State of Tennessee v. Tyshon Booker (Dissent)

11/18/2022
IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
February 24, 2022 Session Heard at Nashville
STATE OF TENNESSEE v. TYSHON BOOKER
Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Knox County
No. 108568 G. Scott Green, Judge
___________________________________
No. E2018-01439-SC-R11-CD
___________________________________
JEFFREY S. BIVINS, J., with whom ROGER A. PAGE, C.J., joins, dissenting.
I respectfully dissent from the result reached by a majority of the Court today. Quite
frankly, I find the policy adopted as a result of the plurality opinion of Justice Lee and the
concurring opinion of Justice Kirby to be sound. However, it is just that. It is a policy
decision by which the majority today has pushed aside appropriate confines of judicial
restraint and applied an evolving standards of decency/independent judgment analysis that
impermissibly moves the Court into an area reserved to the legislative branch under the
United States and Tennessee Constitutions.
I. FACTUAL AND PROCEDURAL BACKGROUND1
On November 15, 2015, then sixteen-year-old Tyshon Booker (“Mr. Booker”) shot
and killed G’Metrick Caldwell (“the victim”) while sitting in the victim’s car on a
residential street in East Knoxville. Mr. Booker and then seventeen-year-old Bradley
Robinson (“Mr. Robinson”) left the victim for dead in the vehicle, and Mr. Booker fled
with the victim’s cellphone, which he eventually discarded. Mr. Booker’s finger and palm
prints were found at the scene of the shooting along with shell casings from his nine-
millimeter handgun.
Two days later, Mr. Booker was charged by petition in the Knox County Juvenile
Court related to his involvement in the victim’s death. The next day, he was arrested at the
home of his neighbor, Linda Hatch (“Ms. Hatch”).
1
This opinion discusses only those facts relevant to the issue granted appeal by this Court. A full
recitation of the facts is set out in the Court of Criminal Appeals’ opinion. State v. Booker, No. E2018-
10439-CCA-R3-CD, 2020 WL 1697367 (Tenn. Crim. App. Apr. 8, 2020), perm. app. granted, (Tenn. Sept.
16, 2020).
A. Juvenile Court
Following Mr. Booker’s arrest, the State filed a “Notice and Motion to Transfer,”
seeking to transfer Mr. Booker to the Knox County Criminal Court to be tried as an adult.
During the hearing that followed, the State put on forensic evidence linking Mr. Booker to
the victim’s vehicle. Additionally, Ms. Hatch testified that, the day after the shooting, Mr.
Booker confessed to her that he and Mr. Robinson shot the victim in a failed robbery
attempt.
In response, Mr. Booker attacked Ms. Hatch’s credibility. He argued that she
fabricated part of his confession to protect herself because she maintained an inappropriate
relationship with him that included smoking marijuana together, helping him sell crack
cocaine, and engaging in sexual activities. Dr. Keith Cruise, clinical psychologist, testified
that Mr. Booker suffered from Post-Traumatic Stress Disorder, Moderate Cannabis Use
Disorder, and Conduct Disorder stemming from numerous traumatic events he experienced
during childhood, including witnessing both the death of a close relative and the shooting
of a neighborhood child, as well as experiencing the murder of his paternal grandfather
when Mr. Booker was in his early teens. Dr. Cruise explained that Mr. Booker was likely
amenable to treatment but that adult correctional facilities were “ill equipped” to help him.
At the close of the hearing, the juvenile court considered the transfer factors required
by Tennessee Code Annotated section 37-1-134(b).2 In its oral ruling, the juvenile court
explicitly found: (1) there were reasonable grounds to believe Mr. Booker committed the
murder, (2) Mr. Booker was not committable to an institution for the developmentally
disabled or mentally ill, (3) his prior delinquency records were “not of great importance
here,” (4) he received minimal past treatment efforts, (5) the nature of the alleged offense
weighed heavily in favor of transfer, (6) any gang affiliation had little impact in the case,
and (7) there was little hope of rehabilitating Mr. Booker in the twenty-one months
remaining before his nineteenth birthday when he would be released from juvenile state
custody. The juvenile court expressed reservations but, ultimately, based on its findings,
the judge transferred Mr. Booker to criminal court to be tried as an adult.
2
In making the [transfer] determination . . ., the court shall consider, among other matters:
(1) The extent and nature of the child’s prior delinquency records;
(2) The nature of past treatment efforts and the nature of the child’s response thereto;
(3) Whether the offense was against person or property, with greater weight in favor of transfer
given to offenses against the person;
(4) Whether the offense was committed in an aggressive and premeditated manner;
(5) The possible rehabilitation of the child by use of procedures, services and facilities currently
available to the court in this state; and
(6) Whether the child’s conduct would be a criminal gang offense, as defined in § 40-35-121, if
committed by an adult.
Tenn. Code Ann. § 37-1-134(b) (2014) (amended 2022).
-2-
B. Criminal Court
A Knox County Grand Jury indicted Mr. Booker on two counts of felony murder
and two counts of especially aggravated robbery related to the victim’s death. The case
proceeded to a jury trial. At trial, the State’s evidence was consistent with its presentation
at the juvenile transfer hearing, including evidence of Mr. Booker’s confession to Ms.
Hatch and their improper relationship.
Mr. Booker took the stand and testified at trial that he shot the victim in self-defense.
According to Mr. Booker, there was a fight between the victim and Mr. Robinson in the
vehicle, during which Mr. Booker believed the victim reached for a gun. Mr. Booker denied
telling Ms. Hatch that he and Mr. Robinson planned to rob the victim, but rather stated that
the three planned only to drive around and smoke marijuana together.
The jury convicted Mr. Booker as charged on all counts. The felony murder
convictions merged, and the trial court imposed the mandatory sentence of life
imprisonment.3 Following a sentencing hearing, the trial court sentenced Mr. Booker to
twenty years for the especially aggravated robbery convictions, to be served concurrently
with his life sentence.
C. The Appeal
On appeal to the Court of Criminal Appeals, Mr. Booker raised, inter alia,
constitutional challenges to Tennessee’s automatic life sentence for first-degree murder.
After briefing and oral argument, the Court of Criminal Appeals found no reversible error
and affirmed Mr. Booker’s convictions. State v. Booker, No. E2018-01439-CCA-R3-CD,
2020 WL 1697367, at *33 (Tenn. Crim. App. Apr. 8, 2020), perm. app. granted, (Tenn.
Sept. 16, 2020). As to Mr. Booker’s claim that his mandatory life sentence is
unconstitutional under the Eighth Amendment to the United States Constitution and United
States Supreme Court precedent, the court stated, “While we understand [Mr. Booker]’s
argument, we must reject his invitation as we are bound by court precedent.” Id. (citing
State v. Collins, No. W2016-01819-CCA-R3-CD, 2018 WL 1876333, at *20 (Tenn. Crim.
