Jones v. Mississippi

P R E L I M I N A R Y P R I N T
Volume 593 U. S. Part 1
Pages 98–151
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
April 22, 2021
REBECCA A. WOMELDORF
reporter of decisions
Page Proof Pending Publication
N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.

Page Proof Pending Publication
98 OCTOBER
TERM, 2020
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 affrmed on direct appeal. This Court subsequently decided
Miller v. Alabama, 567 U. S. 460, which held that the Eighth Amend-
ment permits a life-without-parole sentence for a defendant who com-
mitted 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 Su-
preme 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 with-
out 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 Mont-
gomery v. Louisiana, 577 U. S. 190, which held that Miller applied ret-
roactively on collateral review. Jones contended that, under Miller and
Montgomery, a sentencer must make a separate factual fnding that a
murderer under 18 is permanently incorrigible before sentencing the
offender to life without parole. The Mississippi Court of Appeals re-
jected 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 fnding of permanent incorrigibility before
sentencing the defendant to life without parole. In such a case, a dis-
cretionary sentencing system is both constitutionally necessary and con-
stitutionally suffcient. Pp. 104–121.
(a) A sentencer need not make a separate factual fnding of perma-
nent incorrigibility before sentencing a murderer under 18 to life with-
out parole. In Miller, the Court mandated “only that a sentencer follow
a certain process—considering an offender's youth and attendant char-
acteristics—before imposing ” a life-without-parole sentence. 567 U. S.,
at 483. And in Montgomery, the Court stated that “a fnding 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

Page Proof Pending Publication
Cite
as: 593 U. S. 98 (2021)
99
Syllabus
but not any particular factual fnding. Miller and Montgomery there-
fore
refute Jones's argument that a fnding of permanent incorrigibility
is constitutionally necessary. Pp. 105–113.
(b) Nor must a sentencer provide an on-the-record sentencing expla-
nation with an “implicit fnding ” 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 sen-
tencer considers a defendant's youth. Nor is an on-the-record sentenc-
ing explanation required by or consistent with Miller or Montgomery,
neither of wh ich said anyth i ng about a sentenci ng explanati on.
Pp. 113–118.
(c) 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 dis-
agreement 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 pro-
hibit Jones from presenting his moral and policy arguments against his
life-without-parole sentence to the state offcials who are authorized to
act on those arguments. Pp. 118–121.
285 So. 3d 626, affrmed.
Kavanaugh, J., delivered the opinion of the Court, in which Roberts,
C. J., Alito, Gorsuch, and Barrett, JJ., joined. Thomas, J., fled an
opinion concurring in the judgment, post, p. 121. Sotomayor, J., fled a
dissenting opinion, in which Breyer and Kagan, JJ., joined, post, p. 129.
David M. Shapiro argued the cause for petitioner. With
him on the briefs were Amir H. Ali, Devi Rao, Jacob How-
ard, and Jeffrey T. Green.
Krissy C. Nobile, Deputy Solicitor General of Mississippi,
argued the cause for respondent. With her on the brief
were Lynn Fitch, Attorney General of Mississippi, Kristi H.
Johnson, Solicitor General, Justin L. Matheny, Assistant So-
licitor General, and Scott Stuart, Special Assistant Attor-
ney General.
Frederick Liu argued the cause for the United States as
amicus curiae urging affrmance. With him on the brief

Page Proof Pending Publication
100 JONES
v. MISSISSIPPI
Opinion of the Court
were Acting Solicitor General Wall, Acting Assistant Attor-
ney
General Rabbitt, Deputy Solicitor General Feigin, and
Robert A. Parker.*
Justice Kavanaugh delivered the opinion of the Court.
Under Miller v. Alabama, 567 U. S. 460 (2012), an individ-
ual 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
*Briefs of amici curiae urging reversal were fled for the American Bar
Association by Judy Perry Martinez, Christopher M. Murphy, Lawrence
A. Wojcik, and Ethan H. Townsend; for Current and Former Prosecutors
et al. by Mary B. McCord, Amy L. Marshak, and Annie L. Owens; for the
Juvenile Law Center et al. by Nicole A. Saharsky, Kristen Clarke, Jon
Greenbaum, Arthur Ago, Noah Baron, Marsha L. Levick, Riya Saha
Shah, Sherrilyn A. Ifll, Janai S. Nelson, Samuel Spital, Jin Hee Lee,
and Mahogane D. Reed; for the National Association of Criminal Defense
Lawyers et al. by Ginger D. Anders, Barbara E. Bergman, and André de
Gruy; and for Erwin Chemerinsky et al. by Harry Sandick and John
Mills. A brief of amici curiae urging vacatur was fled for the American
Civil Liberties Union Foundation et al. by David D. Cole, Jennesa Calvo-
Friedman, Larry W. Yackle, David H. Safavian, John W. Whitehead, and
Arthur Rizer.
Briefs of amici curiae urging affrmance were fled for the State of
Indiana et al. by Curtis T. Hill, Jr., Attorney General of Indiana, Thomas
M. Fisher, Solicitor General, Kian J. Hudson, Deputy Solicitor General,
and Julia C. Payne, Deputy Attorney General, and by the Attorneys Gen-
eral for their respective States as follows: Steve Marshall of Alabama,
Leslie Rutledge of Arkansas, Ashley Moody of Florida, Lawrence G. Was-
den of Idaho, Daniel Cameron of Kentucky, Eric Schmitt of Missouri,
Timothy C. Fox of Montana, Doug Peterson of Nebraska, David A. Yost
of Ohio, Mike Hunter of Oklahoma, Alan Wilson of South Carolina, Jason
R. Ravnsborg of South Dakota, Herbert H. Slatery III of Tennessee, Ken
Paxton of Texas, and Bridget Hill of Wyoming; for the Criminal Justice
Legal Foundation by Kent S. Scheidegger and Kymberlee C. Stapleton;
and for the National Organization of Victims of Juvenile Murderers et al.
by Kent S. Scheidegger and Kymberlee C. Stapleton.
Briefs of amici curiae were fled for Amicus Populi by Mitchell Keiter;
for Madge Jones et al. by Angela C. Vigil; and for Jonathan F. Mitchell
et al. by Taylor A. R. Meehan.

Cite
as: 593 U. S. 98 (2021)
101
Opinion of the Court
trial judge acknowledged his sentencing discretion under
M
iller 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 affrmed,
concluding that the discretionary sentencing procedure satis-
fed Miller.
Jones argues, however, that a sentencer's discretion to im-
pose a sentence less than life without parole does not alone
satisfy Miller. Jones contends that a sentencer who im-
poses a life-without-parole sentence must also make a sepa-
rate factual fnding that the defendant is permanently incor-
rigible, or at least provide an on-the-record sentencing
explanation with an implicit fnding that the defendant is
permanently incorrigible. And Jones says that the trial
judge did not make such a fnding in his case.
Jones's argument that the sentencer must make a fnding
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 fatly stated that “Miller did not
impose a formal factfnding requirement” and added that “a
fnding of fact regarding a child's incorrigibility . . . is not
required.” 577 U. S. 190, 211 (2016). In light of that ex-
plicit language in the Court's prior decisions, we must reject
Jones's argument. We affrm the judgment of the Missis-
sippi Court of Appeals.
I
A
In August 2004, Brett Jones was living with his grandpar-
ents, 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.
Page Proof Pending Publication

Page Proof Pending Publication
102 JONES
v. MISSISSIPPI
Opinion of the Court
At the time, Jones was only 15 years old. On the morning
of
August 9, 2004, Bertis discovered Jones's girlfriend, Mi-
chelle 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 contin-
ued stabbing Bertis. In total, Jones stabbed his grandfa-
ther eight times.
Bleeding profusely, Bertis staggered outside, fell to the
ground, and died. Jones did not call 911. Instead, he hap-
hazardly attempted to cover up his role in the murder. He
dragged Bertis's body back inside. Jones then washed the
blood off his arms with a water hose, changed out of his
bloody shirt, and moved Bertis's car over some blood stains
on the carport foor.
While Jones was outside, he was seen by a neighbor. The
neighbor called the police. Shortly thereaf ter, 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 offcer. After
a police pat down revealed a knife in Jones's pocket, the off-
cer asked Jones whether it was the knife that he “ `did it
with.' ” Id., at 315. Jones responded, “ `No, I already got
rid of it.' ” Ibid.
B
Jones was charged with murder. The trial judge in-
structed the jury on murder and the lesser included offense
of manslaughter. Jones claimed that he was not guilty be-
cause he acted in self-defense. The jury rejected that de-
fense and found Jones guilty of murder.

