1 (Slip Opinion) OCTOBER TERM, 2020

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

## SUPREME COURT OF THE UNITED STATES

Syllabus

JONES v . MISSISSIPPI

CERTIORARI TO THE COURT OF APPEALS OF MISSISSIPPI

No. 18–1259. Argued November 3, 2020—Decided April 22, 2021
A Mississippi jury convicted petition er Brett Jones of murder for killing

his grandfather. Jones was 15 years old when he committed the crime. Under Mississippi law at the time, murder carried a mandatory sen

tence of life without parole. The trial judge duly imposed that sen

tence, which was affirmed on direct appeal. This Court subsequently decided Miller v. Alabama , 567 U. S. 460, which held that the Eighth Amendment permits a life-without-parole sentence for a defendant who committed a homicide when he or she was under 18, but only if the sentence is not mandatory and the sentencer therefore has discre

tion to impose a lesser punishment. In the wake of that decision, the Mississippi Supreme Court ordered th at Jones be resentenced in ac

cordance with Miller . At the resentencing, the sentencing judge acknowledged that he had discretion under Miller to impose a sentence less than life without parole. The ju dge determined, however, that life without parole remained the approp riate sentence for Jones. Jones again appealed his sentence, citing both Miller and the then-recently decided case of Montgomery v. Louisiana , 577 U. S. 190, which held that Miller applied retroactively on collateral review. Jones contended that, under Miller and Montgomery , a sentencer must make a separate factual finding that a murderer und er 18 is permanently incorrigible before sentencing the offender to life without parole. The Mississippi Court of Appeals rejected Jones’s argument.
Held : In the case of a defendant who committed a homicide when he or

she was under 18, Miller and Montgomery do not require the sentencer to make a separate factual finding of permanent incorrigibility before sentencing the defendant to life with out parole. In such a case, a dis

cretionary sentencing system is both constitutionally necessary and constitutionally sufficient. Pp. 5–22.2 JONES v. MISSISSIPPI

Syllabus
(1) A sentencer need not make a separate factual finding of perma

nent incorrigibility before sentencing a murderer under 18 to life with

out parole. In Miller , the Court mandated “only that a sentencer follow a certain process—considering an offender’s youth and attendant char

acteristics—before imposing” a lif e-without-parole sentence. 567 U. S., at 483. And in Montgomery , the Court stated that “a finding of fact regarding a child’s incorrigibility . . . is not required.” 577 U. S., at 211. Miller and Montgomery require consideration of an offender’s youth but not any particular factual finding. Miller and Montgomery therefore refute Jones’s argument th at a finding of permanent incorri

gibility is constitutionally necessary. Pp. 5–14.

(2) Nor must a sentencer provide an on-the-record sentencing expla

nation with an “implicit finding” of permanent incorrigibility before sentencing a murderer under 18 to lif e without parole. An on-the-rec

ord sentencing explanation is not necessary to ensure that a sentencer considers a defendant’s youth. Nor is an on-the-record sentencing ex

planation required by or consistent with Miller or Montgomery , neither of which said anything about a sentencing explanation. Pp. 14–19.

(3) The Court’s decision does not disturb Miller ’s holding (that a State may not impose a mandatory life-without-parole sentence on a murderer under 18) or Montgomery ’s holding (that Miller applies ret

roactively on collateral review). The resentencing in Jones’s case com

plied with Miller and Montgomery because the sentencer had discre

tion to impose a sentence less than life without parole in light of Jones’s youth. The Court’s decision today should not be construed as agreement or disagreement with Jone s’s sentence. In addition, the Court’s decision does not preclude th e States from imposing additional sentencing limits in cases involving murderers under 18. Nor does the Court’s decision prohibit Jones fr om presenting his moral and policy arguments against his life-without-pa role sentence to the state offi

cials who are authorized to act on those arguments. Pp. 19–22. 285 So. 3d 626, affirmed.

K

AVANAUGH , J., delivered the opinion of the Court, in which R OBERTS , C. J., A LITO , G ORSUCH , and B ARRETT , JJ., joined. T HOMAS , J., filed an opinion concurring in the judgment. S OTOMAYOR , J., filed a dissenting opinion, in which B REYER and K AGAN , JJ., joined._________________

_________________ 1 Cite as: 593 U. S. ____ (2021)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other form al errors, in order that corrections may be made before the preliminary print goes to press. 

## SUPREME COURT OF THE UNITED STATES

No. 18–1259

BRETT JONES, PETITIONER v. MISSISSIPPI

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF MISSISSIPPI
[April 22, 2021]

J USTICE K AVANAUGH delivered the opinion of the Court.
Under Miller v. Alabama , 567 U. S. 460 (2012), an indi

vidual who commits a homicide when he or she is under 18 may be sentenced to life without parole, but only if the sen

tence is not mandatory and the sentencer therefore has dis

cretion to impose a lesser puni shment. In this case, a Mis

sissippi 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 af

firmed, concluding that the di scretionary sentencing proce

dure 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 prov ide 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 finding2 JONES v. MISSISSIPPI

Opinion of the Court of permanent incorrigibility is inconsistent with the Court’s precedents. In Miller , the Court mandated “only that a sen

tencer follow a certain process—considering an offender’s youth and attendant characte ristics—before imposing” a life-without-parole sentence. Id., at 483. And in Montgom

ery v. Louisiana , which held that Miller applies retroac

tively on collateral review, the Court flatly stated that “ Mil

ler did not impose a formal fa ctfinding requirement” and added that “a finding of fact regarding a child’s incorrigibil

ity . . . 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.

I A In August 2004, Brett Jones was living with his grand

parents, Bertis and Madge, in Shannon, Mississippi. Shan

non is a small town of about 2,000 in northern Mississippi near Tupelo, about halfway between Memphis and Bir

mingham off I–22. At the time, Jones was only 15 years old. On the morning of August 9, 2004, Bertis discovered Jones’s girlfriend, Michelle Austin, in Jones’s bedroom. Bertis and Jones got into an argument, and Bertis ordered Austin out of the house. A few hours later, Jones told Austin that he “ ‘was going to hurt’ ” his grandfather. 938 So. 2d 312, 314 (Miss. App. 2006). That afternoon, Jones was in the kitchen making himself something to eat. Jones and Bertis began arguing again. The clash escalated from shouts to shoves to punches. Jones then stabbed his grandfather with a kitchen knife. When that knife broke, Jones picked up a second knife and continued stabbing Bertis. In total, Jones stabbed his grandfather eight times. Bleeding profusely, Bertis staggered outside, fell to the3 Cite as: 593 U. S. ____ (2021)

Opinion of the Court ground, and died. Jones did not call 911. Instead, he hap

hazardly attempted to cover up his role in the murder. He dragged Bertis’s body back inside. Jones then washed the blood off his arms with a water hose, changed out of his bloody shirt, and moved Bertis’s car over some blood stains on the carport floor. While Jones was outside, he was seen by a neighbor. The neighbor called the police. Shortly thereafter, another neighbor saw Jones and Austin leaving the house together on foot. Later that night, police located Jones and Austin at a gas station several miles away. When questioned, Jones and Austin provided fake names to the officer. After a police pat down revealed a knife in Jones’s pocket, the of

ficer asked Jones whether it was the knife that he “ ‘did it with.’ ” Id., at 315. Jones responded, “ ‘No, I already got rid of it.’ ” Ibid

. B Jones was charged with murder. The trial judge in

structed the jury on murder and the lesser included offense of manslaughter. Jones claimed that he was not guilty be

cause he acted in self-defense. The jury rejected that de

fense and found Jones guilty of murder. Under Mississippi law at the time, murder carried a man

datory sentence of life without parole. Miss. Code Ann. §97–3–21 (2000), §47–7–3(g) (2004); see Parker v. State , 119 So. 3d 987, 996–997 (Miss. 2013). The trial judge therefore imposed that sentence. In 2006, the Mississippi Court of Appeals affirmed. See 938 So. 2d 312. Jones later moved for post-conviction relief in state court, asserting among other things that his mandatory life-with

out-parole sentence violated the Cruel and Unusual Pun

ishments Clause of the Eighth Amendment. The trial court denied the motion, and the Mississippi Court of Appeals af

firmed. See 122 So. 3d 725 (2011).4 JONES v. MISSISSIPPI

Opinion of the Court In 2012, while the Mississippi Supreme Court was con

sidering whether to review Jo nes’s case, this Court decided Millerv. Alabama , 567 U. S. 460. Miller held that the Cruel and Unusual Punishments Clause of the Eighth Amend

ment prohibits mandatory life-without-parole sentences for murderers under 18, but the Court allowed discretionary life-without-parole sentences for those offenders. In the wake of Miller , the Mississippi Supreme Court con

cluded that Miller applied retroactively on state collateral review. In Jones’s case, the State Supreme Court ordered a new sentencing hearing where the sentencing judge could consider Jones’s youth and exe rcise discretion in selecting an appropriate sentence. See 122 So. 3d 698 (2013). At the resentencing, Jones’s attorney argued that Jones’s “chronological age and its hallmark features” diminished the “penological justificatio ns for imposing the harshest sentences.” App. 25, 27 (quoting Miller , 567 U. S., at 472, 477; emphasis deleted). Jones’s attorney added that “noth

ing in this record . . . would support a finding that the of

fense reflects irreparable corruption.” App. 143–144. At the end of the hearing, the sentencing judge acknowl

edged that he had discretion under Miller to impose a sen

tence less than life without parole. But after considering the factors “relevant to the child’s culpability,” App. 149, the judge determined that life without parole remained the appropriate sentence for Jones, id., at 152. Jones appealed his sentence to the Mississippi Court of Appeals, citing both Miller and the then-recently decided case of Montgomery v. Louisiana , 577 U. S. 190 (2016), which in the interim had held that Miller applied retroac

tively on collateral review. According to Jones, in order to impose a life-without-parole sentence on a defendant who committed a murder when he or she was under 18, the sen

tencer must make a separate factual finding that the de

fendant is permanently incorrigible. The Mississippi Court of Appeals rejected Jones’s argument, relying on this5 Cite as: 593 U. S. ____ (2021)

Opinion of the Court Court’s express statement in Montgomery that “ ‘ Miller did not require trial courts to make a finding of fact regarding a child’s incorrigibility.’ ” 285 So. 3d 626, 632 (2017) (quot

ing Montgomery , 577 U. S., at 211). In light of disagreement in state and federal courts about how to interpret Miller and Montgomery , we granted certi

orari. 589 U. S. ___ (2020). Compare, e.g., Malvo v. Mathena , 893 F. 3d 265 (CA4 2018), Commonwealth v. Batts , 640 Pa. 401, 163 A. 3d 410 (2017), and Veal v. State

, 298 Ga. 691, 784 S. E. 2d 403 (2016), with, e.g., United States v. Sparks , 941 F. 3d 748 (CA5 2019), People v. Skin

ner , 502 Mich. 89, 917 N. W. 2d 292 (2018), and State v. Ramos , 187 Wash. 2d 420, 387 P. 3d 650 (2017).

