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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–1259

															_________________

															BRETT JONES, PETITIONER v. MISSISSIPPI

															on writ of certiorari to the court of appeals
of mississippi

															[April 22, 2021]

															Justice Kavanaugh delivered the opinion of the
Court.

															Under Miller v. Alabama , 567
U.S. 460 (2012), an individual who commits a homicide when he
or she is under 18 may be sentenced to life without parole, but
only if the sentence is not mandatory and the sentencer therefore
has discretion to impose a lesser punishment. In this case, a
Mississippi trial judge acknowledged his sentencing discretion
under Miller and then sentenced petitioner Brett Jones to
life without parole for a murder that Jones committed when he was
under 18. The Mississippi Court of Appeals affirmed, concluding
that the discretionary sentencing procedure satisfied Miller .

															Jones argues, however, that a sentencer’s
discretion to impose a sentence less than life without parole does
not alone satisfy Miller . Jones contends that a sentencer
who imposes a life-without-parole sentence must also make a
separate factual finding that the defendant is permanently
incorrigible, or at least provide an on-the-record sentencing
explanation with an implicit finding that the defendant is
permanently incorrigible. And Jones says that the trial judge did
not make such a finding in his case.

															Jones’s argument that the sentencer must make a
finding of permanent incorrigibility is inconsistent with the
Court’s precedents. In Miller , the Court mandated “only that
a sentencer follow a certain process—considering an offender’s
youth and attendant characteristics—before imposing” a
life-without-parole sentence. Id., at 483. And in Montgomery v. Louisiana , which held that Miller applies retroactively on collateral review, the Court
flatly stated that “ Miller did not impose a formal
factfinding requirement” and added that “a finding of fact
regarding a child’s incorrigibility . . . is not
required.” 577 U.S. 190, 211 (2016). In light of that explicit
language in the Court’s prior decisions, we must reject Jones’s
argument. We affirm the judgment of the Mississippi Court of
Appeals.

															I

															A

															In August 2004, Brett Jones was living with
his grandparents, Bertis and Madge, in Shannon, Mississippi.
Shannon is a small town of about 2,000 in northern Mississippi near
Tupelo, about halfway between Memphis and Birmingham off I–22.

															At the time, Jones was only 15 years old. On the
morning of August 9, 2004, Bertis discovered Jones’s girlfriend,
Michelle Austin, in Jones’s bedroom. Bertis and Jones got into an
argument, and Bertis ordered Austin out of the house. A few hours
later, Jones told Austin that he “ ‘was going to hurt’ ”
his grandfather. 938 So. 2d 312, 314 (Miss. App. 2006).

															That afternoon, Jones was in the kitchen making
himself something to eat. Jones and Bertis began arguing again. The
clash escalated from shouts to shoves to punches. Jones then
stabbed his grandfather with a kitchen knife. When that knife
broke, Jones picked up a second knife and continued stabbing
Bertis. In total, Jones stabbed his grandfather eight times.

															Bleeding profusely, Bertis staggered outside,
fell to the ground, and died. Jones did not call 911. Instead, he
haphazardly attempted to cover up his role in the murder. He
dragged Bertis’s body back inside. Jones then washed the blood off
his arms with a water hose, changed out of his bloody shirt, and
moved Bertis’s car over some blood stains on the carport floor.

															While Jones was outside, he was seen by a
neighbor. The neighbor called the police. Shortly thereafter,
another neighbor saw Jones and Austin leaving the house together on
foot. Later that night, police located Jones and Austin at a gas
station several miles away. When questioned, Jones and Austin
provided fake names to the officer. After a police pat down
revealed a knife in Jones’s pocket, the officer asked Jones whether
it was the knife that he “ ‘did it with.’ ” Id., at 315. Jones responded, “ ‘No, I already got rid of
it.’ ” Ibid .

															B

															Jones was charged with murder. The trial judge
instructed the jury on murder and the lesser included offense of
manslaughter. Jones claimed that he was not guilty because he acted
in self-defense. The jury rejected that defense and found Jones
guilty of murder.

															Under Mississippi law at the time, murder
carried a mandatory sentence of life without parole. Miss.
Code Ann. §97–3–21 (2000), §47–7–3(g) (2004); see Parker v. State , 119 So. 3d 987, 996–997 (Miss. 2013). The trial judge
therefore imposed that sentence. In 2006, the Mississippi Court of
Appeals affirmed. See 938 So. 2d 312.

															Jones later moved for post-conviction relief in
state court, asserting among other things that his mandatory
life-without-parole sentence violated the Cruel and Unusual
Punishments Clause of the Eighth Amendment. The trial court denied
the motion, and the Mississippi Court of Appeals affirmed. See 122
So. 3d 725 (2011).

															In 2012, while the Mississippi Supreme Court was
considering whether to review Jones’s case, this Court decided Miller v. Alabama , 567
U.S. 460 . Miller held that the Cruel and Unusual
Punishments Clause of the Eighth Amendment prohibits mandatory life-without-parole sentences for murderers under
18, but the Court allowed discretionary life-without-parole
sentences for those offenders.

															In the wake of Miller , the Mississippi
Supreme Court concluded that Miller applied retroactively on
state collateral review. In Jones’s case, the State Supreme Court
ordered a new sentencing hearing where the sentencing judge could
consider Jones’s youth and exercise discretion in selecting an
appropriate sentence. See 122 So. 3d 698 (2013).

															At the resentencing, Jones’s attorney argued
that Jones’s “chronological age and its hallmark features”
diminished the “penological justifications for imposing the
harshest sentences.” App. 25, 27 (quoting Miller , 567
U. S., at 472, 477; emphasis deleted). Jones’s attorney added
that “nothing in this record . . . would support a
finding that the offense reflects irreparable corruption.” App.
143–144.

															At the end of the hearing, the sentencing judge
acknowledged that he had discretion under Miller to impose a
sentence less than life without parole. But after considering the
factors “relevant to the child’s culpability,” App. 149, the judge
determined that life without parole remained the appropriate
sentence for Jones, id., at 152.

															Jones appealed his sentence to the Mississippi
Court of Appeals, citing both Miller and the then-recently
decided case of Montgomery v. Louisiana , 577 U.S. 190
(2016), which in the interim had held that Miller applied
retroactively on collateral review. According to Jones, in order to
impose a life-without-parole sentence on a defendant who committed
a murder when he or she was under 18, the sentencer must make a
separate factual finding that the defendant is permanently
incorrigible. The Mississippi Court of Appeals rejected Jones’s
argument, relying on this Court’s express statement in Montgomery that “ ‘ Miller did not require trial
courts to make a finding of fact regarding a child’s
incorrigibility.’ ” 285 So. 3d 626, 632 (2017) (quoting Montgomery , 577 U. S., at 211).

															In light of disagreement in state and federal
courts about how to interpret Miller and Montgomery ,
we granted certiorari. 589 U. S. ___ (2020). Compare, e.g., Malvo v. Mathena , 893 F.3d 265 (CA4
2018), Commonwealth v. Batts , 640 Pa. 401, 163 A.3d
410 (2017), and Veal v. State , 298 Ga. 691, 784
S.E.2d 403 (2016), with, e.g., United States v. Sparks , 941 F.3d 748 (CA5 2019), People v. Skinner , 502 Mich. 89, 917 N.W.2d 292 (2018), and State v. Ramos , 187 Wash. 2d 420, 387 P.3d 650
(2017).

															II

															According to Jones, a sentencer’s discretion
to impose a sentence less than life without parole does not alone
satisfy Miller . In Jones’s view, a sentencer who imposes a
life-without-parole sentence must also either (i) make
a separate factual finding of permanent incorrigibility, or
(ii) at least provide an on-the-record sentencing explanation
with an “implicit finding” of permanent incorrigibility. Tr. of
Oral Arg. 32; see id., at 6, 14.

															As we will explain, the Court has already ruled
that a separate factual finding of permanent incorrigibility is not
required. In Montgomery , the Court unequivocally stated that
“ Miller did not impose a formal factfinding requirement” and
added that “a finding of fact regarding a child’s incorrigibility
. . . is not required.” 577 U. S., at 211. In a case
involving an individual who was under 18 when he or she committed a
homicide, a State’s discretionary sentencing system is both
constitutionally necessary and constitutionally
sufficient.[ 1 ]

															A

															In 2004, the year that Jones murdered his
grandfather, about 16,000 individuals committed a homicide in the
United States. See Dept. of Justice, Federal Bureau of
Investigation, Crime in the United States 2004, Murder Offenders by
Age, Sex, and Race 17 (Table 2.5). About 850 of the individuals who
committed a homicide were known to be under 18—meaning that, on
average, more than two homicides were committed every day by
individuals under 18. Ibid. The States authorize strict punishments for
homicide, including for homicides committed by individuals under
18. But this Court has held that sentencing an offender who was
under 18 at the time of the crime raises special constitutional
considerations.

															Ratified in 1791, the Eighth Amendment provides
that “cruel and unusual punishments” shall not be “inflicted.”
Ratified in 1868, the Fourteenth Amendment incorporates the Cruel
and Unusual Punishments Clause against the States.

															In a series of Eighth Amendment cases applying
the Cruel and Unusual Punishments Clause, this Court has stated
that youth matters in sentencing. In Roper v. Simmons , 543 U.S.
551 (2005), the Court concluded that the Eighth Amendment
prohibits capital punishment for murderers who were under 18 at the
time of their crimes. And in Graham v. Florida , 560 U.S.
48 (2010), the Court held that the Eighth Amendment prohibits
life without parole for offenders who were under 18 and committed non- homicide offenses. Importantly, however, Graham did not prohibit life without parole for offenders who were under
18 and committed homicide . The Graham Court stated:
“There is a line between homicide and other serious violent
offenses against the individual.” Id., at 69 (internal
quotation marks omitted).

															And then in Miller in 2012, the Court
allowed life-without-parole sentences for defendants who committed homicide when they were under 18, but only so long as the
sentence is not mandatory—that is, only so long as the sentencer
has discretion to “consider the mitigating qualities of youth” and
impose a lesser punishment. 567 U. S., at 476 (internal
quotation marks omitted). Four years later, Montgomery held
that Miller applied retroactively to cases on collateral
review. 577 U. S., at 206, 212.

															Jones argues that Miller requires more
than just a discretionary sentencing procedure. According to Jones,
the sentencer must also make a separate factual finding of
permanent incorrigibility before sentencing a murderer under 18 to
life without parole.

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

															Notwithstanding that clear language in Miller and Montgomery , Jones advances three distinct
arguments for why this Court should require a sentencer to make a
finding of permanent incorrigibility before sentencing a murderer
under 18 to life without parole. First, Jones analogizes to cases where
the Court has recognized certain eligibility criteria, such as
sanity or a lack of intellectual disability, that must be met
before an offender can be sentenced to death. See Ford v. Wainwright , 477 U.S.
399 (1986); Atkins v. Virginia , 536 U.S.
304 (2002). Jones argues that the Constitution similarly
requires a sentencer to find permanent incorrigibility before
sentencing a murderer under 18 to life without parole.

															The State responds that permanent
incorrigibility is not an eligibility criterion akin to sanity or a
lack of intellectual disability. We agree with the State. For one
thing, the Court has recognized that it “is difficult even for
expert psychologists to differentiate between the juvenile offender
whose crime reflects unfortunate yet transient immaturity, and the
rare juvenile offender whose crime reflects irreparable
corruption.” Roper , 543 U. S., at 573. In addition,
when the Court has established such an eligibility criterion, the
Court has considered whether “ ‘objective indicia of society’s
standards, as expressed in legislative enactments and state
practice,’ ” demonstrated a “national consensus” in favor of
the criterion. Graham , 560 U. S., at 61 (quoting Roper , 543 U. S., at 563). But Miller did not
identify a single State that, as of that time, made permanent
incorrigibility an eligibility criterion for life-without-parole
sentences imposed on murderers under 18.

