Under the Supreme Court’s Eighth Amendment jurisprudence, life without parole (LWOP) is reserved for the most incorrigible offenders; only the rare juvenile homicide offender who is irretrievably corrupt may receive such a sentence.^1×1. Montgomery v. Louisiana, 136 S. Ct. 718, 733–35 (2016). In Miller v. Alabama,^2×2. 567 U.S. 460 (2012). the Supreme Court held that the Eighth Amendment prohibits sentencing schemes that mandate LWOP for juvenile homicide offenders.^3×3. Id. at 465. Because juvenile homicide offenders are typically less culpable than adult homicide offenders,^4×4. See id. at 471 (citing Graham v. Florida, 560 U.S. 48, 68 (2010)). sentencing courts must take youth into account.^5×5. Id. at 479–80. While Miller offered substantive protection, the Court was silent on the procedural requirements, and state courts have varied in their interpretations of the mandate.^6×6. See Alice Reichman Hoesterey, Confusion in Montgomery’s Wake: State Responses, the Mandates of Montgomery, and Why a Complete Categorical Ban on Life Without Parole for Juveniles Is the Only Constitutional Option, 45 Fordham Urb. L.J. 149, 151–52 (2017); Caroline Maass, Comment, A Meaningful Opportunity to Obtain Release: A Practical Impossibility, 8 Wake Forest J.L. & Pol’y 503, 511–12 (2018). The Court clarified that Miller was retroactive in Montgomery v. Louisiana,^7×7. 136 S. Ct. 718, 732 (2016). In order to establish that Miller guaranteed retroactive protection, the Court defined the right as a substantive commitment that LWOP is a disproportionate punishment for the majority of juvenile offenders rather than merely a procedural right of juveniles to be free from sentencing schemes that mandate LWOP sentences. Id. at 736. but it still left questions critical to the implementation of the new mandate unanswered, including whether Miller had created a presumption in favor of parole and whether sentencing courts must make explicit findings about “irreparable corruption” before sentencing (or resentencing) a juvenile to LWOP.^8×8. See Hoesterey, supra note 6, at 161. Recently, in Chandler v. State,^9×9. 242 So. 3d 65 (Miss. 2018) (en banc). the Supreme Court of Mississippi affirmed that the trial court had satisfied Miller and had not abused its discretion in resentencing a juvenile homicide offender to LWOP, even though the sentencing court placed the burden on him to provide mitigating evidence of his capacity for rehabilitation and did not make a finding on the record that he was permanently incorrigible.^10×10. See id. at 68, 70. Chandler highlights a potential problem with Miller and Montgomery: because the Court did not mandate any particular procedure to guarantee the rights that it recognized, it gave states the opportunity to procedurally undermine these substantive rights and deny juvenile homicide offenders the meaningful opportunity for future release that the Eighth Amendment requires.

In 2005, seventeen-year-old Joey Montrell Chandler was convicted of murder and sentenced to life imprisonment.^11×11. Id. at 67. Chandler shot his cousin twice after learning that he had stolen marijuana and money that Chandler had planned to use to support his pregnant girlfriend.^12×12. Chandler v. State, 946 So. 2d 355, 357 (Miss. 2006) (en banc). The Supreme Court of Mississippi affirmed the sentence on appeal,^13×13. Id. at 366–67. but Chandler received a new sentencing hearing in light of Miller.^14×14. Chandler, 242 So. 3d at 67.

On resentencing, Judge Kitchens focused primarily on the issue of Chandler’s maturity. The facts section of the opinion highlighted that Chandler was “17 years, 6 months and 13 days old” at the time of the crime, and the analysis began with an extensive list of privileges available to seventeen-year-olds in general, including driving, joining the military with parental consent, obtaining abortions without parental consent, and receiving a private pilot’s certificate.^15×15. Chandler v. State, No. 8491, 2015 WL 13744176, at *1 (Miss. Cir. Ct. Oct. 9, 2015). Judge Kitchens then noted that Chandler was “mature enough to father a child with his girlfriend and . . . [sell] drugs.”^16×16. Id. at *2. Furthermore, the judge declared that Chandler was “very mature” because he acted alone, planned the crime, and was not mentally impaired or abused.^17×17. Id. at *3. In a footnote, Judge Kitchens relayed the tale of a seventeen-year-old war hero to dispute the claim that actions committed at that age are per se immature. Id. at *2 n.4. With regard to rehabilitation, the judge stated only that the Executive has the ability to pardon.^18×18. Id. at *3. “After carefully reviewing the evidence in this case and the matters presented in the re-sentencing hearing,” Judge Kitchens found that Chandler should be sentenced to LWOP.^19×19. Id.