Cite
as: 593 U. S. 98 (2021)
103
Opinion of the Court
Under Mississippi law at the time, murder carried a man-
da
tory 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 affrmed. 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 Pun-
ishments Clause of the Eighth Amendment. The trial court
denied the motion, and the Mississippi Court of Appeals af-
frmed. See 122 So. 3d 725 (2011).
In 2012, while the Mississippi Supreme Court was consid-
ering 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 sen-
tences for murderers under 18, but the Court allowed discre-
tionary life-without-parole sentences for those offenders.
In the wake of Miller, the Mississippi Supreme Court con-
cluded that Miller applied retroactively on state collateral
review. In Jones's case, the State Supreme Court ordered
a new sentencing hearing where the sentencing judge could
consider Jones's youth and 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 justifcations for imposing the harshest sen-
tences.” 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 fnding that the offense re-
fects irreparable corruption.” App. 143–144.
At the end of the hearing, the sentencing judge acknowl-
edged that he had discretion under Miller to impose a sen-
tence less than life without parole. But after considering
the factors “relevant to the child's culpability,” App. 149, the
Page Proof Pending Publication

104 JONES
v. MISSISSIPPI
Opinion of the Court
judge determined that life without parole remained the ap-
propr
iate sentence for Jones, id., at 152.
Jones appealed his sentence to the Mississippi Court of
Appeals, citing both Miller and the then-recently decided
case of Montgomery v. Louisiana, 577 U. S. 190 (2016),
which in the interim had held that Miller applied retroac-
tively on collateral review. According to Jones, in order to
impose a life-without-parole sentence on a defendant who
committed a murder when he or she was under 18, the sen-
tencer must make a separate factual fnding that the defend-
ant is permanently incorrigible. The Mississippi Court of
Appeals rejected Jones's argument, relying on this Court's
express statement in Montgomery that “ `Miller did not re-
quire trial courts to make a fnding of fact regarding a child's
incorrigibility.' ” 285 So. 3d 626, 632 (2017) (quoting Mont-
gomery, 577 U. S., at 211).
In light of disagreement in state and federal courts about
how to interpret Miller and Montgomery, we granted certio-
rari. 589 U. S. ––– (2020). Compare, e. g., Malvo v. Ma-
thena, 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 life-
without-parole sentence must also either (i) make a separate
factual fnding of permanent incorrigibility, or (ii) at least
provide an on-the-record sentencing explanation with an
“implicit fnding ” 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 fnding of permanent incorrigibility is not
required. In Montgomery, the Court unequivocally stated
Page Proof Pending Publication

Cite
as: 593 U. S. 98 (2021)
105
Opinion of the Court
that “Miller did not impose a formal factfnding require-
ment”
and added that “a fnding 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 constitution-
ally suffcient.
1
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 Investiga-
tion, Crime in the United States 2004, Murder Offenders by
Age, Sex, and Race 17 (Table 2.5). About 850 of the individ-
uals 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, in-
cluding for homicides committed by individuals under 18.
But this Court has held that sentencing an offender who was
under 18 at the time of the crime raises special constitu-
tional considerations.
Ratifed in 1791, the Eighth Amendment provides that
“cruel and unusual punishments” shall not be “inficted.”
Ratifed 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
1
Both Miller and Montgomery generated vigorous dissents. The dis-
sents in Miller stated that the Eighth Amendment does not prohibit man-
datory life-without-parole sentences and asserted that the Court's decision
contravened this Court's precedents. See 567 U. S., at 493–502 (Rob-
erts, 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).
Page Proof Pending Publication

106 JONES
v. MISSISSIPPI
Opinion of the Court
U. S. 551 (2005), the Court concluded that the Eighth Amend-
ment
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 with-
out parole for offenders who were under 18 and committed
homicide. The Graham Court stated: “There is a line be-
tween 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 discre-
tionary sentencing procedure. According to Jones, the sen-
tencer must also make a separate factual fnding of perma-
nent 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 fatly stated that “Miller did not impose
a formal factfnding requirement” and that “a fnding of fact
regarding a child's incorrigibility . . . is not required.” 577
U. S., at 211.
2
2
The key paragraph from Montgomery is as follows:
“Louisiana suggests that Miller cannot have made a constitutional dis-
tinction between children whose crimes refect transient immaturity and
Page Proof Pending Publication

Cite
as: 593 U. S. 98 (2021)
107
Opinion of the Court
Notwithstanding that clear language in Miller and Mont-
go
mery, Jones advances three distinct arguments for why
this Court should require a sentencer to make a fnding of
permanent incorrigibility before sentencing a murderer
under 18 to life without parole.
First, Jones analogizes to cases where the Court has rec-
ognized 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 sen-
tencer to fnd 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 diffcult even for expert psy-
chologists to differentiate between the juvenile offender
whose crime refects unfortunate yet transient immaturity,
and the rare juvenile offender whose crime refects irrepara-
ble corruption.” Roper, 543 U. S., at 573. In addition,
when the Court has established such an eligibility criterion,
those whose crimes refect irreparable corruption because Miller did not
require trial courts to make a fnding of fact regarding a child's incorrigi-
bility. That this fnding is not required, however, speaks only to the de-
gree of procedure Miller mandated in order to implement its substantive
guarantee. When a new substantive rule of constitutional law is estab-
lished, this Court is careful to limit the scope of any attendant procedural
requirement to avoid intruding more than necessary upon the States' sov-
ereign administration of their criminal justice systems. 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 restric-
tion upon [their] execution of sentences'). Fidelity to this important prin-
ciple of federalism, however, should not be construed to demean the sub-
stantive character of the federal right at issue. That Miller did not
impose a formal factfnding requirement does not leave States free to sen-
tence a child whose crime refects transient immaturity to life without
parole. To the contrary, Miller established that this punishment is dis-
proportionate under the Eighth Amendment.” 577 U. S., at 211.
Page Proof Pending Publication

108 JONES
v. MISSISSIPPI
Opinion of the Court
the Court has considered whether “ `objective indicia of soci-
ety'
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
Roper, 543 U. S., at 563). But Miller did not identify a sin-
gle State that, as of that time, made permanent incorrigibil-
ity 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 circum-
stance. 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 cir-
cumstances when deciding whether to impose the death pen-
alty. And those cases afford sentencers wide discretion in
determining “the weight to be given relevant mitigating evi-
dence.” Id., at 114–115. But those cases do not require the
sentencer to make any particular factual fnding regarding
those mitigating circumstances.
Repeatedly citing Woodson, Lockett, and Eddings, the
Miller Court stated that “a judge or jury must have the op-
portunity to consider” the defendant's youth and must have
“discretion to impose a different punishment” than life with-
out 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 of-
fender's youth and attendant characteristics—before impos-
ing ” a life-without-parole sentence. Id., at 483. In that
process, the sentencer will consider the murderer's “dimin-
Page Proof Pending Publication

Cite
as: 593 U. S. 98 (2021)
109
Opinion of the Court
ished culpability and heightened capacity for change.” Id.,
at
479. That sentencing procedure ensures that the sen-
tencer affords individualized “consideration” to, among other
things, the defendant's “chronological age and its hallmark
features.” Id., at 477.
To be sure, Miller also cited Roper and Graham. 567
U. S., at 471–475. Roper barred capital punishment for of-
fenders under 18. And Graham barred life without parole
for offenders under 18 who committed non-homicide offenses.
But Miller did not cite those cases to require a fnding of
permanent incorrigibility or to impose a categorical bar
against life without parole for murderers under 18. We
know that because Miller said so: “Our decision does not
categorically bar a penalty for a class of offenders or type of
crime—as, for example, we did in Roper or Graham.” 567
U. S., at 483. Instead, Miller cited Roper and Graham for
a simple proposition: Youth matters in sentencing. And be-
cause youth matters, Miller held that a sentencer must have
discretion to consider youth before imposing a life-without-
parole sentence, just as a capital sentencer must have discre-
tion 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 fnding of permanent incorrigi-
bility before imposing such a sentence. And Montgomery
did not purport to add to Miller's requirements.
3
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 fnding. See Ring v. Ari-
zona, 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
Page Proof Pending Publication