															Given those two points, it comes as no surprise
that Miller declined to characterize permanent
incorrigibility as such an eligibility criterion. Rather, Miller repeatedly described youth as a sentencing factor
akin to a mitigating circumstance. And Miller in turn
required a sentencing procedure similar to the procedure that this
Court has required for the individualized consideration of
mitigating circumstances in capital cases such as Woodson v. North Carolina , 428 U.S.
280 , 303–305 (1976) (plurality opinion), Lockett v. Ohio , 438 U.S.
586 , 597–609 (1978) (plurality opinion), and Eddings v. Oklahoma , 455 U.S.
104 , 113–115 (1982). Those capital cases require sentencers to
consider relevant mitigating circumstances when deciding whether to
impose the death penalty. And those cases afford sentencers wide
discretion in determining “the weight to be given relevant
mitigating evidence.” Id., at 114–115. But those cases do
not require the sentencer to make any particular factual finding
regarding those mitigating circumstances.

															Repeatedly citing Woodson , Lockett , and Eddings , the Miller Court stated
that “a judge or jury must have the opportunity to consider” the
defendant’s youth and must have “discretion to impose a different
punishment” than life without parole. 567 U. S., at 489; id., at 465; see id., at 470, 476, 483. Stated
otherwise, the Miller Court mandated “only that a sentencer
follow a certain process—considering an offender’s youth and
attendant characteristics—before imposing” a life-without-parole
sentence. Id., at 483. In that process, the sentencer will
consider the murderer’s “diminished culpability and heightened
capacity for change.” Id., at 479. That sentencing procedure
ensures that the sentencer affords individualized “consideration”
to, among other things, the defendant’s “chronological age and its
hallmark features.” Id. , at 477.

															To be sure, Miller also cited Roper and Graham . 567 U. S. , at 471–475. Roper barred capital punishment for offenders under 18. And Graham barred life without parole for offenders under 18 who
committed non-homicide offenses. But Miller did not cite
those cases to require a finding of permanent incorrigibility or to
impose a categorical bar against life without parole for murderers
under 18. We know that because Miller said so: “Our decision
does not categorically bar a penalty for a class of offenders or
type of crime—as, for example, we did in Roper or Graham .” 567 U. S., at 483. Instead, Miller cited Roper and Graham for a simple proposition:
Youth matters in sentencing. And because youth matters, Miller held that a sentencer must have discretion to
consider youth before imposing a life-without-parole sentence, just
as a capital sentencer must have discretion to consider other
mitigating factors before imposing a death sentence.

															In short, Miller followed the Court’s
many death penalty cases and required that a sentencer consider
youth as a mitigating factor when deciding whether to impose a
life-without-parole sentence. Miller did not require the
sentencer to make a separate finding of permanent incorrigibility
before imposing such a sentence. And Montgomery did not
purport to add to Miller ’s requirements.[ 3 ] Second , Jones contends that the Montgomery Court must nonetheless have assumed that a
separate factual finding of permanent incorrigibility was necessary
because Montgomery deemed Miller a substantive
holding for purposes of applying Miller retroactively on
collateral review. See Teague v. Lane , 489
U.S. 288 , 310–311 (1989) (plurality opinion).

															In advancing that argument, Jones relies on
language in Montgomery that described Miller as
permitting life-without-parole sentences only for “those whose
crimes reflect permanent incorrigibility,” rather than “transient
immaturity.” 577 U. S., at 209. In other words, because the Montgomery Court deemed Miller to be a substantive
holding, and because Montgomery said that life without
parole would be reserved for the permanently incorrigible, Jones
argues that the Montgomery Court must have envisioned a
separate factual finding of permanent incorrigibility, not just a
discretionary sentencing procedure where youth would be
considered.

															That is an incorrect interpretation of Miller and Montgomery . We know as much because Montgomery said as much. To reiterate, the Montgomery Court explicitly stated that “a finding of fact regarding a child’s
incorrigibility . . . is not required.” 577 U. S.,
at 211.

															To break it down further: Miller required
a discretionary sentencing procedure. The Court stated that a
mandatory life-without-parole sentence for an offender under 18
“poses too great a risk of disproportionate punishment.” 567
U. S., at 479. Despite the procedural function of Miller ’s rule, Montgomery held that the Miller rule was substantive for retroactivity purposes and therefore
applied retroactively on collateral review. 577 U. S., at 206,
212.[ 4 ] But in making the rule
retroactive, the Montgomery Court unsurprisingly declined to
impose new requirements not already imposed by Miller . As Montgomery itself explained, the Court granted certiorari in
that case not to consider whether the rule announced in Miller should be expanded, but rather simply to decide
whether Miller ’s “holding is retroactive to juvenile
offenders whose convictions and sentences were final when Miller was decided.” 577 U. S., at 194. On the question
of what Miller required, Montgomery was clear: “A
hearing where youth and its attendant characteristics are
considered as sentencing factors is necessary to separate those
juveniles who may be sentenced to life without parole from those
who may not.” Id., at 210 (internal quotation marks
omitted). But a separate finding of permanent incorrigibility “is
not required.” Id., at 211.

															The key assumption of both Miller and Montgomery was that discretionary sentencing allows the
sentencer to consider the defendant’s youth, and thereby helps
ensure that life-without-parole sentences are imposed only in cases
where that sentence is appropriate in light of the defendant’s age.
If the Miller or Montgomery Court wanted to require
sentencers to also make a factual finding of permanent
incorrigibility, the Court easily could have said so—and surely
would have said so. But the Court did not say that, or anything
like it. On the contrary, the Montgomery Court declared just
the opposite: that the sentencer need not make such a
separate factual finding of permanent incorrigibility.

															In short, Jones’s Montgomery -based
argument for requiring a finding of permanent incorrigibility is
unavailing because Montgomery explicitly stated that
“ Miller did not impose a formal factfinding requirement” and
that “a finding of fact regarding a child’s incorrigibility
. . . is not required.” Montgomery , 577
U. S., at 211. Third , Jones relatedly argues that Miller and Montgomery sought to ensure that life
without parole for murderers under 18 would be relatively rare.
According to Jones, a separate factual finding of permanent
incorrigibility is necessary to achieve that goal.

															But in Miller , the Court stated that a
discretionary sentencing procedure—where the sentencer can consider
the defendant’s youth and has discretion to impose a lesser
sentence than life without parole—would itself help make
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
relatively rare, the Court relied on data, not speculation. The
Court pointed to statistics from 15 States that used discretionary
sentencing regimes to show that, “when given the choice, sentencers
impose life without parole on children relatively rarely.” Ibid .[ 5 ] In light of
those statistics, the Court reasoned that a discretionary
sentencing procedure would make life-without-parole sentences
relatively rare for juvenile offenders. But the Court did not
suggest that the States with discretionary sentencing regimes also
required a separate factual finding of permanent incorrigibility,
or that such a finding was necessary to make life-without-parole
sentences for juvenile offenders relatively rare. Therefore, to
remain true to Miller ’s reasoning, we cannot now require a
separate factual finding of permanent incorrigibility. (Moreover,
to reiterate, Montgomery explicitly stated that such a
finding is not required.)

															In sum, the Court has unequivocally stated that
a separate factual finding of permanent incorrigibility is not
required before a sentencer imposes a life-without-parole sentence
on a murderer under 18. To borrow the apt words of the Michigan
Supreme Court: “Given that Montgomery expressly held that
‘ Miller did not require trial courts to make a finding of
fact regarding a child’s incorrigibility,’ we likewise hold that Miller does not require trial courts to make a finding of
fact regarding a child’s incorrigibility.” People v. Skinner , 502 Mich. 89, 122, 917 N.W.2d 292, 309 (2018)
(citation omitted).

															B

															Even if a separate factual finding of
permanent incorrigibility is not required, Jones alternatively
contends that a sentencer must at least provide an on-the-record
sentencing explanation with an “implicit finding” of permanent
incorrigibility. Tr. of Oral Arg. 32; see id., at 6, 14.
Jones argues that such an explanation is necessary to ensure that
the sentencer actually considers the defendant’s youth. And Jones
further asserts that the sentencing judge did not provide such an
explanation at his resentencing.

															We reject Jones’s alternative argument because
an on-the-record sentencing explanation with an implicit finding of
permanent incorrigibility (i) is not necessary to ensure that
a sentencer considers a defendant’s youth, (ii) is not
required by or consistent with Miller , (iii) is not
required by or consistent with this Court’s analogous death penalty
precedents, and (iv) is not dictated by any consistent
historical or contemporary sentencing practice in the States. First , and most fundamentally, an
on-the-record sentencing explanation is not necessary to ensure
that a sentencer considers a defendant’s youth. Jones’s argument to
the contrary rests on the assumption that meaningful daylight
exists between (i) a sentencer’s discretion to consider youth,
and (ii) the sentencer’s actual consideration of youth. But if
the sentencer has discretion to consider the defendant’s youth, the
sentencer necessarily will consider the defendant’s youth,
especially if defense counsel advances an argument based on the
defendant’s youth. Faced with a convicted murderer who was under 18
at the time of the offense and with defense arguments focused on
the defendant’s youth, it would be all but impossible for a
sentencer to avoid considering that mitigating factor.[ 6 ]

															It is true that one sentencer may weigh the
defendant’s youth differently than another sentencer or an
appellate court would, given the mix of all the facts and
circumstances in a specific case. Some sentencers may decide that a
defendant’s youth supports a sentence less than life without
parole. Other sentencers presented with the same facts might decide
that life without parole remains appropriate despite the
defendant’s youth. But the key point remains that, in a case
involving a murderer under 18, a sentencer cannot avoid considering
the defendant’s youth if the sentencer has discretion to consider
that mitigating factor.[ 7 ] Second , turning to precedent, an
on-the-record sentencing explanation with an implicit finding of
permanent incorrigibility is not required by or consistent with Miller . The Court’s thorough opinion in Miller did
not even hint at requiring an on-the-record sentencing explanation
with an implicit finding of permanent incorrigibility. Miller highlighted 15 existing discretionary state
sentencing systems as examples of what was missing in the mandatory
Alabama regime before the Court in that case. 567 U. S., at
484, n. 10. As the Court explained, those discretionary
sentencing regimes ensured individualized consideration of
youth.

															But the Court did not suggest that those
discretionary sentencing regimes required some kind of sentencing
explanation. Again, if the Miller Court believed that a
sentencing explanation with an implicit finding of permanent
incorrigibility was constitutionally necessary, the Court easily
could have and surely would have said so. But Miller did not
say a word about requiring some kind of particular sentencing
explanation with an implicit finding of permanent incorrigibility,
as Montgomery later confirmed. Third , and just as telling, an
on-the-record sentencing explanation with an implicit finding of
permanent incorrigibility is not required by or consistent with
this Court’s death penalty cases. Those cases demonstrate that an
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
circumstances when deciding whether to impose the death penalty.
See Woodson , 428 U. S., at 303–305 (plurality opinion); Lockett , 438 U. S., at 597–609 (plurality opinion); Eddings , 455 U. S., at 113–115; see also Tennard v. Dretke , 542 U.S.
274 , 285 (2004); Penry v. Lynaugh , 492 U.S.
302 , 318–319 (1989).

															But the Court has never required an
on-the-record sentencing explanation or an implicit finding
regarding those mitigating circumstances. The reason is evident:
Under the discretionary death penalty sentencing procedure required
by cases such as Woodson , Lockett , and Eddings , the sentencer will necessarily consider relevant
mitigating circumstances. A sentencing explanation is not necessary
to ensure that the sentencer in death penalty cases considers the
relevant mitigating circumstances. It follows that a sentencing
explanation is likewise not necessary to ensure that the sentencer
in juvenile life-without-parole cases considers the defendant’s
youth.