Chandler appealed the second sentence on the grounds that the trial court failed to properly take the mitigating impact of his youth into account because it failed to issue findings for each of the Miller factors; in particular, the court had omitted any findings concerning Chandler’s individual capacity for rehabilitation in the record.^20×20. Chandler, 242 So. 3d at 67, 70. Briefly summarized, the Miller factors are: age and its attendant features, family and home environment, circumstances of the offense, legal competency, and possibility of rehabilitation. Miller v. Alabama, 567 U.S. 460, 477–78 (2012). The Mississippi Supreme Court affirmed.^21×21. Chandler, 242 So. 3d at 70–71. Writing for the court, Justice Coleman^22×22. Presiding Justice Randolph also joined in this opinion, along with Justice Maxwell, Justice Beam, and Justice Chamberlin. stated that the trial court had “exceeded” its minimum obligation under Miller and Parker v. State^23×23. 119 So. 3d 987 (Miss. 2013) (en banc). In Parker, the Mississippi Supreme Court held that Miller applied to the case of a juvenile homicide offender that was pending on direct review. Id. at 996. by conducting a hearing and considering all that was presented.^24×24. Chandler, 242 So. 3d at 70. As a preliminary matter, the court held that abuse of discretion (rather than “heightened scrutiny,” as Chandler argued) was the proper standard of review for a trial court’s sentencing decision under Miller. Id. at 68. Because “[n]othing in the record indicates that the trial court did not take [the evidence that Chandler proffered] into account” and the trial court acknowledged the Executive’s power to pardon, the decision to resentence Chandler to LWOP was not “automatic[]” and therefore not in violation of Miller or an abuse of discretion.^25×25. Id. at 70 (first emphasis added).

Chief Justice Waller^26×26. Presiding Justice Kitchens, Justice King, and Justice Ishee joined in this opinion. dissented, arguing that the sentencing court failed to address the primary focus of Miller by skirting the issue of Chandler’s capacity for rehabilitation and not articulating that Chandler was among “the rarest of juvenile offenders,”^27×27. Chandler, 242 So. 3d at 71 (Waller, C.J., dissenting) (quoting Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016)). as required in other states.^28×28. Id. at 72. The Chief Justice deemed the trial court’s solitary statement about executive pardons insufficient evidence that the sentencing court had adequately considered the defendant’s capacity for rehabilitation, particularly in light of the testimony from Chandler’s family and friends and his excellent disciplinary record in prison.^29×29. Id. at 71–72. Since “Miller established that a LWOP sentence is an unconstitutionally disproportionate punishment for juvenile homicide offenders whose crimes reflect transient immaturity,”^30×30. Id. at 72. any decision from the trial court that did not “at a minimum . . . address[] Chandler’s capacity for rehabilitation and ma[k]e an on-the-record finding that Chandler was one of the rare juvenile offenders whose crime reflected permanent incorrigibility” was insufficient as a matter of law.^31×31. Id. at 73.

Justice King^32×32. Presiding Justice Kitchens joined in this opinion. also provided a separate dissenting opinion to challenge the majority’s holding that abuse of discretion was the appropriate standard of review. Relying on the precedent of death penalty cases,^33×33. Chandler, 242 So. 3d at 73–74 (King, J., dissenting) (citing Graham v. Florida, 560 U.S. 48 (2010)). Justice King concluded that imposition of LWOP on a juvenile necessitates the same heightened scrutiny as capital punishment because it is the most severe penalty available.^34×34. Id.

The Chandler majority interpreted Miller and Montgomery narrowly, and in so doing, the court made it much less likely that juvenile homicide offenders in Mississippi will receive the “meaningful opportunity to obtain release” that the Supreme Court promised.^35×35. Miller v. Alabama, 567 U.S. 460, 479 (2012) (quoting Graham, 560 U.S. at 75). Scholars in the death penalty context have commented on the “[p]rocedural undermining of substantive rights,” through which the Supreme Court’s acknowledgement of a substantive right is weakened by the erection of procedural barriers in lower courts.^36×36. Carol S. Steiker & Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment 229 (2016); see also Carol S. Steiker & Jordan M. Steiker, Atkins v. Virginia: Lessons from Substance and Procedure in the Constitutional Regulation of Capital Punishment, 57 DePaul L. Rev. 721, 731 (2008). The Mississippi Supreme Court’s interpretation of the Miller–Montgomery precedent in Chandler is an example of this phenomenon; the decision undermines the spirit of the Supreme Court’s rulings and risks inequitable application of constitutional mandates based on jurisdiction. While the Miller holding was narrow,^37×37. The broader alternatives proposed by the defendants were that LWOP was categorically unconstitutional for all juvenile homicide offenders or for all juvenile homicide offenders aged fourteen or under. Miller, 567 U.S. at 479. the clarifying language of Montgomery suggests that the central promise of Miller was that LWOP should be reserved for a very small subset of the worst juvenile offenders.^38×38. The Montgomery Court stated that Miller “rendered [LWOP] an unconstitutional penalty for . . . juvenile offenders whose crimes reflect the transient immaturity of youth.” Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016). The Montgomery dissenters’ fear that the majority holding would make “imposition of [juvenile LWOP] a practical impossibility” further supports the conclusion that Miller was intended to broadly restrict the class of juvenile homicide offenders ineligible for parole.^39×39. Montgomery, 136 S. Ct. at 744 (Scalia, J., dissenting). The Mississippi Supreme Court has ignored this suggestion, however, and used three tools to procedurally undermine the grant of substantive rights: implementing the strictest possible standard for immaturity, finding no presumption in favor of parole, and not requiring sentencing judges to make a finding of permanent incorrigibility before sentencing a juvenile homicide offender to LWOP.

