessica Eaglin, Constructing Recidivism Risk,

67 Emory L.J. 59, 91-92 (2017). It might be, as amicus

National Association of Criminal Defense Lawyers et

al. contends, that a required finding of permanent

incorrigibility would reduce the risk of unconstitutional

sentences, as it would limit false positives. Brief of

NACDL et al. 23. But that would also increase the risk

of false negatives, and of future homicides by offenders

thereby released.

The unavoidable uncertainty regarding projections

of future behavior creates the policy question of how

much risk society must tolerate. “Is it better to err on

the side of over predicting arrest [which potentially

could result in correctional overcrowding] or under

predicting arrest [which potentially could result in

more crime] [?] How much better? That is, how many

false positives equal one false negative . . . ?” Punishing

Risk, at 97, citing Pa. Comm. on Sentencing Risk/needs

Assessment Project, Interim Report 5: Developing

Categories of Risk (2012) 15, emphasis added. Should

the law aim to prevent false positives and false

negatives equally, so for every recidivist there is one

successfully released inmate? Two successful releases?

Five? There is no objective answer; reasonable minds

may differ on how to balance the competing concerns.

Punishing Risk, at 92. Accordingly, all reasonable

23

minds, not only those in the judiciary, should

participate in shaping these policies.

B. The democratic process should determine

how to balance the risks of

underconfinement and overconfinement.

The Constitution forbids executing the insane, or

even the mentally impaired. Atkins, 536 U.S. 304; Ford

v. Wainwright, 477 U.S. 399, 410 (1986). But this Court

has not imposed a precise test on the states for

determining whether a defendant qualifies for those

protected categories. Kahler v. Kansas, 140 S. Ct. 1021

(2020); Hall v. Florida, 572 U.S. 701, 718-19 (2014);

Bobby v. Bies, 556 U.S. 825, 831 (2009). The connection

between future criminal behavior and youth, like that

between criminal blameworthiness and mental illness,

involves the functioning of the brain, the purposes of

criminal law, and ideas of free will and responsibility.

Kahler, 140 S. Ct at 1037. It demands hard choices

among values, and is thus a project for democratic

governance, not constitutional law. Id; see also South

Bay United Pentacostal Church, 140 S. Ct. at 1613-14

(Roberts, C.J., concurring in denial for injunctive

relief.)

Nor should the balance between preventing false

positives and preventing false negatives be struck by

medical experts. Moore v. Texas, 137 S. Ct. at 1054

(Roberts, C.J., dissenting); see also Slobogin, The

Civilization of the Criminal Law, supra, at 167,

emphasis added: “Ultimately, the degree of risk

necessary to authorize intervention, and the restraint

on liberty and intrusiveness of treatment legitimated

by a given degree of risk, are moral/legal questions

24

that laypeople and legal decisionmakers, not clinical

experts, should decide.”

Because patterns of criminal behavior tend to

decline by middle age, most of the crime prevention

benefits achieved by imprisoning a juvenile murderer

will occur in the first thirty years after the crime, not

the next thirty, so an LWOP sentence might seem like

an inefficient way to suppress the “last ten percent” of

danger to the public. Stephen Breyer, Breaking the

Vicious Circle 11-19 (1992). The public may

nevertheless be willing to spend more to prevent deaths

caused by human malice than natural or other causes,

because people perceive the harm created by murders

exceeds that caused by accidents or other unintended

deaths. Id. at 16. Such determinations are a proper

expression of democratic self-governance.

Different states will seek (and obtain) LWOP

sentences for juvenile murderers in different

proportions. That is entirely appropriate in our federal

system. If some states’ citizens favor greater efforts to

reduce false positives, because they believe

overconfinement creates an inhumane society, whereas

citizens of other states place more priority on reducing

false negatives, because they believe underconfinement

creates an unsafe society, the preferences of each

should be respected.

This is so even though Miller predicted “appropriate

occasions for sentencing juveniles [to LWOP] will be

uncommon.” Miller, 567 U.S. at 479. They will be

uncommon, because murder is an uncommon activity

for juveniles. Roper observed that for “most teens,

[risky or antisocial] behaviors are fleeting; they cease

25

with maturity as individual identity becomes settled.

Only a relatively small proportion of adolescents who

experiment in risky or illegal activities develop

entrenched patterns of problem behavior that persist

into adulthood.” Roper, 543 U.S. at 570, internal

citation omitted. But for almost all teenagers, those

“risky” activities do not include murder. Those who

commit such depraved crimes are likely among the

minority of teens whose antisocial behavior will not be

so fleeting. The indiscretion of youth rarely

encompasses homicide.

Impermanent confinement and eventual release of

juvenile offenders will produce many successes. When

“false positives” become productive citizens, many will

celebrate these outcomes. But there will be failures too,

as “false negatives” are released and return to terrorize

their former communities by resuming their violent

behavior. The costs of those failures will be borne

disproportionately by those who are not members of the

bench or Supreme Court bar. Especially as they will be

most affected by such releases, they deserve to

participate in making the hard choices among the

competing values.

The voting public tends to favor more punishment

than elites, who are less often victims of crime.2

Removing the “hard choices among values” from the

democratic process would leave them in the hands of

2

Attitudes toward the EU, Chatham House - Kantar Public Survey

(2017), https://www.chathamhouse.org/publication/future-europecomparing-public-and-elite-attitudes; Ipsos MORI Death Penalty

Drama (2009), https://www.ipsos.com/ipsos-mori/en-uk/survey-cha

nnel-4-attitudes-towards-death-penalty.

