(Slip Opinion) OCTOBER TERM, 2020 1 

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 petitioner 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 sentence of life without parole. The trial judge duly imposed that sentence, 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 discretion to impose a lesser punishment. In the wake of that decision, the 

Mississippi Supreme Court ordered that Jones be resentenced in accordance 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 judge determined, however, that life

without parole remained the appropriate 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 under 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 without parole. In such a case, a discretionary 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 permanent incorrigibility before sentencing a murderer under 18 to life without parole. In Miller, the Court mandated “only that a sentencer follow

a certain process—considering an offender’s youth and attendant characteristics—before imposing” a life-without-parole sentence. 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 that a finding of permanent incorrigibility is constitutionally necessary. Pp. 5–14. 

(2) Nor must a sentencer provide an on-the-record sentencing explanation with an “implicit finding” of permanent incorrigibility before 

sentencing a murderer under 18 to life without parole. An on-the-record sentencing explanation is not necessary to ensure that a sentencer 

considers a defendant’s youth. Nor is an on-the-record sentencing explanation 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 retroactively on collateral review). The resentencing in Jones’s case complied with Miller and Montgomery because the sentencer had discretion 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 Jones’s sentence. In addition, the 

Court’s decision does not preclude the States from imposing additional

sentencing limits in cases involving murderers under 18. Nor does the 

Court’s decision prohibit Jones from presenting his moral and policy 

arguments against his life-without-parole sentence to the state officials who are authorized to act on those arguments. Pp. 19–22. 

285 So. 3d 626, affirmed.

 KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., ALITO, GORSUCH, and BARRETT, JJ., joined. THOMAS, J., filed an 

opinion concurring in the judgment. SOTOMAYOR, J., filed a dissenting 

opinion, in which BREYER and KAGAN, JJ., joined. 
 

 

 

_________________ 

_________________ 

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

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, Washington, D. C. 20543, of any typographical or other formal 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] 

JUSTICE KAVANAUGH delivered the opinion of the Court. 

Under Miller v. Alabama, 567 U. S. 460 (2012), an individual who commits a homicide when he or she is under 18 

may be sentenced to life without parole, but only if the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment. In this case, a Mississippi trial judge acknowledged his sentencing discretion

under Miller and then sentenced petitioner Brett Jones to

life without parole for a murder that Jones committed when

he was under 18. The Mississippi Court of Appeals affirmed, concluding that the discretionary sentencing procedure satisfied Miller. 

Jones argues, however, that a sentencer’s discretion to

impose a sentence less than life without parole does not 

alone satisfy Miller. Jones contends that a sentencer who 

imposes a life-without-parole sentence must also make a 

separate factual finding that the defendant is permanently

incorrigible, or at least provide an on-the-record sentencing 

explanation with an implicit finding that the defendant is 

permanently incorrigible. And Jones says that the trial

judge did not make such a finding in his case.

Jones’s argument that the sentencer must make a finding 
 

2 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 sentencer follow a certain process—considering an offender’s 

youth and attendant characteristics—before imposing” a

life-without-parole sentence. Id., at 483. And in Montgomery v. Louisiana, which held that Miller applies retroactively on collateral review, the Court flatly stated that “Miller did not impose a formal factfinding requirement” and

added that “a finding of fact regarding a child’s incorrigibility . . . is not required.” 577 U. S. 190, 211 (2016). In light

of that explicit language in the Court’s prior decisions, we

must reject Jones’s argument. We affirm the judgment of

the Mississippi Court of Appeals. 

I 

A 

In August 2004, Brett Jones was living with his grandparents, Bertis and Madge, in Shannon, Mississippi. Shannon is a small town of about 2,000 in northern Mississippi

near Tupelo, about halfway between Memphis and Birmingham 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 the 
Cite as: 593 U. S. ____ (2021) 3 

Opinion of the Court 

ground, and died. Jones did not call 911. Instead, he haphazardly 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 officer 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 instructed the jury on murder and the lesser included offense 

of manslaughter. Jones claimed that he was not guilty because he acted in self-defense. The jury rejected that defense and found Jones guilty of murder.

Under Mississippi law at the time, murder carried a mandatory 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-without-parole sentence violated the Cruel and Unusual Punishments Clause of the Eighth Amendment. The trial court 

denied the motion, and the Mississippi Court of Appeals affirmed. See 122 So. 3d 725 (2011). 
 

4 JONES v. MISSISSIPPI 

Opinion of the Court 

In 2012, while the Mississippi Supreme Court was considering whether to review Jones’s case, this Court decided 

Miller v. Alabama, 567 U. S. 460. Miller held that the Cruel 

and Unusual Punishments Clause of the Eighth Amendment 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 concluded 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 exercise 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 justifications for imposing the harshest 

sentences.” App. 25, 27 (quoting Miller, 567 U. S., at 472, 

477; emphasis deleted). Jones’s attorney added that “nothing in this record . . . would support a finding that the offense reflects irreparable corruption.” App. 143–144. 

At the end of the hearing, the sentencing judge acknowledged that he had discretion under Miller to impose a sentence 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 retroactively 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 sentencer must make a separate factual finding that the defendant is permanently incorrigible. The Mississippi Court

of Appeals rejected Jones’s argument, relying on this 
Cite as: 593 U. S. ____ (2021) 5 

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) (quoting Montgomery, 577 U. S., at 211). 