3
Tennessee law mandates a sentence of death, imprisonment for life without possibility of parole,
or imprisonment for life for those convicted of felony murder. See Tenn. Code Ann. §§ 39-13-202(a)(2),
(c)(1)–(3) (2014) (amended 2018, 2021 & 2022). The State must send notice to the defendant of its intent
to seek the death penalty or life without parole. See Tenn. Code Ann. § 39-13-208(a)–(c) (2014) (amended
2021 & 2022). If the State seeks either the death penalty or life without parole, the sentencer has discretion
to choose between the alternative sentences during a sentencing hearing. Tenn. Code Ann. § 39-13-204(2014) (amended 2019, 2021 & 2022). When the State declines to pursue the death penalty or life without
parole, the law mandates a sentence of life imprisonment if the defendant is convicted of first-degree
murder. See Tenn. Code Ann. § 39-13-208(c) (2014). Mr. Booker was not eligible for the death penalty,
see Roper v. Simmons, 543 U.S. 551, 568 (2005), and the record indicates that the State did not give notice
of intent to seek life without parole. Therefore, Mr. Booker’s sentence of life imprisonment was mandatory.
-3-
App. Apr. 18, 2018), perm. app. denied, (Tenn. Aug. 8, 2018), cert. denied, 139 S. Ct. 649(2018)).
Mr. Booker then appealed to this Court. We granted the application only as to the
issue of whether Tennessee’s sentence of life imprisonment, as applied to juveniles,
violates the United States or Tennessee Constitutions. Order, State v. Booker, No. E2018-
01439-SC-R11-CD (Tenn. Sept. 16, 2020) (granting the application for permission to
appeal). We also directed the parties to address what sentencing options may be available
under Tennessee law if the sentence of life imprisonment is improper. Id. Approximately
two months after oral argument in this case, the United States Supreme Court issued its
opinion in Jones v. Mississippi, 141 S. Ct. 1307 (2021), which analyzed a related juvenile
sentencing issue. We ordered the parties to submit supplemental briefing regarding whether
Jones affects the analysis or outcome in this case.4 Order, State v. Booker, No. E2018-
01439-SC-R11-CD (Tenn. June 10, 2021) (directing the parties to submit supplemental
briefs).
II. ANALYSIS
The proper analysis for this challenge requires examination of the issue of whether
the Eighth Amendment to the United States Constitution, as interpreted in Miller v.
Alabama, 567 U.S. 460 (2012), requires this Court to hold that Tennessee’s life sentence
is unconstitutional as applied to juveniles. The Eighth Amendment, applicable to the States
through the Fourteenth Amendment, states: “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend.
VIII. Further, the United States Supreme Court has explained, “The Eighth Amendment
guarantees individuals the right not to be subjected to excessive sanctions[, which] flows
from the basic ‘precept of justice that punishment for crime should be graduated and
proportioned to [the] offense.’” Roper v. Simmons, 543 U.S. 551, 560 (2005) (second
alteration in original) (quoting Atkins v. Virginia, 536 U.S. 304, 311 (2002); Weems v.
United States, 217 U.S. 349, 367 (1910)).
When our Court is asked to interpret the Eighth Amendment, we are bound by the
existing interpretations of the United States Supreme Court. West v. Schofield, 519 S.W.3d
4Both parties agree that the holding in Jones does not directly control the outcome in Mr. Booker’s
case. However, each party’s supplemental brief argues that Jones ultimately supports that party’s position
in this case. Mr. Booker argues that his position rests on applying the principles of Graham v. Florida, 560
U.S. 48 (2010) and Miller v. Alabama, 567 U.S. 460 (2012), and because Jones explicitly upholds Graham
and Miller as good law, Jones supports his position that Tennessee’s life sentence is unconstitutional as
applied to juveniles. The State maintains that Miller is distinguishable and that Jones implicitly approves
of Tennessee’s first-degree-murder sentencing scheme in a footnote. See Jones, 141 S. Ct. at 1318 n.5.
Further, because Tennessee’s sentencing scheme can result in discretion if the State pursues a life-without-
parole sentence, the State argues that a life sentence is the lesser, not equal, punishment when compared to
a life-without-parole sentence.
-4-
550, 566 (Tenn. 2017) (citing James v. City of Boise, 577 U.S. 306, 307 (2016) (per
curiam) (“The Idaho Supreme Court, like any other state or federal court, is bound by this
Court’s interpretation of federal law.”); Marmet Health Care Ctr., Inc. v. Brown, 565 U.S.
530, 531 (2012) (per curiam) (“When this Court has fulfilled its duty to interpret federal
law, a state court may not contradict or fail to implement the rule so established.”)). We
may not “interpret the United States Constitution to provide greater protection than [the
United States Supreme Court’s] own federal constitutional precedents provide.” Arkansas
v. Sullivan, 532 U.S. 769, 772 (2001) (citing Oregon v. Hass, 420 U.S. 714, 719 (1975)).5
A. The Roper/Graham/Miller Trilogy
Over the last twenty years, the United States Supreme Court has held that the Eighth
Amendment prohibits certain punishments and requires special procedural protections in
the context of juvenile sentencing. See Roper, 543 U.S. at 568; Graham v. Florida, 560
U.S. 48, 74–75 (2010); Miller, 567 U.S. at 465; Montgomery v. Louisiana, 577 U.S. 190,
212 (2016). In Roper, the Court barred the use of the death penalty on any juvenile
offender, regardless of the crime of conviction, as cruel and unusual under the Eighth
Amendment. Roper, 543 U.S. at 568. First, the Court determined that a national consensus
had formed against the juvenile death penalty supported by the understanding that juveniles
are “categorically less culpable than the average criminal.” Id. at 567 (citing Atkins, 536
U.S. at 316) (summarizing the objective indicia of national consensus against the juvenile
death penalty as “the rejection of the juvenile death penalty in the majority of States; the
infrequency of its use even where it remains on the books; and the consistency in the trend
toward abolition of the practice” (Id. at 552)). The Court also reasoned that the usual
penological justifications for the death penalty, such as retribution and deterrence, no
longer carried the same weight when considering the harshness of the penalty compared to
certain inescapable characteristics of youth, such as immaturity and irresponsibility,
vulnerability and susceptibility to negative influences coupled with a lack of control over
their environment, and personality traits that are more transient and amenable to
rehabilitation. Id. at 569–73. For these reasons, the Court concluded that the death penalty
is disproportional when applied to any juvenile offender and violates the Eighth
Amendment. Id. at 575.