															Because the Constitution does not require an
on-the- record explanation of mitigating circumstances by the
sentencer in death penalty cases , it would be incongruous to
require an on-the-record explanation of the mitigating circumstance
of youth by the sentencer in life-without-parole cases .
Jones offers no persuasive answer for that incongruity in his
argument. Fourth , an on-the-record sentencing
explanation with an implicit finding of permanent incorrigibility
is not dictated by any historical or contemporary sentencing
practice in the States. To be sure, when a state judge imposes a
sentence of imprisonment, particularly a lengthy sentence, the
judge often will explain both the sentence and the judge’s
evaluation of any mitigating circumstances. But many States
traditionally have not legally required (and some States still do
not legally require) on-the-record explanations by the sentencer.
See, e.g., A. Campbell, Law of Sentencing §10:5,
pp. 473–480 (3d ed. 2004) (hereinafter Campbell). Indeed, in
some States, the jury is the sentencer for certain kinds of crimes,
and juries typically do not supply sentencing explanations. See
generally King & Noble, Felony Jury Sentencing in Practice: A
Three-State Study, 57 Vand. L. Rev. 885 (2004). Even when
state law requires a sentencer to supply reasons, many States do
not impose a formulaic checklist of topics or a magic-words
requirement with respect to particular mitigating circumstances.
And appellate courts do not necessarily reverse merely because the
sentencer could have said more about mitigating circumstances. See
Campbell 477; 22A Cal. Jur. 3d, Crim. Law: Posttrial Proceedings
§408, p. 234 (2017) (“[U]nless the record affirmatively
reflects otherwise, the trial court will be deemed to have
considered the relevant criteria, such as mitigating circumstances,
enumerated in the sentencing rules”).

															Those state practices matter here because, as
the Court explained in Montgomery , when “a new substantive
rule of constitutional law is established, this Court is careful to
limit the scope of any attendant procedural requirement to avoid
intruding more than necessary upon the States’ sovereign
administration of their criminal justice systems.” 577 U. S.,
at 211. So it is here. Because Montgomery directs us to
“avoid intruding more than necessary” upon the States, ibid. , and because a discretionary sentencing procedure
suffices to ensure individualized consideration of a defendant’s
youth, we should not now add still more procedural
requirements.

															In sum, Jones’s alternative argument fails. The
Court’s precedents do not require an on-the-record sentencing
explanation with an implicit finding of permanent
incorrigibility.

															III

															The Court’s decision today carefully follows
both Miller and Montgomery . The dissent nonetheless
claims that we are somehow implicitly overruling those decisions.
We respectfully but firmly disagree: Today’s decision does not
overrule Miller or Montgomery . Miller held
that a State may not impose a mandatory life-without-parole
sentence on a murderer under 18. Today’s decision does not disturb
that holding. Montgomery later held that Miller applies retroactively on collateral review. Today’s decision
likewise does not disturb that holding.

															We simply have a good-faith disagreement with
the dissent over how to interpret Miller and Montgomery . That kind of debate over how to interpret
relevant precedents is commonplace. Here, the dissent thinks that
we are unduly narrowing Miller and Montgomery . And
we, by contrast, think that the dissent would unduly broaden those
decisions. The dissent draws inferences about what, in the
dissent’s view, Miller and Montgomery “must have
done” in order for the decisions to “make any sense.” Post ,
at 12 (opinion of Sotomayor, J.). We instead rely on what Miller and Montgomery said—that is, their explicit
language addressing the precise question before us and definitively
rejecting any requirement of a finding of permanent
incorrigibility.

															Notwithstanding our disagreement about whether Miller and Montgomery require a finding of permanent
incorrigibility, we and the dissent both recognize that Miller and Montgomery have been consequential. Miller ’s discretionary sentencing procedure has resulted in
numerous sentences less than life without parole for defendants who
otherwise would have received mandatory life-without-parole
sentences. For example, in Miller resentencings in
Mississippi where Jones was convicted and sentenced, Miller has reduced life-without-parole sentences for murderers under 18 by
about 75 percent. See The Campaign for the Fair Sentencing of
Youth, Tipping Point: A Majority of States Abandon
Life-Without-Parole Sentences for Children 7 (2018). Those
statistics bear out Miller ’s prediction: A discretionary
sentencing procedure has indeed helped make life-without-parole
sentences for offenders under 18 “relatively rar[e ].” 567
U. S., at 484, n. 10.

															Moreover, as a result of Montgomery , many
homicide offenders under 18 who received life-without-parole
sentences that were final before Miller have now obtained
new sentencing proceedings and have been sentenced to less than
life without parole.

															Despite the significant changes wrought by Miller and Montgomery , the dissent now wants more—an
additional constitutional requirement that the sentencer must make
a finding of permanent incorrigibility before sentencing a murderer
under 18 to life without parole. But to reiterate, in Miller and Montgomery , the Court unequivocally stated that such a
finding is not required. And we will not now rewrite those
decisions to impose a requirement that the Court twice
rejected.

															To be clear, our ruling on the legal issue
presented here should not be construed as agreement or disagreement
with the sentence imposed against Jones. As this case again
demonstrates, any homicide, and particularly a homicide committed
by an individual under 18, is a horrific tragedy for all involved
and for all affected. Determining the proper sentence in such a
case raises profound questions of morality and social policy. The
States, not the federal courts, make those broad moral and policy
judgments in the first instance when enacting their sentencing
laws. And state sentencing judges and juries then determine the
proper sentence in individual cases in light of the facts and
circumstances of the offense, and the background of the
offender.

															Under our precedents, this Court’s more limited
role is to safeguard the limits imposed by the Cruel and Unusual
Punishments Clause of the Eighth Amendment. The Court’s precedents
require a discretionary sentencing procedure in a case of this
kind. The resentencing in Jones’s case complied with those
precedents because the sentence was not mandatory and the trial
judge had discretion to impose a lesser punishment in light of
Jones’s youth. Moreover, this case does not properly present—and
thus we do not consider—any as-applied Eighth Amendment claim of
disproportionality regarding Jones’s sentence. See Brief for United
States as Amicus Curiae 23; Harmelin v. Michigan , 501 U.S.
957 , 996–1009 (1991) (Kennedy, J., concurring in part and
concurring in judgment).

															Importantly, like Miller and Montgomery , our holding today does not preclude the States
from imposing additional sentencing limits in cases involving
defendants under 18 convicted of murder. States may categorically
prohibit life without parole for all offenders under 18. Or States
may require sentencers to make extra factual findings before
sentencing an offender under 18 to life without parole. Or States
may direct sentencers to formally explain on the record why a
life-without-parole sentence is appropriate notwithstanding the
defendant’s youth. States may also establish rigorous
proportionality or other substantive appellate review of
life-without-parole sentences. All of those options, and others,
remain available to the States. See generally J. Sutton, 51
Imperfect Solutions (2018). Indeed, many States have recently
adopted one or more of those reforms. See, e.g., Brief for
Former West Virginia Delegate John Ellem et al. as Amici
Curiae in Mathena v. Malvo , O. T. 2019, No.
18–217, pp. 29–36. But the U. S. Constitution, as this Court’s
precedents have interpreted it, does not demand those particular
policy approaches.

															Finally, our holding today is far from the last
word on whether Jones will receive relief from his sentence. Jones
contends that he has maintained a good record in prison and that he
is a different person now than he was when he killed his
grandfather. He articulates several moral and policy arguments for
why he should not be forced to spend the rest of his life in
prison. Our decision allows Jones to present those arguments to the
state officials authorized to act on them, such as the state
legislature, state courts, or Governor. Those state avenues for
sentencing relief remain open to Jones, and they will remain open
to him for years to come.

															*  *  *

															We affirm the judgment of the Mississippi
Court of Appeals.

															It is so ordered. Notes 1 Both Miller and Montgomery generated vigorous dissents. The dissents in Miller stated that the Eighth Amendment does not prohibit
mandatory life-without-parole sentences and asserted that the
Court’s decision contravened this Court’s precedents. See 567
U. S., at 493–502 (Roberts, C. J., dissenting); id., at 502–509 (Thomas, J., dissenting); id., at
509–515 (Alito, J., dissenting). The lead dissent in Montgomery argued that Miller should not apply
retroactively on collateral review. 577 U. S., at 224–227
(Scalia, J., dissenting). 2 The key paragraph from Montgomery is as follows: “Louisiana suggests that Miller cannot have made a constitutional distinction between
children whose crimes reflect transient immaturity and those whose
crimes reflect irreparable corruption because Miller did not
require trial courts to make a finding of fact regarding a child’s
incorrigibility. That this finding is not required, however, speaks
only to the degree of procedure Miller mandated in order to
implement its substantive guarantee. When a new substantive rule of
constitutional law is established, this Court is careful to limit
the scope of any attendant procedural requirement to avoid
intruding more than necessary upon the States’ sovereign
administration of their criminal justice systems. See Ford v. Wainwright , 477 U.S.
399 , 416–417 (1986) (“[W]e leave to the State[s] the task of
developing appropriate ways to enforce the constitutional
restriction upon [their] execution of sentences”). Fidelity to this
important principle of federalism, however, should not be construed
to demean the substantive character of the federal right at issue.
That Miller did not impose a formal factfinding requirement
does not leave States free to sentence a child whose crime reflects
transient immaturity to life without parole. To the contrary, Miller established that this punishment is disproportionate
under the Eighth Amendment.” 577 U. S., at 211. 3 If permanent
incorrigibility were a factual prerequisite to a
life-without-parole sentence, this Court’s Sixth Amendment
precedents might require that a jury, not a judge, make such a
finding. See Ring v. Arizona , 536
U.S. 584 (2002); Apprendi v. New Jersey , 530 U.S.
466 (2000). If we were to rule for Jones here, the next wave of
litigation would likely concern the scope of the jury right. The
fact that neither Miller nor Montgomery even
mentioned the Sixth Amendment is further reason to doubt that those
cases implicitly required a finding of permanent incorrigibility by
the sentencer. 4 As the Court has stated
in cases both before and after Montgomery , the Court
determines whether a rule is substantive or procedural for
retroactivity purposes “by considering the function of the rule”
itself—not “by asking whether the constitutional right underlying
the new rule is substantive or procedural.” Welch v. United States , 578 U.S. 120, 130–131 (2016). For purposes of Teague v. Lane , 489 U.S.
288 (1989), a rule is procedural if it regulates “ ‘only
the manner of determining the defendant’s culpability.’ ” Welch , 578 U. S., at 129 (quoting Schriro v. Summerlin , 542 U.S.
348 , 353 (2004); emphasis deleted). A rule is substantive and
applies retroactively on collateral review, by contrast, if it
“ ‘alters the range of conduct or the class of persons that
the law punishes.’ ” Welch , 578 U. S., at 129
(quoting Summerlin , 542 U. S., at 353). As the Court’s
post- Montgomery decision in Welch already indicates,
to the extent that Montgomery ’s application of the Teague standard is in tension with the Court’s retroactivity
precedents that both pre-date and post-date Montgomery ,
those retroactivity precedents—and not Montgomery —must guide
the determination of whether rules other than Miller are
substantive. See Welch , 578 U.S. 120; Summerlin , 542 U.S.
348 ; Lambrix v. Singletary , 520 U.S.
518 (1997); Saffle v. Parks , 494 U.S.
484 (1990). To be clear, however, our decision today does not
disturb Montgomery ’s holding that Miller applies
retroactively on collateral review. By now, most offenders who
could seek collateral review as a result of Montgomery have
done so and, if eligible, have received new discretionary sentences
under Miller . 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 2–203, 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). 6 If defense counsel fails
to make the sentencer aware of the defendant’s youth, it is
theoretically conceivable (albeit still exceedingly unlikely in the
real world) that the sentencer might somehow not be aware of the
defendant’s youth. But in that highly unlikely scenario, the
defendant may have a potential ineffective-assistance-of-counsel
claim, not a Miller claim—just as defense counsel’s failure
to raise relevant mitigating circumstances in a death penalty
sentencing proceeding can constitute a potential
ineffective-assistance-of-counsel problem, not a Woodson/Lockett/Eddings violation. Cf. Wiggins v. Smith , 539 U.S.
510 , 533–538 (2003) (counsel in capital case was ineffective
for failing to investigate and present mitigating evidence at
sentencing); Williams v. Taylor , 529 U.S.
362 , 395–398 (2000) (same). 7 This Court’s death
penalty cases recognize a potential Eighth Amendment claim if the
sentencer expressly refuses as a matter of law to consider
relevant mitigating circumstances. See Eddings v. Oklahoma , 455 U.S.
104 , 114–115 (1982). By analogy here, if a sentencer
considering life without parole for a murderer who was under 18
expressly refuses as a matter of law to consider the defendant’s
youth (as opposed to, for example, deeming the defendant’s youth to
be outweighed by other factors or deeming the defendant’s youth to
be an insufficient reason to support a lesser sentence under the
facts of the case), then the defendant might be able to raise an
Eighth Amendment claim under the Court’s precedents. In any event,
we need not explore that possibility because the record here does
not reflect that the sentencing judge refused as a matter of law to
consider Jones’s youth. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–1259

															_________________

															BRETT JONES, PETITIONER v. MISSISSIPPI

															on writ of certiorari to the court of appeals
of mississippi

															[April 22, 2021]

															Justice Thomas, concurring in the
judgment.