II According to Jones, a senten cer’s discretion to impose a sentence less than life without parole does not alone satisfy Miller . In Jones’s view, a sentencer who imposes a life

without-parole sentence must also either (i) make a sepa

rate factual finding of permanent incorrigibility, or (ii) at least provide an on-the-record sentencing explanation with an “implicit finding” of permanent incorrigibility. Tr. of Oral Arg. 32; see id., at 6, 14. As we will explain, the Court has already ruled that a separate factual finding of permanent incorrigibility is not required. In Montgomery , the Court unequivocally stated that “ Miller did not impose a formal factfinding require

ment” and added that “a finding of fact regarding a child’s incorrigibility . . . is not required.” 577 U. S., at 211. In a case involving an individual who was under 18 when he or she committed a homicide, a State’s discretionary sentenc

ing system is both constituti onally necessary and constitu

tionally sufficient. 1

——————

1 Both Miller and Montgomery generated vigorous dissents. The dis

sents in Miller stated that the Eighth Am endment does not prohibit mandatory life-without-parole senten ces and asserted that the Court’s6 JONES v. MISSISSIPPI

Opinion of the Court

A In 2004, the year that Jones murdered his grandfather, about 16,000 individuals committed a homicide in the United States. See Dept. of Justice, Federal Bureau of In

vestigation, Crime in the United States 2004, Murder Of

fenders by Age, Sex, and Race 17 (Table 2.5). About 850 of the individuals who committed a homicide were known to be under 18—meaning that, on average, more than two homicides were committed ever y day by individuals under 18. Ibid. The States authorize strict punishments for homicide, in

cluding for homicides committed by individuals under 18. But this Court has held that sentencing an offender who was under 18 at the time of the crime raises special consti

tutional considerations. Ratified in 1791, the Eighth Amendment provides that “cruel and unusual punishments” shall not be “inflicted.” Ratified in 1868, the Fourteenth Amendment incorporates the Cruel and Unusual Punishments Clause against the States. In a series of Eighth Amendment cases applying the Cruel and Unusual Punishments Clause, this Court has stated that youth matters in sentencing. In Roper v. Sim

mons , 543 U. S. 551 (2005), the Court concluded that the Eighth Amendment prohibits capital punishment for mur

derers who were under 18 at the time of their crimes. And in Graham v. Florida , 560 U. S. 48 (2010), the Court held that the Eighth Amendment prohibits life without parole for offenders who were under 18 and committed nonhomicide offenses. Importantly, however, Graham did not prohibit life without parole for offenders who were under 18

—————— decision contravened this Court’s prec edents. See 567 U. S., at 493–502 (R OBERTS , C. J., dissenting); id., at 502–509 (T HOMAS , J., dissenting); id., at 509–515 (A LITO , J., dissenting). The lead dissent in Montgomery ar

gued that Miller should not apply retroactively on collateral review. 577 U. S., at 224–227 (Scalia, J., dissenting).7 Cite as: 593 U. S. ____ (2021)

Opinion of the Court

and committed homicide . The Graham Court stated: “There is a line between homicide and other serious violent offenses against the individual.” Id., at 69 (internal quota

tion marks omitted). And then in Miller in 2012, the Court allowed life-with

out-parole sentences for defendants who committed homi

cide when they were under 18, but only so long as the sen

tence is not mandatory—that is, only so long as the sentencer has discretion to “consider the mitigating quali

ties of youth” and impose a lesser punishment. 567 U. S., at 476 (internal quotation marks omitted). Four years later, Montgomery held that Miller applied retroactively to cases on collateral review. 577 U. S., at 206, 212. Jones argues that Miller requires more than just a dis

cretionary sentencing procedure. According to Jones, the sentencer must also make a se parate factual finding of per

manent incorrigibility before sentencing a murderer under 18 to life without parole. The problem for Jones is that Miller and Montgomery squarely rejected such a requirement. Miller mandated “only that a sentencer follow a certain process—considering an offender’s youth and attend ant characteristics—before imposing” a life-without-parole sentence. 567 U. S., at 483. Montgomery then flatly stated that “ Miller did not impose a formal factfinding requirement” and that “a finding of fact regarding a child’s incorrigibility . . . is not required.” 577 U. S., at 211. 2

——————

2 The key paragraph from Montgomery is as follows: “Louisiana suggests that Miller cannot have made a constitutional dis

tinction between children whose crime s reflect transient immaturity and those whose crimes reflect ir reparable corruption because Miller did not require trial courts to make a findin g of fact regarding a child’s incorri

gibility. That this finding is not re quired, however, speaks only to the degree of procedure Miller mandated in order to implement its substan

tive guarantee. When a new substant ive rule of constitutional law is established, this Court is careful to limit the scope of any attendant pro

cedural requirement to avoid intruding more than necessary upon the8 JONES v. MISSISSIPPI

Opinion of the Court Notwithstanding that clear language in Miller and Mont

gomery , Jones advances three distinct arguments for why this Court should require a se ntencer to make a finding of permanent incorrigibility before sentencing a murderer un

der 18 to life without parole. First, Jones analogizes to cases where the Court has rec

ognized certain eligibility criteri a, such as sanity or a lack of intellectual disability, that must be met before an of

fender can be sentenced to death. See Ford v. Wainwright
, 477 U. S. 399 (1986); Atkins v. Virginia , 536 U. S. 304 (2002). Jones argues that the Constitution similarly re

quires a sentencer to find pe rmanent incorrigibility before sentencing a murderer under 18 to life without parole. The State responds that permanent incorrigibility is not an eligibility criterion akin to sanity or a lack of intellectual disability. We agree with the State. For one thing, the Court has recognized that it “is difficult even for expert psy

chologists to differentiate be tween the juvenile offender whose crime reflects unfortunat e yet transient immaturity, and the rare juvenile offender whose crime reflects irrepa

rable corruption.” Roper , 543 U. S., at 573. In addition, when the Court has established such an eligibility criterion, the Court has considered whether “ ‘objective indicia of so

ciety’s standards, as expresse d in legislative enactments and state practice,’ ” demonstrated a “national consensus” in favor of the criterion. Graham , 560 U. S., at 61 (quoting

—————— States’ sovereign administration of th eir criminal justice systems. See Ford v. Wainwright , 477 U. S. 399, 416–417 (1986) (“[W]e leave to the State[s] the task of developing appr opriate ways to enforce the constitu

tional restriction upon [their] executio n of sentences”). Fidelity to this important principle of federalism, ho wever, should not be construed to demean the substantive character of the federal right at issue. That Mil

ler did not impose a formal factfinding requirement does not leave States free to sentence a child whose crime re flects transient immaturity to life without parole. To the contrary, Miller established that this punishment is disproportionate under the Eighth Amendment.” 577 U. S., at 211.9 Cite as: 593 U. S. ____ (2021)

Opinion of the Court
Roper , 543 U. S., at 563). But Miller did not identify a sin

gle State that, as of that time, made permanent incorrigi

bility an eligibility criterion for life-without-parole sen

tences imposed on murderers under 18. Given those two points, it comes as no surprise that Mil

ler declined to characterize permanent incorrigibility as such an eligibility criterion. Rather, Miller repeatedly de

scribed youth as a sentencing factor akin to a mitigating circumstance. And Miller in turn required a sentencing procedure similar to the procedure that this Court has re

quired for the individualized consideration of mitigating circumstances in capital cases such as Woodson v. North Carolina , 428 U. S. 280, 303–305 (1976) (plurality opinion), Lockett v. Ohio , 438 U. S. 586, 597–609 (1978) (plurality opinion), and Eddings v. Oklahoma , 455 U. S. 104, 113–115 (1982). Those capital cases require sentencers to consider relevant mitigating circumstances when deciding whether to impose the death penalty. And those cases afford sen

tencers wide discretion in de termining “the weight to be given relevant mitigating evidence.” Id., at 114–115. But those cases do not require th e sentencer to make any par

ticular factual finding regard ing those mitigating circum

stances. Repeatedly citing Woodson
, Lockett , and Eddings , the Miller Court stated that “a judge or jury must have the op

portunity to consider” the defe ndant’s youth and must have “discretion to impose a different punishment” than life without parole. 567 U. S., at 489; id., at 465; see id., at 470, 476, 483. Stated otherwise, the Miller Court mandated “only that a sentencer follow a certain process—considering an offender’s youth and attend ant characteristics—before imposing” a life-without-parole sentence. Id., at 483. In that process, the sentencer w ill consider the murderer’s “di

minished culpability and heightened capacity for change.” Id., at 479. That sentencing procedure ensures that the sentencer affords individualized “consideration” to, among10 JONES v. MISSISSIPPI

Opinion of the Court other things, the defendant’s “chronological age and its hallmark features.” Id. , at 477. To be sure, Miller also cited Roper and Graham . 567 U. S.

, at 471–475. Roper barred capital punishment for of

fenders under 18. And Graham barred life without parole for offenders under 18 who committed non-homicide of

fenses. But Miller did not cite those case s to require a find

ing of permanent incorrigibility or to impose a categorical bar against life without parole for murderers under 18. We know that because Miller said so: “Our decision does not categorically bar a penalty for a class of offenders or type of crime—as, for example, we did in Roper or Graham .” 567 U. S., at 483. Instead, Miller cited Roper and Graham for a simple proposition: Youth matters in sentencing. And be

cause youth matters, Miller held that a sentencer must have discretion to consider yo uth before imposing a life

without-parole sentence, just as a capital sentencer must have discretion to consider ot her mitigating factors before imposing a death sentence. In short, Miller followed the Court’s many death penalty cases and required that a sentencer consider youth as a mit

igating factor when deciding whether to impose a life-with

out-parole sentence. Miller did not require the sentencer to make a separate finding of pe rmanent incorrigibility before imposing such a sentence. And Montgomery did not purport to add to Miller ’s requirements. 3 Second , Jones contends that the Montgomery Court must nonetheless have assumed that a separate factual finding

——————

3 If permanent incorrigibility were a fa ctual prerequisite to a life-with

out-parole sentence, this Court’s Si xth Amendment precedents might re

quire that a jury, not a judge, make such a finding. See Ring v. Arizona
, 536 U. S. 584 (2002); Apprendi v. New Jersey , 530 U. S. 466 (2000). If we were to rule for Jones here, the next wave of litigation would likely con

cern the scope of the jury right. The fact that neither Miller nor Mont

gomery even mentioned the Sixth Amendmen t is further reason to doubt that those cases implicitly required a finding of permanent incorrigibility by the sentencer.11 Cite as: 593 U. S. ____ (2021)

Opinion of the Court of permanent incorrigibility was necessary because Mont

gomery deemed Miller a substantive holding for purposes of applying Miller retroactively on collateral review. See Teague v. Lane , 489 U. S. 288, 310–311 (1989) (plurality opinion). In advancing that argument, Jones relies on language in Montgomery that described Miller as permitting life-with

out-parole sentences only for “those whose crimes reflect permanent incorrigibility,” ra ther than “transient immatu

rity.” 577 U. S., at 209. In other words, because the Mont

gomery Court deemed Miller to be a substantive holding, and because Montgomery said that life without parole would be reserved for the pe rmanently incorrigible, Jones argues that the Montgomery Court must have envisioned a separate factual finding of permanent incorrigibility, not just a discretionary sentencing procedure where youth would be considered. That is an incorrect interpretation of Miller and Mont

gomery . We know as much because Montgomery said as much. To reiterate, the Montgomery Court explicitly stated that “a finding of fact regardin g a child’s incorrigibility .

. . is not required.” 577 U. S., at 211. To break it down further: Miller required a discretionary sentencing procedure. The Court stated that a mandatory life-without-parole sentence for an offender under 18 “poses too great a risk of disproporti onate punishment.” 567 U. S., at 479. Despite the procedural function of Miller ’s rule, Montgomery held that the Miller rule was substantive for retroactivity purposes and therefore applied retroactively on collateral review. 577 U. S., at 206, 212. 4 But in making

——————

4 As the Court has stated in cases both before and after Montgomery
, the Court determines whether a rule is substantive or procedural for ret

roactivity purposes “by considering th e function of the rule” itself—not “by asking whether the constitutional right underlying the new rule is substantive or procedural.” Welch v. United States , 578 U. S. 120, 130– 131 (2016). For purposes of Teague v. Lane , 489 U. S. 288 (1989), a rule12 JONES v. MISSISSIPPI

Opinion of the Court
the rule retroactive, the Montgomery Court unsurprisingly declined to impose new requi rements not already imposed by Miller . As Montgomery itself explained, the Court granted certiorari in that case not to consider whether the rule announced in Miller should be expanded, but rather simply to decide whether Miller ’s “holding is retroactive to juvenile offenders whose convictions and sentences were fi

nal when Miller was decided.” 577 U. S., at 194. On the question of what Miller required, Montgomery was clear: “A hearing where youth and its attendant characteristics are considered as sentencing facto rs is necessary to separate those juveniles who may be sentenced to life without parole from those who may not.” Id., at 210 (internal quotation marks omitted). But a separate finding of permanent in

corrigibility “is not required.” Id., at 211. The key assumption of both Miller and Montgomery was that discretionary sentencing allows the sentencer to con

sider the defendant’s youth, and thereby helps ensure that life-without-parole sentences are imposed only in cases

—————— is procedural if it regulates “ ‘only the manner of determining the defend

ant’s culpability.’ ” Welch , 578 U. S., at 129 (quoting Schriro v. Summer

lin , 542 U. S. 348, 353 (2004); emphasis deleted). A rule is substantive and applies retroactively on collateral review, by contrast, if it “ ‘alters the range of conduct or the class of persons that the law punishes.’ ” Welch , 578 U. S., at 129 (quoting Summerlin , 542 U. S., at 353). As the Court’s post- Montgomery decision in Welch already indicates, to the ex

tent that Montgomery ’s application of the Teague standard is in tension with the Court’s retroactivity precedents that both pre-date and post

date Montgomery , those retroactivity precedents—and not Montgom

ery —must guide the determination of whether rules other than Miller are substantive. See Welch , 578 U. S. 120; Summerlin , 542 U. S. 348; Lambrix v. Singletary , 520 U. S. 518 (1997); Saffle v. Parks , 494 U. S. 484 (1990). To be clear, however, our decision today does not disturb Montgomery ’s holding that Miller applies retroactively on collateral re

view. By now, most offenders who coul d seek collateral review as a result of Montgomery have done so and, if eligib le, have received new discre

tionary sentences under Miller

.13 Cite as: 593 U. S. ____ (2021)

