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March 15, 2021

Georgia Supreme Court affirms discretionary juve LWOP sentence despite judge's statement it could not find juvenile "irreparably corrupt"

In the next few months, perhaps in the coming weeks, we should be getting an opinion from the Supreme Court in Jones v. Mississippi to help us better understand if Eighth Amendment jurisprudence requires a sentencer to make a specific finding about a juvenile before exercising its discretion to impose a sentence of life without parole.  In the meantime, states continue to struggle with juvenile LWOP sentencing requirements amidst all the resentencings that had to take place after Miller v. Alabama prohibited mandatory LWOP for juveniles. 

This morning, the Supreme Court of Georgia in Moss v. Georgia, S20A1520 (Ga. Mar. 15, 2021) (available here), addressed this issue in a case in which the sentencing court suggested it was impossible to make a certain finding about a juvenile defendant.  Here is the start and a key passage from the unanimous ruling in Moss:

Jermontae Moss was convicted of felony murder, possession of a firearm during the commission of a crime, and theft by receiving stolen property in connection with the shooting death of Jose Marin. On appeal, Moss contends that his trial counsel provided constitutionally ineffective assistance and that the trial court erred in sentencing Moss—a 17-year-old juvenile at the time of the crimes—to life in prison without the possibility of parole (“LWOP”) for murder.  Neither of Moss’s contentions has merit, so we affirm....

It is true, as Moss points out, that at one point in its lengthy order the trial court also opined on the role of the “Divine” in the ultimate judgment of a human being:

This Court cannot find, in this case or in any other, that the Defendant himself is “irretrievably corrupt” or “permanently incorrigible.” And it is this Court’s firm opinion that no court at any level is ever able to make such a determination; it is beyond human capacity. Only a Divine Judge could look into a person and determine that he is permanently and irretrievably corrupt; that he has reached a state from which there is no return, no hope of redemption, no hope of any restoration.

(Emphasis in original.)  But we do not view Miller or Montgomery — or cases from this Court applying Miller and Montgomery, such as Veal, White, and Raines — as requiring the trial court to conduct a metaphysical assessment of a juvenile defendant.  Given the express determinations contained in the trial court’s order and summarized in part above, we cannot say that the trial court’s additional observations about the metaphysical — especially when viewed in the full context of the court’s order — somehow rendered the trial court’s analysis erroneous.

March 15, 2021 at 09:41 AM | Permalink


Besides the original sentencing issues, there is a separate set of cases involving the impact of Miller and Montgomery on parole hearings. To grossly oversimplify the issue, the question is, in light of the language in those cases about a realistic opportunity for release, how much of a factor can the original offense play in the parole decision after the juvenile offender becomes parole eligible.

On the one side of the arguments are the proponents of the traditional rules in some states that allow the parole board to decide that -- given the seriousness of the offense -- an inmate should have to serve a longer period after becoming parole eligible. In other words, if the juvenile's original conduct was bad enough, a parole board could decide that he should have to serve thirty-five years before release instead of twenty-five years.

On the other side are those pushing, on behalf of these offenders, for a rule that would limit the parole boards to considering the offender's conduct while incarcerated with a strong presumption for release when these offenders become parole eligible.

In the middle are those pushing for some kind of sliding scale where the offender's behavior in prison is measured against the original offense. For defendants with a lesser role in an offense with fewer aggravating factors, there would be a presumption for release. For offenders with a serious role in an offense with significant aggravating factors, the offender would have to overcome a significant hurdle to demonstrate that they had -- in fact -- changed for the better while incarcerated.

Posted by: tmm | Mar 15, 2021 10:26:07 AM

There are so many Graham/Miller implimentation issues that I suspect SCOTUS will keep avoiding as long as possible.

Posted by: Doug B. | Mar 15, 2021 11:32:20 AM

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