															The Court correctly holds that the Eighth
Amendment does not require a finding that a minor be permanently
incorrigible as a prerequisite to a sentence of life without
parole. But in reaching that result, the majority adopts a strained
reading of Montgomery v. Louisiana , 577 U.S. 190
(2016), instead of outright admitting that it is irreconcilable
with Miller v. Alabama , 567 U.S.
460 (2012)—and the Constitution. The better approach is to be
patently clear that Montgomery was a “demonstrably
erroneous” decision worthy of outright rejection. Gamble v. United States , 587 U. S. ___, ___ (2019) (Thomas, J.,
concurring) (slip op., at 2).

															I

															Brett Jones, then 15, murdered his
grandfather. At the time of his trial and sentencing, Mississippi
law automatically punished his crime with life without parole. A
few years later, however, this Court held that youthful offenders
are constitutionally entitled to an “individualized sentencing”
process. Miller , 567 U. S., at 465. The Mississippi
Supreme Court thus ordered a new hearing at which the judge
dutifully considered the factors “relevant to [Jones’] culpability”
before again sentencing him to life without parole. App. 149.

															Jones appealed, citing yet another new
decision— Montgomery —in which this Court held that Miller ’s rule was “substantive” and hence had to be
retroactively applied to cases on collateral review. 577
U. S., at 212. Without more, the fact that Miller was
now retroactive did not help Jones, as he had already received the
“individualized” hearing Miller required. 567 U. S., at
465. Therefore, Jones argued that Montgomery further
required the sentencing judge to “make a specific ‘finding’ that he
is irretrievably depraved, irreparably corrupt, or permanently
incorrigible.” 285 So. 3d 626, 632 (Miss. App. 2017). That theory
was not necessarily a stretch—as Montgomery explained that a
life-without-parole sentence “violates the Eighth Amendment for a
child whose crime reflects ‘ “unfortunate yet transient
immaturity.” ’ ” 577 U. S., at 208. But the
Mississippi Court of Appeals disagreed, noting that Montgomery also “stated that ‘ Miller did not require
trial courts to make a finding of fact regarding a child’s
incorrigibility’ [or] ‘impose a formal factfinding
requirement.’ ” 285 So. 3d, at 632.

															II Miller and Montgomery are from
the same lineage of precedent that refashions the Eighth Amendment
to accommodate this Court’s views of juvenile justice.[ 1 ] The similarities end there, however,
because the decisions cannot be reconciled.

															A Miller announced a purely procedural
rule: A State may not automatically sentence a juvenile to life
without parole, but must instead provide an individualized
sentencing process. In reaching this conclusion, the Court
explicitly cabined its holding to cases in which the sentencer
lacked “discretion to impose a different punishment.” Miller , 567 U. S., at 465; accord, e.g., id., at 479–480. Were there any doubt that Miller focused only on the availability of individualized sentencing, the
Court stressed that it was “not categorically bar[ring] a penalty
for a class of offenders or type of crime” but instead “mandat[ing]
only that a sentencer follow a certain process.” Id. , at
483. Miller ’s descriptions of its procedural
holding track with the opinion’s mode of analysis. At one point,
for example, Miller discussed a line of precedents that
condition the death penalty on an individualized sentencing
process. Id., at 475–476. Reasoning by analogy, the Court
explained that “mandatory penalties” for juveniles “preclude a
sentencer from taking account of an offender’s age and the wealth
of characteristics and circumstances attendant to it.” Id. ,
at 476. The Court also canvassed the jurisdictions that had some
form of mandatory life-without-parole, id. , at 482–487, and
nn. 9–10, 13–14, which would have been an unusual detour if
the opinion were concerned with anything more than nondiscretionary
punishments. And it declined to “consider [the] alternative
argument that the Eighth Amendment requires a categorical bar on
life without parole for juveniles.” Id., at 479.

															B

															This narrow holding became inconvenient when
the Court decided to apply Miller retroactively to prisoners
whose sentences were already final. Under the approach announced in Teague v. Lane , 489 U.S.
288 (1989), Miller could have been retroactive only if
it were a “watershed” rule of criminal procedure or a “substantive”
rule, Beard v. Banks , 542 U.S.
406 , 416–419, and n. 7 (2004).

															Precedent foreclosed the first option. Miller “mandate[d] only that a sentencer follow a certain
process” as a prerequisite to life without parole, 567 U. S.,
at 483, but this directive was hardly “watershed.” According to Teague , a procedural rule might have a claim to watershed
status if it were “ ‘ “implicit in the concept of ordered
liberty.” ’ ” Banks , 542, U. S., at 417. So
limited was this possibility that, in “ ‘the years since Teague , we . . . rejected every claim that a new
rule satisfied the requirements for watershed status.’ ” Ramos v. Louisiana , 590 U. S. ___, ___ (2020)
(Kavanaugh, J., concurring in part) (slip op., at 16). Or in more
concrete terms, we repeatedly suggested that a rule might be
watershed only if it were akin to a defendant’s right to counsel as
articulated in Gideon v. Wainwright , 372 U.S.
335 (1963). See Banks , 542 U. S., at 417–418.
Whatever Miller might have done, its narrow rule about
juvenile sentencing “ ‘ha[d] none of the primacy and
centrality of the rule adopted in Gideon .’ ” Banks , 542 U. S., at 420.

															Rather than accept what was plainly the
case—that Miller was procedural, not watershed, and thus not
retroactive— Montgomery proceeded to “rewrite” it into a
substantive rule. 577 U. S., at 224 (Scalia, J., dissenting).
Despite acknowledging that “ Miller ’s holding has a
procedural component,” the majority explained that this procedure
was actually just a way “to implement a substantive
guarantee.” Id. , at 209–210. This guarantee, according to Montgomery , was that “all” juvenile offenders—except for a
rare few “whose crimes reflect permanent incorrigibility”—are
categorically exempt from life without parole. Id. , at
209.

															That reimagined rule was substantive under our
precedents. Substantive rules include those that
“ ‘prohibi[t ] a certain category of punishment for a
class of defendants because of their status or offense.’ ” Banks , 542 U. S., at 416. For example—a rule that “life
without parole is an excessive sentence for children whose crimes
reflect transient immaturity.” Montgomery , 577 U. S.,
at 210. Montgomery could not have been clearer that its rule
transcended mere procedure: “Even if a court considers a child’s
age before sentencing him or her to a lifetime in prison, that
sentence still violates the Eighth Amendment for a child whose
crime reflects ‘ “unfortunate yet transient
immaturity.” ’ ” Id., at 208.

															The problem with this new rule is that it had
little to do with Miller . Through a feat of legerdemain, Montgomery began by acknowledging that Miller did
“ ‘not categorically bar a penalty for a class of offenders or
type of crime,’ ” yet just three sentences later concluded
that “ Miller did bar life without parole . . . for
all but the rarest of juvenile offenders, those whose crimes
reflect permanent incorrigibility.” 577 U. S., at 209. In a
similar Janus-faced demonstration, Montgomery reiterated Miller ’s assurance that “trial courts [need not] make a
finding of fact regarding a child’s incorrigibility,” yet decided
that “ Miller drew a line between children whose crimes
reflect transient immaturity and those rare children whose crimes
reflect irreparable corruption.” 577 U. S., at
209–211.[ 2 ] These statements
cannot be reconciled.

															C

															Just as the procedural rule of Miller created problems for the majority in Montgomery , the
substantive rule of Montgomery creates problems for the
majority in this case. If Montgomery is correct about the
existence of a concrete class of offenders who—as a matter of
fundamental constitutional law—are categorically exempt from a
sentence of life without parole, then there must be a determination
as to whether Jones falls within that protected class. Otherwise,
the “line” Miller ostensibly “drew . . . between
children whose crimes reflect transient immaturity and those rare
children whose crimes reflect irreparable corruption” is more
fanciful than real. Montgomery , 577 U. S., at 209.

															Sure enough, this Court has often demanded
factual findings when it comes to other classes of criminals that
this Court has declared categorically exempt from certain
punishments. See, e.g., Moore v. Texas , 586
U. S. ___, ___ (2019) ( per curiam ) (slip op., at
10) (finding that an offender “ha[d] shown [that] he is a person
with intellectual disability”); Madison v. Alabama ,
586 U. S. ___, ___, ___–___ (2019) (slip op., at 8, 17–18)
(vacating and remanding “for renewed consideration” of the record
after a state court “found [a prisoner] mentally competent” and
thus eligible for execution). I doubt that a majority of this Court
would tolerate the execution of an offender who alleges insanity or
intellectual disability absent a satisfactory finding to the
contrary.

															In response, the majority suggests that insanity
and intellectual disability are legitimate “eligibility criteri[a]”
because they are easy to evaluate, whereas “permanent
incorrigibility . . . ‘is difficult even for expert
psychologists to [assess].’ ” Ante , at 8. This notion
that the former categories are clear cut and predictable might come
as news to the States that have spent years chasing the
ever-evolving definitions of mental incompetence promulgated by
this Court and its preferred experts. See, e.g. , Moore , 586 U. S., at ___–___ (slip op., at 2–10); Moore v. Texas , 581 U. S. ___, ___, ___–___ (2017)
(slip op., at 2, 5–18) (courts must heed “the force of the medical
community’s consensus”); Hall v. Florida , 572 U.S.
701 , 724 (2014). I trust, however, that future decisions will
contain simple and static rules.

															D Montgomery ’s creation of a categorical
exemption for certain offenders thus leaves us with two obvious
options. First, we could follow Montgomery ’s logic and hold
that the “legality” of Jones’ sentence turns on whether his crime
in fact “reflect[s] permanent incorrigibility.” 577 U. S., at
205, 209. Or we could just acknowledge that Montgomery had
no basis in law or the Constitution.

															The majority, however, selects a third way:
Overrule Montgomery in substance but not in name. The
opinion candidly admits both that Miller ’s rule was
“procedural” and that Montgomery “ma[de] the rule
retroactive.” Ante, at 9, 11–12. The only way to reconcile
these statements with the bottom-line judgment in this case—that
Jones is not entitled to a determination whether he falls within a
constitutionally protected category of offenders—is to reject Montgomery . And sure enough, the majority does just that,
albeit in a footnote. See ante , at 12, n. 4 (explaining
that Montgomery is “in tension” with many other decisions).
But because Montgomery ’s freewheeling approach to the law is
ripe for abuse, the majority’s whisper is worth restating above the
line: Montgomery gave a good-for-one-ride ticket to a class
of juvenile offenders, and its errors will never be repeated.