Opinion of the Court where that sentence is appropriate in light of the defend

ant’s age. If the Miller or Montgomery Court wanted to re

quire sentencers to also make a factual finding of perma

nent incorrigibility, the Court easily could have said so— and surely would have said so. But the Court did not say that, or anything like it. On the contrary, the Montgomery Court declared just the opposite: that the sentencer need
not make such a separate factual finding of permanent in

corrigibility. In short, Jones’s Montgomery -based argument for requir

ing a finding of permanent incorrigibility is unavailing be

cause Montgomery explicitly stated that “ Miller did not im

pose a formal factfinding requi rement” and that “a finding of fact regarding a child’s incorrigibility . . . is not required.” Montgomery , 577 U. S., at 211. Third , Jones relatedly argues that Miller and Montgom

ery sought to ensure that life without parole for murderers under 18 would be relatively ra re. According to Jones, a separate factual finding of permanent incorrigibility is nec

essary to achieve that goal. But in Miller , the Court stated that a discretionary sen

tencing procedure—where the sentencer can consider the defendant’s youth and has discre tion to impose a lesser sen

tence than life without parole—would itself help make life

without-parole sentences “relatively rar[e ]” for murderers under 18. 567 U. S., at 484, n. 10. Importantly, in concluding that a discretionary sentenc

ing procedure would help make life-without-parole sen

tences relatively rare, the Co urt relied on data, not specu

lation. The Court pointed to statistics from 15 States that used discretionary sentencing regimes to show that, “when given the choice, sentencers im pose life without parole on children relatively rarely.” Ibid

. 5 In light of those statis

tics, the Court reasoned that a discretionary sentencing

——————

5 See Cal. Penal Code Ann. §190.5 (West 2014); Ga. Code Ann. §16–5–14 JONES v. MISSISSIPPI

Opinion of the Court procedure would make life-without-parole sentences rela

tively rare for juvenile offend ers. But the Court did not sug

gest that the States with di scretionary sentencing regimes also required a separate factual finding of permanent incor

rigibility, or that such a finding was necessary to make life

without-parole sentences for ju venile offenders relatively rare. Therefore, to remain true to Miller ’s reasoning, we cannot now require a separate factual finding of permanent incorrigibility. (Moreover, to reiterate, Montgomery explic

itly stated that such a finding is not required.) In sum, the Court has unequivocally stated that a sepa

rate factual finding of permane nt incorrigibility is not re

quired before a sentencer impo ses a life-without-parole sen

tence on a murderer under 18. To borrow the apt words of the Michigan Supreme Court: “Given that Montgomery ex

pressly held that ‘ Miller did not require trial courts to make a finding of fact regarding a ch ild’s incorrigibility,’ we like

wise hold that Miller does not require trial courts to make a finding of fact regarding a child’s incorrigibility.” People

v. Skinner , 502 Mich. 89, 122, 917 N. W. 2d 292, 309 (2018) (citation omitted).

B Even if a separate factual finding of permanent incorrigi

bility is not required, Jones alternatively contends that a sentencer must at least provide an on-the-record sentencing explanation with an “implicit finding” of permanent incor

rigibility. Tr. of Oral Arg. 32; see id., at 6, 14. Jones argues

—————— 1 (2011), §17–10–31 (2013); Ind. Code §35–50–2–3 (2009); Me. Rev. Stat. Ann., Tit. 17–A, §1251 (2006); Md. Crim. Law Code Ann. §§2–201 to 2– 203, 2–304 (2012); Nev. Rev. Stat. §200.030 (2012); N. M. Stat. Ann. §§31–18–13, 31–18–14, 31–18–15.2 (2 010); N. D. Cent. Code Ann. §§12.1–32–01, 12.1–32–09.1 (2012); Okla . Stat., Tit. 21, §§13.1, 701.9 (2011); R. I. Gen. Laws §11–23–2 (2002); S. C. Code Ann. §16–3–20 (2015); Tenn. Code Ann. §§39–13 –202, 39–13–204, 39–13–207 (2018); Utah Code §§76–3–206, 76–3–207 (2012); W. Va. Code Ann. §62–3–15 (Lexis 2014); Wis. Stat. §939.50 (2005), §973.014 (2007).15 Cite as: 593 U. S. ____ (2021)

Opinion of the Court that such an explanation is necessary to ensure that the sentencer actually considers the defendant’s youth. And Jones further asserts that the sentencing judge did not pro

vide such an explanation at his resentencing. We reject Jones’s alternative argument because an on

the-record sentencing explanation with an implicit finding of permanent incorrigibility (i) is not necessary to ensure that a sentencer considers a defendant’s youth, (ii) is not required by or consistent with Miller
, (iii) is not required by or consistent with this Court’s analogous death penalty precedents, and (iv) is not dictated by any consistent histor

ical or contemporary sentencing practice in the States. First , and most fundamentally, an on-the-record sentenc

ing explanation is not necessary to ensure that a sentencer considers a defendant’s youth. Jones’s argument to the con

trary rests on the assumption that meaningful daylight ex

ists between (i) a sentencer’s discretion to consider youth, and (ii) the sentencer’s actual consideration of youth. But if the sentencer has discretion to consider the defendant’s youth, the sentencer necessarily will consider the defend

ant’s youth, especially if defense counsel advances an argu

ment based on the defendant’s youth. Faced with a con

victed murderer who was under 18 at the time of the offense and with defense arguments focused on the defendant’s youth, it would be all but impossible for a sentencer to avoid considering that mitigating factor. 6

——————

6 If defense counsel fails to make the sentencer aware of the defend

ant’s youth, it is theoretically co nceivable (albeit still exceedingly un

likely in the real world) that the sentencer might somehow not be aware of the defendant’s youth. But in th at highly unlikely scenario, the de

fendant may have a potential ineffect ive-assistance-of-counsel claim, not

a Miller claim—just as defense counsel’s failure to raise relevant miti

gating circumstances in a death pe nalty sentencing proceeding can con

stitute a potential ineffective-assi stance-of-counsel problem, not a Wood

son/Lockett/Eddings violation. Cf. Wiggins v. Smith , 539 U. S. 510, 533–538 (2003) (counsel in capital case was ineffective for failing to in

vestigate and present mitigating evidence at sentencing); Williams v.16 JONES v. MISSISSIPPI

Opinion of the Court It is true that one sentencer may weigh the defendant’s youth differently than another sentencer or an appellate court would, given the mix of all the facts and circum

stances in a specific case. Some sentencers may decide that a defendant’s youth supports a sentence less than life with

out parole. Other sentencers presented with the same facts might decide that life without parole remains appropriate despite the defendant’s youth. But the key point remains that, in a case involving a murderer under 18, a sentencer cannot avoid considering the defendant’s youth if the sen

tencer has discretion to cons ider that mitigating factor. 7 Second , turning to precedent, an on-the-record sentenc

ing explanation with an implicit finding of permanent in

corrigibility is not required by or consistent with Miller

. The Court’s thorough opinion in Miller did not even hint at requiring an on-the-record sentencing explanation with an implicit finding of permanent incorrigibility. Millerhigh

lighted 15 existing discretio nary state sentencing systems as examples of what was missing in the mandatory Ala

bama regime before the Court in that case. 567 U. S., at 484, n. 10. As the Court explained, those discretionary sen

tencing regimes ensured individualized consideration of youth.

—————— Taylor , 529 U. S. 362, 395–398 (2000) (same).

7 This Court’s death penalty cases re cognize a potential Eighth Amend

ment claim if the sentencer expressly refuses as a matter of law to con

sider relevant mitigating circumstances. See Eddings v. Oklahoma , 455 U. S. 104, 114–115 (1982). By analogy here, if a sentencer considering life without parole for a murderer wh o was under 18 expressly refuses as a matter of law to consider the defe ndant’s youth (as opposed to, for ex

ample, deeming the defendant’s youth to be outweighed by other factors or deeming the defendant’s youth to be an insufficient reason to support a lesser sentence under the facts of the case), then the defendant might be able to raise an Eighth Amendm ent claim under the Court’s prece

dents. In any event, we need no t explore that possibility because the record here does not reflect that the sentencing judge refused as a matter of law to consider Jones’s youth.17 Cite as: 593 U. S. ____ (2021)

Opinion of the Court But the Court did not suggest that those discretionary sentencing regimes required some kind of sentencing expla

nation. Again, if the MillerCourt believed that a sentenc

ing explanation with an implicit finding of permanent in

corrigibility was constitutionally necessary, the Court easily could have and surely would have said so. But Miller did not say a word about requiri ng some kind of particular sentencing explanation with an implicit finding of perma

nent incorrigibility, as Montgomery later confirmed. Third , and just as telling, an on-the-record sentencing ex

planation with an implicit finding of permanent incorrigi

bility is not required by or co nsistent with this Court’s death penalty cases. Those cases demonstrate that an on

the-record sentencing explanation is not necessary to en

sure that the sentencer considers relevant mitigating cir

cumstances. In a series of capital cases over the past 45 years, the Court has required the sentencer to consider mitigating cir

cumstances when deciding whether to impose the death penalty. See Woodson , 428 U. S., at 303–305 (plurality opinion); Lockett , 438 U. S., at 597–609 (plurality opinion); Eddings , 455 U. S., at 113–115; see also Tennard v. Dretke
, 542 U. S. 274, 285 (2004); Penry v. Lynaugh , 492 U. S. 302, 318–319 (1989). But the Court has never required an on-the-record sen

tencing explanation or an implicit finding regarding those mitigating circumstances. The reason is evident: Under the discretionary death penalty sentencing procedure required by cases such as Woodson
, Lockett , and Eddings , the sen

tencer will necessarily consider relevant mitigating circum

stances. A sentencing explanation is not necessary to en

sure that the sentencer in death penalty cases considers the relevant mitigating circumstanc es. It follows that a sen

tencing explanation is likewise not necessary to ensure that the sentencer in juvenile life-without-parole cases considers the defendant’s youth.18 JONES v. MISSISSIPPI

Opinion of the Court

Because the Constitution does not require an on-therecord explanation of mitigating circumstances by the sen

tencer in death penalty cases , it would be incongruous to re

quire an on-the-record explanation of the mitigating cir

cumstance of youth by the sentencer in life-without-parole

cases . Jones offers no persuasiv e answer for that incongru

ity in his argument. Fourth , an on-the-record sentencing explanation with an implicit finding of permanent incorrigibility is not dictated by any historical or contempora ry sentencing practice in the States. To be sure, when a state judge imposes a sentence of imprisonment, particularly a lengthy sentence, the judge often will explain both the sentence and the judge’s evalua

tion of any mitigating circumstances. But many States tra

ditionally have not legally required (and some States still do not legally require) on-the-record explanations by the sentencer. See, e.g., A. Campbell, Law of Sentencing §10:5, pp. 473–480 (3d ed. 2004) (hereinafter Campbell). Indeed, in some States, the jury is the sentencer for certain kinds of crimes, and juries typically do not supply sentencing expla

nations. See generally King & Noble, Felony Jury Sentenc

ing in Practice: A Three-State Study, 57 Vand. L. Rev. 885 (2004). Even when state law requires a sentencer to supply reasons, many States do not impose a formulaic checklist of topics or a magic-words require ment with respect to partic

ular mitigating circumstances. And appellate courts do not necessarily reverse merely because the sentencer could have said more about mitigating circumstances. See Camp

bell 477; 22A Cal. Jur. 3d, Crim. Law: Posttrial Proceedings §408, p. 234 (2017) (“[U]nless the record affirmatively re

flects otherwise, the trial court will be deemed to have con

sidered the relevant criteria , such as mitigating circum

stances, enumerated in the sentencing rules”). Those state practices matter here because, as the Court explained in Montgomery , when “a new substantive rule of constitutional law is established, this Court is careful to19 Cite as: 593 U. S. ____ (2021)

Opinion of the Court limit the scope of any attendant procedural requirement to avoid intruding more than necessary upon the States’ sov

ereign administration of their criminal justice systems.” 577 U. S., at 211. So it is here. Because Montgomery directs us to “avoid intruding more than necessary” upon the States, ibid. , and because a discretionary sentencing proce

dure suffices to ensure individualized consideration of a de

fendant’s youth, we should not now add still more proce

dural requirements. In sum, Jones’s alternative argument fails. The Court’s precedents do not require an on-the-record sentencing ex

planation with an implicit finding of permanent incorrigi

bility.