110 JONES
v. MISSISSIPPI
Opinion of the Court
Second, Jones contends that the Montgomery Court must
nonetheless
have assumed that a separate factual fnding of
permanent incorrigibility was necessary because Montgom-
ery 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 re-
fect permanent incorrigibility,” rather than “transient im-
maturity.” 577 U. S., at 209. In other words, because the
Montgomery Court deemed Miller to be a substantive hold-
ing, 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 fnding of permanent incorrigibility, not just
a discretionary sentencing procedure where youth would be
considered.
That is an incorrect interpretation of Miller and Mont-
gomery. We know as much because Montgomery said
as much. To reiterate, the Montgomery Court explicitly
stated that “a fnding of fact regarding a child's incorrigibil-
ity . . . 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
doubt that those cases implicitly required a fnding of permanent incorrigi-
bility by the sentencer.
4
As the Court has stated in cases both before and after Montgomery,
the Court determines whether a rule is substantive or procedural for ret-
roactivity purposes “by considering the function of the rule” itself—not
Page Proof Pending Publication

Cite
as: 593 U. S. 98 (2021)
111
Opinion of the Court
the rule retroactive, the Montgomery Court unsurprisingly
decl
ined 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 an-
nounced in Miller should be expanded, but rather simply to
decide whether Miller's “holding is retroactive to juvenile
offenders whose convictions and sentences were fnal 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 fnding 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 con-
sider the defendant's youth, and thereby helps ensure that
life-without-parole sentences are imposed only in cases
“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 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 Mont-
gomery's application of the Teague standard is in tension with the Court's
retroactivity precedents that both pre-date and post-date Montgomery,
those retroactivity precedents—and not Montgomery—must guide the de-
termination 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); Saffe 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.
Page Proof Pending Publication

112 JONES
v. MISSISSIPPI
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 fnding of permanent incor-
rigibility, the Court easily could have said so—and surely
would have said so. But the Court did not say that, or any-
thing like it. On the contrary, the Montgomery Court de-
clared just the opposite: that the sentencer need not make
such a separate factual fnding of permanent incorrigibility.
In short, Jones's Montgomery-based argument for requir-
ing a fnding of permanent incorrigibility is unavailing be-
cause Montgomery explicitly stated that “Miller did not im-
pose a formal factfnding requirement” and that “a fnding of
fact regarding a child's incorrigibility . . . is not required.”
Montgomery, 577 U. S., at 211.
Third, Jones relatedly argues that Miller and Montgom-
ery sought to ensure that life without parole for murderers
under 18 would be relatively rare. According to Jones, a
separate factual fnding of permanent incorrigibility is neces-
sary to achieve that goal.
But in Miller, the Court stated that a discretionary sen-
tencing procedure—where the sentencer can consider the
defendant's youth and has discretion to impose a lesser sen-
tence than life without parole—would itself help make life-
without-parole sentences “relatively rar[e]” for murderers
under 18. 567 U. S., at 484, n. 10.
Importantly, in concluding that a discretionary sentencing
procedure would help make life-without-parole sentences rel-
atively rare, the Court relied on data, not speculation. The
Court pointed to statistics from 15 States that used discre-
tionary 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
5
See Cal. Penal Code Ann. § 190.5 (West 2014); Ga. Code Ann. § 16–5–1
(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–
Page Proof Pending Publication

Cite
as: 593 U. S. 98 (2021)
113
Opinion of the Court
Court reasoned that a discretionary sentencing procedure
wou
ld 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 fnding of permanent incorrigibility, or
that such a fnding was necessary to make life-without-parole
sentences for juvenile offenders relatively rare. Therefore,
to remain true to Miller's reasoning, we cannot now require
a separate factua l finding of per manent incorr ig ibility.
(Moreover, to reiterate, Montgomery explicitly stated that
such a fnding is not required.)
In sum, the Court has unequivocally stated that a separate
factual fnding 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 Michi-
gan Supreme Court: “Given that Montgomery expressly held
that `Miller did not require trial courts to make a fnding of
fact regarding a child's incorrigibility,' we likewise hold that
Miller does not require trial courts to make a fnding 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 fnding of permanent incorrigi-
bility is not required, Jones alternatively contends that a sen-
tencer must at least provide an on-the-record sentencing
explanation with an “implicit fnding ” of permanent in-
corrigibility. Tr. of Oral Arg. 32; see id., at 6, 14. Jones
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).
Page Proof Pending Publication

114 JONES
v. MISSISSIPPI
Opinion of the Court
argues that such an explanation is necessary to ensure that
the
sentencer actually considers the defendant's youth. And
Jones further asserts that the sentencing judge did not pro-
vide such an explanation at his resentencing.
We reject Jones's alternative argument because an on-the-
record sentencing explanation with an implicit fnding of per-
manent 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 con-
sistent with this Court's analogous death penalty precedents,
and (iv) is not dictated by any consistent historical or con-
temporary sentencing practice in the States.
First, and most fundamentally, an on-the-record sentenc-
ing explanation is not necessary to ensure that a sentencer
considers a defendant's youth. Jones's argument to the con-
trary rests on the assumption that meaningful daylight ex-
ists between (i) a sentencer's discretion to consider youth,
and (ii) the sentencer's actual consideration of youth. But
if the sentencer has discretion to consider the defendant's
youth, the sentencer necessarily will consider the defend-
ant's youth, especially if defense counsel advances an argu-
ment based on the defendant's youth. Faced with a con-
victed murderer who was under 18 at the time of the offense
and with defense arguments focused on the defendant's
youth, it would be all but impossible for a sentencer to avoid
considering that mitigating factor.
6
6
If defense counsel fails to make the sentencer aware of the 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 circum-
stances 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 mitigat-
Page Proof Pending Publication

Cite
as: 593 U. S. 98 (2021)
115
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 specifc case. Some sentencers may decide that a de-
fendant'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 sen-
tencer has discretion to consider that mitigating factor.
7
Second, turning to precedent, an on-the-record sentencing
explanation with an implicit fnding of permanent incorrigi-
bility is not required by or consistent with Miller. The
Court's thorough opinion in Miller did not even hint at re-
quiring an on-the-record sentencing explanation with an
implicit fnding of permanent incorrigibility. Miller high-
lighted 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 re-
gimes ensured individualized consideration of youth.
ing evidence at sentencing); Williams v. Taylor, 529 U. S. 362, 395–398
(2000) (same).
7
This Court's death penalty cases recognize a potential Eighth Amend-
ment claim if the sentencer expressly refuses as a matter of law to con-
sider relevant mitigating circumstances. See Eddings v. Oklahoma, 455
U. S. 104, 114–115 (1982). By analogy here, if a sentencer considering life
without parole for a murderer who was under 18 expressly refuses as a
matter of law to consider the defendant's youth (as opposed to, for exam-
ple, deeming the defendant's youth to be outweighed by other factors or
deeming the defendant's youth to be an insuffcient 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 refect that the sentencing judge refused as a matter of law to
consider Jones's youth.
Page Proof Pending Publication

116 JONES
v. MISSISSIPPI
Opinion of the Court
But the Court did not suggest that those discretionary
sentenci
ng regimes required some kind of sentencing expla-
nation. Again, if the Miller Court believed that a sentenc-
ing explanation with an implicit fnding of permanent incorri-
gibility 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 fnding of permanent incorrigi-
bility, as Montgomery later confrmed.
Third, and just as telling, an on-the-record sentencing ex-
planation with an implicit fnding of permanent incorrigibil-
ity is not required by or consistent with this Court's death
penalty cases. Those cases demonstrate that an on-the-
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 cir-
cumstances when deciding whether to impose the death pen-
alty. See Woodson, 428 U. S., at 303–305 (plurality opinion);
Lockett, 438 U. S., at 597–609 (plurality opinion); Eddings,
455 U. S., at 113–115; see also Tennard v. Dretke, 542 U. S.
274, 285 (2004); Penry v. Lynaugh, 492 U. S. 302, 318–319
(1989).
But the Court has never required an on-the-record sen-
tencing explanation or an implicit fnding regarding those
mitigating circumstances. The reason is evident: Under the
discretionary death penalty sentencing procedure required
by cases such as Woodson, Lockett, and Eddings, the sen-
tencer will necessarily consider relevant mitigating circum-
stances. A sentencing explanation is not necessary to en-
sure that the sentencer in death penalty cases considers the
relevant mitigating circumstances. It follows that a sen-
tencing explanation is likewise not necessary to ensure that
the sentencer in juvenile life-without-parole cases considers
the defendant's youth.
Because the Constitution does not require an on-the-
record explanation of mitigating circumstances by the sen-
Page Proof Pending Publication