															Firm condemnation of Montgomery is
particularly appropriate because this Court is unable to fully
repair the damage it has caused. Although the majority closes the
door to courts following Montgomery in the future, in doing
so it tacitly admits that the horses have already left the barn:
“[M]ost offenders who could seek collateral review as a result of Montgomery have done so.” Ante , at 12, n. 4.
Today’s judgment thus offers cold comfort to the States that have
already faced the unenviable choice between “permitting juvenile
homicide offenders to be considered for parole” and relitigating
murder sentences long after the fact. Montgomery , 577
U. S., at 212; see also id. , at 226–227 (Scalia, J.,
dissenting). The least we can do is to fully own up to Montgomery ’s sins.

															The majority also largely leaves untouched Montgomery ’s violation of the rule that the Constitution
“ ‘ leaves the unavoidably moral question of who
“deserves” a particular nonprohibited method of punishment to the
judgment of the legislatures that authorize the
penalty. ’ ” Miller , 567 U. S., at 504
(Thomas, J., dissenting). When the Eighth Amendment was enacted,
juveniles even younger than Jones could be tried as adults, and
mandatory death sentences were available. See id. , at 503,
n. 2. “It is therefore implausible that a [15]-year-old’s
. . . prison sentence—of any length, with or without
parole—would have been viewed as cruel and unusual.” Ibid. By failing to condemn Montgomery ’s expansion of Miller to an entire category of individuals, the majority
blesses yet another step “on the path to further judicial
displacement of the legislative role in prescribing appropriate
punishment for crime.” 567 U. S., at 500 (Roberts, C. J.,
dissenting).

															Finally, I would expressly reject the portion of Montgomery that “purported to constitutionalize” the
substantive exception “so that it would apply in [the petitioner’s]
state court proceeding.” Brief for Jonathan F. Mitchell et al.
as Amici Curiae in Edwards v. Vannoy ,
O. T. 2020, No. 19–5807, pp. 5–6 (emphasis deleted).
Despite this Court’s longstanding recognition that “the
Constitution neither prohibits nor requires retrospective effect,” Linkletter v. Walker , 381 U.S.
618 , 629 (1965); cf. Teague , 489 U. S., at 302–310
(plurality opinion) (narrowing Linkletter even further), the Montgomery Court demanded that the Louisiana courts
“recognize [ Miller ’s] retroactive effect.” 577 U. S.,
at 200, 205. That improper intrusion on state postconviction review
is also worth correcting.

															*  *  *

															Today’s majority labors mightily to avoid
confronting the tension between Miller and Montgomery . But though the Court purports to leave Montgomery ’s holding intact, it recognizes that Montgomery ’s analysis is untenable and not to be repeated.
It would be simpler to reject Montgomery in both name and
substance. Notes 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). 2 The Court’s language in
this line of precedents is notable. When addressing juvenile
murderers, this Court has stated that “ ‘ children are
different’ ” and that courts must consider “a child ’s
lesser culpability.” Montgomery , 577 U. S., at 207–208
(emphasis added). And yet, when assessing the Court-created right
of an individual of the same age to seek an abortion, Members of
this Court take pains to emphasize a “young woman ’s” right
to choose. See, e.g. , Lambert v. Wicklund , 520 U.S.
292 , 301 (1997) (Stevens, J., joined by Ginsburg and Breyer,
JJ., concurring in judgment) (emphasis added); Planned
Parenthood of Southeastern Pa. v. Casey , 505 U.S.
833 , 899 (1992) (joint opinion of O’Connor, Kennedy, and
Souter, JJ.); Ohio v. Akron Center for Reproductive
Health , 497 U.S.
502 , 532 (1990) (Blackmun, J., joined by Brennan and Marshall,
JJ., dissenting). It is curious how the Court’s view of the
maturity of minors ebbs and flows depending on the
issue. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–1259

															_________________

															BRETT JONES, PETITIONER v. MISSISSIPPI

															on writ of certiorari to the court of appeals
of mississippi

															[April 22, 2021]

															Justice Sotomayor, with whom Justice Breyer
and Justice Kagan join, dissenting.

															Today, the Court guts Miller v. Alabama , 567 U.S.
460 (2012), and Montgomery v. Louisiana , 577 U.S.
190 (2016). Contrary to explicit holdings in both decisions, the
majority claims that the Eighth Amendment permits juvenile
offenders convicted of homicide to be sentenced to life without
parole (LWOP) as long as “the sentence is not mandatory and the
sentencer therefore has discretion to impose a lesser punishment.” Ante, at 1. In the Court’s view, a sentencer never need
determine, even implicitly, whether a juvenile convicted of
homicide is one of “those rare children whose crimes reflect
irreparable corruption.” Montgomery , 577 U. S., at 209.
Even if the juvenile’s crime reflects “ ‘unfortunate yet
transient immaturity,’ ” Miller , 567 U. S., at
479, he can be sentenced to die in prison.

															This conclusion would come as a shock to the
Courts in Miller and Montgomery . Miller ’s
essential holding is that “a lifetime in prison is a
disproportionate sentence for all but the rarest children, those
whose crimes reflect ‘irreparable corruption.’ ” Montgomery , 577 U. S., at 195 (quoting Miller ,
567 U. S., at 479–480). Sentencing discretion is “necessary to
separate those juveniles who may be sentenced to life without
parole from those who may not,” Montgomery , 577 U. S.,
at 210, but it is far from sufficient. A sentencer must actually
“make th[e] judgment” that the juvenile in question is one of those
rare children for whom LWOP is a constitutionally permissible
sentence. Miller , 567 U. S., at 480. The Court has thus
expressly rejected the notion that sentencing discretion, alone,
suffices: “Even if a court considers a child’s age before
sentencing him or her to a lifetime in prison, that sentence still
violates the Eighth Amendment for a child whose crime reflects
unfortunate yet transient immaturity.” Montgomery , 577
U. S., at 208 (internal quotation marks omitted).

															Today, however, the Court reduces Miller to a decision requiring “just a discretionary sentencing procedure
where youth [is] considered.” Ante, at 11. Such an abrupt
break from precedent demands “special justification.” Ramos v. Louisiana , 590 U. S. ___, ___ (2020) (Kavanaugh, J.,
concurring in part) (slip op., at 6) (internal quotation marks
omitted). The Court offers none. Instead, the Court attempts to
circumvent stare decisis principles by claiming that “[t]he
Court’s decision today carefully follows both Miller and Montgomery .” Ante, at 19. The Court is fooling no
one. Because I cannot countenance the Court’s abandonment of Miller and Montgomery , I dissent.

															I

															Time and again, this Court has recognized that
“children are constitutionally different from adults for purposes
of sentencing.” Miller , 567 U. S., at 471. In Roper v. Simmons , 543 U.S.
551 (2005), the Court held that the Eighth Amendment forbids
sentencing children to death because “[c]apital punishment must be
limited to those offenders . . . whose extreme
culpability makes them the most deserving of execution.” Id., at 568 (internal quotation marks omitted). Juvenile
offenders “cannot with reliability be classified among the worst
offenders” for several reasons. Id., at 569. First, “as any
parent knows,” and as scientific and sociological studies have
confirmed, juveniles are less mature and responsible than adults,
which “often result[s] in impetuous and ill-considered actions and
decisions.” Ibid. (internal quotation marks omitted).
Second, juveniles are “more vulnerable or susceptible to negative
influences and outside pressures” and “have less control
. . . over their own environment.” Ibid. Finally,
“the character of a juvenile” is “more transitory” than that of an
adult. Id., at 570. “[A]s individuals mature, the
impetuousness and recklessness that may dominate in younger years
can subside.” Ibid. (internal quotation marks omitted).
Weighed against these “signature qualities of youth,” the
penological justifications for the death penalty collapse. Id., at 570–571 (internal quotation marks omitted).

															Next, in Graham v. Florida , 560 U.S.
48 (2010), this Court held that “[t]he Constitution prohibits
the imposition of a life without parole sentence on a juvenile
offender who did not commit homicide.” Id., at 82. “To
justify life without parole on the assumption that the juvenile
offender forever will be a danger to society requires the sentencer
to make a judgment that the juvenile is incorrigible.” Id., at 72. But “incorrigibility is inconsistent with youth.” Id., at 73 (internal quotation marks omitted). Rather,
“[m]aturity can lead to that considered reflection which is the
foundation for remorse, renewal, and rehabilitation.” Id., at 79. Graham therefore insisted that sentencers not deprive
juvenile nonhomicide offenders “of the opportunity to achieve
maturity . . . and self-recognition of human worth
and potential” by sentencing them to die in prison. Ibid .

															In Miller , this Court extended Graham ’s logic to juveniles convicted of homicide. Miller recognized that “none of what [ Graham ] said
about children . . . is crime-specific.” 567 U. S.,
at 473. Thus, taking Graham as its “foundation stone,” Miller reiterated that “the distinctive attributes of youth
diminish the penological justifications for imposing the harshest
sentences on juvenile offenders, even when they commit terrible
crimes.” 567 U. S., at 470–471, n. 4, 472. Miller emphasized that LWOP is an “ ‘especially harsh punishment for
a juvenile.’ ” Id . , at 475 (quoting Graham , 560 U. S., at 70). “Imprisoning an offender
until he dies alters the remainder of his life ‘by a forfeiture
that is irrevocable.’ ” 567 U. S., at 474–475 (quoting Graham , 560 U. S., at 69). It is the “denial of hope”
itself. Id., at 70 (internal quotation marks omitted). Miller stopped short of prohibiting LWOP
for all juveniles convicted of homicide. Instead, it required
sentencers to distinguish “between the juvenile offender whose
crime reflects unfortunate and transient immaturity, and the rare
juvenile offender whose crime reflects irreparable corruption.” 567
U. S., at 479–480 (internal quotation marks omitted). Only
those rare few in the latter category are constitutionally eligible
for LWOP under Miller . As such, before imposing a sentence
of LWOP, a sentencer must actually “make that judgment,” and make
it correctly. Id., at 480; see Adams v. Alabama , 578 U.S. 994, 999 (2016) (Sotomayor, J., concurring
in decision to grant, vacate, and remand).

															Finally, in Montgomery , this Court
confirmed the substantive nature of Miller ’s prohibition on
LWOP for most juveniles. Montgomery held that Miller applies retroactively in cases on collateral review because it
“rendered life without parole an unconstitutional penalty for
. . . juvenile offenders whose crimes reflect the
transient immaturity of youth.” 577 U. S., at 208. Under the
retroactivity doctrine in Teague v. Lane , 489 U.S.
288 (1989), a new constitutional rule is considered
“substantive,” and thus retroactive, if it “alters the range of
conduct or the class of persons that the law punishes.” Montgomery , 577 U. S., at 206 (internal quotation marks
omitted); see Teague , 489 U. S., at 311 (plurality
opinion). A procedural rule, on the other hand, “regulate[s] only
the manner of determining the defendant’s culpability.” Montgomery , 577 U. S., at 206 (emphasis deleted;
internal quotation marks omitted). Such rules generally have not
applied retroactively. Id., at 198. Montgomery recognized that Miller “has a procedural component,” in that “[a] hearing where ‘youth and
its attendant characteristics’ are considered as sentencing factors
is necessary to separate those juveniles who may be sentenced to
life without parole from those who may not.” 577 U. S., at
209–210 (quoting Miller , 567 U. S., at 465). The Court
made clear, however, that “[t]he hearing does not replace
. . . Miller ’s substantive holding that life
without parole is an excessive sentence for children whose crimes
reflect transient immaturity.” 577 U. S., at 210. Rather, the
hearing “gives effect” to Miller ’s prohibition on LWOP by
“enabl[ing] a prisoner to show that he falls within the category of
persons whom the law may no longer punish [with LWOP].” 577
U. S., at 210. Thus, under Miller , juvenile offenders
“must be given the opportunity to show their crime did not reflect
irreparable corruption; and, if it did not, their hope for some
years of life outside prison walls must be restored.” 577
U. S., at 213.