III The Court’s decision toda y carefully follows both Miller and Montgomery . The dissent nonetheless claims that we are somehow implicitly overruling those decisions. We re

spectfully but firmly disagree: Today’s decision does not overrule Miller or Montgomery

. Miller held that a State may not impose a mandatory life-without-parole sentence on a murderer under 18. Today’s decision does not disturb that holding. Montgomery later held that Miller applies ret

roactively on collateral review . Today’s decision likewise does not disturb that holding. We simply have a good-faith disagreement with the dis

sent over how to interpret Miller and Montgomery . That kind of debate over how to interpret relevant precedents is commonplace. Here, the dissent thinks that we are unduly narrowing Miller and Montgomery . And we, by contrast, think that the dissent would unduly broaden those deci

sions. The dissent draws inferences about what, in the dis

sent’s view, Miller and Montgomery “must have done” in or

der for the decisions to “make any sense.” Post , at 12 (opinion of S OTOMAYOR , J.). We instead rely on what Miller20 JONES v. MISSISSIPPI

Opinion of the Court

and Montgomery said—that is, their explicit language ad

dressing the precise question before us and definitively re

jecting any requirement of a finding of permanent incorri

gibility. Notwithstanding our disagreement about whether Miller and Montgomery require a finding of permanent incorrigi

bility, we and the dissent both recognize that Miller and Montgomery have been consequential. Miller ’s discretion

ary sentencing procedure has resulted in numerous sen

tences less than life without parole for defendants who oth

erwise would have received mandatory life-without-parole sentences. For example, in Miller resentencings in Missis

sippi where Jones was convicted and sentenced, Miller has reduced life-without-parole sentences for murderers under 18 by about 75 percent. See The Campaign for the Fair Sentencing of Youth, Tipping Point: A Majority of States Abandon Life-Without-Parole Sentences for Children 7 (2018). Those statistics bear out Miller ’s prediction: A dis

cretionary sentencing procedure has indeed helped make life-without-parole sentences for offenders under 18 “rela

tively rar[e ].” 567 U. S., at 484, n. 10. Moreover, as a result of Montgomery , many homicide of

fenders under 18 who received life-without-parole sen

tences that were final before Miller have now obtained new sentencing proceedings and have been sentenced to less than life without parole. Despite the significant changes wrought by Miller and Montgomery , the dissent now wants more—an additional constitutional requirement that the sentencer must make a finding of permanent incorrigibility before sentencing a murderer under 18 to life without parole. But to reiterate, in Miller and Montgomery , the Court unequivocally stated that such a finding is not required. And we will not now rewrite those decisions to im pose a requirement that the Court twice rejected. To be clear, our ruling on the legal issue presented here21 Cite as: 593 U. S. ____ (2021)

Opinion of the Court should not be construed as agreement or disagreement with the sentence imposed against Jones. As this case again demonstrates, any homicide, and particularly a homicide committed by an individual under 18, is a horrific tragedy for all involved and for all affected. Determining the proper sentence in such a case raises profound questions of moral

ity and social policy. The States, not the federal courts, make those broad moral and policy judgments in the first instance when enacting their sentencing laws. And state sentencing judges and juries then determine the proper sentence in individual cases in light of the facts and circum

stances of the offense, and the background of the offender. Under our precedents, this Cou rt’s more limited role is to safeguard the limits imposed by the Cruel and Unusual Punishments Clause of the Eighth Amendment. The Court’s precedents require a discretionary sentencing pro

cedure in a case of this kind. The resentencing in Jones’s case complied with those precedents because the sentence was not mandatory and the trial judge had discretion to im

pose a lesser punishment in light of Jones’s youth. Moreo

ver, this case does not properly present—and thus we do notconsider—any as-applied Eighth Amendment claim of disproportionality regarding Jone s’s sentence. See Brief for United States as Amicus Curiae 23; Harmelin v. Michigan
, 501 U. S. 957, 996–1009 (1991) (Kennedy, J., concurring in part and concurring in judgment). Importantly, like Miller and Montgomery , our holding to

day does not preclude the States from imposing additional sentencing limits in cases involving defendants under 18 convicted of murder. States may categorically prohibit life without parole for all offenders under 18. Or States may require sentencers to make ex tra factual findings before sentencing an offender under 18 to life without parole. Or States may direct sentencers to formally explain on the rec

ord why a life-without-parole sentence is appropriate not

-22 JONES v. MISSISSIPPI

Opinion of the Court withstanding the defendant’s youth. States may also estab

lish rigorous proportionality or other substantive appellate review of life-without-parole sentences. All of those options, and others, remain available to the States. See generally J. Sutton, 51 Imperfect Solutions (2018). Indeed, many States have recently adopted one or more of those reforms. See,
e.g., Brief for Former West Virginia Delegate John Ellem et al. as Amici Curiae in Mathena v. Malvo , O. T. 2019, No. 18–217, pp. 29–36. But the U. S. Constitution, as this Court’s precedents have interpreted it, does not demand those particular policy approaches. Finally, our holding today is far from the last word on whether Jones will receive relief from his sentence. Jones contends that he has maintained a good record in prison and that he is a different person now than he was when he killed his grandfather. He articulates several moral and policy arguments for why he should not be forced to spend the rest of his life in prison. Our decision allows Jones to present those arguments to the state officials authorized to act on them, such as the state legislature, state courts, or Governor. Those state avenues for sentencing relief remain open to Jones, and they will remain open to him for years
to come.
* * * We affirm the judgment of the Mississippi Court of Ap

peals. It is so ordered.T HOMAS , J., concurring

_________________

_________________ 1 Cite as: 593 U. S. ____ (2021)

T HOMAS , J., concurring in judgment 

## SUPREME COURT OF THE UNITED STATES

No. 18–1259

BRETT JONES, PETITIONER v. MISSISSIPPI

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF MISSISSIPPI
[April 22, 2021]

J USTICE T HOMAS , concurring in the judgment. The Court correctly holds that the Eighth Amendment does not require a finding that a minor be permanently in

corrigible as a prerequisite to a sentence of life without pa

role. But in reaching that result, the majority adopts a strained reading of Montgomery v. Louisiana , 577 U. S. 190 (2016), instead of outright admitting that it is irreconcilable with Millerv. Alabama , 567 U. S. 460 (2012)—and the Con

stitution. The better approach is to be patently clear that Montgomery was a “demonstrably erroneous” decision wor

thy of outright rejection. Gamble v. United States , 587 U. S. ___, ___ (2019) (T HOMAS , J., concurring) (slip op., at 2).

I Brett Jones, then 15, murdered his grandfather. At the time of his trial and sentencing, Mississippi law automati

cally punished his crime with life without parole. A few years later, however, this Cou rt held that youthful offend

ers are constitutionally entitled to an “individualized sen

tencing” process. Miller
, 567 U. S., at 465. The Mississippi Supreme Court thus ordered a new hearing at which the judge dutifully considered the factors “relevant to [Jones’] culpability” before again sentencing him to life without pa

role. App. 149. Jones appealed, citing yet another new decision— Mont

gomery —in which this Court held that Miller ’s rule was2 JONES v. MISSISSIPPI

T HOMAS , J., concurring in judgment “substantive” and hence had to be retroactively applied to cases on collateral review. 577 U. S., at 212. Without more, the fact that Miller was now retroactive di d not help Jones, as he had already received the “individualized” hearing Mil

lerrequired. 567 U. S., at 465. Therefore, Jones argued that Montgomery further required the sentencing judge to “make a specific ‘finding’ that he is irretrievably depraved, irreparably corrupt, or permane ntly incorrigible.” 285 So. 3d 626, 632 (Miss. App. 2017). That theory was not neces

sarily a stretch—as Montgomery explained that a life-with

out-parole sentence “violate s the Eighth Amendment for a child whose crime reflects ‘ “unfortunate yet transient im

maturity.” ’ ” 577 U. S., at 208. But the Mississippi Court of Appeals disagreed, noting that Montgomery also “stated that ‘ Miller did not require trial cou rts to make a finding of fact regarding a child’s incorrigi bility’ [or] ‘impose a formal factfinding requirement.’ ” 285 So. 3d, at 632.

II
Miller and Montgomery are from the same lineage of prec

edent that refashions the Eighth Amendment to accommo

date this Court’s views of juvenile justice. 1 The similarities end there, however, because the decisions cannot be recon

ciled.

A
Miller announced a purely procedural rule: A State may not automatically sentence a ju venile to life without parole, but must instead provide an individualized sentencing pro

cess. In reaching this conclu sion, the Court explicitly cab

-

——————

1 See, e.g., Roper v. Simmons , 543 U. S. 551, 556, 578 (2005) (prohibit

ing the execution of a (barely) juve nile murderer who had bragged that his age would allow him to “ ‘get away with it’ ”); Graham v. Florida , 560 U. S. 48, 74 (2010) (prohibiting life-without-parole sentences for juvenile nonhomicide offenders).3 Cite as: 593 U. S. ____ (2021)

T HOMAS , J., concurring in judgment ined its holding to cases in which the sentencer lacked “dis

cretion to impose a different punishment.” Miller , 567 U. S., at 465; accord, e.g., id., at 479–480. Were there any doubt that Miller focused only on the availability of individ

ualized sentencing, the Court stressed that it was “not cat

egorically bar[ring] a penalty fo r a class of offenders or type of crime” but instead “mandat[ing ] only that a sentencer fol

low a certain process.” Id. , at 483. Miller ’s descriptions of its procedural holding track with the opinion’s mode of analysis. At one point, for example, Millerdiscussed a line of precedents that condition the death penalty on an individua lized sentencing process. Id., at 475–476. Reasoning by analogy, the Court explained that “mandatory penalties” for juveniles “preclude a sen

tencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it.” Id. , at 476. The Court also canvassed the jurisdictions that had some form of mandatory life-without-parole, id. , at 482–487, and nn. 9–10, 13–14, which would have been an unusual detour if the opinion were concerned with anything more than nondiscretionary punishments. And it declined to “consider [the] alternativ e argument that the Eighth Amendment requires a categorical bar on life without pa

role for juveniles.” Id., at 479.

B This narrow holding became inconvenient when the Court decided to apply Miller retroactively to prisoners whose sentences were already final. Under the approach announced in Teague v. Lane , 489 U. S. 288 (1989), Miller could have been retroactive only if it were a “watershed” rule of criminal procedure or a “substantive” rule, Beard v. Banks , 542 U. S. 406, 416–419, and n. 7 (2004). Precedent foreclosed the first option. Miller “mandate[d] only that a sentencer follow a certain process” as a prereq

-4 JONES v. MISSISSIPPI

T HOMAS , J., concurring in judgment uisite to life without parole, 567 U. S., at 483, but this di

rective was hardly “watershed.” According to Teague , a pro

cedural rule might have a claim to watershed status if it

were “‘ “implicit in the concept of ordered liberty.” ’ ” Banks
, 542, U. S., at 417. So limited was this possibility that, in

“ ‘the years since Teague , we . . . rejected every claim that a new rule satisfied the requireme nts for watershed status.’ ” Ramos v. Louisiana , 590 U. S. ___, ___ (2020) (K AVANAUGH , J., concurring in part) (slip op., at 16). Or in more concrete terms, we repeatedly suggested that a rule might be water

shed only if it were akin to a defendant’s right to counsel as articulated in Gideon v. Wainwright , 372 U. S. 335 (1963). See Banks , 542 U. S., at 417–418. Whatever Millermight have done, its narrow rule about juvenile sentencing “ ‘ha[d] none of the primacy and centrality of the rule adopted in Gideon .’ ” Banks , 542 U. S., at 420. Rather than accept what was plainly the case—that Mil

lerwas procedural, not watershed, and thus not retroac

tive— Montgomery proceeded to “rewrite” it into a substan

tive rule. 577 U. S., at 224 (Scalia, J., dissenting). Despite acknowledging that “ Miller ’s holding has a procedural com

ponent,” the majority explained that this procedure was ac

tually just a way “to implement a substantive guarantee.” Id. , at 209–210. This guarantee, according to Montgomery
, was that “all” juvenile offenders—except for a rare few “whose crimes reflect permanent incorrigibility”—are cate

gorically exempt from life without parole. Id. , at 209. That reimagined rule was substantive under our prece

dents. Substantive rules include those that “ ‘prohibi[t ] a certain category of punishment for a class of defendants be

cause of their status or offense.’ ” Banks , 542 U. S., at 416. For example—a rule that “lif e without parole is an exces

sive sentence for children wh ose crimes reflect transient immaturity.” Montgomery
, 577 U. S., at 210. Montgomery could not have been clearer t hat its rule transcended mere procedure: “Even if a court considers a child’s age before5 Cite as: 593 U. S. ____ (2021)

T HOMAS , J., concurring in judgment sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects ‘ “unfortunate yet transient immaturity.” ’ ” Id., at 208. The problem with this new rule is that it had little to do with Miller . Through a feat of legerdemain, Montgomery began by acknowledging that Miller did “ ‘not categorically bar a penalty for a class of offenders or type of crime,’ ” yet just three sentences later concluded that “ Miller did bar life without parole . . . for all but the rarest of juvenile offend

ers, those whose crimes reflect permanent incorrigibility.” 577 U. S., at 209. In a similar Janus-faced demonstration, Montgomery reiterated Miller ’s assurance that “trial courts [need not] make a finding of fact regarding a child’s incorri

gibility,” yet decided that “ Miller drew a line between chil

dren whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption.” 577 U. S., at 209–211. 2 These statements cannot be recon

ciled.