26

decisionmakers who are far less vulnerable to the risk

of homicide, and who may weigh the competing risks of

overconfinement and underconfinement differently.

[W]e federal judges live in a world apart from

the vast majority of Americans. After work, we

retire to homes in placid suburbia or to high-rise

co-ops with guards at the door. We are not

confronted with the threat of violence that is

ever present in many Americans’ everyday lives.

The suggestion that the incremental

[preventive] effect of . . . punishment does not

seem “significant” reflects, it seems to me, a

let-them-eat-cake obliviousness to the needs of

others. Let the People decide how much

incremental [prevention] is appropriate.

Glossip v. Gross, 135 S. Ct. 2726, 2749 (2015) (Scalia,

J, concurring); see also Bonanno v. Central Contra

Costa Trans. Auth., 65 P.3d 807, 166 (Cal. 2002)

(Brown, J. dissenting): “Where you stand can depend

on where you sit, and, let us be frank, Supreme Court

justices don’t sit on buses very often.”

Sentencing policy involves challenging questions of

morality and social policy. Miller, 567 U.S. at 493

(Roberts, C.J. dissenting). Erroneous decisions impose

costs in both directions. An LWOP sentence deprives

the convict of basic liberties without hope of

restoration, and effects an irrevocable forfeiture.

Graham, 560 U.S. at 69-70. Murder imposes an even

more irrevocable forfeiture, because “life is over for the

victim of the murderer.” Id. at 69, internal citation

omitted. But even if the forfeitures were of equal

irrevocability, there would still be reason to weigh the

27

harms of false negatives more heavily than the harms

of false positives. “For by the Fundamental Law of

Nature, Man being to be preserved, as much as

possible, when all cannot be preserved, the safety of the

Innocent is to be preferred . . . .” John Locke, Two

Treatises of Government 123 (Mark Goldie ed. 1993).

Sentencing policy should seek to limit harms and

forfeitures for all, but can reasonably resolve

uncertainties to favor victims over victimizers.

Both Roper and Graham contrasted American

sentencing policy with that of other nations. Graham,

560 U.S. at 80-81; Roper, 543 U.S. at 575-78. Roper

promised juveniles could be deterred by LWOP (Roper,

543 U.S. at 572), though Justice Scalia presciently

warned that the international community opposed

LWOP as well as death for juvenile murderers. Id. at

623, (Scalia, J. dissenting). Since Miller, the Council of

Europe has abolished LWOP for adults, including a

quintuple-murderer. Case of Vinter and Others v.

United Kingdom [Eur. Ct. H.R.] 66069/09 (2013). This

is not because the European people oppose the practice;

more than 85 percent of respondents in the surveyed

countries of France, Germany, Italy, Spain, and the

United Kingdom want LWOP to be an available

sentence for aggravated murderers.3 It is because these

Europeans lack the capacity to shape public policy.

“C]riminal justice bureaucrats and national parties in

Europe—once they became motivated to do

so—imposed abolition despite popular opposition. In

the United States, abolitionists found the more

3

IpsosMORI Death Penalty International Poll (https://www.ipsos

.com/ipsos-mori/en-uk/death-penalty-international-poll.)

28

politicized bureaucracy and the relatively weak

national parties inadequate to the task of overriding

public support.” John Paul Stevens, On the Death

Sentence, N.Y. Rev. of Books (Dec. 23, 2010) (emphasis

added). See also Alexis de Tocqueville, Democracy in

America, 282 (Daniel Boorstin ed. 1990): “He who

punishes the criminal is therefore the real master of

society.”

Determining the proper formula for juvenile

sentencing, to prevent both false positives and false

negatives, is a project for democratic self-government,

not constitutional law. Kahler, 140 S. Ct at 1037.

Though sentencing courts must exercise discretion, a

noncapital sentence is not disproportionate punishment

for a capital crime.

29

CONCLUSION

As a matter of practice, the determination of

whether to sentence a juvenile murderer to LWOP

must turn on objective factors, discernible at the time

of sentencing. These factors may include the offender’s

mental state and motive in committing the crime, the

harm caused to the victim and/or society by the

offender’s conduct, and any prior criminal history

Graham, 560 U.S. 48, 88 (Roberts, C.J., concurring).

Sentencers can measure the offender’s age, to

distinguish 17-year-olds from 14-year-olds;

participation in the murder, to distinguish shooters

from accomplices; and family background, to

distinguish offenders reared in a stable household from

those reared in a chaotic and abusive one. Miller, 567

U.S. at 477. But they should not have to choose a

sentence based on a speculative predictive judgment

about whether the juvenile’s depravity will be

retrievable, or his incorrigibility will be permanent.

As a matter of justice, members of the public most

vulnerable to the consequences of erroneous sentencing

judgments should have a voice in setting policy. States

should try to prevent false positives, which deprive the

guilty of liberty, but may place a higher priority on

preventing false negatives, which deprive the innocent

of life.

30

Respectfully submitted,

MITCHELL KEITER

Counsel of Record

KEITER APPELLATE LAW

The Beverly Hills Law Building

424 South Beverly Drive

Beverly Hills, CA 90212

310.553.8533

mitchell.keiter@gmail.com

Counsel for Amicus Curiae