In light of disagreement in state and federal courts about 

how to interpret Miller and Montgomery, we granted certiorari. 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. Skinner, 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 sentencer’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 lifewithout-parole sentence must also either (i) make a separate 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 requirement” 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 sentencing system is both constitutionally necessary and constitutionally sufficient.1 

—————— 1Both Miller and Montgomery generated vigorous dissents. The dissents in Miller stated that the Eighth Amendment does not prohibit

mandatory life-without-parole sentences and asserted that the Court’s 
 

 

6 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 Investigation, Crime in the United States 2004, Murder Offenders 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 every day by individuals under 

18. Ibid. 

The States authorize strict punishments for homicide, including 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 constitutional 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. Simmons, 543 U. S. 551 (2005), the Court concluded that the 

Eighth Amendment prohibits capital punishment for murderers 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 precedents. See 567 U. S., at 493–502 

(ROBERTS, C. J., dissenting); id., at 502–509 (THOMAS, J., dissenting); id., 

at 509–515 (ALITO, J., dissenting). The lead dissent in Montgomery argued that Miller should not apply retroactively on collateral review. 577 

U. S., at 224–227 (Scalia, J., dissenting). 
Cite as: 593 U. S. ____ (2021) 7 

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 quotation marks omitted).

And then in Miller in 2012, the Court allowed life-without-parole sentences for defendants who committed homicide when they were under 18, but only so long as the sentence is not mandatory—that is, only so long as the 

sentencer has discretion to “consider the mitigating qualities 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 discretionary sentencing procedure. According to Jones, the 

sentencer must also make a separate factual finding of permanent 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 attendant 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 

—————— 2The key paragraph from Montgomery is as follows: 

“Louisiana suggests that Miller cannot have made a constitutional distinction between children whose crimes reflect transient immaturity and 

those whose crimes reflect irreparable corruption because Miller did not 

require trial courts to make a finding of fact regarding a child’s incorrigibility. That this finding is not required, however, speaks only to the 

degree of procedure Miller mandated in order to implement its substantive guarantee. When a new substantive rule of constitutional law is 

established, this Court is careful to limit the scope of any attendant procedural requirement to avoid intruding more than necessary upon the 
 

8 JONES v. MISSISSIPPI 

Opinion of the Court 

Notwithstanding that clear language in Miller and Montgomery, Jones advances three distinct arguments for why 

this Court should require a sentencer to make a finding of

permanent incorrigibility before sentencing a murderer under 18 to life without parole. 

First, Jones analogizes to cases where the Court has recognized certain eligibility criteria, such as sanity or a lack 

of intellectual disability, that must be met before an offender 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 requires a sentencer to find permanent 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 psychologists to differentiate between the juvenile offender 

whose crime reflects unfortunate yet transient immaturity,

and the rare juvenile offender whose crime reflects irreparable corruption.” Roper, 543 U. S., at 573. In addition, 

when the Court has established such an eligibility criterion, 

the Court has considered whether “‘objective indicia of society’s standards, as expressed 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 their 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 appropriate ways to enforce the constitutional restriction upon [their] execution of sentences”). Fidelity to this

important principle of federalism, however, should not be construed to 

demean the substantive character of the federal right at issue. That Miller did not impose a formal factfinding requirement does not leave States

free to sentence a child whose crime reflects transient immaturity to life 

without parole. To the contrary, Miller established that this punishment

is disproportionate under the Eighth Amendment.” 577 U. S., at 211. 
 

Cite as: 593 U. S. ____ (2021) 9 

Opinion of the Court 

Roper, 543 U. S., at 563). But Miller did not identify a single State that, as of that time, made permanent incorrigibility an eligibility criterion for life-without-parole sentences imposed on murderers under 18. 

Given those two points, it comes as no surprise that Miller declined to characterize permanent incorrigibility as

such an eligibility criterion. Rather, Miller repeatedly described 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 required 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 sentencers wide discretion in determining “the weight to be

given relevant mitigating evidence.” Id., at 114–115. But 

those cases do not require the sentencer to make any particular factual finding regarding those mitigating circumstances. 

 Repeatedly citing Woodson, Lockett, and Eddings, the 

Miller Court stated that “a judge or jury must have the opportunity to consider” the defendant’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 attendant characteristics—before

imposing” a life-without-parole sentence. Id., at 483. In 

that process, the sentencer will consider the murderer’s “diminished culpability and heightened capacity for change.” 

Id., at 479. That sentencing procedure ensures that the 

sentencer affords individualized “consideration” to, among 
 

10 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 offenders under 18. And Graham barred life without parole 

for offenders under 18 who committed non-homicide offenses. But Miller did not cite those cases to require a finding 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 because youth matters, Miller held that a sentencer must 

have discretion to consider youth before imposing a lifewithout-parole sentence, just as a capital sentencer must

have discretion to consider other 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 mitigating factor when deciding whether to impose a life-without-parole sentence. Miller did not require the sentencer to

make a separate finding of permanent 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 factual prerequisite to a life-without-parole sentence, this Court’s Sixth Amendment precedents might require 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 concern the scope of the jury right. The fact that neither Miller nor Montgomery even mentioned the Sixth Amendment is further reason to doubt 

that those cases implicitly required a finding of permanent incorrigibility

by the sentencer. 
Cite as: 593 U. S. ____ (2021) 11 

Opinion of the Court 

of permanent incorrigibility was necessary because Montgomery 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-without-parole sentences only for “those whose crimes reflect

permanent incorrigibility,” rather than “transient immaturity.” 577 U. S., at 209. In other words, because the Montgomery Court deemed Miller to be a substantive holding,

and because Montgomery said that life without parole 

would be reserved for the permanently 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 Montgomery. We know as much because Montgomery said as 

much. To reiterate, the Montgomery Court explicitly stated

that “a finding of fact regarding 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 disproportionate 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 

—————— 4As the Court has stated in cases both before and after Montgomery, 

the Court determines whether a rule is substantive or procedural for retroactivity purposes “by considering the 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 rule 
 

12 JONES v. MISSISSIPPI 

Opinion of the Court 

the rule retroactive, the Montgomery Court unsurprisingly

declined to impose new requirements 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 final 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 factors 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 incorrigibility “is not required.” Id., at 211. 