C Just as the procedural rule of Miller created problems for the majority in Montgomery , the substantive rule of Mont

gomery creates problems for the majority in this case. If

——————

2 The Court’s language in this line of precedents is notable. When ad

dressing juvenile murderers, this Court has stated that “ ‘ children are different’ ” and that courts must consider “a child ’s lesser culpability.” Montgomery , 577 U. S., at 207–208 (emphasis added). And yet, when assessing the Court-created right of an individual of the same age to seek an abortion, Members of this Court take pains to emphasize a “young

woman ’s” right to choose. See, e.g. , Lambert v. Wicklund , 520 U. S. 292, 301 (1997) (Stevens, J., joined by Ginsburg and B REYER , JJ., concurring in judgment) (emphasis added); Planned Parenthood of Southeastern Pa.

v. Casey , 505 U. S. 833, 899 (1992) (joint opinion of O’Connor, Kennedy, and Souter, JJ.); Ohio v. Akron Center for Reproductive Health , 497 U. S. 502, 532 (1990) (Blackmun, J., joined by Brennan and Marshall, JJ., dis

senting). It is curious how the Cour t’s view of the maturity of minors ebbs and flows depending on the issue.6 JONES v. MISSISSIPPI

T HOMAS , J., concurring in judgment Montgomery is correct about the existence of a concrete class of offenders who—as a matter of fundamental consti

tutional law—are categorically exempt from a sentence of life without parole, then there must be a determination as to whether Jones falls within that protected class. Other

wise, the “line” Miller ostensibly “drew . . . between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption” is more fanciful than real. Montgomery , 577 U. S., at 209. Sure enough, this Court has often demanded factual find

ings when it comes to other classes of criminals that this Court has declared categorically exempt from certain pun

ishments. See, e.g., Moore v. Texas , 586 U. S. ___, ___ (2019) ( per curiam ) (slip op., at 10) (finding that an offender “ha[d] shown [that] he is a person with intellectual disability”); Madison v. Alabama , 586 U. S. ___, ___, ___–___ (2019) (slip op., at 8, 17–18) (vacating and remanding “for renewed con

sideration” of the record after a state court “found [a pris

oner] mentally competent” and thus eligible for execution). I doubt that a majority of this Court would tolerate the ex

ecution of an offender who alleges insanity or intellectual disability absent a satisfactory finding to the contrary. In response, the majority suggests that insanity and in

tellectual disability are legitimate “eligibility criteri[a]” be

cause they are easy to evaluat e, whereas “permanent incor

rigibility . . . ‘is difficult even for expert psychologists to [assess].’ ” Ante , at 8. This notion that the former catego

ries are clear cut and predictabl e might come as news to the States that have spent years chasing the ever-evolving def

initions of mental incompetence promulgated by this Court and its preferred experts. See, e.g. , Moore , 586 U. S., at ___– ___ (slip op., at 2–10); Moore v. Texas , 581 U. S. ___, ___, ___–___ (2017) (slip op., at 2, 5–18) (courts must heed “the force of the medical community’s consensus”); Hall v. Flor

ida , 572 U. S. 701, 724 (2014). I trust, however, that future decisions will contain simple and static rules.Cite as: 593 U. S. ____ (2021) 7

T HOMAS , J., concurring in judgment

D Montgomery ’s creation of a categorical exemption for certain offenders thus leaves us with two obvious options. First, we could follow Montgomery ’s logic and hold that the “legality” of Jones’ sentence turns on whether his crime in fact “reflect[s] permanent incorrigibility.” 577 U. S., at 205, 209. Or we could just acknowledge that Montgomery had no basis in law or the Constitution. The majority, however, sele cts a third way: Overrule Montgomery in substance but not in name. The opinion candidly admits both that Miller ’s rule was “procedural” and that Montgomery “ma[de] the rule retroactive.” Ante, at 9, 11–12. The only way to reconcile these statements with the bottom-line judgment in this case—that Jones is not entitled to a determination whether he falls within a constitutionally protected catego ry of offenders—is to reject Montgomery . And sure enough, the majority does just that, albeit in a footnote. See ante , at 12, n. 4 (explaining that Montgomery is “in tension” with m any other decisions). But because Montgomery ’s freewheeling approach to the law is ripe for abuse, the majority’s whisper is worth restating above the line: Montgomery gave a good-for-one-ride ticket to a class of juvenile offenders, and its errors will never be repeated. Firm condemnation of Montgomery is particularly appropriate because this Court is unable to fully repair the damage it has caused. Although the majority closes the door to courts following Montgomery in the future, in doing so it tacitly admits that the horses have already left the barn:“[M]ost offenders who could seek collateral review as a result of Montgomery have done so.” Ante , at 12, n. 4. Today’s judgment thus offers cold comfort to the States that havealready faced the unenviable choice between “permitting juvenile homicide offenders to be considered for parole” and relitigating murder sentences long after the fact. Montgomery , 577 U. S., at 212; see also id. , at 226–227 (Scalia, J.,8 JONES v. MISSISSIPPI

T HOMAS , J., concurring in judgment dissenting). The least we can do is to fully own up to Mont

gomery ’s sins. The majority also largely leaves untouched Montgomery ’s violation of the rule that the Constitution “ ‘ leaves the una

voidably moral question of who “deserves” a particular nonprohibited method of punishment to the judgment of the legislatures that authorize the penalty. ’ ” Miller , 567 U. S., at 504 (T HOMAS , J., dissenting). When the Eighth Amend

ment was enacted, juveniles even younger than Jones could be tried as adults, and mandatory death sentences were available. See id. , at 503, n. 2. “It is therefore implausible that a [15]-year-old’s . . . prison sentence—of any length, with or without parole—would have been viewed as cruel and unusual.” Ibid. By failing to condemn Montgomery ’s expansion of Miller to an entire category of individuals, the majority blesses yet another step “on the path to further ju

dicial displacement of the legislative role in prescribing ap

propriate punishment for crime.” 567 U. S., at 500 (R OBERTS , C. J., dissenting). Finally, I would expressly reject the portion of Montgom

ery that “purported to constitutionalize” the substantive ex

ception “so that it would apply in [the petitioner’s] state court proceeding.” Brief for Jonathan F. Mitchell et al. as Amici Curiae in Edwards v. Vannoy , O. T. 2020, No. 19– 5807, pp. 5–6 (emphasis deleted). Despite this Court’s longstanding recognition that “the Constitution neither prohibits nor requires retrospective effect,” Linkletter v. Walker , 381 U. S. 618, 629 (1965); cf. Teague , 489 U. S., at 302–310 (plurality opinion) (narrowing Linkletter even fur

ther), the Montgomery Court demanded that the Louisiana courts “recognize [ Miller ’s] retroactive effect.” 577 U. S., at 200, 205. That improper intrusion on state postconviction review is also worth correcting.

* * * Today’s majority labors migh tily to avoid confronting the9 Cite as: 593 U. S. ____ (2021)

T HOMAS , J., concurring in judgment

tension between Millerand Montgomery . But though the Court purports to leave Montgomery ’s holding intact, it rec

ognizes that Montgomery ’s analysis is untenable and not to be repeated. It woul d be simpler to reject Montgomery in both name and substance._________________

_________________ 1 Cite as: 593 U. S. ____ (2021)

S OTOMAYOR , J., dissenting 

## SUPREME COURT OF THE UNITED STATES

No. 18–1259

BRETT JONES, PETITIONER v. MISSISSIPPI

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF MISSISSIPPI
[April 22, 2021]

J USTICE S OTOMAYOR , with whom J USTICE B REYER and J USTICE K AGAN join, dissenting. Today, the Court guts Millerv. 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 offend

ers convicted of homicide to be sentenced to life without pa

role (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 “ ‘unfor

tunate 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 ‘irrepa

rable 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 sen

tenced 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 the2 JONES v. MISSISSIPPI

S OTOMAYOR , J., dissenting 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 discretionar y 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) (K AVANAUGH , J., con

curring in part) (slip op., at 6) (internal quotation marks omitted). The Court offers none. Instead, the Court at

tempts to circumvent stare decisis principles by claiming that “[t]he Court’s decision today carefully follows both Mil

ler and Montgomery .” Ante, at 19. The Court is fooling no one. Because I cannot countenance the Court’s abandon

ment of Miller and Montgomery , I dissent.

I Time and again, this Court has recognized that “children are constitutionally different from adults for purposes of sentencing.” Miller , 567 U. S., at 471. In Roper v. Sim

mons , 543 U. S. 551 (2005), the Court held that the Eighth Amendment forbids sentencing children to death because “[c]apital punishment must be limited to those offenders . . . whose extreme culpability make s them the most deserving of execution.” Id., at 568 (internal quotation marks omit

ted). Juvenile offenders “canno t with reliability be classi

fied among the worst offender s” for several reasons. Id., at 569. First, “as any parent knows,” and as scientific and so

ciological studies have confirmed, juveniles are less matureCite as: 593 U. S. ____ (2021) 3

S OTOMAYOR , J., dissenting and responsible than adults, which “often result[s] in im

petuous and ill-considered actions and decisions.” Ibid. (in

ternal quotation marks omitte d). Second, juveniles are “more vulnerable or susceptible to negative influences and outside pressures” and “have less control . . . over their own environment.” Ibid. Finally, “the character of a juvenile” is “more transitory” than that of an adult. Id., at 570. “[A]s individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.” Ibid. (in

ternal quotation marks omitted). Weighed against these “signature qualities of youth,” the penological justifications for the death penalty collapse. Id., at 570–571 (internal quotation marks omitted). Next, in Graham v. Florida , 560 U. S. 48 (2010), this Court held that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” Id., at 82. “To justify life without parole on the assumption that the juvenile offender forever will be a danger to society requires the sentencer to make a judgment that the juvenile is incorrigible.” Id., at 72. But “incorrigibility is inconsistent with youth.” Id., at 73 (inter

nal quotation marks omitted). Rather, “[m]aturity can lead to that considered reflection which is the foundation for re

morse, renewal, and rehabilitation.” Id., at 79. Graham therefore insisted that senten cers not deprive juvenile nonhomicide offenders “of the opportunity to achieve ma

turity . . . and self-recognition of human worth and poten

tial” by sentencing them to die in prison. Ibid

. In Miller , this Court extended Graham ’s logic to juveniles convicted of homicide. Miller recognized that “none of what [ Graham ] said about children . . . is crime-specific.” 567 U. S., at 473. Thus, taking Graham as its “foundation stone,” Miller reiterated that “the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.” 567 U. S., at 470–471, n. 4,4 JONES v. MISSISSIPPI

S OTOMAYOR , J., dissenting

472. Miller emphasized that LWOP is an “ ‘especially harsh punishment for a juvenile.’ ” Id

. , at 475 (quoting Graham

, 560 U. S., at 70). “Imprisoning an offender until he dies alters the remainder of his life ‘by a forfeiture that is irrev

ocable.’ ” 567 U. S., at 474–475 (quoting Graham , 560 U. S., at 69). It is the “denial of hope” itself. Id., at 70 (internal quotation marks omitted). Miller stopped short of prohibiting LWOP for all juveniles convicted of homicide. Instea d, it required sentencers to distinguish “between the juvenile offender whose crime re

flects unfortunate and transient immaturity, and the rare juvenile offender whose crime reflects irreparable corrup

tion.” 567 U. S., at 479–480 (internal quotation marks omitted). Only those rare few in the latter category are con

stitutionally eligible for LWOP under Miller . As such, be

fore imposing a sentence of LWOP, a sentencer must actu

ally “make that judgment,” and make it correctly. Id., at 480; see Adams v. Alabama , 578 U. S. 994, 999 (2016) (S OTOMAYOR , J., concurring in decision to grant, vacate, and remand). Finally, in Montgomery , this Court confirmed the sub

stantive nature of Miller ’s prohibition on LWOP for most juveniles. Montgomery held that Miller applies retroac

tively in cases on collateral review because it “rendered life without parole an unconstitutional penalty for . . . juvenile offenders whose crimes reflect the transient immaturity of youth.” 577 U. S., at 208. Under the retroacti vity doctrine in Teague v. Lane , 489 U. S. 288 (1989), a new constitu

tional rule is considered “s ubstantive,” and thus retroac

tive, if it “alters the range of conduct or the class of persons that the law punishes.” Montgomery , 577 U. S., at 206 (in

ternal quotation marks omitted); see Teague , 489 U. S., at 311 (plurality opinion). A procedural rule, on the other hand, “regulate[s] only the manner of determining the de

fendant’s culpability.” Montgomery
, 577 U. S., at 206 (em

phasis deleted; internal quota tion marks omitted). Such5 Cite as: 593 U. S. ____ (2021)

S OTOMAYOR , J., dissenting rules generally have not applied retroactively. Id., at 198. Montgomery recognized that Miller “has a procedural component,” in that “[a] hearing where ‘youth and its at

tendant characteristics’ are considered as sentencing fac

tors is necessary to separate those juveniles who may be sentenced to life without parole from those who may not.” 577 U. S., at 209–210 (quoting Miller , 567 U. S., at 465). The Court made clear, however, that “[t]he hearing does not replace . . . Miller ’s substantive holding that life without pa

role is an excessive sentence for children whose crimes re

flect transient immaturity.” 577 U. S., at 210. Rather, the hearing “gives effect” to Miller ’s prohibition on LWOP by “enabl[ing] a prisoner to show that he falls within the cate

gory of persons whom the law may no longer punish [with LWOP].” 577 U. S., at 210. Thus, under Miller
, juvenile offenders “must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.” 577 U. S., at 213.