Cite
as: 593 U. S. 98 (2021)
117
Opinion of the Court
tencer in death penalty cases, it would be incongruous to
require
an on-the-record explanation of the mitigating cir-
cumstance of youth by the sentencer in life-without-parole
cases. Jones offers no persuasive answer for that incongru-
ity in his argument.
Fourth, an on-the-record sentencing explanation with an
implicit fnding 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 evalua-
tion of any mitigating circumstances. But many States tra-
ditionally have not legally required (and some States still do
not legally require) on-the-record explanations by the sen-
tencer. See, e. g., A. Campbell, Law of Sentencing § 10:5,
pp. 473–480 (3d ed. 2004) (hereinafter Campbell). Indeed,
in some States, the jury is the sentencer for certain kinds of
crimes, and juries typically do not supply sentencing expla-
nations. See generally King & Noble, Felony Jury Sentenc-
ing in Practice: A Three-State Study, 57 Vand. L. Rev. 885
(2004). Even when state law requires a sentencer to supply
reasons, many States do not impose a formulaic checklist of
topics or a magic-words requirement with respect to particu-
lar 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 affrmatively refects oth-
erwise, the trial court will be deemed to have considered the
relevant criteria, such as mitigating circumstances, enumer-
ated 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 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.,
Page Proof Pending Publication

118 JONES
v. MISSISSIPPI
Opinion of the Court
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 suffces 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 expla-
nation with an implicit fnding 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 re-
spectfully but frmly 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 retro-
actively 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 com-
monplace. Here, the dissent thinks that we are unduly nar-
rowing 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 140 (opinion of
Sotomayor, J.). We instead rely on what Miller and Mont-
gomery said—that is, their explicit language addressing the
precise question before us and defnitively rejecting any re-
quirement of a fnding of permanent incorrigibility.
Notwithstanding our disagreement about whether Miller
and Montgomery require a fnding of permanent incorrigibil-
ity, we and the dissent both recognize that Miller and Mont-
Page Proof Pending Publication

Cite
as: 593 U. S. 98 (2021)
119
Opinion of the Court
gomery have been consequential. Miller's discretionary
sentenci
ng procedure has resulted in numerous sentences
less than life without parole for defendants who otherwise
would have received mandatory life-without-parole sen-
tences. For example, in Miller resentencings in Mississippi
where Jones was convicted and sentenced, Miller has re-
duced life-without-parole sentences for murderers under 18
by about 75 percent. See The Campaign for the Fair Sen-
tencing of Youth, Tipping Point: A Majority of States Aban-
don 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 of-
fenders under 18 who received life-without-parole sentences
that were fnal before Miller have now obtained new sen-
tencing proceedings and have been sentenced to less than
life without parole.
Despite the signifcant changes wrought by Miller and
Montgomery, the dissent now wants more—an additional
constitutional requirement that the sentencer must make a
fnding of permanent incorrigibility before sentencing a mur-
derer under 18 to life without parole. But to reiterate, in
Miller and Montgomery, the Court unequivocally stated that
such a fnding 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
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 horrifc 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
Page Proof Pending Publication

120 JONES
v. MISSISSIPPI
Opinion of the Court
those broad moral and policy judgments in the frst instance
when
enacting their sentencing laws. And state sentencing
judges and juries then determine the proper sentence in indi-
vidual 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 proce-
dure 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 dis-
proportionality 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 con-
victed of murder. States may categorically prohibit life
without parole for all offenders under 18. Or States may
require sentencers to make extra factual fndings before sen-
tencing an offender under 18 to life without parole. Or
States may direct sentencers to formally explain on the rec-
ord why a life-without-parole sentence is appropriate not-
withstanding the defendant's youth. States may also estab-
lish rigorous proportionality or other substantive appellate
review of life-without-parole sentences. All of those op-
tions, and others, remain available to the States. See gener-
ally 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.
Page Proof Pending Publication

Cite
as: 593 U. S. 98 (2021)
121
Thomas, J., concurring in judgment
2019, No. 18–217, pp. 29–36. But the U. S. Constitution, as
th
is 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 ar-
guments 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 offcials authorized to act on
them, such as the state legislature, state courts, or Gover-
nor. Those state avenues for sentencing relief remain open
to Jones, and they will remain open to him for years to
come.
***
We affrm the judgment of the Mississippi Court of
Appeals.
It is so ordered.
Justice Thomas, concurring in the judgment.
The Court correctly holds that the Eighth Amendment
does not require a fnding that a minor be permanently incor-
rigible 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 Constitu-
tion. The better approach is to be patently clear that Mont-
gomery was a “demonstrably erroneous” decision worthy
of outright rejection. Gamble v. United States, 587 U. S.
–––, ––– (2019) (Thomas, J., concurring).
I
Brett Jones, then 15, murdered his grandfather. At the
time of his trial and sentencing, Mississippi law automatically
Page Proof Pending Publication

122 JONES
v. MISSISSIPPI
Thomas, J., concurring in judgment
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 Su-
preme Court thus ordered a new hearing at which the judge
dutifully considered the factors “relevant to [Jones'] culpabil-
ity” before again sentencing him to life without parole.
App. 149.
Jones appealed, citing yet another new decision—Mont-
gomery—in which this Court held that Miller's rule was
“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 ar-
gued that Montgomery further required the sentencing
judge to “make a specifc `fnding ' 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 refects ` “unfortunate yet transient
immatur ity. ” ' ” 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
fnding of fact regarding a child's incorrigibility' [or] `impose
a formal factfnding requirement.' ” 285 So. 3d, at 632.
II
Miller and Montgomery are from the same lineage of
precedent that refashions the Eighth Amendment to accom-
modate this Court's views of juvenile justice.
1
The similari-
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).
Page Proof Pending Publication

Cite
as: 593 U. S. 98 (2021)
123
Thomas, J., concurring in judgment
ties end there, however, because the decisions cannot be
reconci
led.
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 proc-
ess. In reaching this conclusion, the Court explicitly cab-
ined its holding to cases in which the sentencer lacked “dis-
cretion to impose a different punishment.” Miller, 567
U. S., at 465; accord, e. g., id., at 479–480. Were there any
doubt that Miller focused only on the availability of individu-
alized sentencing, the Court stressed that it was “not cate-
gorically bar[ring] a penalty for a class of offenders or type
of crime” but instead “mandat[ing] only that a sentencer fol-
low a certain process.” Id., at 483.
Miller's descriptions of its procedural holding track with
the opinion's mode of analysis. At one point, for example,
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 de-
tour if the opinion were concerned with anything more than
nondiscretionary punishments. And it declined to “consider
[the] alternative argument that the Eighth Amendment re-
quires 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 sen-
tences were already fnal. Under the approach announced
in Teague v. Lane, 489 U. S. 288 (1989), Miller could have
Page Proof Pending Publication

Page Proof Pending Publication
124 JONES
v. MISSISSIPPI
Thomas, J., concurring in judgment
been retroactive only if it were a “watershed” rule of crimi-
na
l procedure or a “substantive” rule, Beard v. Banks, 542
U. S. 406, 416–419, and n. 7 (2004).
Precedent foreclosed the frst option. Miller “mandate[d]
only that a sentencer follow a certain process” as a prerequi-
site 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 “ ` “im-
plicit 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
satisfed the requirements for watershed status.' ” Ramos
v. Louisiana, 590 U. S. –––, ––– (2020) (Kavanaugh, J., con-
curring in part). 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 ac-
knowledging that “Miller's holding has a procedural compo-
nent,” the majority explained that this procedure was actu-
ally 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 refect permanent incorrigibility”—are cate-
gorically exempt from life without parole. Id., at 209.
That reimagined rule was substantive under our prece-
dents. Substantive rules include those that “ `prohibi[t] a
certain category of punishment for a class of defendants be-
cause of their status or offense.' ” Banks, 542 U. S., at 416.

