by Douglas Ankney

In a case of first impression, the Supreme Court of Tennessee followed the U.S. Supreme Court’s guidance for proportionality analysis when sentencing juvenile offenders convicted of first-degree murder; held that Tennessee’s sentencing regimen imposing automatic life sentences on juveniles is unconstitutional; and remedied the violation by applying the pre-1995 state statute governing parole to juvenile offenders serving life sentences in Tennessee.

In November 2015, then 16-year-old Tyshon Booker shot and killed G’Metrik Caldwell while Caldwell resisted being robbed of money and marijuana by Booker’s friend, Bradley Robinson, who had yelled for Booker to shoot Caldwell after alerting that Caldwell had a gun. Booker fled the scene with Caldwell’s cellphone after the shooting and botched robbery attempt (Caldwell had lent Booker the cellphone so that he could call his girlfriend, and when he fled, he was unaware he still had the phone in his pocket).

Booker’s case was transferred from the juvenile court to the Knox County Criminal Court. A jury ultimately convicted Booker of two counts of first-degree felony murder and two counts of especially aggravated robbery. The trial court merged the two felony murder convictions and, without a hearing, sentenced Booker to life in prison – a 60-year sentence requiring at least 51 years of incarceration. The trial court, after a hearing, merged the two robbery convictions and imposed a sentence of 20 years to be served concurrently with his life sentence.

Booker challenged, in the Court of Criminal Appeals (“CCA”), the constitutionality of Tennessee’s automatic life sentence for first-degree murder when imposed on a juvenile. Tenn. Code Annotated § 40-35-501(h)(2). In its affirmance, the CCA acknowledged Booker’s argument but deferred to existing precedent. The Tennessee Supreme Court granted his application for permission to appeal to address the constitutionality of Tennessee’s sentence of life imprisonment when automatically imposed on a juvenile homicide offender.

The Tennessee Supreme Court observed that more than a century ago, the Supreme Court of the United States (“SCOTUS”) “acknowledged that the principle of proportionality is embedded in the Eighth Amendment.” Weems v. United States, 217 U.S. 349 (1910). SCOTUS stated that “it is a precept of justice that punishment for crime should be graduated and proportioned to [the] offense.” Id.

While SCOTUS’s application of the proportionality principle has not always been clear, State v. Harris, 884 S.W.2d 601 (Tenn. 1992), the Court noted that with regard to juveniles tried as adults, SCOTUS “has been clear about the central importance of proportionality when imposing significant criminal punishment.”  In Thompson v. Oklahoma, 487 U.S. 815 (1988), SCOTUS held that the Eighth Amendment prohibits executing juveniles who were under the age of 16 at the time of the offense.

Thompson was based upon three principles. The first principle was the “authors of the Eighth Amendment drafted a categorical prohibition against the infliction of cruel and unusual punishments.” Id. The second principle was proportionality in that the “punishment should be directly related to the personal culpability of the criminal defendant.” Id. And the third principle was that “there are differences which must be accommodated in determining the rights and duties of children as compared with those of adults.” Id. To summarize, SCOTUS endorsed “the proposition that less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult,” and “[t]he basis for this conclusion [wa]s too obvious to require extended explanation” because “[i]nexperience, less education, and less intelligence [makes] the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult.” Id. But the Thompson Court declined to extend its decision to juvenile offenders older than 16.

Subsequently, in Roper v. Simmons, 543 U.S. 551 (2005), SCOTUS revisited Thompson, holding that the Eighth Amendment prohibits imposing the death penalty on all juvenile offenders. In addition to the proportionality principle, SCOTUS explained in Roper that three differences between juveniles and adults serve as the rationale as to why “juvenile offenders cannot with reliability be classified among the worst offenders.” According to Roper, these differences are: (1) juveniles lack maturity and have “an undeveloped sense of responsibility,” (2) juveniles are “more vulnerable or susceptible to negative influences and outside pressures, including peer pressure,” and (3) “the character of a juvenile is not as well formed as that of an adult.”

Then in Graham v. Florida, 560 U.S. 48 (2010), SCOTUS – reflecting the reasoning of Thompson and Roper – announced another bright-line rule, holding that the Eighth Amendment prohibits sentencing juveniles who have committed offenses not involving homicide to life without parole (“LWOP”). Graham concluded that juveniles are “less deserving of the most severe punishments” because they are less culpable than their adult counterparts.

Two years later, SCOTUS held that mandatory LWOP sentences for juveniles – regardless of the offense committed – violates the Eighth Amendment. Miller v. Alabama, 567 U.S. 460 (2012). Based on Thompson, Roper, and Graham, the Miller Court stated that “[t]he concept of proportionality is central to the Eighth Amendment,” which “guarantees individuals the right not to be subjected to excessive sanctions,” and this right “flows from the basic precept of justice that punishment for crime should be graduated and proportioned to both the offender and the offense.” Because juveniles “have diminished culpability and greater prospects for reform,” the “distinctive attributes of youth diminish the penological justifications [viz., retribution, deterrence, prevention of crime via incarceration, and rehabilitation] for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes,” explained the Miller Court.