Rather than reserving LWOP for “the rare juvenile offender,”^40×40. Miller, 567 U.S. at 479 (quoting Roper v. Simmons, 543 U.S. 551, 573 (2005)). the Supreme Court of Mississippi’s LWOP decisions have led other Mississippi courts to interpret Miller as prohibiting LWOP only for juvenile homicide offenders “whose crimes reflected only transient immaturity,” not for those “whose crimes reflect[ed] irreparable corruption.”^41×41. Cook v. State, 242 So. 3d 865, 873 (Miss. Ct. App. 2017) (quoting Montgomery, 136 S. Ct. at 734, 736) (discussing the effect of Mississippi Supreme Court precedent on the application of both Montgomery and Miller in Mississippi). Under this standard, LWOP is constitutionally permissible if the crime reflected any level of corruption which the judge perceived as irreparable.^42×42. See id. Though the Montgomery Court’s assertion that Miller “rendered [LWOP] an unconstitutional penalty for . . . juvenile offenders whose crimes reflect the transient immaturity of youth”^43×43. Montgomery, 136 S. Ct. at 734. arguably left open the question of how much transient immaturity a crime must reflect before LWOP is rendered unconstitutional, the state court’s decision to limit the class of juvenile offenders eligible for relief by implementing the strictest possible standard highlights the way that Mississippi exploited the deference that the Supreme Court afforded it to limit the impact of Miller and Montgomery.^44×44. The Montgomery Court used the phrase “reflected only transient immaturity” once in the majority opinion, while the more open-ended alternative “reflected transient immaturity” was used six times. Id. at 734–36, 744. This suggests that the Court intended for state courts to interpret the Miller mandate more broadly than Mississippi has.

The Chandler court undermined the substantive rights protected in Miller and Montgomery by denying the existence of a rebuttable presumption in favor of parole eligibility for juvenile homicide offenders.^45×45. See Chandler, 242 So. 3d at 69. This decision placed the burden on Chandler to present mitigating evidence of his youth and potential for rehabilitation in order to prove that he was part of the constitutionally protected class, rather than placing the burden on the prosecution to present evidence that Chandler was one of the rare offenders for whom LWOP is constitutional. The Chandler majority refused to implement a presumption in favor of parole because neither Miller nor Montgomery explicitly mandated one.^46×46. Id.; see also Cook, 242 So. 3d at 873 (rejecting the notion that Miller and Montgomery established a presumption against LWOP for juvenile homicide offenders). Other states including Nebraska, Arizona, and Virginia, also deny a presumption in favor of parole. Hoesterey, supra note 6, at 165–66. But several aspects of the Miller and Montgomery opinions suggest that acknowledgment of this presumption would be more faithful to the Court’s intent than would denial. Writing for the Miller majority, Justice Kagan^47×47. Justices Kennedy, Ginsburg, Breyer, and Sotomayor joined this opinion. predicted that juvenile LWOP would become “uncommon.”^48×48. Miller v. Alabama, 567 U.S. 460, 479 (2012). Montgomery reaffirmed this sentiment; the Court referred to Miller as a categorical bar on LWOP “for all but the rarest of juvenile offenders”^49×49. Montgomery, 136 S. Ct. at 734. and reiterated six times that juvenile LWOP should be “rare.”^50×50. Id. at 726, 733–34; see also Hoesterey, supra note 6, at 175. Based on these observations, six state supreme courts have held that faithful implementation of Miller and Montgomery requires a presumption in favor of parole.^51×51. The six states are Connecticut, Iowa, Utah, Missouri, Indiana, and Pennsylvania. See Hoesterey, supra note 6, at 164–65. But cf. id. at 166 (acknowledging that some states have upheld schemes that presume LWOP for juvenile homicide offenders). This number does not include the states that have prohibited juvenile LWOP outright. In Commonwealth v. Batts,^52×52. 163 A.3d 410 (Pa. 2017). the Pennsylvania Supreme Court stated that, though isolated remarks in Miller and Montgomery could be interpreted to suggest that the burden of proof should be placed on the defendant,^53×53. See id. at 451. the notion that the juvenile offender should bear the burden of proof “is belied by the central premise of Roper, Graham, Miller and Montgomery — that as a matter of law, juveniles are categorically less culpable than adults.”^54×54. Id. at 452; see also Hoesterey, supra note 6, at 176. In recognition of this reduced culpability, there should be a presumption in favor of parole for juvenile offenders.