															II

															A

															Today, the Court distorts Miller and Montgomery beyond recognition. According to the majority, “a
State’s discretionary sentencing system is both constitutionally
necessary and constitutionally sufficient” for a State to sentence
a juvenile convicted of homicide to LWOP. Ante, at 5. “[S]o
long as the sentencer has discretion to ‘consider the mitigating
qualities of youth’ and impose a lesser punishment,” any juvenile
convicted of homicide may be sentenced to LWOP, even if his crime
reflects transient immaturity. Ante, at 7 (quoting Miller , 567 U. S., at 476). It does not matter whether
the sentencer meaningfully considers youth: The Court assumes it
will, see ante, at 15, but ultimately, the mere existence of
“a discretionary sentencing procedure suffices,” ante, at
19.

															The Court rests its conclusion on Montgomery ’s modest statement that “ Miller did not
impose a formal factfinding requirement,” and so “a finding of fact
regarding a child’s incorrigibility . . . is not
required.” 577 U. S., at 211. This statement is the linchpin
of the Court’s opinion. See ante, at 2, 5, 7, 11–14. As the
Court quietly admits in a footnote, however, Montgomery went
on to clarify that the fact “[t]hat Miller did not impose a
formal factfinding requirement does not leave States free to
sentence a child whose crime reflects transient immaturity to life
without parole. To the contrary, Miller established that
this punishment is disproportionate under the Eighth Amendment.” Montgomery , 577 U. S., at 211; see ante, at 7–8,
n. 2 (quoting the same). Montgomery was equally explicit
elsewhere: “ Miller . . . did more than require a
sentencer to consider a juvenile offender’s youth before imposing
life without parole.” 577 U. S., at 208. Sentencing discretion
and “[a] hearing where ‘youth and its attendant characteristics’
are considered as sentencing factors” are necessary to “giv[e]
effect to Miller ’s substantive holding that life without
parole is an excessive sentence for children whose crimes reflect
transient immaturity,” but they “d[o] not replace” it. Id., at 210. “Even if a court considers a child’s age before sentencing
him or her to a lifetime in prison, that sentence still violates
the Eighth Amendment for a child whose crime reflects
‘ “unfortunate yet transient immaturity.” ’ ” Id., at 208. If a juvenile offender’s crime “did not reflect
irreparable corruption,” his “hope for some years of life outside
prison walls must be restored.” Id., at 213. The Court today
never addresses Montgomery ’s clear articulation of Miller ’s essential holding.

															The lone statement on which the Court fixates
recognizes only that Miller does not mandate a particular
procedure for considering a defendant’s youth or explaining the
sentencer’s decision. Miller certainly does not require
sentencers to invoke any magic words. Using this procedural
flexibility, States have adopted different approaches to Miller ’s inquiry. For instance, in some States, the
prosecution must prove that a juvenile offender is permanently
incorrigible beyond a reasonable doubt; in others, the sentencing
judge must make a formal finding of irreparable corruption on the
record. See Brief for American Bar Association as Amicus
Curiae 14–15, 19–21. As the Court correctly notes, Miller does not require any one of “those particular policy
approaches.” Ante, at 22.

															What is necessary, however, is “that a sentencer
decide whether the juvenile offender before it is a child whose
crimes reflect transient immaturity or is one of those rare
children whose crimes reflect irreparable corruption.” Tatum v. Arizona , 580 U. S. ___, ___ (2016) (Sotomayor, J.,
concurring in decision to grant, vacate, and remand) (slip op., at
3) (internal quotation marks omitted). That is all petitioner Brett
Jones seeks. See Tr. of Oral Arg. 6 (“On the most fundamental level
. . . what we need is a sentencing judge who understands
that permanent incorrigibility is the dispositive rule and
determines whether the defendant fits within that rule. And there
are any number of ways that it could be done”); Brief for
Petitioner 31 (challenging the “failure to find in any form whether Brett is permanently incorrigible”). As Justice Thomas
recognizes, “there must be a determination as to whether Jones
falls within th[e] protected class” of children who are ineligible
for LWOP. Ante, at 6 (opinion concurring in judgment).
Otherwise, the line between those who may be sentenced to LWOP and
those who may not “is more fanciful than real.” Ibid. The Court attempts to paper over its
mischaracterization of Miller and Montgomery in
several ways. First, it claims that Miller barred only
“ mandatory life-without-parole sentences,” not
“ discretionary life-without-parole sentences.” Ante, at 4. Miller did prohibit mandatory LWOP sentences for
juveniles. See 567 U. S., at 465. To say that Miller is
limited to mandatory LWOP sentences, however, is to ignore half of
its reasoning. Miller relied on “the confluence of
. . . two lines of precedent.” Id., at 470. In one
line of cases, the Court had interpreted the Eighth Amendment to
require that sentencers make individualized, discretionary
decisions when imposing the death penalty. For instance, in Lockett v. Ohio , 438 U.S.
586 (1978), a plurality of the Court concluded that “the
sentencer, in all but the rarest kind of capital case, [can]not be
precluded from considering, as a mitigating factor, any aspect of a
defendant’s character or record and any of the circumstances of the
offense.” Id., at 604 (emphasis deleted; footnote omitted). Miller explained that mandatory LWOP sentences violate
“individualized sentencing cases” like Lockett because they
“preclude a sentencer from taking account of an offender’s age and
the wealth of characteristics and circumstances attendant to it.”
567 U. S., at 476–477.

															The Court now pretends that Miller ’s
reasoning ended there. It insists that all Miller required
was “a sentencing procedure similar to the procedure that this
Court has required for the individualized consideration of
mitigating circumstances in capital cases such as Woodson v. North Carolina , 428 U.S.
280 , 303–305 (1976) (plurality opinion), Lockett v. Ohio , 438 U.S.
586 , 597–609 (1978) (plurality opinion), and Eddings v. Oklahoma , 455 U.S.
104 , 113–115 (1982).” Ante, at 9. Reading that
conclusion, one would expect Miller to have announced that
it rested solely on those cases. Miller was clear, however, that it drew
primarily from a different line of precedent headed by Roper and Graham , which “adopted categorical bans on sentencing
practices based on mismatches between the culpability of a class of
offenders and the severity of a penalty,” regardless of the
procedures used to impose the sentences. Miller , 567
U. S., at 470. These cases set forth a substantive
proportionality principle that the individualized-sentencing cases
did not: “[L]ife-without-parole sentences, like capital punishment,
may violate the Eighth Amendment when imposed on children” because
“the characteristics of youth, and the way they weaken rationales
for punishment, can render a life-without-parole sentence
disproportionate.” Id., at 473.

															Mandatory and discretionary sentencing schemes
alike can produce disproportionate sentences. Regardless of how it
is imposed, a juvenile death sentence is unconstitutional under Roper , and a juvenile sentence of LWOP for a nonhomicide
offense is unconstitutional under Graham . See Roper ,
543 U. S., at 575 (holding “that the death penalty cannot be
imposed upon juvenile offenders”); Graham , 560 U. S.,
at 74 (drawing a “clear line” against “life without parole for
juvenile nonhomicide offenders”). So, too, with Miller : No
set of discretionary sentencing procedures can render a sentence of
LWOP constitutional for a juvenile whose crime reflects
“unfortunate yet transient immaturity.” 567 U. S., at 479
(internal quotation marks omitted).

															The Court claims that Miller relied on Roper and Graham “for a simple proposition: Youth
matters in sentencing.” Ante, at 10. That is true, but the
Court conflates two ways in which youth matters. When Miller was decided, the Court’s individualized-sentencing cases had
already firmly established “that a defendant’s youth is a relevant
mitigating circumstance that must be within the effective reach of
a capital sentencing jury.” Johnson v. Texas , 509 U.S.
350 , 367 (1993); see also Eddings v. Oklahoma , 455 U.S.
104 , 116 (1982) (requiring that sentencers consider “the
chronological age of a minor” and “the background and mental and
emotional development of a youthful defendant”). The Miller Court thus did not need to cite Roper and Graham as a
separate “stran[d] of precedent,” Miller , 567 U. S., at
470, for that long-recognized proposition. It drew on Roper and Graham instead to set a substantive limit on the
imposition of LWOP on juvenile offenders, even when they commit
homicide. The Court today reverses course and concludes that youth
does not matter in this way.

															Next, the Court exaggerates the meaning of two
statements from Miller , arguing that it “mandated ‘only that
a sentencer follow a certain process,’ ” rather than
“ ‘categorically bar[ring] a penalty for a class of offenders
or type of crime[,] as, for example, we did in Roper or Graham .’ ” Ante, at 7, 10 (quoting Miller , 567 U. S., at 483). Again, Montgomery already rejected this misinterpretation: “ Miller , it is
true, did not bar a punishment for all juvenile offenders,” or all
juvenile offenders convicted of certain crimes, “as the Court did
in Roper or Graham .” 577 U. S., at 209.
“ Miller did bar life without parole, however, for all but
the rarest of juvenile offenders, those whose crimes reflect
permanent incorrigibility.” Ibid. To “separate those
juveniles who may be sentenced to life without parole from those
who may not,” as Miller requires, sentencers must follow a
certain process: conducting a “hearing where ‘youth and its
attendant characteristics’ are considered.” 577 U. S., at 210.
That process is not an end in itself. Rather, it “gives effect to Miller ’s substantive holding that life without parole is an
excessive sentence for children whose crimes reflect transient
immaturity.” Ibid. Finally, the Court argues that Miller offered nothing more than a prediction that “a discretionary
sentencing procedure would help make life-without-parole
sentences relatively rare.” Ante, at 13. Miller ’s
substantive rule was not a prediction. Rather, Miller held
that juvenile LWOP sentences must be rare because it is only “the
rare juvenile offender whose crime reflects irreparable
corruption.” 567 U. S., at 479–480 (internal quotation marks
omitted). Simply put, there are very few juveniles for whom the
“ ‘signature qualities’ ” of youth do not undermine the
penological justifications for LWOP. Id., at 476. Youth is
“a time of immaturity, irresponsibility, impetuousness, and
recklessness,” and, almost invariably, those “qualities are all
transient.” Ibid. (internal quotation marks and brackets
omitted).

															In any event, the data since Miller prove
that sentencing discretion alone will not make LWOP a rare sentence
for juvenile offenders. Even after Montgomery , Mississippi
courts require only that a sentencer consider youth-related factors
“in a non-arbitrary fashion” before imposing a sentence of LWOP.
See, e.g., Miller v. State , ___ So. 3d ___, ___, 2020
WL 2892820, *5 (Miss. App., June 2, 2020). Unbound by Miller ’s essential holding, more than a quarter of
Mississippi’s resentencings have resulted in the reimposition of
LWOP. See Brief for Juvenile Law Center et al. as Amici
Curiae 20.[ 1 ]

															Pennsylvania, in contrast, has recognized that
“ Miller requires far more than mere consideration of an
offender’s age,” as “a life-without-parole sentence imposed on a
juvenile is illegal” unless “the defendant will forever be
incorrigible, without any hope for rehabilitation.” Commonwealth v. Batts , 640 Pa. 401, 440, 444, 163
A.3d 410, 433, 435 (2017). Pennsylvania has adopted a number of
procedures to guide sentencing courts in applying Miller ’s
rule, including a presumption against juvenile LWOP that the State
must rebut through proof beyond a reasonable doubt. 640 Pa., at
476, 163 A. 3d, at 454–455. Fewer than 2 percent of resentencings
in Pennsylvania have resulted in the reimposition of LWOP. See The
Campaign for the Fair Sentencing of Youth, Tipping Point: A
Majority of States Abandon Life-Without-Parole Sentences for
Children 7 (2018) (Tipping Point).