The key assumption of both Miller and Montgomery was 

that discretionary sentencing allows the sentencer to consider 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 defendant’s culpability.’ ” Welch, 578 U. S., at 129 (quoting Schriro v. Summerlin, 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 extent that Montgomery’s application of the Teague standard is in tension 

with the Court’s retroactivity precedents that both pre-date and postdate Montgomery, those retroactivity precedents—and not Montgomery—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 review. By now, most offenders who could seek collateral review as a result 

of Montgomery have done so and, if eligible, have received new discretionary sentences under Miller. 
Cite as: 593 U. S. ____ (2021) 13 

Opinion of the Court 

where that sentence is appropriate in light of the defendant’s age. If the Miller or Montgomery Court wanted to require sentencers to also make a factual finding of permanent 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 incorrigibility.

In short, Jones’s Montgomery-based argument for requiring a finding of permanent incorrigibility is unavailing because Montgomery explicitly stated that “Miller did not impose a formal factfinding requirement” 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 Montgomery sought to ensure that life without parole for murderers

under 18 would be relatively rare. According to Jones, a 

separate factual finding of permanent incorrigibility is necessary to achieve that goal.

 But in Miller, the Court stated that a discretionary sentencing procedure—where the sentencer can consider the

defendant’s youth and has discretion to impose a lesser sentence than life without parole—would itself help make lifewithout-parole sentences “relatively rar[e]” for murderers 

under 18. 567 U. S., at 484, n. 10. 

Importantly, in concluding that a discretionary sentencing procedure would help make life-without-parole sentences relatively rare, the Court relied on data, not speculation. The Court pointed to statistics from 15 States that

used discretionary sentencing regimes to show that, “when 

given the choice, sentencers impose life without parole on 

children relatively rarely.” Ibid.5 In light of those statistics, the Court reasoned that a discretionary sentencing 

—————— 5See 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 relatively rare for juvenile offenders. But the Court did not suggest that the States with discretionary sentencing regimes

also required a separate factual finding of permanent incorrigibility, or that such a finding was necessary to make lifewithout-parole sentences for juvenile 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 explicitly stated that such a finding is not required.)

In sum, the Court has unequivocally stated that a separate factual finding of permanent incorrigibility is not required before a sentencer imposes a life-without-parole sentence on a murderer under 18. To borrow the apt words of

the Michigan Supreme Court: “Given that Montgomery expressly held that ‘Miller did not require trial courts to make

a finding of fact regarding a child’s incorrigibility,’ we likewise 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 incorrigibility 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 incorrigibility. 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 (2010); 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). 
Cite as: 593 U. S. ____ (2021) 15 

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 provide such an explanation at his resentencing.

We reject Jones’s alternative argument because an onthe-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 historical or contemporary sentencing practice in the States. 

First, and most fundamentally, an on-the-record sentencing explanation is not necessary to ensure that a sentencer 

considers a defendant’s youth. Jones’s argument to the contrary rests on the assumption that meaningful daylight exists 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 defendant’s youth, especially if defense counsel advances an argument based on the defendant’s youth. Faced with a convicted 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 defendant’s youth, it is theoretically conceivable (albeit still exceedingly unlikely in the real world) that the sentencer might somehow not be aware

of the defendant’s youth. But in that highly unlikely scenario, the defendant may have a potential ineffective-assistance-of-counsel claim, not 

a Miller claim—just as defense counsel’s failure to raise relevant mitigating circumstances in a death penalty sentencing proceeding can constitute a potential ineffective-assistance-of-counsel problem, not a Woodson/Lockett/Eddings violation. Cf. Wiggins v. Smith, 539 U. S. 510, 

533–538 (2003) (counsel in capital case was ineffective for failing to investigate 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 circumstances in a specific case. Some sentencers may decide that

a defendant’s youth supports a sentence less than life without 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 sentencer has discretion to consider that mitigating factor.7 

Second, turning to precedent, an on-the-record sentencing explanation with an implicit finding of permanent incorrigibility 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. Miller highlighted 15 existing discretionary state sentencing systems

as examples of what was missing in the mandatory Alabama regime before the Court in that case. 567 U. S., at 

484, n. 10. As the Court explained, those discretionary sentencing regimes ensured individualized consideration of 

youth. 

—————— 

Taylor, 529 U. S. 362, 395–398 (2000) (same). 7This Court’s death penalty cases recognize a potential Eighth Amendment claim if the sentencer expressly refuses as a matter of law to consider 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 who was under 18 expressly refuses as

a matter of law to consider the defendant’s youth (as opposed to, for example, 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 Amendment claim under the Court’s precedents. In any event, we need not 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. 
 

Cite as: 593 U. S. ____ (2021) 17 

Opinion of the Court 

But the Court did not suggest that those discretionary

sentencing regimes required some kind of sentencing explanation. Again, if the Miller Court believed that a sentencing explanation with an implicit finding of permanent incorrigibility was constitutionally necessary, the Court

easily could have and surely would have said so. But Miller 

did not say a word about requiring some kind of particular 

sentencing explanation with an implicit finding of permanent incorrigibility, as Montgomery later confirmed. 

Third, and just as telling, an on-the-record sentencing explanation with an implicit finding of permanent incorrigibility is not required by or consistent with this Court’s 

death penalty cases. Those cases demonstrate that an onthe-record sentencing explanation is not necessary to ensure that the sentencer considers relevant mitigating circumstances. 

In a series of capital cases over the past 45 years, the

Court has required the sentencer to consider mitigating circumstances 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 sentencing 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 sentencer will necessarily consider relevant mitigating circumstances. A sentencing explanation is not necessary to ensure that the sentencer in death penalty cases considers the

relevant mitigating circumstances. It follows that a sentencing 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 sentencer in death penalty cases, it would be incongruous to require an on-the-record explanation of the mitigating circumstance of youth by the sentencer in life-without-parole 

cases. Jones offers no persuasive answer for that incongruity in his argument. 