The Chandler court’s refusal to implement such a presumption also belies the Supreme Court’s intent to reserve juvenile LWOP for rare cases because of the difficulties inherent in the task of providing evidence of the mitigating impact of youthfulness and capacity for rehabilitation. The Miller Court noted that mandatory LWOP for juvenile homicide offenders was unconstitutional in part because “incompetencies associated with youth” may prevent juvenile offenders from fully assisting their attorneys.^55×55. Miller v. Alabama, 567 U.S. 460, 477–78 (2012). It would be unfaithful to the Court’s recognition of the incompetencies intrinsic to youth for a sentencing court to place the burden on the juvenile offender to prove that he is a member of the protected class.^56×56. See Hoesterey, supra note 6, at 177. Yet that is precisely what the Chandler majority did. Though it could be argued that the offenders, like Chandler, who received resentencing hearings in light of Miller and Montgomery could carry such a burden because they are no longer juveniles, the court’s refusal to acknowledge a presumption in favor of parole still constitutes an inappropriate procedural barrier to relief because mitigating evidence such as testimony from family members, friends, or former teachers becomes more difficult to obtain when the offender has been incarcerated for a substantial period of time.^57×57. See Brianna H. Boone, Note, Treating Adults Like Children: Re-Sentencing Adult Juvenile Lifers After Miller v. Alabama, 99 Minn. L. Rev. 1159, 1187–88 (2015) (describing how relationship losses negatively affect the parole bids of adult prisoners). Because of the inherent difficulty of providing evidence on the impact of youthfulness, states should recognize a presumption in favor of parole eligibility for juveniles to effectuate the Court’s instruction that LWOP be used rarely.^58×58. See Hoesterey, supra note 6, at 177.