															These States’ experiences show that juvenile
LWOP sentences will not be rare simply by virtue of sentencing
discretion. Sentencers will not “necessarily . . .
consider the defendant’s youth,” ante, at 15, and they
certainly will not necessarily conduct Miller ’s essential
inquiry. If sentencing discretion is all that is required, far too
many juvenile offenders will be sentenced to die in
prison.[ 2 ]

															B

															The Court’s misreading of Miller and Montgomery is egregious enough on its own. The Court twists
precedent even further, however, by distorting Miller in a
way that cannot be reconciled with Montgomery ’s holding that Miller applies retroactively under the Teague doctrine. See ante, at 7 (opinion of Thomas, J.). That
doctrine divides new rules of constitutional law into two
categories: substantive and procedural. As noted above, Montgomery held that Miller applies retroactively
based solely on “ Teague ’s first exception for substantive
rules.” 577 U. S., at 200. For Montgomery to make any
sense, then, Miller must have done more than mandate a
certain procedure. Rather, it “eliminated a State’s power to
. . . impose a given punishment.” 577 U. S., at
201.[ 3 ]

															Today, however, the Court transforms Miller into a decision requiring only a “discretionary
sentencing procedure.” Ante, at 19. At the same time, the
Court insists that it “does not disturb” Montgomery ’s
holding “that Miller applies retroactively on collateral
review.” Ante, at 19. In other words, the Court rewrites Miller into a procedural rule and, paradoxically, maintains
that Miller was nevertheless “substantive for retroactivity
purposes.” Ante, at 11.

															That explanation undoes Teague ’s
distinction between substantive and procedural rules. If a rule
that requires only a sentencing procedure is substantive for
retroactivity purposes, then this Court has improperly classified
numerous sentencing rules as procedural. To take one example, in Mills v. Maryland , 486 U.S.
367 (1988), this Court invalidated a capital sentencing
procedure requiring jurors to disregard mitigating factors that
were not found unanimously. That holding was procedural because it
altered only “the range of permissible methods for determining
whether a defendant’s conduct is punishable by death.” Schriro v. Summerlin , 542 U.S.
348 , 353 (2004). Under the Court’s logic today, however, the
rule in Mills and other rules of sentencing procedure should
have applied retroactively, even though the Court has held that
they do not. See Beard v. Banks , 542 U.S.
406 , 416–417 (2004) (holding that Mills announced a
procedural rule); Schriro , 542 U. S., at 354 (treating
as procedural the rule set forth in Ring v. Arizona , 536 U.S.
584 (2002), that a jury, rather than a judge, must find
aggravating circumstances necessary for the imposition of the death
penalty). If future litigants make such arguments, it will be
because the Court’s contortion of Miller and Montgomery paves the way for them to do so.

															C

															Rather than read Miller and Montgomery fairly, the Court reprises Justice Scalia’s
dissenting view in Montgomery that Miller requires
only a “youth-protective procedure.” 577 U. S., at 225
(emphasis deleted). Justice Scalia’s view did not prevail, however. Montgomery ’s interpretation of Miller is binding
precedent, just as Miller itself is.

															Any doubts the Court may harbor about the merits
of those decisions do not justify overruling them. See June
Medical Services L. L. C. v. Russo , 591 U. S. ___,
___ (2020) (Roberts, C. J., concurring in judgment) (slip op.,
at 3) (“[F]or precedent to mean anything, the doctrine must give
way only to a rationale that goes beyond whether the case was
decided correctly”). As this Court has consistently reiterated, “a
departure from precedent demands special justification.” Gamble v. United States , 587 U. S. ___, ___
(2019) (slip op., at 11) (internal quotation marks omitted);
accord, Kisor v. Wilkie , 588 U. S. ___, ___–___
(2019) (slip op., at 25–26); Kimble v. Marvel
Entertainment, LLC , 576 U.S. 446, 455–456 (2015).

															The Court offers no such justification today.
Nor could it. The traditional stare decisis factors include
the quality of the precedent’s reasoning, its consistency with
other decisions, legal and factual developments since the precedent
was decided, and its workability. See Ramos , 590 U. S.,
at ___ (opinion of Kavanaugh, J.) (slip op., at 7). None supports
overturning Miller or Montgomery . As explained above,
those decisions are firmly rooted in two lines of precedent and
fundamental principles of proportionality.[ 4 ] Subsequent legal and factual developments have
reinforced their reasoning. Fifteen state courts of last resort,
for instance, have recognized that Miller announced a
substantive rule barring LWOP for any juvenile whose crime does not
reflect permanent incorrigibility. See Reply Brief 18, n. 6.
Twenty States and the District of Columbia have changed their
policies to prohibit LWOP sentences for all juvenile offenders,
including a number of States that “had discretionary sentencing
schemes or a mixture of both mandatory and discretionary
sentences.” Brief for Former West Virginia Delegate John Ellem et
al. as Amici Curiae in Mathena v. Malvo , O. T.
2019, No. 18–217, pp. 34–35; S. 256, 133d Gen. Assembly (Ohio
2020); Va. Code Ann. §53.1–165.1 (2020). Finally, Miller and Montgomery have not proved unworkable: To the contrary, they
have spurred reforms across the country while “avoid[ing] intruding
more than necessary upon the States’ sovereign administration of
their criminal justice systems.” Montgomery , 577 U. S.,
at 211. Requiring sentencers to make an explicit or implicit
determination of permanent incorrigibility before sentencing a
juvenile offender to LWOP imposes no costs that justify overturning
precedent.

															Instead of addressing these factors, the Court
simply rewrites Miller and Montgomery to say what the
Court now wishes they had said, and then denies that it has done
any such thing. See ante, at 19. The Court knows what it is
doing. It admits as much. Rather than try to harmonize its decision
today with Montgomery ’s retroactivity holding, it confesses
in a footnote that its rewriting of precedent is inconsistent with Montgomery and basic retroactivity principles. See ante, at 11–12, n. 4. The Court’s solution? It urges
lower courts to simply ignore Montgomery going forward. Ante, at 11–12, n. 4 (“[T]he Court’s retroactivity
precedents that both pre-date and post-date Montgomery . . . and not Montgomery . . . must
guide the determination of whether rules other than Miller are substantive”).[ 5 ] Instead
of “disturb[ing]” Montgomery ’s retroactivity holding, ante, at 12, n. 4, the Court attempts to bury it.

															How low this Court’s respect for stare
decisis has sunk. Not long ago, that doctrine was recognized as
a pillar of the “ ‘rule of law,’ ” critical to “keep the
scale of justice even and steady, and not liable to waver with
every new judge’s opinion.” Ramos , 590 U. S., at
___–___ (opinion of Kavanaugh, J.) (slip op., at 1–2) (internal
quotation marks omitted). Given these weighty interests, the Court
“usually require[d] that a party ask for overruling, or at least
obtain[ed] briefing on the overruling question,” and then
“carefully evaluate[d] the traditional stare decisis factors.” Barr v. American Assn . of Political
Consultants, Inc. , 591 U. S. ___, ___, n. 5 (2020) (slip
op., at 9, n. 5). Now, it seems, the Court is willing to
overrule precedent without even acknowledging it is doing so, much
less providing any special justification. It is hard to see how
that approach is “founded in the law rather than in the
proclivities of individuals.” Ramos , 590 U. S., at ___
(opinion of Kavanaugh, J.) (slip op., at 2) (internal quotation
marks omitted).

															For present purposes, sentencers should hold
this Court to its word: Miller and Montgomery are
still good law.[ 6 ] See ante, at 19 (“Today’s decision does not overrule Miller or Montgomery ”). Sentencers are thus bound to
continue applying those decisions faithfully. Thankfully, many
States have already implemented robust procedures to give effect to Miller and Montgomery . In other States, the
responsibility falls squarely on individual sentencers to use their
discretion to “separate those juveniles who may be sentenced to
life without parole from those who may not.” Montgomery , 577
U. S., at 210. Failing to do so violates the Eighth
Amendment.

															III

															Brett Jones, like all juvenile offenders
facing a sentence of LWOP, deserves an answer to Miller ’s
essential question: whether his crime demonstrates that he is
permanently incorrigible. Ordinarily, an appellate court should not
pass on that question in the first instance. But the Court today
guarantees that the state sentencing court will never have to give
Jones an answer. It thus bears acknowledging that, based on the
evidence presented below, it is hard to see how Jones is one of the
rare juvenile offenders “whose crime reflects irreparable
corruption.” Miller , 567 U. S., at 479–480 (internal
quotation marks omitted). In fact, many aspects of Jones’ crime
seem to epitomize “unfortunate yet transient immaturity.” Id., at 479 (internal quotation marks omitted); see 2018 WL
10700848, *11 (Miss., Nov. 27, 2018) (Kitchens, P. J., dissenting)
(“Jones’s actions reflect [the hallmark] features [of youth] at
every turn”).[ 7 ]

															Jones killed his grandfather just 23 days after
Jones’ 15th birthday. App. 71. In his short life before the murder,
Jones was the victim of violence and neglect that he was too young
to escape. Jones’ biological father was an alcoholic who physically
abused Jones’ mother, knocking out her teeth and breaking her nose
on several occasions. Id., at 71–72. The two separated when
Jones was two years old. Id., at 71. Jones’ mother then
married Jones’ stepfather, who was also abusive, especially toward
Jones. He beat Jones with belts, switches, and a paddle labeled
“The Punisher.” Id., at 39–40, 78, 81. He rarely called
Jones or his brother by their names, preferring cruel epithets. Id., at 77, 81, 101 (“[H]is favorite thing to call them was
little motherf***ers”). According to Jones’ mother, Jones’
stepfather “hated Brett more because Brett reminded him of [Jones’
biological father].” Id., at 78. According to Jones’
grandmother, he was simply “easier to hurt and beat.” Id., at 39.

															In 2004, after Jones came home late one day,
Jones’ stepfather flew into a rage and grabbed Jones by the neck,
preparing to beat him with a belt. Id., at 128–129. This
time, however, Jones fought back and told his stepfather, “No,
you’re not going to hit me ever again.” Id., at 80. Jones
took a swing at his stepfather and split open his ear. Ibid. The police were called, and Jones was arrested.[ 8 ] Ibid. Jones’ stepfather then threatened
to kick out Jones’ mother and brother if Jones did not move out. Id., at 81. As a result, Jones’ grandparents picked him up
less than two months before the murder and brought him to
Mississippi. Id., at 47.

															When he moved, Jones lost access to medications
that he had been taking for mental health issues. Id., at
38–39.[ 9 ] When he was 11 or 12
years old, Jones began cutting himself so that he “would not feel
the panic and the hurt that was inside of [his] head.” Id., at 75. He later experienced hallucinations and was prescribed
antidepressant medications. Id., at 92, 124. These
medications were supposed to be tapered off gradually. Id., at 38–39. When Jones left for Mississippi, however, they were
abruptly cut off.

															The murder was precipitated by a dispute over
Jones’ girlfriend. After Jones moved, his girlfriend ran away from
her home in Florida to stay at Jones’ grandparents’ home in secret.
938 So. 2d 312, 313 (Miss. App. 2006). On the day of the murder,
Jones’ grandfather, Bertis Jones, discovered that Jones’ girlfriend
had been staying in their home. Ibid. He ordered her out. Ibid. Later that day, Jones was making a sandwich in the
kitchen using a steak knife. Id., at 314. Jones said
something disrespectful to his grandfather, who started yelling. Ibid. The two began pushing each other, and Jones’
grandfather tried to hit him. Ibid. Jones stabbed his
grandfather with the steak knife. Ibid. Jones’ grandfather
came at Jones again, and the fight continued. Ibid. Jones
ultimately stabbed his grandfather eight times, grabbing a second
knife when the first one broke. 2018 WL 10700848, *7 (Kitchens, P.
J., dissenting).

															No one disputes that this was a terrible crime. Miller , however, held that “the distinctive attributes of
youth diminish the penological justifications for imposing the
harshest sentences on juvenile offenders, even when they commit
terrible crimes.” 567 U. S., at 472. Jones’ crime reflects
these distinctive attributes: “That a teenager in trouble for
having been caught concealing his girlfriend at his grandparents’
home would attempt to solve the problem by resorting to violence
dramatically epitomizes immaturity, impetuosity, and failure to
appreciate risks or consequences.” 2018 WL 10700848, *11 (Kitchens,
P. J., dissenting).