Fourth, an on-the-record sentencing explanation with an

implicit finding of permanent incorrigibility is not dictated

by any historical or contemporary 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 evaluation of any mitigating circumstances. But many States traditionally 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 explanations. See generally King & Noble, Felony Jury Sentencing 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 requirement with respect to particular mitigating circumstances. And appellate courts do not

necessarily reverse merely because the sentencer could

have said more about mitigating circumstances. See Campbell 477; 22A Cal. Jur. 3d, Crim. Law: Posttrial Proceedings

§408, p. 234 (2017) (“[U]nless the record affirmatively reflects otherwise, the trial court will be deemed to have considered the relevant criteria, such as mitigating circumstances, 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 to 
Cite as: 593 U. S. ____ (2021) 19 

Opinion of the Court 

limit the scope of any attendant procedural requirement to 

avoid intruding more than necessary upon the States’ sovereign 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 procedure suffices to ensure individualized consideration of a defendant’s youth, we should not now add still more procedural requirements.

In sum, Jones’s alternative argument fails. The Court’s 

precedents do not require an on-the-record sentencing explanation with an implicit finding of permanent incorrigibility. 

III 

The Court’s decision today carefully follows both Miller 

and Montgomery. The dissent nonetheless claims that we 

are somehow implicitly overruling those decisions. We respectfully 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 retroactively on collateral review. Today’s decision likewise 

does not disturb that holding. 

We simply have a good-faith disagreement with the dissent 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 decisions. The dissent draws inferences about what, in the dissent’s view, Miller and Montgomery “must have done” in order for the decisions to “make any sense.” Post, at 12 

(opinion of SOTOMAYOR, J.). We instead rely on what Miller 
 

20 JONES v. MISSISSIPPI 

Opinion of the Court 

and Montgomery said—that is, their explicit language addressing the precise question before us and definitively rejecting any requirement of a finding of permanent incorrigibility.

Notwithstanding our disagreement about whether Miller 

and Montgomery require a finding of permanent incorrigibility, we and the dissent both recognize that Miller and 

Montgomery have been consequential. Miller’s discretionary sentencing procedure has resulted in numerous sentences less than life without parole for defendants who otherwise would have received mandatory life-without-parole 

sentences. For example, in Miller resentencings in Mississippi 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 discretionary sentencing procedure has indeed helped make

life-without-parole sentences for offenders under 18 “relatively rar[e].” 567 U. S., at 484, n. 10. 

Moreover, as a result of Montgomery, many homicide offenders under 18 who received life-without-parole sentences 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 impose a requirement that the 

Court twice rejected. 

To be clear, our ruling on the legal issue presented here 
Cite as: 593 U. S. ____ (2021) 21 

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 morality 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 circumstances of the offense, and the background of the offender. 

Under our precedents, this Court’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 procedure 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 impose a lesser punishment in light of Jones’s youth. Moreover, this case does not properly present—and thus we do not 

consider—any as-applied Eighth Amendment claim of disproportionality regarding Jones’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 today 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 extra factual findings before

sentencing an offender under 18 to life without parole. Or 

States may direct sentencers to formally explain on the record 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 establish 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 Appeals. 

It is so ordered. 
THOMAS, J., concurring

_________________ 

_________________ 

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

THOMAS, 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] 

JUSTICE THOMAS, concurring in the judgment. 

The Court correctly holds that the Eighth Amendment

does not require a finding that a minor be permanently incorrigible as a prerequisite to a sentence of life without parole. 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 Miller v. Alabama, 567 U. S. 460 (2012)—and the Constitution. The better approach is to be patently clear that 

Montgomery was a “demonstrably erroneous” decision worthy of outright rejection. Gamble v. United States, 587 U. S. 

___, ___ (2019) (THOMAS, J., concurring) (slip op., at 2). 

I 

Brett Jones, then 15, murdered his grandfather. At the 

time of his trial and sentencing, Mississippi law automatically punished his crime with life without parole. A few 

years later, however, this Court held that youthful offenders are constitutionally entitled to an “individualized sentencing” 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 parole. App. 149.

Jones appealed, citing yet another new decision—Montgomery—in which this Court held that Miller’s rule was 
 

 

2 JONES v. MISSISSIPPI 

THOMAS, 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 did not help Jones,

as he had already received the “individualized” hearing Miller required. 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 permanently incorrigible.” 285 So. 

3d 626, 632 (Miss. App. 2017). That theory was not necessarily a stretch—as Montgomery explained that a life-without-parole sentence “violates the Eighth Amendment for a

child whose crime reflects ‘“unfortunate yet transient immaturity.”’” 577 U. S., at 208. But the Mississippi Court 

of Appeals disagreed, noting that Montgomery also “stated 

that ‘Miller did not require trial courts to make a finding of 

fact regarding a child’s incorrigibility’ [or] ‘impose a formal 

factfinding requirement.’” 285 So. 3d, at 632. 

II

 Miller and Montgomery are from the same lineage of precedent that refashions the Eighth Amendment to accommodate this Court’s views of juvenile justice.1 The similarities 

end there, however, because the decisions cannot be reconciled. 

A 

Miller announced a purely procedural rule: A State may 

not automatically sentence a juvenile to life without parole, 

but must instead provide an individualized sentencing process. In reaching this conclusion, the Court explicitly cab-

—————— 1 See, e.g., Roper v. Simmons, 543 U. S. 551, 556, 578 (2005) (prohibiting the execution of a (barely) juvenile 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). 
 