Cite
as: 593 U. S. 98 (2021)
125
Thomas, J., concurring in judgment
For example—a rule that “life without parole is an excessive
sentence
for children whose crimes refect transient immatu-
rity.” Montgomery, 577 U. S., at 210. Montgomery could
not have been clearer that its rule transcended mere pro-
cedure: “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 refects ` “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 refect permanent incorrigibility.” 577
U. S., at 209. In a similar Janus-faced demonstration, Mont-
gomery reiterated Miller's assurance that “trial courts [need
not] make a fnding of fact regarding a child's incorrigibility,”
yet decided that “Miller drew a line between children whose
crimes refect transient immaturity and those rare children
whose crimes refect irreparable corruption.” 577 U. S., at
209–211.
2
These statements cannot be reconciled.
2
The Court's language in this line of precedents is notable. When ad-
dressing juvenile murderers, this Court has stated that “ `children are
different' ” and that courts must consider “a child's lesser culpability.”
Montgomery, 577 U. S., at 207–208 (emphasis added). And yet, when as-
sessing 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
fows depending on the issue.
Page Proof Pending Publication

126 JONES
v. MISSISSIPPI
Thomas, J., concurring in judgment
C
J
ust as the procedural rule of Miller created problems for
the majority in Montgomery, the substantive rule of Mont-
gomery creates problems for the majority in this case. If
Montgomery is correct about the existence of a concrete
class of offenders who—as a matter of fundamental constitu-
tional 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 refect transient immaturity and those rare
children whose crimes refect irreparable corruption” is more
fanciful than real. Montgomery, 577 U. S., at 209.
Sure enough, this Court has often demanded factual fnd-
ings when it comes to other classes of criminals that this
Court has declared categorically exempt from certain pun-
ishments. See, e. g., Moore v. Texas, 586 U. S. –––, –––
(2019) (per curiam) (fnding that an offender “ha[d] shown
[that] he is a person with intellectual disability”); Madison v.
Alabama, 586 U. S. –––, –––, ––– – ––– (2019) (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 in-
sanity or intellectual disability absent a satisfactory fnding
to the contrary.
In response, the majority suggests that insanity and in-
tellectual disability are legitimate “eligibility criteri[a]” be-
cause they are easy to evaluate, whereas “permanent incorri-
gibility . . . `is diffcult even for expert psychologists to
[assess].' ” Ante, at 107. This notion that the former cate-
gories are clear cut and predictable might come as news to
the States that have spent years chasing the ever-evolving
defnitions of mental incompetence promulgated by this
Court and its preferred experts. See, e. g., Moore, 586 U. S.,
at ––– – –––; Moore v. Texas, 581 U. S. 1, 5–6, 8–21 (2017)
Page Proof Pending Publication

Cite
as: 593 U. S. 98 (2021)
127
Thomas, J., concurring in judgment
(courts must heed “the force of the medical community's con-
sensus”);
Hall v. Florida, 572 U. S. 701, 724 (2014). I trust,
however, that future decisions will contain simple and
static rules.
D
Montgomery's creation of a categorical exemption for cer-
tain 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 “refect[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
108, 110–111. 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 consti-
tutionally protected category of offenders—is to reject Mont-
gomery. And sure enough, the majority does just that, albeit
in a footnote. See ante, at 111, n. 4 (explaining that Montgom-
ery 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 appro-
priate because this Court is unable to fully repair the dam-
age 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 re-
sult of Montgomery have done so.” Ante, at 111, n. 4. To-
day's judgment thus offers cold comfort to the States that
Page Proof Pending Publication

128 JONES
v. MISSISSIPPI
Thomas, J., concurring in judgment
have already faced the unenviable choice between “permit-
ti
ng juvenile homicide offenders to be considered for pa-
role” and relitigating murder sentences long after the fact.
Montgomery, 577 U. S., at 212; see also id., at 226–227
(Scalia, J., 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 un-
avoidably moral question of who “deserves” a particular non-
prohibited method of punishment to the judgment of the leg-
islatures 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 avail-
able. 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 un-
usual.” Id., at 504, n. 2. By failing to condemn Montgom-
ery'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 ap-
propriate punishment for crime.” 567 U. S., at 500 (Rob-
erts, C. J., dissenting).
Finally, I would expressly reject the portion of Montgom-
ery that “purported to constitutionalize” the substantive ex-
ception “so that it would apply in [the petitioner's] state
court proceeding.” Brief for Jonathan F. Mitchell et al. as
Amici Curiae in Edwards v. Vannoy, O. T. 2020, No. 19–
5807, pp. 5–6 (emphasis deleted). Despite this Court's long-
standing 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 (plural-
ity opinion) (narrowing Linkletter even further), the Mont-
gomery Court demanded that the Louisiana courts “recog-
nize [Miller's] retroactive effect.” 577 U. S., at 200, 205.
Page Proof Pending Publication

Cite
as: 593 U. S. 98 (2021)
129
Sotomayor, J., dissenting
That improper intrusion on state postconviction review is
a
lso worth correcting.
***
Today's majority labors mightily to avoid confronting the
tension between Miller and Montgomery. But though the
Court purports to leave Montgomery's holding intact, it rec-
ognizes that Montgomery's analysis is untenable and not to
be repeated. It would be simpler to reject Montgomery in
both name and substance.
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 offend-
ers convicted of homicide to be sentenced to life without pa-
role (LWOP) as long as “the sentence is not mandatory and
the sentencer therefore has discretion to impose a lesser
punishment.” Ante, at 100. In the Court's view, a sen-
tencer never need determine, even implicitly, whether a ju-
venile convicted of homicide is one of “those rare children
whose crimes refect irreparable corruption.” Montgomery,
577 U. S., at 209. Even if the juvenile's crime refects “ `un-
fortunate 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 refect `irrepara-
ble corruption.' ” Montgomery, 577 U. S., at 195 (quoting
Miller, 567 U. S., at 479–480). Sentencing discretion is “nec-
essary to separate those juveniles who may be sentenced to
life without parole from those who may not,” Montgomery,
Page Proof Pending Publication

130 JONES
v. MISSISSIPPI
Sotomayor, J., dissenting
577 U. S., at 210, but it is far from suffcient. A sentencer
must
actually “make th[e] judgment” that the juvenile in
question is one of those rare children for whom LWOP is a
constitutionally permissible sentence. Miller, 567 U. S., at
480. The Court has thus expressly rejected the notion that
sentencing discretion, alone, suffces: “Even if a court consid-
ers 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 refects unfortunate yet transient
immaturity.” Montgomery, 577 U. S., at 208 (internal quo-
tation marks omitted).
Today, however, the Court reduces Miller to a decision
requiring “just a discretionary sentencing procedure where
youth [is] considered.” Ante, at 110. Such an abrupt break
from precedent demands “special justifcation.” Ramos v.
Louisiana, 590 U. S. –––, ––– (2020) (Kavanaugh, J., concur-
ring in part) (internal quotation marks omitted). The Court
offers none. Instead, the Court attempts to circumvent
stare decisis principles by claiming that “[t]he Court's deci-
sion today carefully follows both Miller and Montgomery.”
Ante, at 118. The Court is fooling no one. Because I can-
not 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 sen-
tencing.” Miller, 567 U. S., at 471. In Roper v. Simmons,
543 U. S. 551 (2005), the Court held that the Eighth Amend-
ment forbids sentencing children to death because “[c]apital
punishment must be limited to those offenders . . . whose
extreme culpability makes them the most deserving of exe-
cution.” Id., at 568 (internal quotation marks omitted).
Juvenile offenders “cannot w ith reliability be classified
among the worst offenders” for several reasons. Id., at 569.
First, “as any parent knows,” and as scientifc and sociologi-
cal studies have confrmed, juveniles are less mature and re-
Page Proof Pending Publication