Five years later, in Graham, the Supreme Court barred the use of life-without-parole
sentences for juveniles convicted of nonhomicide crimes. Graham, 560 U.S. at 74. The
Supreme Court determined that a national consensus had developed against the use of such
a harsh punishment for juvenile nonhomicide offenders and held, in that context, such a
sentence violates the Eighth Amendment. Id. at 67, 74. The Graham Court reiterated the
same characteristics associated with youth first stated in Roper: “juveniles have a ‘lack of
maturity and an underdeveloped sense of responsibility’; they ‘are more vulnerable and
5
In my view, the result reached by the majority today does just that: the majority has interpreted
the United States Constitution to provide greater protection than federal constitutional precedents provide.
-5-
susceptible to negative influences and outside pressures, including peer pressure’; and their
characters are ‘not as well formed.’” Id. at 68 (quoting Roper, 543 U.S. at 569–70). In the
context of juvenile nonhomicide offenders, these same characteristics led the Supreme
Court to conclude that a juvenile’s already lowered moral culpability is twice diminished
when he or she “did not kill or intend to kill,” id. at 69, and, overall, juveniles cannot
reliably be classified as incorrigible at the time of conviction, id. at 72–73.
The Graham Court described a life-without-parole sentence as “the second most
severe penalty permitted by law,” id. at 69 (quoting Harmelin v. Michigan, 501 U.S. 957,
1001 (1991) (Kennedy, J., concurring)), and something akin to the death penalty, which
“alters the offender’s life by a forfeiture that is irrevocable . . . without giving hope of
restoration,” id. at 69–70. Therefore, a life-without-parole sentence is disproportional when
applied to juvenile nonhomicide offenders given the difficulty of differentiating between a
juvenile “whose crime reflects unfortunate yet transient immaturity, and the rare juvenile
offender whose crime reflects irreparable corruption.” Id. at 68 (quoting Roper, 543 U.S.
at 573). Similar to the reasoning in Roper, the Court concluded that deterrence and
retribution do not support life-without-parole sentences in the context of juvenile
nonhomicide offenders. Id. at 71–72. Further, while incapacitation may justify a lengthy
punishment for a serious nonhomicide crime, it does not support life without parole for
juvenile nonhomicide offenders because it requires a sentencer to make the decision that a
juvenile “forever will be a danger to society” at the outset, id. at 72, even though
“incorrigibility is inconsistent with youth,” id. at 73 (quoting Workman v. Commonwealth,
429 S.W.2d 374, 378 (Ky. 1968)). The Supreme Court also explained that such a
punishment is inconsistent with rehabilitation as a goal because life without parole
“forswears altogether the rehabilitative ideal[ ] [b]y denying the defendant the right to
reenter the community” despite a juvenile’s capacity for reform. Id. at 73–74. Therefore, a
sentence of life without parole is cruel and unusual and violates the Eighth Amendment as
applied to a juvenile convicted of a nonhomicide crime. Id. at 74.
Just two years later, the Court decided Miller, which held that life without parole
could be imposed on a juvenile convicted of homicide, but only under a discretionary
sentencing scheme. Miller, 567 U.S. at 465. Two fourteen-year-old offenders, Kuntrell
Jackson and Evan Miller, were convicted of capital murder and the only available sentence
under the law of their respective states was life without parole. Id. at 465–69; see Ark.
Code. Ann. § 5-4-104(b) (1997) (providing that “[a] defendant convicted of capital murder
. . . shall be sentenced to death or life imprisonment without parole”); Ala. Code §§ 13A-
5-40(a)(9), 13A-6-2(c) (1982) (fixing murder in the course of arson as a capital offense
subject to life without parole). Therefore, both Mr. Jackson and Mr. Miller were sentenced
under mandatory sentencing schemes, which did not allow for consideration of their youth
or an option to impose a lesser punishment than life without parole. Miller, 567 U.S at 465–
69. Their cases were consolidated on review.
-6-
The Miller Court explained that there may be the type of rare incorrigible youth who
commits homicide and deserves a sentence of life without parole. Id. at 479–80. However,
given all that Roper and Graham said about youth, the “appropriate occasions for
sentencing juveniles [to life without parole] will be uncommon” and require a sentencing
scheme that allows for the sentencer to consider the offender’s “youth and attendant
characteristics.” Id. at 479, 483. If the sentencing scheme is mandatory and “mak[es] youth
(and all that accompanies it) irrelevant to imposition of that harshest prison sentence,” the
Supreme Court explained, the “scheme poses too great a risk of a disproportionate
punishment” and runs afoul of the Eighth Amendment. Id. at 479. Miller relied on the same
characteristics of youth announced in Roper and reiterated in Graham, that a juvenile’s
“transient rashness, proclivity for risk, and inability to assess consequences” leads to
diminished criminal culpability and an increased ability to reform and be rehabilitated, and
determined that “none of what [its precedents] said about children . . . is crime-specific.”
Id. at 471–73.
Building on Graham’s conclusion that life without parole “alters the offender’s life
by a forfeiture that is irrevocable,” the Miller Court reasoned that individualized sentencing
and consideration of “the ‘mitigating qualities of youth’” are particularly relevant when
considering the constitutionality of a life-without-parole sentence imposed on a juvenile.
Id. at 475–76 (first quoting Graham, 560 U.S. at 69; then quoting Johnson v. Texas, 509
U.S. 350, 367 (1993)). Both Roper and Graham, the Supreme Court acknowledged, “teach
that in imposing a State’s harshest penalties, a sentencer misses too much if he treats every
child as an adult.” Id. at 477. Therefore, mandatory imposition of life without parole, which
ignores the very attributes that make children constitutionally different from adults and
disregards the offender’s potential for rehabilitation, violates the Eighth Amendment. Id.
at 479. The Supreme Court clarified that its holding, unlike Graham, did not categorically
bar life-without-parole sentences for juvenile homicide offenders. Id. at 479–80. However,
after Miller, the Eighth Amendment requires that a sentencer “take into account how
children are different, and how those differences counsel against irrevocably sentencing [a
juvenile] to a lifetime in prison.” Id. at 480.
I do agree with the majority that the Roper/Graham/Miller trilogy6 centers around
one foundational principle: “children are constitutionally different from adults for purposes
of sentencing.” Id. at 471. In support of this principle, each holding builds off prior
precedent to support the conclusion: juvenile offenders generally are less culpable than
their adult counterparts and more responsive and amenable to rehabilitation, which makes
6
Following Miller, the United States Supreme Court held in Montgomery v. Louisiana, 577 U.S.
190, 212 (2016), that Miller established a new rule of constitutional law that applies retroactively on
collateral review. The Court also recently clarified that “[i]n light of th[e] explicit language” in Miller and
Montgomery, there is no formal factfinding requirement regarding a child’s incorrigibility before
sentencing a juvenile homicide offender to life without parole, so long as the overall sentencing scheme is
discretionary. Jones, 141 S. Ct. at 1311.