II A Today, the Court distorts Miller and Montgomery beyond recognition. According to the majority, “a State’s discre

tionary sentencing system is both constitutionally neces

sary and constitutionally sufficient” for a State to sentence a juvenile convicted of homicide to LWOP. Ante, at 5. “[S]o long as the sentencer has discretion to ‘consider the miti

gating qualities of youth’ and impose a lesser punishment,” any juvenile convicted of homicide may be sentenced to LWOP, even if his crime reflects transient immaturity. Ante, at 7 (quoting Miller , 567 U. S., at 476). It does not matter whether the sentencer meaningfully considers youth: The Court assumes it will, see ante, at 15, but ulti

mately, the mere existence of “a discretionary sentencing procedure suffices,” ante, at 19.6 JONES v. MISSISSIPPI

S OTOMAYOR , J., dissenting

The Court rests its conclusion on Montgomery ’s modest statement that “ Miller did not impose a formal factfinding requirement,” and so “a finding of fact regarding a child’s incorrigibility . . . is not required.” 577 U. S., at 211. This statement is the linchpin of the Court’s opinion. See ante, at 2, 5, 7, 11–14. As the Court quietly admits in a footnote, however, Montgomery went on to clarify that the fact “[t]hat Miller did not impose a formal fa ctfinding requirement does not leave States free to sentence a child whose crime re

flects transient immaturity to life without parole. To the contrary, Miller established that this punishment is dispro

portionate under the Eighth Amendment.” Montgomery
, 577 U. S., at 211; see ante, at 7–8, n. 2 (quoting the same). Montgomery was equally explicit elsewhere: “ Miller

. . . did more than require a sentence r to consider a juvenile of

fender’s youth before imposing life without parole.” 577 U. S., at 208. Sentencing discretion and “[a] hearing where ‘youth and its attendant chara cteristics’ are considered as sentencing factors” are nece ssary to “giv[e] effect to Miller ’s substantive holding that life without parole is an excessive sentence for children whose crimes reflect transient imma

turity,” but they “d[o] not replace” it. Id., at 210. “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects ‘ “unfortunate yet transient immaturity.” ’ ” Id., at 208. If a juvenile of

fender’s crime “did not refle ct irreparable corruption,” his “hope for some years of life outside prison walls must be re

stored.” Id., at 213. The Court today never addresses Mont

gomery ’s clear articulation of Miller ’s essential holding. The lone statement on which the Court fixates recognizes only that Miller does not mandate a particular procedure for considering a defendant’s youth or explaining the sen

tencer’s decision. Millercertainly does not require sen

tencers to invoke any magic words. Using this procedural7 Cite as: 593 U. S. ____ (2021)

S OTOMAYOR , J., dissenting flexibility, States have adopted different approaches to Mil

ler ’s inquiry. For instance, in some States, the prosecution must prove that a juvenile offender is permanently incorri

gible beyond a reasonable doubt; in others, the sentencing judge must make a formal finding of irreparable corruption on the record. See Brief for American Bar Association as Amicus Curiae 14–15, 19–21. As the Court correctly notes, Miller does not require any one of “those particular policy approaches.” Ante, at 22. What is necessary, however, is “that a sentencer 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.” Ta

tum v. Arizona , 580 U. S. ___, ___ (2016) (S OTOMAYOR , J., concurring in decision to grant, vacate, and remand) (slip op., at 3) (internal quotation marks omitted). That is all petitioner Brett Jones seeks. See Tr. of Oral Arg. 6 (“On the most fundamental level . . . what we need is a sentencing judge who understands that permanent incorrigibility is the dispositive rule and dete rmines whether the defendant fits within that rule. And there are any number of ways that it could be done”); Brief for Petitioner 31 (challenging the “failure to find in any form whether Brett is perma

nently incorrigible”). As J USTICE T HOMAS recognizes, “there must be a determination as to whether Jones falls within th[e] protected class” of children who are ineligible for LWOP. Ante, at 6 (opinion concurring in judgment). Otherwise, the line between those who may be sentenced to LWOP and those who may not “is more fanciful than real.” Ibid. The Court attempts to paper over its mischaracterization of Miller and Montgomery in several ways. First, it claims that Miller barred only “ mandatory life-without-parole sen

tences,” not “ discretionary life-without-parole sentences.” Ante, at 4. Miller did prohibit mandatory LWOP sentences for juveniles. See 567 U. S., at 465. To say that Miller is8 JONES v. MISSISSIPPI

S OTOMAYOR , J., dissenting limited to mandatory LWOP sentences, however, is to ig

nore half of its reasoning. Miller relied on “the confluence of . . . two lines of precedent.” Id., at 470. In one line of cases, the Court had interpreted the Eighth Amendment to require that sentencers make individualized, discretionary decisions when imposing the death penalty. For instance, in Lockett v. Ohio , 438 U. S. 586 (1978), a plurality of the Court concluded that “the sentencer, in all but the rarest kind of capital case, [can]not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense.” Id., at 604 (emphasis deleted; footnote omitted). Miller ex

plained that mandatory LWOP sentences violate “individu

alized sentencing cases” like Lockett because they “preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it.” 567 U. S., at 476–477. The Court now pretends that Miller ’s reasoning ended there. It insists that all Miller required was “a sentencing procedure similar to the procedure that this Court has re

quired for the individualized consideration of mitigating circumstances in capital cases such as Woodson v. North Carolina , 428 U. S. 280, 303–305 (1976) (plurality opinion), Lockett v. Ohio , 438 U. S. 586, 597–609 (1978) (plurality opinion), and Eddings v. Oklahoma , 455 U. S. 104, 113–115 (1982).” Ante, at 9. Reading that conclusion, one would ex

pect Miller to have announced that it rested solely on those

cases. Miller was clear, however, that it drew primarily from a different line of precedent headed by Roper and Graham

, which “adopted categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty,” regardless of the procedures used to impose the sentences. Miller
, 567 U. S., at 470. These cases set forth a substantive proportionality principle that the individualized-sentencing cases did not:9 Cite as: 593 U. S. ____ (2021)

S OTOMAYOR , J., dissenting “[L]ife-without-parole sentence s, like capital punishment, may violate the Eighth Amendment when imposed on chil

dren” because “the characteristics of youth, and the way they weaken rationales for punishment, can render a life

without-parole sentence disproportionate.” Id., at 473. Mandatory and discretionary sentencing schemes alike can produce disproportionate sentences. Regardless of how it is imposed, a juvenile death sentence is unconstitutional under Roper
, and a juvenile sentence of LWOP for a nonhomicide offense is unconstitutional under Graham . See Roper , 543 U. S., at 575 (holding “that the death penalty cannot be imposed upon juvenile offenders”); Graham , 560 U. S., at 74 (drawing a “clear line” against “life without pa

role for juvenile nonhomicide offenders”). So, too, with Mil

ler : No set of discretionary se ntencing procedures can ren

der a sentence of LWOP consti tutional for a juvenile whose crime reflects “unfortunate yet transient immaturity.” 567 U. S., at 479 (internal quotation marks omitted). The Court claims that Miller relied on Roper and Graham “for a simple proposition: Youth matters in sentencing.” Ante, at 10. That is true, but the Court conflates two ways in which youth matters. When Miller was decided, the Court’s individualized-sentencing cases had already firmly established “that a defendant’s youth is a relevant mitigat

ing circumstance that must be within the effective reach of a capital sentencing jury.” Johnson v. Texas , 509 U. S. 350, 367 (1993); see also Eddings v. Oklahoma , 455 U. S. 104, 116 (1982) (requiring that sentencers consider “the chrono

logical age of a minor” and “the background and mental and emotional development of a youthful defendant”). The Mil

ler Court thus did not need to cite Roper and Graham as a separate “stran[d] of precedent,” Miller , 567 U. S., at 470, for that long-recognized pr oposition. It drew on Roper and Graham instead to set a substantive limit on the imposition of LWOP on juvenile offenders, even when they commit homicide. The Court today re verses course and concludes10 JONES v. MISSISSIPPI

S OTOMAYOR , J., dissenting that youth does not matter in this way. Next, the Court exaggerates the meaning of two state

ments from Miller
, arguing that it “mandated ‘only that a sentencer follow a certain process,’ ” rather than “ ‘categori

cally bar[ring] a penalty for a class of offenders or type of crime[,] as, for example, we did in Roper or Graham .’ ” Ante, at 7, 10 (quoting Miller , 567 U. S., at 483). Again, Mont

gomery already rejected this misinterpretation: “ Miller , it is true, did not bar a punishment for all juvenile offenders,” or all juvenile offenders convi cted of certain crimes, “as the Court did in Roper or Graham .” 577 U. S., at 209. “ Miller did bar life without parole, however, for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” Ibid. To “separate those juveniles who may be sentenced to life without parole from those who may not,” as Miller requires, sentencers must follow a certain process: conducting a “hearing where ‘youth and its at

tendant characteristics’ are considered.” 577 U. S., at 210. That process is not an end in itself. Rather, it “gives effect
to Miller ’s substantive holding that life without parole is an excessive sentence for childre n whose crimes reflect transi

ent immaturity.” Ibid. Finally, the Court argues that Milleroffered nothing more than a prediction that “a discretionary sentencing pro

cedure would help make life-wi thout-parole sentences rela

tively rare.” Ante, at 13. Miller ’s substantive rule was not a prediction. Rather, Miller held that juvenile LWOP sen

tences must be rare because it is only “the rare juvenile of

fender whose crime reflects irreparable corruption.” 567 U. S., at 479–480 (internal quotation marks omitted). Simply put, there are very few juveniles for whom the “ ‘sig

nature qualities’ ” of youth do not undermine the penologi

cal justifications for LWOP. Id., at 476. Youth is “a time of immaturity, irresponsibility, impetuousness, and reckless

ness,” and, almost invariably, those “qualities are all tran

-11 Cite as: 593 U. S. ____ (2021)

S OTOMAYOR , J., dissenting

sient.” Ibid. (internal quotation marks and brackets omit

ted). In any event, the data since Miller prove that sentencing discretion alone will not make LWOP a rare sentence for juvenile offenders. Even after Montgomery , Mississippi courts require only that a se ntencer consider youth-related factors “in a non-arbitrary fash ion” before imposing a sen

tence of LWOP. See, e.g., Miller v. State , ___ So. 3d ___, ___, 2020 WL 2892820, *5 (Miss. App., June 2, 2020). Unbound by Miller ’s essential holding, more than a quarter of Missis

sippi’s resentencings have resulted in the reimposition of LWOP. See Brief for Juvenile Law Center et al. as Amici Curiae 20. 1 Pennsylvania, in contrast, has recognized that “ Miller re

quires far more than mere cons ideration of an offender’s age,” as “a life-without-parole sentence imposed on a juve

nile is illegal” unless “the de fendant will forever be incorri

gible, without any hope for rehabilitation.” Commonwealth

v. Batts , 640 Pa. 401, 440, 444, 163 A. 3d 410, 433, 435 (2017). Pennsylvania has adopted a number of procedures to guide sentencing courts in applying Miller ’s rule, includ

ing a presumption against juvenile LWOP that the State must rebut through proof beyond a reasonable doubt. 640 Pa., at 476, 163 A. 3d, at 454–455. Fewer than 2 percent of resentencings in Pennsylvania have resulted in the reimpo

sition of LWOP. See The Campaign for the Fair Sentencing of Youth, Tipping Point: A Majority of States Abandon Life