Cite as: 593 U. S. ____ (2021) 3 

THOMAS, J., concurring in judgment 

ined its holding to cases in which the sentencer lacked “discretion 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 individualized sentencing, the Court stressed that it was “not categorically bar[ring] a penalty for a class of offenders or type

of crime” but instead “mandat[ing] only that a sentencer follow 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, 

Miller discussed a line of precedents that condition the

death penalty on an individualized sentencing process. Id., 

at 475–476. Reasoning by analogy, the Court explained 

that “mandatory penalties” for juveniles “preclude a sentencer 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] alternative argument that the Eighth

Amendment requires a categorical bar on life without parole 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 

THOMAS, J., concurring in judgment 

uisite to life without parole, 567 U. S., at 483, but this directive was hardly “watershed.” According to Teague, a procedural 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 requirements for watershed status.’ ” 

Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (KAVANAUGH, 

J., concurring in part) (slip op., at 16). Or in more concrete 

terms, we repeatedly suggested that a rule might be watershed 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 Miller might

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 Miller was procedural, not watershed, and thus not retroactive—Montgomery proceeded to “rewrite” it into a substantive rule. 577 U. S., at 224 (Scalia, J., dissenting). Despite

acknowledging that “Miller’s holding has a procedural component,” the majority explained that this procedure was actually 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 categorically exempt from life without parole. Id., at 209. 

That reimagined rule was substantive under our precedents. Substantive rules include those that “‘prohibi[t] a 

certain category of punishment for a class of defendants because of their status or offense.’” Banks, 542 U. S., at 416. 

For example—a rule that “life without parole is an excessive sentence for children whose crimes reflect transient 

immaturity.” Montgomery, 577 U. S., at 210. Montgomery

could not have been clearer that its rule transcended mere 

procedure: “Even if a court considers a child’s age before 
 

 

Cite as: 593 U. S. ____ (2021) 5 

THOMAS, 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 offenders, 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 incorrigibility,” yet decided that “Miller drew a line between children 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 reconciled. 

C 

Just as the procedural rule of Miller created problems for

the majority in Montgomery, the substantive rule of Montgomery creates problems for the majority in this case. If 

—————— 2The Court’s language in this line of precedents is notable. When addressing 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 BREYER, 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., dissenting). It is curious how the Court’s view of the maturity of minors 

ebbs and flows depending on the issue. 
 

6 JONES v. MISSISSIPPI 

THOMAS, J., concurring in judgment 

Montgomery is correct about the existence of a concrete 

class of offenders who—as a matter of fundamental constitutional 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. Otherwise, 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 findings when it comes to other classes of criminals that this

Court has declared categorically exempt from certain punishments. 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 consideration” of the record after a state court “found [a prisoner] mentally competent” and thus eligible for execution). 

I doubt that a majority of this Court would tolerate the execution of an offender who alleges insanity or intellectual 

disability absent a satisfactory finding to the contrary.

In response, the majority suggests that insanity and intellectual disability are legitimate “eligibility criteri[a]” because they are easy to evaluate, whereas “permanent incorrigibility . . . ‘is difficult even for expert psychologists to

[assess].’” Ante, at 8. This notion that the former categories are clear cut and predictable might come as news to the 

States that have spent years chasing the ever-evolving definitions 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. Florida, 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 

THOMAS, 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, selects 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 category 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 many 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 have 

already 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 

THOMAS, J., concurring in judgment 

dissenting). The least we can do is to fully own up to Montgomery’s sins. 

The majority also largely leaves untouched Montgomery’s 

violation of the rule that the Constitution “‘leaves the unavoidably 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 (THOMAS, J., dissenting). When the Eighth Amendment 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 judicial displacement of the legislative role in prescribing appropriate punishment for crime.” 567 U. S., at 500 

(ROBERTS, C. J., dissenting).

Finally, I would expressly reject the portion of Montgomery that “purported to constitutionalize” the substantive exception “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 further), 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 mightily to avoid confronting the 
Cite as: 593 U. S. ____ (2021) 9 

THOMAS, J., concurring in judgment 

tension between Miller and Montgomery. But though the

Court purports to leave Montgomery’s holding intact, it recognizes that Montgomery’s analysis is untenable and not to 

be repeated. It would be simpler to reject Montgomery in 

both name and substance. 
 

_________________ 

_________________ 

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

SOTOMAYOR, 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]

 JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and 

JUSTICE KAGAN join, dissenting. 

Today, the Court guts Miller v. Alabama, 567 U. S. 460 

(2012), and Montgomery v. Louisiana, 577 U. S. 190 (2016).

Contrary to explicit holdings in both decisions, the majority

claims that the Eighth Amendment permits juvenile offenders convicted of homicide to be sentenced to life without parole (LWOP) as long as “the sentence is not mandatory and 

the sentencer therefore has discretion to impose a lesser

punishment.” Ante, at 1. In the Court’s view, a sentencer 

never need determine, even implicitly, whether a juvenile

convicted of homicide is one of “those rare children whose 

crimes reflect irreparable corruption.” Montgomery, 577 

U. S., at 209. Even if the juvenile’s crime reflects “‘unfortunate yet transient immaturity,’” Miller, 567 U. S., at 479, 

he can be sentenced to die in prison.

This conclusion would come as a shock to the Courts in 

Miller and Montgomery. Miller’s essential holding is that 

“a lifetime in prison is a disproportionate sentence for all 

but the rarest children, those whose crimes reflect ‘irreparable corruption.’” Montgomery, 577 U. S., at 195 (quoting 

Miller, 567 U. S., at 479–480). Sentencing discretion is

“necessary to separate those juveniles who may be sentenced to life without parole from those who may not,” 

Montgomery, 577 U. S., at 210, but it is far from sufficient. 

A sentencer must actually “make th[e] judgment” that the 
 

 

 

2 JONES v. MISSISSIPPI 

SOTOMAYOR, 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 discretionary sentencing procedure where 

youth [is] considered.” Ante, at 11. Such an abrupt break 

from precedent demands “special justification.” Ramos v. 