Cite
as: 593 U. S. 98 (2021)
131
Sotomayor, J., dissenting
sponsible than adults, which “often result[s] in impetuous and
i
ll-considered actions and decisions.” Ibid. (internal quo-
tation marks omitted). Second, juveniles are “more vul-
nerable or susceptible to negative infuences and outside
pressures” and “have less control . . . over their own environ-
ment.” Ibid. Finally, “the character of a juvenile” is “more
transitory” than that of an adult. Id., at 570. “[A]s individ-
uals mature, the impetuousness and recklessness that may
dominate in younger years can subside.” Ibid. (internal
quotation marks omitted). Weighed against these “signa-
ture qualities of youth,” the penological justifcations 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 pa-
role on the assumption that the juvenile offender forever will
be a danger to society requires the sentencer to make a judg-
ment that the juvenile is incorrigible.” Id., at 72. But “in-
corrigibility is inconsistent with youth.” Id., at 73 (internal
quotation marks omitted). Rather, “[m]aturity can lead to
that considered refection which is the foundation for re-
morse, renewal, and rehabilitation.” Id., at 79. Graham
therefore insisted that sentencers not deprive juvenile non-
homicide offenders “of the opportunity to achieve matu-
rity . . . 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-specifc.” 567
U. S., at 473. Thus, taking Graham as its “foundation
stone,” Miller reiterated that “the distinctive attributes of
youth diminish the penological justifcations for imposing the
harshest sentences on juvenile offenders, even when they
commit terrible crimes.” 567 U. S., at 470–471, n. 4, 472.
Page Proof Pending Publication

132 JONES
v. MISSISSIPPI
Sotomayor, J., dissenting
Miller emphasized that LWOP is an “ `especially harsh pun-
ishment
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 re-
fects unfortunate and transient immaturity, and the rare ju-
venile offender whose crime refects irreparable corruption.”
567 U. S., at 479–480 (internal quotation marks omitted).
Only those rare few in the latter category are constitution-
ally eligible for LWOP under Miller. As such, before impos-
ing 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 confrmed the substan-
tive nature of Miller's prohibition on LWOP for most juve-
niles. 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 refect 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 quota-
tion 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 rules generally have not
applied retroactively. Id., at 198.
Page Proof Pending Publication

Cite
as: 593 U. S. 98 (2021)
133
Sotomayor, J., dissenting
Montgomery recognized that Miller “has a procedural
component,
” in that “[a] hearing where `youth and its attend-
ant 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 refect tran-
sient immaturity.” 577 U. S., at 210. Rather, the hearing
“gives effect” to Miller's prohibition on LWOP by “en-
abl[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 refect irreparable corruption; and, if it did not,
their hope for some years of life outside prison walls must
be restored.” 577 U. S., at 213.
II
A
Today, the Court distorts Miller and Montgomery beyond
recognition. According to the majority, “a State's discre-
tionary sentencing system is both constitutionally necessary
and constitutionally suffcient” for a State to sentence a juve-
nile convicted of homicide to LWOP. Ante, at 105. “[S]o
long as the sentencer has discretion to `consider the mitigat-
ing qualities of youth' and impose a lesser punishment,” any
juvenile convicted of homicide may be sentenced to LWOP,
even if his crime refects transient immaturity. Ante, at 106
(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 114, but ultimately, the
mere existence of “a discretionary sentencing procedure suf-
fces,” ante, at 118.
Page Proof Pending Publication

134 JONES
v. MISSISSIPPI
Sotomayor, J., dissenting
The Court rests its conclusion on Montgomery's modest
st
atement that “Miller did not impose a formal factfnding
requirement,” and so “a fnding 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 101, 105, 106, 110–113. 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 factfnding re-
quirement does not leave States free to sentence a child
whose crime refects transient immaturity to life without pa-
role. To the contrary, Miller established that this punish-
ment is disproportionate under the Eighth Amendment.”
Montgomery, 577 U. S., at 211; see ante, at 106–107, n. 2
(quoting the same).
Montgomery was equally explicit elsewhere: “Miller . . .
did more than require a sentencer to consider a juvenile of-
fender's youth before imposing life without parole.” 577
U. S., at 208. Sentencing discretion and “[a] hearing where
`youth and its attendant 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 refect transient immatu-
rity,” 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 refects ` “unfortunate
yet transient immaturity.” ' ” Id., at 208. If a juvenile of-
fender's crime “did not refect 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 fxates 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 in-
voke any magic words. Using this procedural fexibility,
States have adopted different approaches to Miller's inquiry.
Page Proof Pending Publication

Cite
as: 593 U. S. 98 (2021)
135
Sotomayor, J., dissenting
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 fnding of irreparable corruption on the rec-
ord. 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 ap-
proaches.” Ante, at 121.
What is necessary, however, is “that a sentencer decide
whether the juvenile offender before it is a child whose
crimes refect transient immaturity or is one of those rare
ch ildren whose cr imes reflec t irreparable corr upti on. ”
Tatum v. Arizona, 580 U. S. 952, 954 (2016) (Sotomayor, J.,
concurring in decision to grant, vacate, and remand) (inter-
nal quotation marks omitted). That is all petitioner Brett
Jones seeks. See Tr. of Oral Arg. 6 (“On the most funda-
mental level . . . what we need is a sentencing judge who
understands that permanent incorrigibility is the dispositive
rule and determines whether the defendant fts within that
rule. And there are any number of ways that it could be
done”); Brief for Petitioner 31 (challenging the “failure to
fnd in any form whether Brett is permanently incorrigi-
ble”). As Justice Thomas recognizes, “there must be a de-
termination as to whether Jones falls within th[e] protected
class” of children who are ineligible for LWOP. Ante, at 126
(opinion concurring in judgment). Otherwise, the line be-
tween those who may be sentenced to LWOP and those who
may not “is more fanciful than real.” Ibid.
The Court attempts to paper over its mischaracterization
of Miller and Montgomery in several ways. First, it claims
that Miller barred only “mandatory life-without-parole sen-
tences,” not “discretionary life-without-parole sentences.”
Ante, at 103. Miller did prohibit mandatory LWOP sen-
tences for juveniles. See 567 U. S., at 465. To say that Mil-
ler is limited to mandatory LWOP sentences, however, is to
ignore half of its reasoning. Miller relied on “the confuence
of . . . two lines of precedent.” Id., at 470. In one line of
Page Proof Pending Publication

136 JONES
v. MISSISSIPPI
Sotomayor, J., dissenting
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 mit-
igating 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 sentenc-
ing cases” like Lockett because they “preclude a sentencer
from taking account of an offender's age and the wealth
of characteristics and circumstances attendant to it.” 567
U. S., at 476–477.
The Court now pretends that Miller's reasoning ended
there. It insists that all Miller required was “a sentencing
procedure similar to the procedure that this Court has re-
quired for the individualized consideration of mitigating cir-
cumstances in capital cases such as Woodson v. North Caro-
lina, 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 108. 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:
“[L]ife-without-parole sentences, like capital punishment,
may violate the Eighth Amendment when imposed on chil-
dren” because “the characteristics of youth, and the way
Page Proof Pending Publication

Page Proof Pending Publication
Cite
as: 593 U. S. 98 (2021)
137
Sotomayor, J., dissenting
they weaken rationales for punishment, can render a life-
w
ithout-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 im-
posed upon juvenile offenders”); Graham, 560 U. S., at 74
(drawing a “clear line” against “life without parole for juve-
nile nonhomicide offenders”). So, too, with Miller: No set of
discretionary sentencing procedures can render a sentence
of LWOP constitutional for a juvenile whose crime refects
“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 109. That is true, but the Court confates two ways
in which youth matters. When Miller was decided, the
Court's individualized-sentencing cases had already frmly
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 emo-
tional development of a youthful defendant”). The Miller
Court thus did not need to cite Roper and Graham as a sepa-
rate “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 that youth
does not matter in this way.
Next, the Court exaggerates the meaning of two state-
ments from Miller, arguing that it “mandated `only that a

138 JONES
v. MISSISSIPPI
Sotomayor, J., dissenting
sentencer follow a certain process,' ” rather than “ `cate-
gor
ically bar[ring] a penalty for a class of offenders or type
of crime[,] as, for example, we did in Roper or Gra-
ham.' ” Ante, at 106, 109 (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 re-
fect 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 fol-
low 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
refect transient immaturity.” Ibid.
Finally, the Court argues that Miller offered nothing more
than a prediction that “a discretionary sentencing proce-
dure would help make life-without-parole sentences rela-
tively rare.” Ante, at 112. 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 refects irreparable corruption.” 567
U. S., at 479–480 (internal quotation marks omitted). Sim-
ply put, there are very few juveniles for whom the “ `signa-
ture qualities' ” of youth do not undermine the penological
justifcations for LWOP. Id., at 476. Youth is “a time
of immaturity, irresponsibility, impetuousness, and reck-
lessness,” and, almost invariably, those “qualities are all
transient.” Ibid. (internal quotation marks and brackets
omitted).
In any event, the data since Miller prove that sentenc-
ing discretion alone will not make LWOP a rare sentence for
Page Proof Pending Publication