-7-
them less deserving of the most severe punishments at law. Id. (citing Graham, 560 U.S. at
68); see also Roper, 543 U.S. at 569–71.
Additionally, the trilogy recognizes that “the distinctive attributes of youth diminish
the penological justifications for imposing the harshest sentences on juvenile offenders,
even when they commit terrible crimes.” Miller, 567 U.S. at 472. Retribution,
incapacitation, deterrence, and rehabilitation provide little support for either the death
penalty or life-without-parole sentences once a court considers that juveniles, in general,
have diminished culpability, are unlikely to contemplate the potential for punishment
before acting, and cannot with reliability be classified as incorrigible or irredeemable at
such a young age. See id. at 472–73; Graham, 560 U.S. at 71–73; Roper, 543 U.S. at 571.
The Supreme Court cemented the interconnectedness of this line of cases in Miller when it
stated that “none of what is said about children—about their distinctive (and transitory)
mental traits and environmental vulnerabilities—is crime-specific.” Miller, 567 U.S. at
473. Therefore, whether the crime of conviction is homicide or something less severe in
the eyes of the law, the rationale for limiting the imposition of these harsh sentencing
practices remains the same.
These cases and their collective underpinning are compelling. However, in
answering the federal constitutional question before the Court today, “our duty to follow
binding precedent is fixed upon case-specific holdings rather than general expressions in
an opinion that exceed the scope of any particular holding.” State v. Slocumb, 827 S.E.2d
148, 153 (S.C. 2019) (citing Vasquez v. Commonwealth, 781 S.E.2d 920, 926 (Va. 2016)).
Because Mr. Booker argues that the principles of both Graham and Miller compel this
Court to hold that Tennessee’s life sentence is unconstitutional as applied to juveniles, the
proper analysis narrows the focus to their specific holdings.
B. Graham and Miller
In Graham, the Supreme Court held that “for a juvenile offender who did not commit
homicide[,] the Eighth Amendment forbids the sentence of life without parole.” Graham,
560 U.S. at 74. The Supreme Court clarified its holding:
A State is not required to guarantee eventual freedom to a juvenile
offender convicted of a nonhomicide crime. What the State must do,
however, is give defendants like Graham some meaningful opportunity to
obtain release based on demonstrated maturity and rehabilitation. It is for the
State, in the first instance, to explore the means and mechanisms for
compliance. It bears emphasis, however, that while the Eighth Amendment
prohibits a State from imposing a life[-]without[-]parole sentence on a
juvenile nonhomicide offender, it does not require the State to release that
offender during his natural life. Those who commit truly horrifying crimes
as juveniles may turn out to be irredeemable, and thus deserving of
-8-
incarceration for the duration of their lives. The Eighth Amendment does not
foreclose the possibility that persons convicted of nonhomicide crimes
committed before adulthood will remain behind bars for life. It does prohibit
States from making the judgment at the outset that those offenders never will
be fit to reenter society.
Id. at 75.
After Graham, a few points are clear: Tennessee is prohibited from sentencing
juvenile nonhomicide offenders to life without parole; juvenile nonhomicide offenders can
remain incarcerated for life so long as they are given a “meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation;” and it is for our State to decide
“the means and mechanisms for compliance” with Graham’s holding. Id. Less clear from
Graham, however, is how to define a “meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.” Id. That question, while an important one, is not
determinative for the analysis today because Graham is distinguishable from this case.
Simply put, Graham applies to cases in which a juvenile is convicted of a nonhomicide
crime and sentenced to life without parole. In this case, Mr. Booker was convicted of
homicide and received a life sentence—not a sentence of life without parole.
In Miller, the Supreme Court held that the Eighth Amendment forbids mandatory
imposition of a life-without-parole sentence on juveniles convicted of homicide. Miller,
567 U.S. at 479–80; see Montgomery, 577 U.S. at 193 (“In Miller[], the Court held that a
juvenile convicted of a homicide offense could not be sentenced to life in prison without
parole absent consideration of the juvenile’s special circumstances in light of the principles
and purposes of juvenile sentencing.”); Jones, 141 S. Ct. at 1311 (“Under Miller[ ], an
individual who commits a homicide when he or she is under [eighteen] 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.”). Therefore, Miller does not prohibit life-
without-parole sentences, nor does it prohibit all mandatory sentencing schemes in the
juvenile context. Miller, 567 U.S. at 480. Miller requires that, before a juvenile homicide
offender is sentenced to life without parole, a sentencer must consider the offender’s youth
and its accompanying characteristics before deciding the juvenile is incorrigible and must
spend the rest of his days in prison. Id. at 479–80.
The Supreme Court has clarified that “Miller did not impose a formal factfinding
requirement” on the sentencer. Montgomery, 577 U.S. at 211. Rather, it is up to States to
determine the mechanisms to comply with Miller’s mandate. Id. This means that not only
is the sentencer relieved of making a specific finding of incorrigibility, but also he or she
is relieved of making any specific factual findings on the record. Jones, 141 S. Ct. at 1316,
1320 (stating “Miller did not require the sentencer to make a separate finding of permanent
incorrigibility before imposing [life without parole]” and “Miller did not say a word about
requiring some kind of particular sentencing explanation with an implicit finding of
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permanent incorrigibility, as Montgomery later confirmed”). The discretionary scheme
itself is sufficient, the Supreme Court explained, because it “allows the sentencer to
consider the [offender’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 [offender’s]
age.” Id. at 1318.
After Miller (and Montgomery/Jones), two points are clear: (1) Tennessee can
impose a life-without-parole sentence on a juvenile homicide offender only if it does so
under a discretionary sentencing scheme; and (2) federal constitutional law, based upon
Supreme Court precedent, does not require a sentencer to make any specific findings on
the record before sentencing a juvenile homicide offender to life without parole, including
that the juvenile is incorrigible.7
Because Mr. Booker was under the age of eighteen at the time he committed a
homicide, and because his life sentence was mandatorily imposed,8 Miller’s holding could
be viewed as providing guidance in this case. One, however, cannot ignore an important
distinguishing fact: Mr. Booker was sentenced to life imprisonment, not life without parole.