Louisiana, 590 U. S. ___, ___ (2020) (KAVANAUGH, J., concurring in part) (slip op., at 6) (internal quotation marks

omitted). The Court offers none. Instead, the Court attempts to circumvent stare decisis principles by claiming 

that “[t]he Court’s decision today carefully follows both Miller and Montgomery.” Ante, at 19. The Court is fooling no 

one. Because I cannot countenance the Court’s abandonment of Miller and Montgomery, I dissent. 

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. Simmons, 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 makes them the most deserving 

of execution.” Id., at 568 (internal quotation marks omitted). Juvenile offenders “cannot with reliability be classified among the worst offenders” for several reasons. Id., at 

569. First, “as any parent knows,” and as scientific and sociological studies have confirmed, juveniles are less mature 
Cite as: 593 U. S. ____ (2021) 3 

SOTOMAYOR, J., dissenting 

and responsible than adults, which “often result[s] in impetuous and ill-considered actions and decisions.” Ibid. (internal quotation marks omitted). 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. (internal 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 (internal quotation marks omitted). Rather, “[m]aturity can lead 

to that considered reflection which is the foundation for remorse, renewal, and rehabilitation.” Id., at 79. Graham 

therefore insisted that sentencers not deprive juvenile nonhomicide offenders “of the opportunity to achieve maturity . . . and self-recognition of human worth and potential” 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 

SOTOMAYOR, 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 irrevocable.’” 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. Instead, it required sentencers to

distinguish “between the juvenile offender whose crime reflects unfortunate and transient immaturity, and the rare

juvenile offender whose crime reflects irreparable corruption.” 567 U. S., at 479–480 (internal quotation marks

omitted). Only those rare few in the latter category are constitutionally eligible for LWOP under Miller. As such, before imposing a sentence of LWOP, a sentencer must actually “make that judgment,” and make it correctly. Id., at 

480; see Adams v. Alabama, 578 U. S. 994, 999 (2016) 

(SOTOMAYOR, J., concurring in decision to grant, vacate,

and remand).

 Finally, in Montgomery, this Court confirmed the substantive nature of Miller’s prohibition on LWOP for most

juveniles. Montgomery held that Miller applies retroactively 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 retroactivity doctrine 

in Teague v. Lane, 489 U. S. 288 (1989), a new constitutional rule is considered “substantive,” and thus retroactive, if it “alters the range of conduct or the class of persons 

that the law punishes.” Montgomery, 577 U. S., at 206 (internal 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 defendant’s culpability.” Montgomery, 577 U. S., at 206 (emphasis deleted; internal quotation marks omitted). Such 
 

 

 

 

 

Cite as: 593 U. S. ____ (2021) 5 

SOTOMAYOR, 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 attendant characteristics’ are considered as sentencing factors 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 parole is an excessive sentence for children whose crimes reflect 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 category 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 discretionary sentencing system is both constitutionally necessary 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 mitigating 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 ultimately, the mere existence of “a discretionary sentencing

procedure suffices,” ante, at 19. 
 

 

6 JONES v. MISSISSIPPI 

SOTOMAYOR, 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 factfinding requirement does

not leave States free to sentence a child whose crime reflects transient immaturity to life without parole. To the 

contrary, Miller established that this punishment is disproportionate 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 sentencer to consider a juvenile offender’s youth before imposing life without parole.” 577 

U. S., at 208. Sentencing discretion and “[a] hearing where 

‘youth and its attendant characteristics’ are considered as 

sentencing factors” are necessary to “giv[e] effect to Miller’s 

substantive holding that life without parole is an excessive

sentence for children whose crimes reflect transient immaturity,” 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 offender’s crime “did not reflect irreparable corruption,” his

“hope for some years of life outside prison walls must be restored.” Id., at 213. The Court today never addresses Montgomery’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 sentencer’s decision. Miller certainly does not require sentencers to invoke any magic words. Using this procedural 
 

Cite as: 593 U. S. ____ (2021) 7 

SOTOMAYOR, J., dissenting 

flexibility, States have adopted different approaches to Miller’s inquiry. For instance, in some States, the prosecution 

must prove that a juvenile offender is permanently incorrigible 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.” Tatum v. Arizona, 580 U. S. ___, ___ (2016) (SOTOMAYOR, 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 determines 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 permanently incorrigible”). As JUSTICE THOMAS 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 sentences,” 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 is 
 

8 JONES v. MISSISSIPPI 

SOTOMAYOR, J., dissenting 

limited to mandatory LWOP sentences, however, is to ignore 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 explained that mandatory LWOP sentences violate “individualized 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 required 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 expect 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: 
 

Cite as: 593 U. S. ____ (2021) 9 

SOTOMAYOR, J., dissenting 

“[L]ife-without-parole sentences, like capital punishment, 

may violate the Eighth Amendment when imposed on children” because “the characteristics of youth, and the way

they weaken rationales for punishment, can render a lifewithout-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 parole for juvenile nonhomicide offenders”). So, too, with Miller: No set of discretionary sentencing procedures can render a sentence of LWOP constitutional 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 mitigating 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 chronological age of a minor” and “the background and mental and 

emotional development of a youthful defendant”). The Miller 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 proposition. 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 reverses course and concludes 
 

 

 

10 JONES v. MISSISSIPPI 

SOTOMAYOR, J., dissenting 

that youth does not matter in this way.

Next, the Court exaggerates the meaning of two statements from Miller, arguing that it “mandated ‘only that a

sentencer follow a certain process,’” rather than “‘categorically 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, Montgomery already rejected this misinterpretation: “Miller, it 

is true, did not bar a punishment for all juvenile offenders,” 

or all juvenile offenders convicted 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 attendant 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 children whose crimes reflect transient immaturity.” Ibid. 