Page Proof Pending Publication
Cite
as: 593 U. S. 98 (2021)
139
Sotomayor, J., dissenting
juvenile offenders. Even after Montgomery, Mississip-
pi
courts require only that a sentencer consider youth-
related factors “in a non-arbitrary fashion” before impos-
ing a sentence of LWOP. See, e. g., Miller v. State, 327 So.
3d 121, 129 (Miss. App. 2020). Unbound by Miller's es-
sential holding, more than a quarter of Mississippi's re-
sentencings have resulted in the reimposition of LWOP.
See Brief for Juvenile Law Center et al. as Amici Cur-
iae 20.
1
Pennsylvania, in contrast, has recognized that “Miller re-
quires 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 pre-
sumption 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 resentenc-
ings 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 Life-
Without-Parole Sentences for Children 7 (2018) (Tipping
Point).
These States' experiences show that juvenile LWOP sen-
tences will not be rare simply by virtue of sentencing discre-
tion. Sentencers will not “necessarily . . . consider the de-
1
Elsewhere, the numbers are even more alarming. Like Mississippi
courts, Louisiana courts have concluded that “Miller requires the sentenc-
ing 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 Compli-
ance with Miller v. Alabama 1 (2020).

140 JONES
v. MISSISSIPPI
Sotomayor, J., dissenting
fendant's youth,” ante, at 114, and they certainly will not
necessar
ily conduct Miller's essential inquiry. If sentencing
discretion is all that is required, far too many juvenile offend-
ers 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 128 (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 frst
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 punish-
ment.” 577 U. S., at 201.
3
2
The harm from these sentences will not fall equally. The racial dispar-
ities in juvenile LWOP sentencing are stark: 70 percent of all youths sen-
tenced 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 sen-
tenced before Miller. Tipping Point 10.
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 123–125. That is incorrect. As discussed, Miller prohibited
mandatory LWOP sentences not only because mandatory sentencing pre-
Page Proof Pending Publication

Cite
as: 593 U. S. 98 (2021)
141
Sotomayor, J., dissenting
Today, however, the Court transforms Miller into a deci-
si
on requiring only a “discretionary sentencing procedure.”
Ante, at 118. At the same time, the Court insists that it
“does not disturb” Montgomery's holding “that Miller ap-
plies retroactively on collateral review.” Ante, at 118. In
other words, the Court rewrites Miller into a procedural
rule and, paradoxically, maintains that Miller was neverthe-
less “substantive for retroactivity purposes.” Ante, at 110.
That explanation undoes Teague's distinction between sub-
stantive and procedural rules. If a rule that requires only
a sentencing procedure is substantive for retroactivity pur-
poses, then this Court has improperly classifed numerous
sentencing rules as procedural. To take one example, in
Mills v. Maryland, 486 U. S. 367 (1988), this Court invali-
dated a capital sentencing procedure requiring jurors to dis-
regard mitigating factors that were not found unanimously.
That holding was procedural because it altered only “the
range of permissible methods for determining whether a de-
fendant's conduct is punishable by death.” Schriro v. Sum-
merlin, 542 U. S. 348, 353 (2004). Under the Court's logic
today, however, the rule in Mills and other rules of sentenc-
ing procedure should have applied retroactively, even though
the Court has held that they do not. See Beard v. Banks,
542 U. S. 406, 416–417 (2004) (holding that Mills announced
a procedural rule); Summerlin, 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 fnd aggra-
vating circumstances necessary for the imposition of the
cludes 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 unconsti-
tutional penalty for a class of defendants because of their status[,] that
is, juvenile offenders whose crimes refect the transient immaturity of
youth.” Montgomery, 577 U. S., at 208 (internal quotation marks omit-
ted). As a result, “Miller is no less substantive than are Roper and Gra-
ham.” Id., at 209.
Page Proof Pending Publication

142 JONES
v. MISSISSIPPI
Sotomayor, J., dissenting
death penalty). If future litigants make such arguments, it
w
ill be because the Court's contortion of Miller and Mont-
gomery paves the way for them to do so.
C
Rather than read Miller and Montgomery fairly, the
Court reprises Justice Scalia's dissenting view in Montgom-
ery that Miller requires only a “youth-protective proce-
dure.” 577 U. S., at 225 (emphasis deleted). Justice Scalia's
view did not prevail, however. Montgomery's interpreta-
tion 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) (“[F]or precedent
to mean anything, the doctrine must give way only to a ra-
tionale that goes beyond whether the case was decided
correctly”). As this Court has consistently reiterated, “a
departure from precedent demands special justifcation.”
Gamble v. United States, 587 U. S. –––, ––– (2019) (internal
quotation marks omitted); accord, Kisor v. Wilkie, 588 U. S.
–––, ––– – ––– (2019); Kimble v. Marvel Entertainment, LLC,
576 U. S. 446, 455–456 (2015).
The Court offers no such justifcation 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 de-
cided, and its workability. See Ramos, 590 U. S., at –––
(opinion of Kavanaugh, J.). None supports overturning
Miller or Montgomery. As explained above, those decisions
are frmly rooted in two lines of precedent and fundamental
principles of proportionality.
4
Subsequent legal and fact-
4
Justice Thomas claims that Miller and Montgomery “refashio[n] the
Eighth Amendment to accommodate this Court's views of juvenile jus-
tice.” Ante, at 122; see ante, at 128. In so doing, Justice Thomas
“seek[s] to relitigate old Eighth Amendment battles” based on “arguments
Page Proof Pending Publication

Cite
as: 593 U. S. 98 (2021)
143
Sotomayor, J., dissenting
ual developments have reinforced their reasoning. Fifteen
st
ate courts of last resort, for instance, have recognized that
Miller announced a substantive rule barring LWOP for any
juvenile whose crime does not refect permanent incorrigibil-
ity. See Reply Brief 18, n. 6. Twenty States and the Dis-
trict of Columbia have changed their policies to prohibit
LWOP sentences for all juvenile offenders, including a num-
ber 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 Mont-
gomery 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.” Mont-
gomery, 577 U. S., at 211. Requiring sentencers to make an
explicit or implicit determination of permanent incorrigibil-
ity before sentencing a juvenile offender to LWOP imposes
no costs that justify overturning precedent.
Instead of addressing these factors, the Court simply re-
writes Miller and Montgomery to say what the Court now
wishes they had said, and then denies that it has done any
such thing. See ante, at 118. The Court knows what it is
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 princi-
ples. See ante, at 110–111, n. 4. The Court's solution? It
urges lower courts to simply ignore Montgomery going for-
this Court has previously (and often) rejected.” Miller, 567 U. S., at 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 his-
torical conceptions to the evolving standards of decency that mark the
progress of a maturing society” (internal quotation marks omitted)).
Page Proof Pending Publication

144 JONES
v. MISSISSIPPI
Sotomayor, J., dissenting
ward. Ante, at 111, n. 4 (“[T]he Court's retroactivity prece-
dents
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 111, n. 4, the Court attempts to bury it.
How low this Court's respect for stare decisis has sunk.
Not long ago, that doctrine was recognized as a pillar of the
“ `rule of law,' ” critical to “keep the scale of justice even and
steady, and not liable to waver with every new judge's opin-
ion.” Ramos, 590 U. S., at ––– – ––– (opinion of Kava-
naugh, J.) (internal quotation marks omitted). Given these
weighty interests, the Court “usually require[d] that a party
ask for overruling, or at least obtain[ed] briefng on the over-
ruling question,” and then “carefully evaluate[d] the tradi-
tional stare decisis factors.” Barr v. American Assn. of Po-
litical Consultants, Inc., 591 U. S. –––, –––, n. 5 (2020).
Now, it seems, the Court is willing to overrule precedent
without even acknowledging it is doing so, much less provid-
ing any special justifcation. It is hard to see how that ap-
proach is “founded in the law rather than in the proclivities
of individuals.” Ramos, 590 U. S., at ––– (opinion of Kava-
naugh, J.) (internal quotation marks omitted).
For present purposes, sentencers should hold this Court
to its word: Miller and Montgomery are still good law.
6
See
5
Of course, as already discussed, the Court is perfectly content to rely
on Montgomery for its statement that a fnding of fact regarding perma-
nent incorrigibility is not required. That isolated piece of Montgomery,
apparently, still carries the full weight of precedent. Anything more in-
convenient, however, the Court today discards.
6
The Court leaves open the possibility of an “as-applied Eighth Amend-
ment claim of disproportionality.” Ante, at 120 (citing Harmelin v. Mich-
igan, 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 refects transient immaturity to life without parole . . . is
disproportionate under the Eighth Amendment.” Montgomery, 577 U. S.,
Page Proof Pending Publication