															Jones then attempted to save his grandfather by
administering CPR. 938 So. 2d, at 314 . When that failed, he
clumsily tried to hide what he had done. 2018 WL 10700848, *11
(Kitchens, P. J., dissenting). He was spotted walking around in
plain sight, covered in blood, trembling and muttering to himself. Ibid. When a neighbor questioned him, Jones told a feeble
lie, claiming that his grandfather had left and that the blood on
his clothes was “ ‘a joke.’ ” 938 So. 2d, at 314. Jones
then met up with his girlfriend and attempted to hitchhike, but not
to make a getaway. Instead, he was trying to go see his grandmother
to tell her what had happened. Id., at 315. The police
stopped Jones, found that he was carrying a pocket knife, and asked
if it was the knife he “ ‘did it with.’ ” Ibid .
Jones replied, “ ‘No, I already got rid of it.’ ” Ibid. He then agreed to be interviewed by three police
detectives, “without invoking his right to silence or his right to
counsel and without a parent or guardian present.” 2018 WL
10700848, *11 (Kitchens, P. J., dissenting). Thus, “Jones’s
behavior in the immediate aftermath of his tragic actions also
demonstrated his fundamental immaturity.” Ibid. At his resentencing hearing, Jones provided
evidence that not only is he capable of rehabilitation, but he had
in fact already matured significantly since his crime. In more than
five years in prison, Jones committed only two disciplinary
infractions. App. 134–135. While incarcerated, Jones earned his GED
and sought out work, becoming a “very good employee.” Id., at 106, 109, 153. Jones and his prison unit manager often discussed
the Bible, and in time, his unit manager came to think of Jones
“almost like [a] son.” Id., at 107. Jones confided in him
that Jones “regretted” what he had done. Id., at 112.

															Jones’ grandmother (Bertis Jones’ widow)
testified at Jones’ resentencing hearing and submitted an amicus brief to this Court. She remains “steadfast in her
belief that Brett is not and never was irreparably corrupt.” Brief
for Madge Jones et al. as Amici Curiae 4. She speaks
with Jones weekly, encouraging him as he takes college courses and
serves in the prison ministry. Ibid. Jones’ younger brother,
Marty, and his other family members have also stayed by his
side.

															This significant body of evidence does not
excuse Jones’ crime. It does mean, however, that under Miller and Montgomery , there is a strong likelihood
that Jones is constitutionally ineligible for LWOP. His crime,
while terrible, appears to have been the product of “unfortunate
yet transient immaturity.” Miller , 567 U. S., at 479
(internal quotation marks omitted). Notably, the State called no
witnesses and offered no evidence at the resentencing hearing to
rebut Jones’ proof that his crime reflected the “recklessness” and
“impulsivity” characteristic of juveniles. Montgomery , 577
U. S., at 207 (internal quotation marks omitted); see App. 23,
136.

															In resentencing Jones to LWOP, the sentencing
court failed to apply Miller properly. Instead, it followed
the instructions of the Mississippi Supreme Court, which held that
“ Miller rendered [Mississippi’s] sentencing scheme
unconstitutional if, and only if, the sentencing authority fails to
take into account characteristics and circumstances unique to
juveniles.” 122 So. 3d 698, 702 (2013). Thus, the sentencing court
simply considered the “ Miller factors” as part of the
“mitigating and the aggravating circumstances.” App. 149. It never
addressed Miller ’s central inquiry: whether Jones is one of
the rare juveniles whose crimes reflect irreparable corruption. 567
U. S., at 479–480. Because the sentencing court failed to ask
and answer this critical question, Jones’ sentence should not
stand.

															IV

															It is important not to lose sight of what is
at stake in this case. “The Eighth Amendment’s prohibition of cruel
and unusual punishment guarantees individuals the right not to be
subjected to excessive sanctions.” Miller , 567 U. S.,
at 469 (internal quotation marks omitted). In Roper , Graham , Miller , and Montgomery , the Court
recognized that this guarantee has special significance for
children. The Eighth Amendment does not excuse children’s crimes,
nor does it shield them from all punishment. It does, however,
demand that most children be spared from punishments that “giv[e]
no chance for fulfillment outside prison walls, no chance for
reconciliation with society, no hope.” Graham , 560
U. S., at 79.

															Jones and other juvenile offenders like him seek
only the possibility of parole. Not the certainty of release, but
the opportunity, at some point in their lives, to show a parole
board all they have done to rehabilitate themselves and to ask for
a second chance. Jones recognizes that the parole board may
ultimately decide he must spend his entire life behind bars. He
simply requests that the State not “mak[e] the judgment at the
outset that [he] never will be fit to reenter society.” Id., at 75. The Eighth Amendment requires that most juvenile offenders
be given this small “hope for some years of life outside prison
walls.” Montgomery , 577 U. S., at 213.[ 10 ]

															At his resentencing hearing, Jones told the
court, “I’m not the same person I was when I was 15.
. . . I’ve become a pretty decent person in life. And
I’ve pretty much taken every avenue that I could possibly take in
prison to rehabilitate myself.” App. 152. “Minors do have the
ability to change,” he reflected. Ibid. He noted in closing,
“If you decide to send me back without the possibility of parole, I
will still do exactly what I’ve been doing for ten years. But all I
can do is ask you . . . please give me just one chance to
show the world, man, like, I can be somebody. I’ve done everything
I could over the past ten years to be
somebody. . . . I can’t change what was already
done. I can just try to show . . . I’ve become a grown
man.” Id ., at 153. Today, Jones is 31. His time spent in
prison has now eclipsed the childhood he had outside of it.

															Jones should know that, despite the Court’s
decision today, what he does in life matters. So, too, do the
efforts of the almost 1,500 other juvenile offenders like Jones who
are serving LWOP sentences. Of course, nothing can repair the
damage their crimes caused. But that is not the question. The
question is whether the State, at some point, must consider whether
a juvenile offender has demonstrated maturity and rehabilitation
sufficient to merit a chance at life beyond the prison in which he
has grown up. See Graham , 560 U. S., at 79. For most,
the answer is yes. Notes 1 Elsewhere, the numbers
are even more alarming. Like Mississippi courts, Louisiana courts
have concluded that “ Miller requires the sentencing court to
consider an offender’s youth and attendant characteristics as
mitigating circumstances.” State v. Keith , 51,389,
p. 3 (La. App. 2 Cir. 6/21/17), 223 So. 3d 767, 770. As of
2020, Louisiana has imposed LWOP on an astonishing 57 percent of
eligible juvenile offenders since Miller was decided. See
Louisiana Center for Children’s Rights, Louisiana’s Compliance with Miller v. Alabama 1 (2020). 2 The harm from these
sentences will not fall equally. The racial disparities in juvenile
LWOP sentencing are stark: 70 percent of all youths sentenced to
LWOP are children of color. See Tipping Point 10; see also Brief
for Juvenile Law Center et al. as Amici Curiae 21
(reporting that “[i]n the years before Graham and Miller , courts sentenced Black juvenile offenders to life
imprisonment without parole ten times more often than white
offenders”); Mills, Dorn, & Hritz, Juvenile Life Without Parole
in Law and Practice: Chronicling the Rapid Change Underway, 65 Am.
U. L. Rev. 535, 579–580 (2016) (“Non-whites are
overrepresented among the JLWOP population in ways perhaps unseen
in any other aspect of our criminal justice system”). The trend has
worsened since Miller v. Alabama , 567 U.S.
460 (2012): 72 percent of children sentenced to LWOP after Miller were Black, compared to 61 percent of children
sentenced before Miller . Tipping Point
10 . 3 Justice Thomas agrees
that Montgomery mandates such a reading of Miller ,
but he claims that Miller itself did not establish a
substantive rule. See ante, at 2–5. That is incorrect. As
discussed, Miller prohibited mandatory LWOP sentences not
only because mandatory sentencing precludes individualized
consideration of a juvenile’s youth, but also because “such a
scheme poses too great a risk of disproportionate punishment.” 567
U. S., at 479. Applying the principles of proportionality set
forth in Roper and Graham , Miller “rendered
life without parole an unconstitutional penalty for a class of
defendants because of their status[,] that is, juvenile offenders
whose crimes reflect the transient immaturity of youth.” Montgomery , 577 U. S., at 208 (internal quotation marks
omitted). As a result, “ Miller is no less substantive than
are Roper and Graham .” Id., at
209. 4 Justice Thomas claims
that Miller and Montgomery “refashio[n] the Eighth
Amendment to accommodate this Court’s views of juvenile justice.” Ante, at 2; see ante, at 8. In so doing, Justice
Thomas “seek[s] to relitigate old Eighth Amendment battles” based
on “arguments this Court has previously (and often) rejected.” Miller , 567 U. S., at 470–471, n. 4; see Graham v. Florida , 560 U.S.
48 , 58 (2010) (“To determine whether a punishment is cruel and
unusual, courts must look beyond historical conceptions to the
evolving standards of decency that mark the progress of a maturing
society” (internal quotation marks omitted)). 5 Of course, as already
discussed, the Court is perfectly content to rely on Montgomery for its statement that a finding of fact
regarding permanent incorrigibility is not required. That isolated
piece of Montgomery , apparently, still carries the full
weight of precedent. Anything more inconvenient, however, the Court
today discards. 6 The Court leaves open the
possibility of an “as-applied Eighth Amendment claim of
disproportionality.” Ante, at 21 (citing Harmelin v. Michigan , 501 U. S 957, 996–1009 (1991) (Kennedy, J.,
concurring in part and concurring in judgment)). In the context of
a juvenile offender, such a claim should be controlled by this
Court’s holding that sentencing “a child whose crime reflects
transient immaturity to life without parole . . . is
disproportionate under the Eighth Amendment.” Montgomery ,
577 U. S., at 211; see Miller , 567 U. S., at 481
(“ Harmelin had nothing to do with children and did not
purport to apply its holding to the sentencing of juvenile
offenders”). 7 Even as it disclaims any
responsibility for evaluating permanent incorrigibility, the Court
emphasizes the details of Jones’ crime and alludes to other
homicides committed by juveniles throughout the country. See ante, at 2–3, 6. The gravity of these violent acts was not
lost on the Court in Miller , which set forth its substantive
rule specifically for the subset of juvenile offenders who commit
homicide. See also Roper , 543 U. S., at 572 (“[W]e
cannot deny or overlook the brutal crimes too many juvenile
offenders have committed”). Notwithstanding the unique “moral
culpability and consequential harm” of homicide, Miller reasoned that Graham ’s insights about children “are evident
in the same way, and to the same degree.” 567 U. S., at 473.
The point of Miller and Montgomery is that juveniles,
even those who commit murder, have the capacity to grow and mature,
to rehabilitate. The Eighth Amendment requires that sentencers (and
reviewing courts) not presume that most juveniles will forever
remain the “murderers,” ante, at 10, they once
were. 8 This was Jones’ only
prior contact with the juvenile justice system. See Brief for
Petitioner 35. 9 Jones’ mother has also
been diagnosed with a number of conditions, including posttraumatic
stress disorder, bipolar disorder, and manic depression. App. 74.
As a result, throughout Jones’ life, she experienced panic attacks
and emotional breakdowns. Id., at 74–75. As a child, Jones
witnessed his mother cutting herself. Id., at 122–123. The
types of adverse childhood experiences that Jones endured,
including physical abuse, domestic violence, and mental illness in
family members, are strong predictors of negative outcomes for
children, including violence. J. Garbarino, Miller ’s
Children 10–12 (2018); see id., at 12 (“[E]levated adversity
scores are as common among killers as they are rare in the general
adolescent population”). 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 22. But “the remote possibility” of such
action “does not mitigate the harshness of the sentence” that Jones
now faces. Graham , 560 U. S., at 70. The Eighth
Amendment guarantees juvenile offenders like Jones a basic
constitutional protection against disproportionate punishments. The
Court should not leave the vindication of such important legal
rights to others, or to chance.