Thus, the main issue Mr. Booker asks this Court to contemplate, and what is still left
unclear following Miller and its progeny, is: do the Eighth Amendment protections, as
interpreted by Miller, apply to sentences that are not life without parole in name but could
7
Few state courts have interpreted or applied Jones since it was released. Among the courts that
have, the above-mentioned rules are clear. See, e.g., Holmes v. State, 859 S.E.2d 475, 480–81 (Ga. 2021);
Elliott v. State, No. CR-20-407, 2021 WL 2012632, at *5 (Ark. May 20, 2021); Wynn v. State, No. CR-
19-0589, 2021 WL 2177656, at *8–9 (Ala. Crim. App. May 28, 2021); State v. Miller, 861 S.E.2d 373, 380
(S.C. Ct. App. 2021); Harned v. Amsberry, 499 P.3d 825, 833 (Or. Ct. App. 2021). However, Jones has left
some state court decisions now in question. See People v. Dorsey, 183 N.E.3d 715, 727 (Ill. 2021)
(determining that Illinois Supreme Court precedent, which held the protections of Miller and Montgomery
apply equally to mandatory and discretionary life-without-parole sentences is “questionable in light of
Jones,” but that, overall, Jones approves of the state’s discretionary sentencing scheme at issue in that case);
People v. Ruiz, No. 1-18-2401, 2021 WL 2102850, at *12 (Ill. App. Ct. May 25, 2021) (concluding that
the Illinois Supreme Court can require more fact finding procedures under Miller than those stated in Jones);
People v. Terry, No. 1-18-2084, 2021 WL 2290798, at *4 (Ill. App. Ct. May 28, 2021) (stating that the
impact of Jones is “unclear” on Illinois Supreme Court precedent).
8
As previously noted, although Tennessee’s first-degree murder sentencing scheme can result in
the sentencer having discretion, supra note 3, Mr. Booker’s sentence of life imprisonment was imposed
mandatorily because he is not eligible for the death penalty and the State did not seek a sentence of life
without parole. Had the State sought life without parole, under Tennessee law, a jury would have had
discretion to sentence Mr. Booker to either life without parole—if it unanimously determined that the State
proved at least one aggravating factor beyond a reasonable doubt—or life imprisonment. See Tenn. Code
Ann. § 39-13-207(a)–(c) (2014) (amended 2021 & 2022). In Tennessee, so long as the proper notice is
given, it appears that this type of sentencing discretion is what Miller suggests as a constitutionally
sufficient procedure for sentencing a juvenile to life without parole. Miller, 567 U.S. at 478–80, 489.
However, that is not the scenario presented today because the State did not seek a life-without-parole
sentence in this case.
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be considered the functional equivalent to a life-without-parole sentence? Stated another
way, does Tennessee’s life sentence—a sixty-year sentence that requires at least fifty-one
years imprisonment before an opportunity for release—offend the Eighth Amendment and
principles of Miller when applied to a juvenile convicted of homicide?
C. State and Federal Court Analysis of the Functional Equivalency Issue9
Tennessee clearly is not the only state court to contemplate whether Miller applies
to lengthy sentences that are not life without parole in name. Because the United States
Supreme Court has not answered this question, and it is an issue of first impression for this
Court, we consult the decisions of our lower courts, other state courts, and federal courts
for guidance. Overall, research shows there is no consensus on this issue.
Tennessee courts consistently have held that Tennessee’s life sentence is not
unconstitutional under the Eighth Amendment and Miller because it “permits release
eligibility after serving fifty-one years.” State v. Polochak, No. M2013-02712-CCA-R3-
CD, 2015 WL 226566, at *34 (Tenn. Crim. App. Jan. 16, 2015); see also State v. Douglas,
No. W2020-01012-CCA-R3-CD, 2021 WL 4480904, at *24–25 (Tenn. Crim. App. Sept.
30, 2021) (listing other Tennessee cases). Additionally, the courts have recognized that
“[w]hile the next logical next step may be to extend protection to these types of sentences,
that is not the precedent which now exists.” Polochak, 2015 WL 226566, at *34 (quoting
Perry v. State, No. W2013-00901-CCA-R3-PC, 2014 WL 1377579, at *5 (Tenn. Crim.
App. Apr. 7, 2014)); see also State v. Fitzpatrick, No. M2018-02178-CCA-R3-CD, 2021
WL 3876968, at *8 (Tenn. Crim. App. Aug. 31, 2021) (“The power to break with well-
established precedent does not lie with this court, and we are not prepared to expand the
parameters of the Eighth Amendment in this regard, notwithstanding the fact that the
Defendant’s sentence ‘may push, and possibly exceed, the bounds of his life
expectancy[.]’” (alteration in original) (quoting State v. King, No. W2019-01796-CCA-
R3-CD, 2020 WL 5352154, at *2 (Tenn. Crim. App. Sept. 4, 2020)).
9
The concurring opinion professes that our lengthy discussion of the functional equivalency issue
is a “puzzler” and “makes little sense” because neither the plurality nor the concurring opinion relies on
such an analysis. The answer as to why such a detailed discussion is necessary is two-fold and very simple.
First, Mr. Booker raised this issue as a primary argument to support his position. Indeed, Mr. Booker’s
counsel spent the majority of his time at the first oral argument of this appeal advocating for an application
of Miller to this case, while mentioning an evolving standards of decency/independent judgment analysis
only in passing during rebuttal. Second, the overwhelming number of other state and federal courts that
have invalidated juvenile sentences under the Eighth Amendment in similar cases have done so on the basis
of a functional equivalency analysis. Indeed, today this Court becomes the only court in the country to base
its holding on “the well-established Supreme Court [Eighth Amendment] analytical framework” in order to
find such a statute unconstitutional under the United States Constitution. Of course, this “well-established
framework” is an evolving standards of decency/independent judgment analysis. The fact that both the
plurality and the concurrence for some reason chose to ignore this important argument is their choice and
not binding or limiting upon us.
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As for other state courts, some have decided that the protections of Miller apply
equally to a juvenile homicide offender sentenced to life without parole and to a lengthy
term of years when the lengthy term-of-years sentence is the functional equivalent of life
without parole or a de facto life-without-parole sentence.10 See Casiano v. Comm’r of
Corrs., 115 A.3d 1031, 1044 (Conn. 2015) (concluding that Miller applies to a sentence
not based on its label but rather because it is lengthy, does not offer parole, and requires
the juvenile to actually be imprisoned for the rest of his or her life); State v. Shanahan, 445
P.3d 152, 159 (Idaho 2019) (“Because the Supreme Court has ‘counsel[ed] against
irrevocably sentencing [juveniles] to a lifetime in prison’ without consideration of the
Miller factors, we conclude that the rationale[] of Miller . . . also extend[s] to lengthy fixed
sentences that are the functional equivalent of a determinate life sentence . . . .” (first and
second alteration in original) (citation omitted)); People v. Reyes, 63 N.E.3d 884, 888 (Ill.
2016) (per curiam) (“[W]e hold that sentencing a juvenile offender to a mandatory term of
years that is the functional equivalent of life without the possibility of parole constitutes
cruel and unusual punishment in violation of the [E]ighth [A]mendment.”); State v.