Without-Parole Sentences for Children 7 (2018) (Tipping

——————

1 Elsewhere, the numbers are even mo re alarming. Like Mississippi courts, Louisiana courts have concluded that “ Miller requires the sen

tencing court to consider an offender’s youth and attendant characteris

tics as mitigating circumstances.” State v. Keith , 51,389, p. 3 (La. App. 2 Cir. 6/21/17), 223 So. 3d 767, 770. As of 2020, Louisiana has imposed LWOP on an astonishing 57 percent of eligible juvenile offenders since Miller was decided. See Louisiana Center for Children’s Rights, Louisi

ana’s Compliance with Miller v. Alabama 1 (2020).12 JONES v. MISSISSIPPI

S OTOMAYOR , J., dissenting Point). These States’ experiences show that juvenile LWOP sen

tences will not be rare simply by virtue of sentencing dis

cretion. Sentencers will not “necessarily . . . consider the defendant’s youth,” ante, at 15, and they certainly will not necessarily conduct Miller ’s essential inquiry. If sentencing discretion is all that is required, far too many juvenile of

fenders will be sentenced to die in prison. 2

B The Court’s misreading of Miller and Montgomery is egre

gious enough on its own. The Court twists precedent even further, however, by distorting Miller in a way that cannot be reconciled with Montgomery ’s holding that Miller applies retroactively under the Teague doctrine. See ante, at 7 (opinion of T HOMAS , J.). That doctrine divides new rules of constitutional law into two categories: substantive and pro

cedural. As noted above, Montgomery held that Miller ap

plies retroactively based solely on “ Teague ’s first exception for substantive rules.” 577 U. S., at 200. For Montgomery to make any sense, then, Miller must have done more than mandate a certain procedure. Rather, it “eliminated a State’s power to . . . impose a given punishment.” 577 U. S.,

——————

2 The harm from these sentences will not fall equally. The racial dis

parities in juvenile LWOP sentencing are stark: 70 percent of all youths sentenced to LWOP are children of color. See Tipping Point 10; see also Brief for Juvenile Law Center et al. as Amici Curiae 21 (reporting that “[i]n the years before Graham and Miller , courts sentenced Black juve

nile offenders to life imprisonment without parole ten times more often than white offenders”); Mills, Dorn, & Hritz, Juvenile Life Without Pa

role in Law and Practice: Chronic ling the Rapid Change Underway, 65 Am. U. L. Rev. 535, 579–580 (2016) (“Non-whites are overrepresented among the JLWOP population in ways perhaps unseen in any other as

pect of our criminal justice syste m”). The trend has worsened since Mil

ler v. Alabama , 567 U. S. 460 (2012): 72 percent of children sentenced to LWOP after Miller were Black, compared to 61 percent of children sen

tenced before Miller . Tipping Point 10

.13 Cite as: 593 U. S. ____ (2021)

S OTOMAYOR , J., dissenting

at 201. 3 Today, however, the Court transforms Miller into a deci

sion requiring only a “discreti onary sentencing procedure.” Ante, at 19. At the same time, the Court insists that it “does not disturb” Montgomery ’s holding “that Miller applies ret

roactively on collateral review.” Ante, at 19. In other words, the Court rewrites Miller into a procedural rule and, paradoxically, maintains that Miller was nevertheless “sub

stantive for retroactivity purposes.” Ante, at 11. That explanation undoes Teague ’s distinction between substantive and procedural rules. If a rule that requires only a sentencing procedure is substantive for retroactivity purposes, then this Court has improperly classified numer

ous sentencing rules as procedural. To take one example, in Mills v. Maryland , 486 U. S. 367 (1988), this Court inval

idated a capital sentencing procedure requiring jurors to disregard mitigating factors that were not found unani

mously. That holding was procedural because it altered only “the range of permissible methods for determining whether a defendant’s conduct is punishable by death.” Schriro v. Summerlin , 542 U. S. 348, 353 (2004). Under the Court’s logic today, however, the rule in Mills and other rules of sentencing procedure should have applied retroac

tively, even though the Court has held that they do not. See

——————

3 J USTICE T HOMAS agrees that Montgomery mandates such a reading of Miller , but he claims that Miller itself did not establish a substantive rule. See ante, at 2–5. That is incorrect. As discussed, Miller prohibited mandatory LWOP sentences not only because mandatory sentencing pre

cludes individualized consideration of a juvenile’s youth, but also be

cause “such a scheme poses too great a risk of disproportionate punish

ment.” 567 U. S., at 479. Applying the principles of proportionality set forth in Roper and Graham

, Miller “rendered life without parole an un

constitutional penalty for a class of defendants because of their status[,] that is, juvenile offenders whose cri mes reflect the transient immaturity of youth.” Montgomery , 577 U. S., at 208 (internal quotation marks omit

ted). As a result, “ Miller is no less substantive than are Roper and Gra

ham .” Id., at 209.14 JONES v. MISSISSIPPI

S OTOMAYOR , J., dissenting

Beard v. Banks , 542 U. S. 406, 416–417 (2004) (holding that Mills announced a procedural rule); Schriro , 542 U. S., at 354 (treating as procedural the rule set forth in Ring v. Ar

izona , 536 U. S. 584 (2002), that a jury, rather than a judge, must find aggravating circumstances necessary for the im

position of the death penalty). If future litigants make such arguments, it will be becaus e the Court’s contortion of Mil

ler and Montgomery paves the way for them to do so.

C
Rather than read Miller and Montgomery fairly, the Court reprises Justice Scalia’s dissenting view in Montgom

ery that Miller requires only a “youth-protective procedure.” 577 U. S., at 225 (emphasis deleted). Justice Scalia’s view did not prevail, however. Montgomery ’s interpretation of Miller is binding precedent, just as Miller itself is. Any doubts the Court may harbor about the merits of those decisions do not justify overruling them. See June Medical Services L. L. C. v. Russo , 591 U. S. ___, ___ (2020) (R OBERTS , C. J., concurring in judgment) (slip op., at 3) (“[F]or precedent to mean anything, the doctrine must give way only to a rationale that goes beyond whether the case was decided correctly”). As this Court has consistently re

iterated, “a departure from precedent demands special jus

tification.” Gamble v. United States , 587 U. S. ___, ___ (2019) (slip op., at 11) (internal quotation marks omitted); accord, Kisor v. Wilkie , 588 U. S. ___, ___–___ (2019) (slip op., at 25–26); Kimble v. Marvel Entertainment, LLC , 576 U. S. 446, 455–456 (2015). The Court offers no such justification today. Nor could it. The traditional stare decisis factors include the quality of the precedent’s reasoning, its consistency with other deci

sions, legal and factual developments since the precedent was decided, and its workability. See Ramos , 590 U. S., at ___ (opinion of K AVANAUGH , J.) (slip op., at 7). None sup

ports overturning Miller or Montgomery . As explained15 Cite as: 593 U. S. ____ (2021)

S OTOMAYOR , J., dissenting above, those decisions are firmly rooted in two lines of prec

edent and fundamental principles of proportionality. 4 Sub

sequent legal and factual developments have reinforced their reasoning. Fifteen state courts of last resort, for in

stance, have recognized that Miller announced a substan

tive rule barring LWOP for any juvenile whose crime does not reflect permanent incorrigi bility. See Reply Brief 18,

n. 6. Twenty States and the District of Columbia have changed their policies to prohibit LWOP sentences for all juvenile offenders, including a number of States that “had discretionary sentencing schemes or a mixture of both man

datory and discretionary senten ces.” Brief for Former West Virginia Delegate John Ellem et al. as Amici Curiae in Mathena v. Malvo , O. T. 2019, No. 18–217, pp. 34–35; S. 256, 133d Gen. Assembly (Ohio 2020); Va. Code Ann. §53.1– 165.1 (2020). Finally, Miller and Montgomery have not proved unworkable: To the contrary, they have spurred re

forms across the country while “avoid[ing] intruding more than necessary upon the States’ sovereign administration of their criminal justice systems.” Montgomery , 577 U. S., at 211. Requiring sentencers to make an explicit or implicit determination of permanent in corrigibility before sentenc

ing a juvenile offender to LWOP imposes no costs that jus

tify overturning precedent. Instead of addressing these factors, the Court simply re

writes Miller and Montgomery to say what the Court now wishes they had said, and then denies that it has done any such thing. See ante, at 19. The Court knows what it is

——————

4 J USTICE T HOMAS claims that Miller and Montgomery “refashio[n] the Eighth Amendment to accommodate th is Court’s views of juvenile jus

tice.” Ante, at 2; see ante, at 8. In so doing, J USTICE T HOMAS “seek[s] to relitigate old Eighth Amendment ba ttles” based on “arguments this Court has previously (and often) rejected.” Miller , 567 U. S., at 470–471,

n. 4; see Graham v. Florida , 560 U. S. 48, 58 (2010) (“To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society” (i nternal quotation marks omitted)).16 JONES v. MISSISSIPPI

S OTOMAYOR , J., dissenting doing. It admits as much. Rather than try to harmonize its decision today with Montgomery ’s retroactivity holding, it confesses in a footnote that its rewriting of precedent is in

consistent with Montgomery and basic retroactivity princi

ples. See ante, at 11–12, n. 4. The Court’s solution? It urges lower courts to simply ignore Montgomery going for

ward. Ante, at 11–12, n. 4 (“[T]he Court’s retroactivity prec

edents that both pre-date and post-date Montgomery

. . . and not Montgomery . . . must guide the determination of whether rules other than Miller are substantive”). 5 Instead of “disturb[ing]” Montgomery ’s retroactivity holding, ante, at 12, n. 4, the Court attempts to bury it. How low this Court’s respect for stare decisis has sunk. Not long ago, that doctrine was recognized as a pillar of the

“ ‘rule of law,’ ” critical to “keep the scale of justice even and steady, and not liable to waver with every new judge’s opin

ion.” Ramos , 590 U. S., at ___–___ (opinion of K AVANAUGH , J.) (slip op., at 1–2) (internal quotation marks omitted).Given these weighty interests, the Court “usually require[d] that a party ask for overruling, or at least obtain[ed] briefing on the overruling question,” and then “carefully evaluate[d] the traditional stare decisis factors.” Barr v. American Assn

. of Political Consultants, Inc. , 591 U. S. ___, ___, n. 5 (2020) (slip op., at 9, n. 5). Now, it seems, the Court is willing to overrule precedent without even ac

knowledging it is doing so, mu ch less providing any special justification. It is hard to see how that approach is “founded in the law rather than in the proclivities of individuals.” Ramos , 590 U. S., at ___ (opinion of K AVANAUGH , J.) (slip op., at 2) (internal quotation marks omitted). For present purposes, sentencers should hold this Court

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5 Of course, as already discussed, the Court is perfectly content to rely

on Montgomery for its statement that a finding of fact regarding perma

nent incorrigibility is not requ ired. That isolated piece of Montgomery
, apparently, still carries the full weight of precedent. Anything more in

convenient, however, the Court today discards.17 Cite as: 593 U. S. ____ (2021)

S OTOMAYOR , J., dissenting

to its word: Millerand Montgomery are still good law. 6 See ante, at 19 (“Today’s decision does not overrule Miller or Montgomery ”). Sentencers are thus bound to continue ap

plying those decisions faithfully. Thankfully, many States have already implemented robust procedures to give effect
to Miller and Montgomery . In other States, the responsibil

ity falls squarely on individual sentencers to use their dis

cretion to “separate those juveniles who may be sentenced to life without parole from those who may not.” Montgom

ery , 577 U. S., at 210. Failing to do so violates the Eighth Amendment.

