I am on the road today, and so I am not that surprised the Supreme Court has handed down the big sentencing opinion I have been awaiting all Term. I hope to comment later today.
UPDATE: Thanks to airport wifi, I can now provide this link to the full opinion in Jones v. Mississippi, No. 18-1259 (S. Ct. April 22, 2021). Here is how Justice Kavanaugh's opinion for the COurt b egins
Under Miller v. Alabama, 567 U.S. 460 (2012), an individual who commits a homicide when he or she is under 18 may be sentenced to life without parole, but only if the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment. In this case, a Mississippi trial judge acknowledged his sentencing discretion under Miller and then sentenced petitioner Brett Jones to life without parole for a murder that Jones committed when he was under 18. The Mississippi Court of Appeals affirmed, concluding that the discretionary sentencing procedure satisfied Miller.
Jones argues, however, that a sentencer’s discretion to impose a sentence less than life without parole does not alone satisfy Miller. Jones contends that a sentencer who imposes a life-without-parole sentence must also make a separate factual finding that the defendant is permanently incorrigible, or at least provide an on-the-record sentencing explanation with an implicit finding that the defendant is permanently incorrigible. And Jones says that the trial judge did not make such a finding in his case.
Jones’s argument that the sentencer must make a finding of permanent incorrigibility is inconsistent with the Court’s precedents. In Miller, the Court mandated “only that a sentencer follow a certain process — considering an offender’s youth and attendant characteristics—before imposing” a life-without-parole sentence. Id., at 483. And in Montgomery v. Louisiana, which held that Miller applies retroactively on collateral review, the Court flatly stated that “Miller did not impose a formal factfinding requirement” and added that “a finding of fact regarding a child’s incorrigibility . . . is not required.” 577 U.S. 190, 211 (2016). In light of that explicit language in the Court’s prior decisions, we must reject Jones’s argument. We affirm the judgment of the Mississippi Court of Appeals.
Justice Sotomayor's dissent, which is joined by Justices Breyer and Kagan, starts this way:
Today, the Court guts Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016). Contrary to explicit holdings in both decisions, the majority claims that the Eighth Amendment permits juvenile offenders convicted of homicide to be sentenced to life without parole (LWOP) as long as “the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment.” Ante, at 1. In the Court’s view, a sentencer never need determine, even implicitly, whether a juvenile convicted of homicide is one of “those rare children whose crimes reflect irreparable corruption.” Montgomery, 577 U.S., at 209. Even if the juvenile’s crime reflects “‘unfortunate yet transient immaturity,’” Miller, 567 U.S., at 479, he can be sentenced to die in prison.
This conclusion would come as a shock to the Courts in Miller and Montgomery. Miller’s essential holding is that “a lifetime in prison is a disproportionate sentence for all but the rarest children, those whose crimes reflect ‘irreparable corruption.’” Montgomery, 577 U.S., at 195 (quoting Miller, 567 U.S., at 479–480). Sentencing discretion is “necessary to separate those juveniles who may be sentenced to life without parole from those who may not,” Montgomery, 577 U.S., at 210, but it is far from sufficient. A sentencer must actually “make th[e] judgment” that the juvenile in question is one of those rare children for whom LWOP is a constitutionally permissible sentence. Miller, 567 U.S., at 480. The Court has thus expressly rejected the notion that sentencing discretion, alone, suffices: “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transient immaturity.” Montgomery, 577 U.S., at 208 (internal quotation marks omitted).
Today, however, the Court reduces Miller to a decision requiring “just a discretionary sentencing procedure where youth [is] considered.” Ante, at 11. Such an abrupt break from precedent demands “special justification.” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (KAVANAUGH, J., concurring in part) (slip op., at 6) (internal quotation marks omitted). The Court offers none. Instead, the Court attempts to circumvent stare decisis principles by claiming that “[t]he Court’s decision today carefully follows both Miller and Montgomery.” Ante, at 19. The Court is fooling no one. Because I cannot countenance the Court’s abandonment of Miller and Montgomery, I dissent.
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