Ragland, 836 N.W.2d 107, 121–22 (Iowa 2013) (holding under the Eighth Amendment
and Iowa state constitution that “Miller applies to sentences that are the functional
equivalent of life without parole”); Carter v. State, 192 A.3d 695, 725 (Md. 2018) (“The
initial question is whether a sentence stated as a term of years for a juvenile offender can
ever be regarded as a sentence of life without parole for purposes of the Eighth
Amendment. It seems a matter of common sense that the answer must be ‘yes.’”); State ex
rel. Carr v. Wallace, 527 S.W.3d 55, 60 (Mo. 2017) (en banc) (“Miller controls because
[the defendant] was sentenced to the harshest penalty other than death available under a
mandatory sentencing scheme without the jury having any opportunity to consider the
mitigating and attendant circumstances of his youth.”); State v. Kelliher, 873 S.E.2d 366,
370 (N.C. 2022) (holding that “any sentence or combination of sentences which,
considered together, requires a juvenile offender to serve more than forty years in prison
before becoming eligible for parole is a de facto sentence of life without parole within the
meaning of article I, section 27 of the North Carolina Constitution because it deprives the
juvenile of a genuine opportunity to demonstrate he or she has been rehabilitated and to
establish a meaningful life outside of prison”); State v. Zuber, 152 A.3d 197, 201 (N.J.
2017) (“We find that the same concerns apply to sentences that are the practical equivalent
of life without parole . . . . The proper focus belongs on the amount of real time a juvenile
will spend in jail and not on the formal label attached to [the] sentence.”); Ira v. Janecka,
419 P.3d 161, 167 (N.M. 2018) (“We conclude that the analysis contained within Roper
and its progeny should be applied to a multiple term-of-years sentence.”); White v. Premo,
443 P.3d 597, 605 (Or. 2019) (“We know of no state high court that has held that a sentence
in excess of [fifty] years for a single homicide provides a juvenile with a meaningful
opportunity for release. Given those particular circumstances, we conclude that petitioner’s
[fifty-four-year-mandatory-minimum] sentence is sufficiently lengthy that a Miller
10
Curiously, neither Justice Lee’s plurality opinion nor Justice Kirby’s concurring opinion relies
on a conclusion that Tennessee’s statute constitutes a de facto sentence of life without parole.
- 12 -
analysis is required.” (footnote and citation omitted)); State v. Ramos, 387 P.3d 650, 659
(Wash. 2017) (“We now join the majority of jurisdictions that have considered the question
and hold that Miller does apply to juvenile homicide offenders facing de facto life-without-
parole sentences.”).
However, there is no clear line to determine when a sentence becomes the functional
equivalent of life without parole. Compare Carter, 192 A.3d at 727–30, 734 (discussing
five benchmarks courts have used to determine when a sentence becomes the functional
equivalent to life without parole and concluding that fifty years before parole eligibility is
equivalent to life without parole for purposes of the Eighth Amendment); Zuber, 152 A.3d
at 212–13 (stating that Miller applies to a minimum sentence of fifty-five years
imprisonment); Casiano, 115 A.3d at 1045–47 (stating that a sentence of fifty years
imprisonment without parole triggers Miller protections); Reyes, 63 N.E.3d at 888
(concluding that a mandatory minimum sentence of eighty-nine years is a de facto life-
without-parole sentence), with Shanahan, 445 P.3d at 160–61 (determining a fixed thirty-
five-year sentence without the possibility of parole was not the functional equivalent of life
without parole); State v. Diaz, 887 N.W.2d 751, 768 (S.D. 2016) (concluding that forty
years in prison before parole eligibility was not a de facto life sentence); People v. Dorsey,
183 N.E.3d 715, 728–29 (Ill. 2021) (determining that a seventy-six-year sentence was not
a de facto life-without-parole sentence because good-time credits made release after thirty-
eight years a possibility).
Other state courts have reached the opposite conclusion, that Miller’s holding is
narrower and applies only to sentences that are life without parole in name. See Lucero v.
People, 394 P.3d 1128, 1132 (Colo. 2017) (“Graham and Miller apply only where a
juvenile is sentenced to the specific sentence of life without the possibility of parole for
one offense.”); Wilson v. State, 157 N.E.3d 1163, 1176 (Ind. 2020) (“Miller, Graham, and
Montgomery expressly indicate their holdings apply only to life-without-parole
sentences.”); Hobbs v. Turner, 431 S.W.3d 283, 289 (Ark. 2014) (“[The defendant] was
not subjected as a juvenile homicide offender to a mandatory life-without-parole sentence;
therefore, Miller, is inapplicable.”); Lewis v. State, 428 S.W.3d 860, 863–64 (Tex. Crim.
App. 2014) (holding that Miller did not apply to single sentence of life imprisonment with
the possibility of parole after forty years imposed mandatorily on a juvenile homicide
offender).
This debate is further complicated by the fact that the majority of states that have
answered the functional equivalency question have done so in the context of an aggregate
sentence for multiple crimes, rather than a single term-of-years sentence, as is the factual
scenario presented in this case. But see White, 443 P.3d at 603–04 (determining that Miller
applies to a determinate 800-month minimum sentence for a single murder); Parker v.
State, 119 So.3d 987, 996–99 (Miss. 2013) (concluding that Miller applies to a single
sentence for “natural life” that is not eligible for parole but allows for conditional release
at age sixty-five); Shanahan, 445 P.3d at 158–61 (acknowledging that Miller can apply to
- 13 -
a single sentence that is the functional equivalent of life without parole but that thirty-five
years before parole eligibility was not the functional equivalent of life without parole).
To reinforce the fact that the answer to this particular question remains unclear,
federal jurisdictions have come down on both sides of this issue in the habeas corpus
context.11 Compare Starks v. Easterling, 659 Fed. Appx. 277, 280–81 (6th Cir. 2016)
(“Because the Supreme Court has not yet explicitly held that the Eighth Amendment
extends to juvenile sentences that are the functional equivalent of life, and given the fact
that lower courts are divided about the scope of Miller, we hold that the Tennessee courts’
decisions were not contrary to, or an unreasonable application of, clearly established
federal law . . . .”), cert. denied, (Jan. 17, 2017); Demirdjian v. Gipson, 832 F.3d 1060,
1076–77 (9th Cir. 2016) (upholding the state court’s decision that Miller’s ban on
mandatory life-without-parole sentences did not apply to defendant’s fifty-year sentence
with parole eligibility at sixty-six years of age); Webster v. Royce, No. 97-cv-2146 (NG),
2021 WL 3709287, at *17 (E.D.N.Y Aug. 20, 2021) (holding that it was not unreasonable
for a state court to deny petitioner relief from a sentence of fifty years before parole
eligibility because “the Supreme Court has not ‘clearly established’ that a sentence of
[fifty] years to life imposed on a juvenile is the ‘functional equivalent’ of life without
parole”), with McKinley v. Butler, 809 F.3d 908, 911 (7th Cir. 2016) (overturning a state
court decision and expressing reservations based on Miller about a 100-year sentence
imposed on a juvenile). In short, courts around the country are divided concerning Miller’s
application to lengthy sentences such as Mr. Booker’s.