But Miller fashioned a different remedy than Thompson, Roper, and Graham. In lieu of a bright-line rule prohibiting imposition of LWOP sentences on juveniles, the Miller Court decided that the proportionality concerns should be addressed by requiring individualized sentencing so that the sentencer can give appropriate weight to the characteristics of the offender, including his or her youthfulness.

Then in 2016, SCOTUS held that Miller had announced a new substantive rule of constitutional law, meaning it applies retroactively. Montgomery v. Louisiana, 577 U.S. 190 (2016). The Montgomery Court instructed that applying Miller retroactively to juveniles sentenced to LWOP does not require resentencing, but rather, Miller violations can be remedied by allowing the affected prisoners to be considered for parole. Significantly, SCOTUS later ruled that the Eighth Amendment does not require separate findings or an on-the-record explanation of permanent incorrigibility before imposing a discretionary LWOP on a juvenile. Jones v. Mississippi, 141 S. Ct. 1307 (2021).

The Court, in determining whether Tennessee’s automatic life sentence imposed upon juvenile homicide offenders complies with the Eighth Amendment, considered whether: (1) the punishment for the crime conforms with current standards of decency, (2) the punishment is grossly disproportionate to the offense, and (3) the sentence goes farther than necessary to accomplish legitimate penological objectives. Abdur’ Rahman v. Bredesen, 181 S.W.2d 292 (Tenn. 2005) (citing Roper).

As to factor (1), “[r]eliable objective evidence of contemporary values” can be provided by a review of “legislation enacted by the country’s legislators.” Penry v. Lynaugh, 492 U.S. 302 (1989). In Tennessee, a juvenile sentenced to automatic life imprisonment must serve a minimum of 51 years but no more than 60 years. § 40-35-501(h)(2). By comparison, in 23 states and the District of Columbia, juvenile homicide offenders may be eligible for release within 25 years or less. (See full opinion for listing of states) In 12 other states, release eligibility for life sentences ranges from 25 to 35 years. (See full opinion for listing of states) Two states – Oklahoma and Texas – guarantee parole eligibility in 38 and 40 years, respectively. The remaining 12 states allow the sentencer to use discretion to impose a term of less than 50 years on juvenile homicide offenders. (See full opinion for listing of states)

Turning to factor (2), requiring a minimum of 51 years’ imprisonment may be disproportionate – depending upon the characteristics of the juvenile offender, according to the Court. Because Tennessee’s automatic life sentence imposed on juvenile offenders is a “one-size-fits-all” approach and does not consider the juvenile’s age and individualized circumstances, the Court concluded that it “lacks the necessary procedural protection to guard against disproportionate sentencing.”

Finally, regarding factor (3), the rationale for retribution is mitigated with respect to juveniles because of their reduced culpability, as explained at great length by SCOTUS in its line of cases on the topic. The need for deterrence is likewise reduced because a juvenile’s immaturity, recklessness, and impetuosity make him or her less likely to consider potential punishment. Preventing crime via incarceration is not justified because it implies incorrigibility, and “incorrigibility is inconsistent with youth.” Graham. Additionally, the Court explained that requiring 51 years’ imprisonment is inconsistent with the goal of rehabilitation because: “[a]lthough a state need not guarantee a juvenile offender eventual freedom, it must not foreclose all genuine hope of a responsible and productive life or reconciliation with the community.” Graham.

Thus, the Court held that Tennessee’s automatic life sentence with a minimum prison term of 51 years when imposed on juvenile offenders with no consideration for age and attendant circumstances violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

In exercising judicial restraint and not usurping the powers of the state legislature, the Court applied as a remedy for the unconstitutional statute the sentencing policy adopted by the General Assembly in its previous enactment of § 40-35-501(h)(1). This unrepealed section was in effect from November 1, 1989, to July 1, 1995, which remains in effect for conduct during that time period. It now permits juvenile offenders like Booker to be eligible for supervised release on parole after serving between 25 and 36 years, and at the appropriate time, Booker and similarly situated juvenile offenders will receive an individualized parole hearing, taking into account age at time of the offense, rehabilitation, and other relevant circumstances. The Court emphasized that its holding applies only to juvenile offenders, not adults, convicted of homicide.

Accordingly, the Court reversed the judgment of the CCA to the extent that it upheld Booker’s automatic life sentence. See: State v. Booker, 656 S.W.3d 49 (Tenn. 2022).

Editor’s note: Anyone with an interest in the topic of the Eighth Amendment and juvenile sentencing – specifically, the principle of proportionality – should read the Court’s full opinion.