III Brett Jones, like all juvenile offenders facing a sentence of LWOP, deserves an answer to Miller ’s essential question: whether his crime demonstrates that he is permanently in

corrigible. Ordinarily, an appellate court should not pass on that question in the first instance. But the Court today guarantees that the state sent encing court will never have to give Jones an answer. It thus bears acknowledging that, based on the evidence presented below, it is hard to see how Jones is one of the rare juvenile offenders “whose crime re

flects irreparable corruption.” Miller , 567 U. S., at 479–480 (internal quotation marks omitted). In fact, many aspects of Jones’ crime seem to ep itomize “unfortunate yet transi

ent immaturity.” Id., at 479 (internal quotation marks omitted); see 2018 WL 10700848, *11 (Miss., Nov. 27, 2018)

——————

6 The Court leaves open the possib ility of an “as-applied Eighth Amendment claim of disproportionality.” Ante, at 21 (citing Harmelin v. Michigan , 501 U. S 957, 996–1009 (1991) (Kennedy, J., concurring in part and concurring in judgment)). In the context of a juvenile offender, such a claim should be controlled by this Court’s holding that sentencing “a child whose crime reflects transien t immaturity to life without parole . . . is disproportionate under the Eighth Amendment.” Montgomery , 577 U. S., at 211; see Miller , 567 U. S., at 481 (“ Harmelin had nothing to do with children and did not purport to apply its holding to the sentencing of juvenile offenders”).18 JONES v. MISSISSIPPI

S OTOMAYOR , J., dissenting (Kitchens, P. J., dissenting) (“Jones’s actions reflect [the hallmark] features [of youth] at every turn”). 7 Jones killed his grandfather just 23 days after Jones’ 15th birthday. App. 71. In his short life before the murder, Jones was the victim of violence and neglect that he was too young to escape. Jones’ biol ogical father was an alcoholic who physically abused Jones’ mother, knocking out her teeth and breaking her nose on several occasions. Id., at 71–72. The two separated when Jones was two years old. Id., at 71. Jones’ mother then married Jones’ stepfather, who was also abusive, especially toward Jones. He beat Jones with belts, switches, and a paddle labeled “The Pun

isher.” Id., at 39–40, 78, 81. He rarely called Jones or his brother by their names, preferring cruel epithets. Id., at 77, 81, 101 (“[H]is favorite thing to call them was little moth

erf***ers”). According to Jone s’ mother, Jones’ stepfather “hated Brett more because Brett reminded him of [Jones’ biological father].” Id., at 78. According to Jones’ grand

mother, he was simply “easier to hurt and beat.” Id., at 39. In 2004, after Jones came home late one day, Jones’ step

father flew into a rage and grabbed Jones by the neck, pre

paring to beat him with a belt. Id., at 128–129. This time, however, Jones fought back and told his stepfather, “No,

——————

7 Even as it disclaims any responsibility for evaluating permanent in

corrigibility, the Court emphasizes the details of Jones’ crime and alludes to other homicides committed by juveniles throughout the country. See ante, at 2–3, 6. The gravity of these violent acts was not lost on the Court in Miller , which set forth its substantive ru le specifically for the subset of juvenile offenders who commit homicide. See also Roper , 543 U. S., at 572 (“[W]e cannot deny or overlook the brutal crimes too many juvenile offenders have committed”). Notwithstanding the unique “moral culpa

bility and consequential harm” of homicide, Miller reasoned that Gra

ham ’s insights about children “are evident in the same way, and to the same degree.” 567 U. S., at 473. The point of Miller and Montgomery is that juveniles, even those who commit murder, have the capacity to grow and mature, to rehabilitate. The Ei ghth Amendment requires that sen

tencers (and reviewing courts) not pr esume that most juveniles will for

ever remain the “murderers,” ante, at 10, they once were.19 Cite as: 593 U. S. ____ (2021)

S OTOMAYOR , J., dissenting you’re not going to hit me ever again.” Id., at 80. Jones took a swing at his stepfather and split open his ear. Ibid. The police were called, and Jones was arrested. 8 Ibid. Jones’ stepfather then threaten ed to kick out Jones’ mother and brother if Jones did not move out. Id., at 81. As a re

sult, Jones’ grandparents picked him up less than two months before the murder and brought him to Mississippi. Id., at 47. When he moved, Jones lost access to medications that he had been taking for mental health issues. Id., at 38–39. 9 When he was 11 or 12 years old, Jones began cutting him

self so that he “would not feel the panic and the hurt that was inside of [his] head.” Id., at 75. He later experienced hallucinations and was prescribed antidepressant medica

tions. Id., at 92, 124. These medications were supposed to be tapered off gradually. Id., at 38–39. When Jones left for Mississippi, however, they were abruptly cut off. The murder was precipitated by a dispute over Jones’ girlfriend. After Jones moved, his girlfriend ran away from her home in Florida to stay at Jones’ grandparents’ home in secret. 938 So. 2d 312, 313 (Miss. App. 2006). On the day of the murder, Jones’ grandfather, Bertis Jones, discovered that Jones’ girlfriend had been staying in their home. Ibid.

——————

8 This was Jones’ only prior contact with the juvenile justice system. See Brief for Petitioner 35.

9 Jones’ mother has also been diagnosed with a number of conditions, including posttraumatic stress disorder, bipolar disorder, and manic de

pression. App. 74. As a result, th roughout Jones’ life, she experienced panic attacks and emotional breakdowns. Id., at 74–75. As a child, Jones witnessed his mother cutting herself. Id., at 122–123. The types of ad

verse childhood experiences that Jo nes endured, including physical abuse, domestic violence, and mental illness in family members, are strong predictors of negative outcom es for children, including violence. J. Garbarino, Miller ’s Children 10–12 (2018); see id., at 12 (“[E]levated adversity scores are as common amon g killers as they are rare in the general adolescent population”).20 JONES v. MISSISSIPPI

S OTOMAYOR , J., dissenting

He ordered her out. Ibid. Later that day, Jones was mak

ing a sandwich in the kitchen using a steak knife. Id., at 314. Jones said something disrespectful to his grandfather, who started yelling. Ibid. The two began pushing each other, and Jones’ grandfather tried to hit him. Ibid. Jones stabbed his grandfather with the steak knife. Ibid. Jones’ grandfather came at Jones again, and the fight continued. Ibid. Jones ultimately stabbed his grandfather eight times, grabbing a second knife when the first one broke. 2018 WL 10700848, *7 (Kitchens, P. J., dissenting). No one disputes that this was a terrible crime. Miller
, however, held that “the distinctive attributes of youth di

minish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.” 567 U. S., at 472. Jones’ crime reflects these distinctive attributes: “That a teenager in trouble for having been caught concealing his girlfriend at his grandparents’ home would attempt to solve the problem by resorting to violence dramatically epitomizes immatu

rity, impetuosity, and failure to appreciate risks or conse

quences.” 2018 WL 10700848, *11 (Kitchens, P. J., dissent

ing). Jones then attempted to save his grandfather by admin

istering CPR. 938 So. 2d, at 314

. When that failed, he clumsily tried to hide what he had done. 2018 WL 10700848, *11 (Kitchens, P. J., dissenting). He was spotted walking around in plain sight, covered in blood, trembling and muttering to himself. Ibid. When a neighbor ques

tioned him, Jones told a feeble lie, claiming that his grand

father had left and that the blood on his clothes was “ ‘a joke.’ ” 938 So. 2d, at 314. Jones then met up with his girl

friend and attempted to hitchhi ke, but not to make a geta

way. Instead, he was trying to go see his grandmother to tell her what had happened. Id., at 315. The police stopped Jones, found that he was carrying a pocket knife, and asked if it was the knife he “ ‘did it with.’ ” Ibid . Jones replied,21 Cite as: 593 U. S. ____ (2021)

S OTOMAYOR , J., dissenting

“ ‘No, I already got rid of it.’ ” Ibid. He then agreed to be interviewed by three police detectives, “without invoking his right to silence or his right to counsel and without a par

ent or guardian present.” 2018 WL 10700848, *11 (Kitch

ens, P. J., dissenting). Thus, “Jones’s behavior in the im

mediate aftermath of his tragic actions also demonstrated his fundamental immaturity.” Ibid. At his resentencing hearin g, Jones provided evidence that not only is he capable of rehabilitation, but he had in fact already matured significantly since his crime. In more than five years in prison, Jones committed only two disci

plinary infractions. App. 134–135. While incarcerated, Jones earned his GED and sought out work, becoming a “very good employee.” Id., at 106, 109, 153. Jones and his prison unit manager often discussed the Bible, and in time, his unit manager came to think of Jones “almost like [a] son.” Id., at 107. Jones confided in him that Jones “regret

ted” what he had done. Id., at 112. Jones’ grandmother (Bertis Jones’ widow) testified at Jones’ resentencing hearing and submitted an amicus brief to this Court. She remains “steadfast in her belief that Brett is not and never was irre parably corrupt.” Brief for Madge Jones et al. as Amici Curiae 4. She speaks with Jones weekly, encouraging him as he takes college courses and serves in the prison ministry. Ibid. Jones’ younger brother, Marty, and his othe r family members have also stayed by his side. This significant body of evidence does not excuse Jones’ crime. It does mean, however, that under Miller and Mont

gomery , there is a strong likelihoo d that Jones is constitu

tionally ineligible for LWOP. His crime, while terrible, ap

pears to have been the product of “unfortunate yet transient immaturity.” Miller , 567 U. S., at 479 (internal quotation marks omitted). Notably, the State called no witnesses and offered no evidence at the re sentencing hearing to rebut Jones’ proof that his crime re flected the “recklessness” and22 JONES v. MISSISSIPPI

S OTOMAYOR , J., dissenting “impulsivity” characteristic of juveniles. Montgomery , 577 U. S., at 207 (internal quotation marks omitted); see App. 23, 136. In resentencing Jones to LWOP, the sentencing court failed to apply Millerproperly. Instead, it followed the in

structions of the Mississippi Supreme Court, which held that “ Miller rendered [Mississippi’s] sentencing scheme un

constitutional if, and only if, the sentencing authority fails to take into account characteristics and circumstances unique to juveniles.” 122 So. 3d 698, 702 (2013). Thus, the sentencing court simply considered the “ Millerfactors” as part of the “mitigating and the aggravating circumstances.” App. 149. It never addressed Miller ’s central inquiry: whether Jones is one of the rare juveniles whose crimes re

flect irreparable corruption. 567 U. S., at 479–480. Be

cause the sentencing court failed to ask and answer this critical question, Jones’ sentence should not stand.

IV It is important not to lose sight of what is at stake in this case. “The Eighth Amendment’s prohibition of cruel and unusual punishment guarantees individuals the right not to be subjected to excessive sanctions.” Miller , 567 U. S., at 469 (internal quotation marks omitted). In Roper
, Graham

, Miller , and Montgomery , the Court recognized that this guarantee has special significance for children. The Eighth Amendment does not excuse children’s crimes, nor does it shield them from all punishment. It does, however, demand that most children be spared from punishments that “giv[e] no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope.” Graham , 560 U. S., at 79. Jones and other juvenile offenders like him seek only the possibility of parole. Not the certainty of release, but the opportunity, at some point in their lives, to show a parole board all they have done to rehabilitate themselves and to23 Cite as: 593 U. S. ____ (2021)

S OTOMAYOR , J., dissenting

ask for a second chance. Jone s recognizes that the parole board may ultimately decide he must spend his entire life behind bars. He simply requests that the State not “mak[e] the judgment at the outset that [he] never will be fit to reenter society.” Id., at 75. The Eighth Amendment re

quires that most juvenile offenders be given this small “hope for some years of life outside prison walls.” Montgom

ery , 577 U. S., at 213. 10 At his resentencing hearing, Jones told the court, “I’m not the same person I was when I was 15. . . . I’ve become a pretty decent person in life. And I’ve pretty much taken every avenue that I could possi bly take in prison to rehabil

itate myself.” App. 152. “Minors do have the ability to change,” he reflected. Ibid. He noted in closing, “If you de

cide to send me back without th e possibility of parole, I will still do exactly what I’ve been doing for ten years. But all I can do is ask you . . . please give me just one chance to show the world, man, like, I can be somebody. I’ve done every

thing I could over the past ten years to be somebody. . . . I can’t change what was already done. I can just try to show . . . I’ve become a grown man.” Id ., at 153. Today, Jones is 31. His time spent in prison has now eclipsed the childhood he had outside of it. Jones should know that, despite the Court’s decision to

day, what he does in life matters. So, too, do the efforts of the almost 1,500 other juvenile offenders like Jones who are serving LWOP sentences. Of course, nothing can repair the damage their crimes caused. But that is not the question.

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10 Having deprived Jones of his constitutional right, the Court gestures at a potential lifeline from other in stitutions, including the Mississippi Legislature or Governor. Ante, at 22. But “the remote possibility” of such action “does not mitigate the harshne ss of the sentence” that Jones now faces. Graham , 560 U. S., at 70. The Eighth Amendment guarantees juvenile offenders like Jones a basic co nstitutional protection against dis

proportionate punishments. The Cour t should not leave the vindication of such important legal rights to others, or to chance.24 JONES v. MISSISSIPPI

S OTOMAYOR , J., dissenting The question is whether the State, at some point, must con

sider whether a juvenile o ffender has demonstrated ma

turity and rehabilitation sufficient to merit a chance at life beyond the prison in which he has grown up. See Graham

, 560 U. S., at 79. For most, the answer is yes.