At this time, given no controlling authority to the contrary, I would conclude that
we should remain consistent with Tennessee’s lower courts and join the other state courts
that have adopted a narrower interpretation of Miller’s holding and United States Supreme
Court Eighth Amendment precedent. See Slocumb, 827 S.E.2d at 156 (“Rather than predict
what the Supreme Court may or may not do, we believe the proper course is to respect the
Supreme Court’s admonition that lower courts must refrain from extending federal
constitutional protections beyond the line drawn by the Supreme Court.”); Turner, 431
S.W.3d at 289 (“Miller prohibits a sentencing scheme that mandates life in prison without
the possibility of parole for juveniles homicide offenders. [The defendant] was not
subjected . . . to a mandatory life-without-parole sentence; therefore, Miller is
inapplicable.” (citation omitted)); Wilson, 157 N.E.3d at 1175 (“And determining what
sentence constitutes a ‘de facto life sentence’ would be a task completely unmoored from
the language of Miller.”).
11
Under the Antiterrorism and Effective Death Penalty Act, a federal district court may grant relief
to a petitioner only if his or her claim was heard on the merits and “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Therefore, the conclusion of the federal court
in the habeas corpus context is not necessarily a review of the petitioner’s claim on the merits and has
different weight or precedential value.
- 14 -
I reach this decision for two reasons. First, Miller’s holding expressly applies to life-
without-parole sentences, and Tennessee’s life sentence is not that.12 Under Tennessee law,
a life sentence guarantees release after sixty years and offers release as early as fifty-one
years, if the offender earns good-time credits. Brown v. Jordan, 563 S.W.3d 196, 200
(Tenn. 2018) (“[F]or first-degree murders committed on or after July 1, 1995, a defendant
must serve one hundred percent of sixty years less any sentence credits received, but the
sentence credits cannot operate to reduce the sentence imposed by more than fifteen
percent.”) (citing Tenn. Code Ann. § 40-35-501(i)). Therefore, not only does life
imprisonment under Tennessee law guarantee release at a certain point, the sentencing
scheme offers Mr. Booker the opportunity to obtain release nine years early through
earning good-time credits. See Tenn. Code Ann. § 40-35-501(h)(1), (i)(1), & (i)(2)(a)
(2014) (amended 2020); Tenn. Code Ann. § 41-21-236 (2014). For a juvenile like Mr.
Booker, who is sentenced to life imprisonment at the age of sixteen or seventeen, he or she
can expect to remain incarcerated until at least age sixty-seven and at most age seventy-
seven. While quite lengthy, I cannot say that Tennessee’s life sentence, considered under
the current Eighth Amendment jurisprudence of the United States Supreme Court, is
equivalent to a life-without-parole sentence with no meaningful opportunity to obtain
release.13 See United States v. Mathurin, 868 F.3d 921, 934–36 (11th Cir. 2017)
(determining that a sentencing scheme that offered the ability to earn good-time credits and
reduce a sentence by seven years gave a juvenile offender “a reason to pursue and exhibit
‘maturity and rehabilitation’” and thus served as a “‘meaningful opportunity to obtain
release’ during [the juvenile’s] lifetime” (quoting Graham, 560 U.S. at 75)); Dorsey, 183
N.E.3d at 733 (concluding that a sentence did not violate the Eighth Amendment or
constitute a de facto life-without-parole sentence because the state’s day-for-day
sentencing credit provided a defendant with “some meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation” (quoting Graham, 560 U.S. at
75)).
I do not believe it is wise or appropriate to extend Miller, or other existing Eighth
Amendment precedent, by predicting whether the United States Supreme Court would
extend its jurisprudence and hold unconstitutional a lengthy term-of-years sentence in this
12
Indeed, as previously noted, Tennessee law allows juveniles tried as adults to be subject to a
sentence of life without parole. There appears to be no issue regarding the constitutionality of the life-
without-parole statute.
13
Both Mr. Booker and the amici curiae parties argue that a person who spends the majority of his
or her life incarcerated has a lower overall life expectancy and that there is convincing data that a juvenile
incarcerated for fifty-one years or more is likely to die in prison before the opportunity for release. See
Brief of Amici Curiae National Association of Criminal Defense Attorneys, Tennessee Association of
Criminal Defense Attorneys, Amos Brown, and Charles Lowe-Kelly, State v. Booker, No. E2018-01439-
SC-R11-CD, at 23–25 (Tenn. Dec. 2, 2020). While this data may be compelling, evaluation of such research
and its impact on whether a particular sentence is appropriate punishment for a crime is a determination
best left to the legislature.
- 15 -
context. See, e.g., Wilson, 157 N.E.3d at 1175 (“[D]etermining the reach of the [Eighth
Amendment’s cruel and unusual punishment] clause is inherently a line drawing exercise
best left to the U.S. Supreme Court.”). This Court must apply the holdings of the United
States Supreme Court as they are written, not what we wish were true about the holding or
how far we would like for the holding to extend.14 See, e.g., Jones, 141 S. Ct. at 1321–22
(“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.’ We instead rely on what
Miller and Montgomery said . . . .” (citation omitted)).
The United States Supreme Court certainly could choose to extend its
aforementioned Eighth Amendment jurisprudence to a lengthy term-of-years sentence.
However, unlike the majority, I do not find it appropriate to extend its precedent further
than its own language. In no way do I wish to diminish the fact that Mr. Booker’s sentence
requires over half a century of incarceration before any opportunity for release.15 However,
for constitutional purposes, I cannot ignore that it not only offers the opportunity for release
but also guarantees it. Therefore, Miller does not apply.
14
Mr. Booker argues, and Justice Kirby’s concurring opinion concludes, that a new national
consensus has formed since Miller that sentences that require a minimum of fifty years of incarceration or
more, when applied to a juvenile, trigger the protections of Graham and Miller. The United States Supreme
Court may very well choose to take up this issue and hold in accord. However, the data relied on by the
Supreme Court in Roper and Graham to reach the conclusion that a new national consensus had formed
with regard to the particular punishment in those cases varies widely. See Roper, 543 U.S. at 564–68
(relying on legislative enactments and infrequent imposition of the juvenile death penalty in a majority of
states); Graham, 560 U.S. at 62–67 (relying on actual sentencing practices rather than legislative action or
inaction). Perhaps more importantly, the purported national consensus applied in this case in no way
developed in an organic manner as was the situation in Roper and Graham. Many of the legislative and
judicial decisions relied upon by the concurrence arose simply as responses to Miller. As a result, I do not
believe that we can predict with confidence what the Supreme Court may say when viewing the existing
data Mr. Booker highlights in his brief. Likewise, given these circumstances, I am not prepared to find that
a national consensus exists in this case similar to the ones found in Roper and Graham.