Finally, the Court argues that Miller offered nothing

more than a prediction that “a discretionary sentencing procedure would help make life-without-parole sentences relatively rare.” Ante, at 13. Miller’s substantive rule was not 

a prediction. Rather, Miller held that juvenile LWOP sentences must be rare because it is only “the rare juvenile offender 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 “‘signature qualities’” of youth do not undermine the penological justifications for LWOP. Id., at 476. Youth is “a time of 

immaturity, irresponsibility, impetuousness, and recklessness,” and, almost invariably, those “qualities are all tran-
 

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

SOTOMAYOR, J., dissenting 

sient.” Ibid. (internal quotation marks and brackets omitted).

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 sentencer consider youth-related 

factors “in a non-arbitrary fashion” before imposing a sentence 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 Mississippi’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 requires far more than mere consideration of an offender’s

age,” as “a life-without-parole sentence imposed on a juvenile is illegal” unless “the defendant will forever be incorrigible, 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, including 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 reimposition of LWOP. See The Campaign for the Fair Sentencing

of Youth, Tipping Point: A Majority of States Abandon LifeWithout-Parole Sentences for Children 7 (2018) (Tipping 

—————— 1Elsewhere, the numbers are even more alarming. Like Mississippi 

courts, Louisiana courts have concluded that “Miller requires the sentencing court to consider an offender’s youth and attendant characteristics 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, Louisiana’s Compliance with Miller v. Alabama 1 (2020). 
 

12 JONES v. MISSISSIPPI 

SOTOMAYOR, J., dissenting 

Point).

These States’ experiences show that juvenile LWOP sentences will not be rare simply by virtue of sentencing discretion. 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 offenders will be sentenced to die in prison.2 

B 

The Court’s misreading of Miller and Montgomery is egregious 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 THOMAS, J.). That doctrine divides new rules of 

constitutional law into two categories: substantive and procedural. As noted above, Montgomery held that Miller applies 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., 

—————— 2The harm from these sentences will not fall equally. The racial disparities 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 juvenile offenders to life imprisonment without parole ten times more often 

than white offenders”); Mills, Dorn, & Hritz, Juvenile Life Without Parole in Law and Practice: Chronicling 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 aspect of our criminal justice system”). The trend has worsened since Miller v. Alabama, 567 U. S. 460 (2012): 72 percent of children sentenced to 

LWOP after Miller were Black, compared to 61 percent of children sentenced before Miller. Tipping Point 10. 
Cite as: 593 U. S. ____ (2021) 13 

SOTOMAYOR, J., dissenting 

at 201.3 

Today, however, the Court transforms Miller into a decision requiring only a “discretionary sentencing procedure.” 

Ante, at 19. At the same time, the Court insists that it “does 

not disturb” Montgomery’s holding “that Miller applies retroactively on collateral review.” Ante, at 19. In other 

words, the Court rewrites Miller into a procedural rule and, 

paradoxically, maintains that Miller was nevertheless “substantive 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 numerous sentencing rules as procedural. To take one example, 

in Mills v. Maryland, 486 U. S. 367 (1988), this Court invalidated a capital sentencing procedure requiring jurors to 

disregard mitigating factors that were not found unanimously. 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 retroactively, even though the Court has held that they do not. See 

—————— 3 JUSTICE THOMAS 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 precludes individualized consideration of a juvenile’s youth, but also because “such a scheme poses too great a risk of disproportionate punishment.” 567 U. S., at 479. Applying the principles of proportionality set 

forth in Roper and Graham, Miller “rendered life without parole an unconstitutional penalty for a class of defendants because of their status[,]

that is, juvenile offenders whose crimes reflect the transient immaturity

of youth.” Montgomery, 577 U. S., at 208 (internal quotation marks omitted). As a result, “Miller is no less substantive than are Roper and Graham.” Id., at 209. 
 

 

 

14 JONES v. MISSISSIPPI 

SOTOMAYOR, 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. Arizona, 536 U. S. 584 (2002), that a jury, rather than a judge, 

must find aggravating circumstances necessary for the imposition of the death penalty). If future litigants make such 

arguments, it will be because the Court’s contortion of Miller 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 Montgomery 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) 

(ROBERTS, 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 reiterated, “a departure from precedent demands special justification.” 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 decisions, legal and factual developments since the precedent 

was decided, and its workability. See Ramos, 590 U. S., at 

___ (opinion of KAVANAUGH, J.) (slip op., at 7). None supports overturning Miller or Montgomery. As explained 
Cite as: 593 U. S. ____ (2021) 15 

SOTOMAYOR, J., dissenting 

above, those decisions are firmly rooted in two lines of precedent and fundamental principles of proportionality.4 Subsequent legal and factual developments have reinforced 

their reasoning. Fifteen state courts of last resort, for instance, have recognized that Miller announced a substantive rule barring LWOP for any juvenile whose crime does 

not reflect permanent incorrigibility. 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 mandatory and discretionary sentences.” 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 reforms 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 incorrigibility before sentencing a juvenile offender to LWOP imposes no costs that justify overturning precedent.

Instead of addressing these factors, the Court simply rewrites 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 JUSTICE THOMAS claims that Miller and Montgomery “refashio[n] the

Eighth Amendment to accommodate this Court’s views of juvenile justice.” Ante, at 2; see ante, at 8. In so doing, JUSTICE THOMAS “seek[s] to

relitigate old Eighth Amendment battles” 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” (internal quotation marks omitted)). 
 