The Chandler court’s procedural decision that the sentencing court was not required to issue a finding of irreparable incorrigibility also diminishes the impact of Miller and Montgomery.^59×59. See Chandler, 242 So. 3d at 69. The court based this conclusion on the statement in Montgomery that “Miller did not require trial courts to make a finding of fact regarding a child’s incorrigibility,”^60×60. Montgomery v. Louisiana, 136 S. Ct. 718, 735 (2016). but this assertion was tempered by a clarification four sentences later: “That Miller did not impose a formal factfinding requirement does not leave States free to sentence a child whose crime reflects transient immaturity to [LWOP].”^61×61. Id. (emphasis added); see also Hoesterey, supra note 6, at 173–74 (explaining how the Montgomery Court tempered its statement about the lack of a factfinding requirement). One legal scholar suggests that in light of this clarification, the lack of a formal factfinding requirement in Miller is better understood as a refusal to tell the states exactly how to make the determination of incorrigibility than as a statement that the sentencing court need not make such a finding.^62×62. Hoesterey, supra note 6, at 174. Furthermore, Justice Scalia’s Montgomery dissent^63×63. Montgomery, 136 S. Ct. at 744 (Scalia, J., dissenting) (“Not so with the ‘incorrigibility’ requirement that the Court imposes today to make Miller retroactive.”). This dissent was joined by Justice Thomas and Justice Alito. and Justice Sotomayor’s concurrences in Adams v. Alabama^64×64. 136 S. Ct. 1796, 1799–1801 (2016) (Sotomayor, J., concurring in the decision to grant, vacate, and remand). This concurrence was joined by Justice Ginsburg. and Tatum v. Arizona^65×65. 137 S. Ct. 11, 12 (2016) (Sotomayor, J., concurring in the decision to grant, vacate, and remand) (stating that Montgomery “require[s] a sentencer to ask: whether the petitioner was among the very ‘rarest of juvenile offenders’” before imposing a sentence of LWOP (quoting Montgomery, 136 S. Ct. at 734)). suggest that members of the Court interpret Montgomery as imposing an “incorrigibility requirement.”^66×66. See also Hoesterey, supra note 6, at 174 (quoting Montgomery, 136 S. Ct. at 744 (Scalia, J., dissenting)). Seven of the eleven state supreme courts that have directly addressed the question have held that imposition of LWOP on a juvenile homicide offender requires a finding of incorrigibility.^67×67. This number does not include the states that have banned juvenile LWOP. Arizona, Florida, Georgia, Oklahoma, Pennsylvania, Iowa, and Illinois require such a finding. See People v. Holman, 91 N.E.3d 849, 863 (Ill. 2017); Hoesterey, supra note 6, at 164, 190–91. The Virginia, Tennessee, Michigan, and now Mississippi state supreme courts have explicitly held that a finding of incorrigibility is not required. See People v. Skinner, 917 N.W.2d 292, 309 (Mich. 2018); Chandler, 242 So. 3d at 69; Hoesterey, supra note 6, at 164, 192. These courts often concluded that LWOP is “beyond the court’s power to impose”^68×68. Hoesterey, supra note 6, at 162 (quoting Commonwealth v. Batts, 163 A.3d 410, 435 (Pa. 2017)). in the absence of such a finding because “the court must determine whether the juvenile is one of the rare offenders for whom the sentence is permitted.”^69×69. Id. (citing Veal v. State, 784 S.E.2d 403, 412 (Ga. 2016)); see also id. (noting that the Florida Supreme Court held that “failing to make the distinction between juveniles who are irreparably corrupt and those whose crimes reflect transient immaturity ‘would mean life sentences for juveniles would not be exceedingly rare, but possibly commonplace’” (quoting Landrum v. State, 192 So. 3d 459, 466 (Fla. 2016))). In contrast to this reasoning, the Mississippi Supreme Court took advantage of the latitude that the Supreme Court afforded state courts in Miller and Montgomery by refusing to implement procedures (such as a requirement that the sentencing judge make a finding of permanent incorrigibility on the record) that would protect the right that the Supreme Court intended to guarantee.^70×70. See Chandler, 242 So. 3d at 69.

Though the procedure that the sentencing court followed in Chandler satisfied the base constitutional mandates of Miller and Montgomery, it failed to grasp the central promise of the Court’s decisions.^71×71. Cf. Megan McCabe Jarrett, Stifling the Shot at a Second Chance: Florida’s Response to Graham and Miller and the Missed Opportunity for Change in Juvenile Sentencing, 45 Stetson L. Rev. 499, 501 (2016) (arguing that Florida’s response to Miller similarly meets the constitutional requirement in a way that fails to achieve the broader goals of the Court). While some states have implemented changes to their sentencing processes that may actually render juvenile LWOP “uncommon,”^72×72. See, e.g., Stephanie Singer, Note, A Proposed Solution to the Resentencing of Juvenile Lifers in Pennsylvania Post Montgomery, 10 Drexel L. Rev. 695, 700 (2018) (stating that the Pennsylvania Supreme Court implemented a “presumption against imposing LWOP for a juvenile, which the prosecution can rebut only with proof beyond a reasonable doubt the juvenile is ‘permanently incorrigible’” (quoting Batts, 163 A.3d at 459)). Mississippi has interpreted the mandates so narrowly that they have become all sizzle and no steak. As a result of the directives that LWOP is unconstitutional only when the crime reflected “only transient immaturity,” that sentencing courts are not to recognize any presumption against LWOP, and that a finding of “permanent incorrigibility” is not required before the implementation of such a sentence, many of the defendants, like Chandler, who have received resentencing hearings in Mississippi have had their sentences upheld despite the second chance.^73×73. See, e.g., Cook v. State, 242 So. 3d 865, 868–69 (Miss. Ct. App. 2017) (affirming a second LWOP sentence for an offender, even after testimony from a psychologist that no data suggested that he was “the sort of ‘rare’ offender who warranted [such punishment] under Miller,” id. at 871); Hudspeth v. State, 179 So. 3d 1226, 1227 (Miss. Ct. App. 2015) (affirming LWOP for a juvenile though the offender was sixteen at the time of the crime, received no formal education after sixth grade, and had a difficult family life). Chandler illustrates the “[p]rocedural undermining of substantive rights”^74×74. Steiker & Steiker, supra note 36, at 229. that state courts may engage in when the Supreme Court issues a narrow substantive holding accompanied by language suggesting a broader intent without any procedural requirements. The underlying substantive grant loses significance for defendants in jurisdictions where sentencing officials are not required to follow procedures that ensure the rights will be recognized.