15
Both the plurality and especially the concurring opinion make much of the fact that Tennessee
imposes the harshest sentence in the nation in terms of years of service. Yet, no less than Justice Anthony
Kennedy, the author of the majority opinions in Roper, Graham, and Montgomery, and one of the Justices
in the majority in Miller, has written very interestingly regarding a state having the most severe punishment
for a particular crime. In Harmelin v. Michigan, a case relied upon in the plurality opinion, Justice Kennedy
opines as follows:
[M]arked divergences . . . in the length of prescribed prison terms are the
inevitable, often beneficial, result of the federal structure. . . . Thus, the circumstance that
a State has the most severe punishment for a particular crime does not by itself render the
punishment grossly disproportionate. Our Constitution is made for people of
fundamentally differing views. . . . Absent a constitutionally imposed uniformity inimical
to traditional notions of federalism, some State will always bear the distinction of treating
particular offenders more severely than any other State.
501 U.S. 957, 999–1000 (1991) (Kennedy, J., concurring) (internal quotation marks and citation omitted).
- 16 -
Second, this Court has long recognized that it is the distinct job of the legislature to
make policy decisions and to determine the appropriate sentence or punishment for a crime.
See State v. Gentry, 538 S.W.3d 413, 420 (Tenn. 2017) (citing State v. Burdin, 924 S.W.2d
82, 87 (Tenn. 1996)); State v. Harris, 844 S.W.2d 601, 602 (Tenn. 1992) (citing Solem v.
Helm, 463 U.S. 277, 289–90 (1983)). In the specific context of Miller, the Supreme Court
has reiterated that States are not “preclude[d] . . . from imposing additional sentencing
limits in cases involving defendants under [eighteen] convicted of murder.” Jones, 141 S.
Ct. at 1323. In fact, since Miller, a majority of the state legislatures and the District of
Columbia have acted to reform their criminal sentencing laws as they relate to juvenile
homicide offenders.16 However, to date, Tennessee’s legislature is not among them. Even
very recently, the General Assembly has considered bills to reform Tennessee’s first-
degree-murder sentencing scheme not only for juveniles but also for all adult offenders.
See S.B. 1452, 112th Gen. Assem. (2021) (proposing to reduce the minimum amount of
time a juvenile convicted of first-degree murder is required to serve before becoming
release-eligible from fifty-one years to thirty years); S.B. 0561, 112th Gen. Assem. (2021)
(proposing to reduce the portion of a person’s sentence for first-degree murder that must
be served prior to becoming eligible for parole to sixty percent of sixty years if sentenced
to imprisonment for life for an offense committed during certain dates or 100 percent of
sixty years if sentenced to imprisonment for life without the possibility of parole). In fact,
Senate Bill 0561, which proposed parole eligibility after thirty-six years for offenders
convicted of first-degree murder during a certain time and sentenced to life imprisonment,
among other provisions, passed with only four dissenting votes in the Senate on April 22,
2021.17 However, this measure, and similar measures, have stalled at some point in the
legislative process. So, while I certainly recognize that Tennessee’s life sentence, as
applied to juveniles, is lengthy in comparison to other States, upon answering the
constitutional question in this case, this Court should defer to the legislative process and
the legislature’s distinct role in making “broad moral and policy judgments in the first
instance [by] enacting [the] sentencing laws.” Jones, 141 S. Ct. at 1322; see also State v.
Black, 815 S.W.2d 166, 178 (Tenn. 1991) (“Justice Fones, speaking for the Court, stated:
‘The validity and humanity of that complaint should be addressed to the Legislature. This
Court’s authority over punishment for crime ends with the adjudication of
constitutionality.’” (quoting State v. Adkins, 725 S.W.2d 660, 664 (Tenn. 1987))). I
continue to urge the legislature to take up this important issue.
16
See Josh Rovner, Juvenile Life Without Parole: An Overview, THE SENTENCING PROJECT, (May
24, 2021), https://www.sentencingproject.org/publications/juvenile-life-without-parole/ (summarizing
state legislative action since Miller).
17
See S.B. 0561, 112th Gen. Assem., Bill History,
https://wapp.capitol.tn.gov/apps/BillInfo/default.aspx?BillNumber=SB0561&GA=112 (last visited Nov.
16, 2022).
- 17 -
In response to this dissenting opinion, the plurality announces that it “will not shirk
[its] duty and ignore an injustice.” Respectfully, those of us in dissent are far from shirking
our duty and ignoring an injustice. To the contrary, I would submit that the exercise of
judicial restraint in the face of bad policy, particularly involving vulnerable juveniles, is
perhaps the ultimate exercise of our judicial responsibility. Indeed, the eloquent words of
Justice Felix Frankfurter directly address this point: “For the highest exercise of judicial
duty is to subordinate one’s personal pulls and one’s private views to the law of which we
are all guardians—those impersonal convictions that make a society a civilized community,
and not the victims of personal rule.” Tom C. Clark, Mr. Justice Frankfurter: “A Heritage
for All Who Love the Law,” 51 A.B.A. J. 330, 332 (1965).
I stress that I do not arrive at my conclusion today without serious concerns and
reservations. Although I cannot say that Mr. Booker’s sentence is unconstitutional under
the Eighth Amendment to the United States Constitution, the words of Justice Brett
Kavanaugh in Jones are equally or perhaps even more appropriate in the context of this
case:
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 any individual under [eighteen], 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.
Jones, 141 S. Ct. at 1322.
III. CONCLUSION
For these reasons, I am compelled to hold that Tennessee’s life sentence, as applied
to juveniles, does not violate the Eighth Amendment, as interpreted by the United States
Supreme Court in Miller. In reaching this conclusion, I suggest the parallel of Justice
Kavanaugh’s words in Jones applies here. State courts must not make broad moral and
social policy judgments. Our constitution leaves those decisions to the legislative branch.
The majority’s conclusion today to the contrary impermissibly crosses the parameters
imposed on our judiciary by our constitution. While perhaps representing good, sound
policy, the majority’s conclusion fails to allow this issue to be resolved appropriately “by
our Legislature as the representatives of the people.” State v. Barber, 753 S.W.2d 659, 670
(Tenn. 1988).
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For these reasons, I respectfully dissent.
_________________________________
JEFFREY S. BIVINS, JUSTICE
- 19 -