 

 

16 JONES v. MISSISSIPPI 

SOTOMAYOR, 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 inconsistent with Montgomery and basic retroactivity principles. See ante, at 11–12, n. 4. The Court’s solution? It 

urges lower courts to simply ignore Montgomery going forward. Ante, at 11–12, n. 4 (“[T]he Court’s retroactivity precedents 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 opinion.” Ramos, 590 U. S., at ___–___ (opinion of KAVANAUGH, 

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 acknowledging it is doing so, much 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 KAVANAUGH, J.) (slip

op., at 2) (internal quotation marks omitted).

For present purposes, sentencers should hold this Court 

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

on Montgomery for its statement that a finding of fact regarding permanent incorrigibility is not required. That isolated piece of Montgomery, 

apparently, still carries the full weight of precedent. Anything more inconvenient, however, the Court today discards. 
Cite as: 593 U. S. ____ (2021) 17 

SOTOMAYOR, J., dissenting 

to its word: Miller and 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 applying those decisions faithfully. Thankfully, many States 

have already implemented robust procedures to give effect 

to Miller and Montgomery. In other States, the responsibility falls squarely on individual sentencers to use their discretion to “separate those juveniles who may be sentenced 

to life without parole from those who may not.” Montgomery, 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 incorrigible. Ordinarily, an appellate court should not pass

on that question in the first instance. But the Court today

guarantees that the state sentencing 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 reflects irreparable corruption.” Miller, 567 U. S., at 479–480 

(internal quotation marks omitted). In fact, many aspects

of Jones’ crime seem to epitomize “unfortunate yet transient immaturity.” Id., at 479 (internal quotation marks

omitted); see 2018 WL 10700848, *11 (Miss., Nov. 27, 2018) 

—————— 6The Court leaves open the possibility 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 transient 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 

SOTOMAYOR, 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’ biological 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 Punisher.” 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 motherf***ers”). According to Jones’ mother, Jones’ stepfather

“hated Brett more because Brett reminded him of [Jones’ 

biological father].” Id., at 78. According to Jones’ grandmother, he was simply “easier to hurt and beat.” Id., at 39. 

In 2004, after Jones came home late one day, Jones’ stepfather flew into a rage and grabbed Jones by the neck, preparing to beat him with a belt. Id., at 128–129. This time, 

however, Jones fought back and told his stepfather, “No, 

—————— 7Even as it disclaims any responsibility for evaluating permanent incorrigibility, 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 rule 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 culpability and consequential harm” of homicide, Miller reasoned that Graham’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 Eighth Amendment requires that sentencers (and reviewing courts) not presume that most juveniles will forever remain the “murderers,” ante, at 10, they once were. 
 

 

 

 

Cite as: 593 U. S. ____ (2021) 19 

SOTOMAYOR, 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 threatened to kick out Jones’ mother

and brother if Jones did not move out. Id., at 81. As a result, 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 himself 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 medications. 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. 

—————— 8This 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 depression. App. 74. As a result, throughout 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 adverse childhood experiences that Jones endured, including physical

abuse, domestic violence, and mental illness in family members, are 

strong predictors of negative outcomes for children, including violence. 

J. Garbarino, Miller’s Children 10–12 (2018); see id., at 12 (“[E]levated 

adversity scores are as common among killers as they are rare in the 

general adolescent population”). 
 

 

 

 

 

 

20 JONES v. MISSISSIPPI 

SOTOMAYOR, J., dissenting 

He ordered her out. Ibid. Later that day, Jones was making 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 diminish 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 immaturity, impetuosity, and failure to appreciate risks or consequences.” 2018 WL 10700848, *11 (Kitchens, P. J., dissenting).

Jones then attempted to save his grandfather by administering 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 questioned him, Jones told a feeble lie, claiming that his grandfather had left and that the blood on his clothes was “‘a 

joke.’” 938 So. 2d, at 314. Jones then met up with his girlfriend and attempted to hitchhike, but not to make a getaway. 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, 
 

Cite as: 593 U. S. ____ (2021) 21 

SOTOMAYOR, 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 parent or guardian present.” 2018 WL 10700848, *11 (Kitchens, P. J., dissenting). Thus, “Jones’s behavior in the immediate aftermath of his tragic actions also demonstrated 

his fundamental immaturity.” Ibid. 

At his resentencing hearing, 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 disciplinary 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 “regretted” 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 irreparably 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 other 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 Montgomery, there is a strong likelihood that Jones is constitutionally ineligible for LWOP. His crime, while terrible, appears 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 resentencing hearing to rebut 

Jones’ proof that his crime reflected the “recklessness” and 
 

22 JONES v. MISSISSIPPI 

SOTOMAYOR, 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 Miller properly. Instead, it followed the instructions of the Mississippi Supreme Court, which held 

that “Miller rendered [Mississippi’s] sentencing scheme unconstitutional 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 “Miller factors” 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 reflect irreparable corruption. 567 U. S., at 479–480. Because 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 to 
Cite as: 593 U. S. ____ (2021) 23 

SOTOMAYOR, J., dissenting 

ask for a second chance. Jones 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 requires that most juvenile offenders be given this small 

“hope for some years of life outside prison walls.” Montgomery, 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 possibly take in prison to rehabilitate myself.” App. 152. “Minors do have the ability to 

change,” he reflected. Ibid. He noted in closing, “If you decide to send me back without the 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 everything 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 today, 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. 

—————— 10Having deprived Jones of his constitutional right, the Court gestures 

at a potential lifeline from other institutions, including the Mississippi

Legislature or Governor. Ante, at 22. But “the remote possibility” of such

action “does not mitigate the harshness of the sentence” that Jones now 

faces. Graham, 560 U. S., at 70. The Eighth Amendment guarantees 

juvenile offenders like Jones a basic constitutional protection against disproportionate punishments. The Court should not leave the vindication 

of such important legal rights to others, or to chance. 
 

24 JONES v. MISSISSIPPI 

SOTOMAYOR, J., dissenting 

The question is whether the State, at some point, must consider whether a juvenile offender has demonstrated maturity 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.