Cite
as: 593 U. S. 98 (2021)
145
Sotomayor, J., dissenting
ante, at 118 (“Today's decision does not overrule Miller or
M
ontgomery”). 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 responsi-
bility falls squarely on individual sentencers to use their dis-
cretion to “separate those juveniles who may be sentenced
to life without parole from those who may not.” Montgom-
ery, 577 U. S., at 210. Failing to do so violates the Eighth
Amendment.
III
Brett Jones, like all juvenile offenders facing a sentence of
LWOP, deserves an answer to Miller's essential question:
whether his crime demonstrates that he is permanently in-
corrigible. Ordinarily, an appellate court should not pass on
that question in the frst 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 re-
fects irreparable corruption.” Miller, 567 U. S., at 479–480
(internal quotation marks omitted). In fact, many aspects
of Jones's crime seem to epitomize “unfortunate yet transient
immaturity.” Id., at 479 (internal quotation marks omitted);
see 2018 WL 10700848, *11 (Miss., Nov. 27, 2018) (Kitchens,
P. J., dissenting) (“Jones's actions refect [the hallmark] fea-
tures [of youth] at every turn”).
7
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 juve-
nile offenders”).
7
Even as it disclaims any responsibility for evaluating permanent incor-
rigibility, the Court emphasizes the details of Jones's crime and alludes to
other homicides committed by juveniles throughout the country. See
ante, at 102, 105. The gravity of these violent acts was not lost on the
Court in Miller, which set forth its substantive rule specifcally 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
Page Proof Pending Publication

Page Proof Pending Publication
146 JONES
v. MISSISSIPPI
Sotomayor, J., dissenting
Jones killed his grandfather just 23 days after Jones's 15th
bir
thday. 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's biological father was an alcoholic
who physically abused Jones's 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's mother then married Jones's 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's mother, Jones's stepfather “hated Brett
more because Brett reminded him of [Jones's biological fa-
ther].” Id., at 78. According to Jones's grandmother, he was
simply “easier to hurt and beat.” Id., at 39. In 2004, after
Jones came home late one day, Jones's stepfather few 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, you're not going to
hit me ever again.” Id., at 80 (emphasis deleted). Jones
took a swing at his stepfather and split open his ear. Ibid.
The police were called, and Jones was arrested.
8
Ibid.
Jones's stepfather then threatened to kick out Jones's mother
and brother if Jones did not move out. Id., at 81. As a
result, Jones's grandparents picked him up less than two
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 109, they once were.
8
This was Jones's only prior contact with the juvenile justice system.
See Brief for Petitioner 35.

Page Proof Pending Publication
Cite
as: 593 U. S. 98 (2021)
147
Sotomayor, J., dissenting
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 hal-
lucinations and was prescribed antidepressant medications.
Id., at 92, 124. These medications were supposed to be ta-
pered off gradually. Id., at 38–39. When Jones left for Mis-
sissippi, however, they were abruptly cut off.
The murder was precipitated by a dispute over Jones's girl-
friend. After Jones moved, his girlfriend ran away from her
home in Florida to stay at Jones's grandparents' home in se-
cret. 938 So. 2d 312, 313 (Miss. App. 2006). On the day of
the murder, Jones's grandfather, Bertis Jones, discovered that
Jones's girlfriend had been staying in their home. Ibid. 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's grandfather tr ied to h it him. Ib id. Jones
stabbed his grandfather with the steak knife. Ibid. Jones's
grandfather came at Jones again, and the fght continued.
Ibid. Jones ultimately stabbed his grandfather eight times,
9
Jones's mother has also been diagnosed with a number of conditions,
including posttraumatic stress disorder, bipolar disorder, and manic de-
pression. App. 74. As a result, throughout Jones's life, she experienced
panic attacks and emotional breakdowns. Id., at 74–75. As a child, Jones
witnessed his mother cutting herself. Id., at 122–123. The types of ad-
verse childhood experiences that Jones endured, including physical abuse,
domestic violence, and mental illness in family members, are strong pre-
dictors of negative outcomes for children, including violence. J. Garbar-
ino, 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 adoles-
cent population”).

148 JONES
v. MISSISSIPPI
Sotomayor, J., dissenting
grabbing a second knife when the frst 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 dimin-
ish the penological justifcations for imposing the harshest
sentences on juvenile offenders, even when they commit ter-
rible crimes.” 567 U. S., at 472. Jones's crime refects 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 adminis-
tering CPR. 938 So. 2d, at 314. When that failed, he clum-
sily 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 hitch-
hike, 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 carry-
ing a pocket knife, and asked if it was the knife he “ `did it
with.' ” Ibid. Jones replied, “ `No, I already got rid of it.' ”
Ibid. He then agreed to be interviewed by three police de-
tectives, “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., dissenti ng). 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
Page Proof Pending Publication

Cite
as: 593 U. S. 98 (2021)
149
Sotomayor, J., dissenting
already matured signifcantly since his crime. In more than
fve
years in prison, Jones committed only two disciplinary
infracti ons. 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 man-
ager came to think of Jones “almost like [a] son.” Id., at
107. Jones confded in him that Jones “regretted” what he
had done. Id., at 112.
Jones's grandmother (Bertis Jones's widow) testifed at
Jones's 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's younger
brother, Marty, and his other family members have also
stayed by his side.
This signifcant body of evidence does not excuse Jones's
crime. It does mean, however, that under Miller and Mont-
gomery, there is a strong likelihood that Jones is constitu-
tionally ineligible for LWOP. His crime, while terrible, ap-
pears to have been the product of “unfortunate yet transient
immaturity.” Miller, 567 U. S., at 479 (internal quotation
marks omitted). Notably, the State called no witnesses and
offered no evidence at the resentencing hearing to rebut
Jones's proof that his crime refected the “recklessness” and
“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 in-
structions of the Mississippi Supreme Court, which held that
“Miller rendered [Mississippi's] sentencing scheme unconsti-
tutional if, and only if, the sentencing authority fails to take
into account characteristics and circumstances unique to ju-
Page Proof Pending Publication

150 JONES
v. MISSISSIPPI
Sotomayor, J., dissenting
veniles.” 122 So. 3d 698, 702 (2013). Thus, the sentencing
cour
t 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 refect irreparable
corruption. 567 U. S., at 479–480. Because the sentencing
court failed to ask and answer this critical question, Jones's
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 signifcance 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 fulfllment outside prison walls, no chance for re-
conciliation 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
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 ft to reen-
ter 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
10
Having deprived Jones of his constitutional right, the Court gestures
at a potential lifeline from other institutions, including the Mississippi
Legislature or Governor. Ante, at 121. But “the remote possibility” of
Page Proof Pending Publication

Page Proof Pending Publication
Cite
as: 593 U. S. 98 (2021)
151
Sotomayor, J., dissenting
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 rehabili-
tate myself.” App. 152. “Minors do have the ability to
change,” he refected. 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 some-
body. . . . 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.
The question is whether the State, at some point, must con-
sider whether a juvenile offender has demonstrated maturity
and rehabilitation suffcient 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.
such action “does not mitigate the harshness of the sentence” that Jones
now faces. Graham, 560 U. S., at 70. The Eighth Amendment guaran-
tees juvenile offenders like Jones a basic constitutional protection against
disproportionate punishments. The Court should not leave the vindica-
tion of such important legal rights to others, or to chance.