Chandler v. Mississippi Brief of Amicus Curiae NAACP Legal Defense and Educational Fund in Support of Petitioner

    No. 18-203

In  T he

upreme Court of t\)t fHntteb H>tate£

J o e y M . Ch a n d l e r ,

v.
Petitioner,

Sta te  o f  M is s is s ip p i,

Respondent.

On Petition for a Writ of Certiorari 
to the Supreme Court of Mississippi

BRIEF OF AMICUS CURIAE 
NAACP LEGAL DEFENSE & EDUCATIONAL 
FUND, INC. IN SUPPORT OF PETITIONER

Sh e r r il y n  A . Ifill  
Director- Counsel 

Ja n a i S. N e lso n  
Sa m u e l  S p it a l*
J o h n  S. Cu s ic k  
A a r o n  Su ssm a n  
NAACP L e g a l  D e fe n se  & 

Ed u c a t io n a l  F u n d , In c . 
40 Rector St., 5th Floor 
New York, NY 10006 
(212) 965-2200 
sspital@naacpldf.org

D a n ie l  S. H a r a w a  
NAACP L e g a l  D e fe n se  & 

Ed u c a t io n a l  Fu n d , In c . 
700 14th St. NW 
Suite 600
Washington, DC 20005

Counsel for Amicus Curiae 

* Counsel of Record

October 2, 2018

mailto:sspital@naacpldf.org


1

TABLE OF CONTENTS
PAGE

TABLE OF AUTHORITIES.......................................li

INTERESTS OF AMICUS CURIAE......................... 1

INTRODUCTION AND
SUMMARY OF ARGUMENT...............................2

ARGUMENT.....................................................   4

I. THE EIGHTH AMENDMENT REQUIRES
JUDGES TO MAKE A PERMANENT 
INCORRIGIBILITY FINDING BEFORE 
SENTENCING A CHILD TO LIFE 
WITHOUT THE POSSIBILITY OF 
PAROLE.................................................................. 4

II. JUDGES MUST MAKE A PERMANENT 
INCORRIGIBILITY FINDING TO AVOID 
ARBITRARY AND RACIALLY 
DISCRIMINATORY DECISIONMAKING 
AND TO ENSURE MEANINGFUL
APPELLATE REVIEW....................................... 12

CONCLUSION.................. ....................................... 22



11

TABLE OF AUTHORITIES

CASES:

PAGE (SI

Alexander v. Louisiana,
405 U.S. 625 (1972)............................ ...... ................ 1

Arizona v. Valencia,
386 P.3d 392 (Ariz. 2016)......................... ................ 8

Batson v. Kentucky,
476 U.S. 79 (1986)..................................... ................ 1

Brister v. Mississippi,
Nos. 251-11-696, 12-0-949
(Miss. July 26, 2012)................................ ................ 1

Buck v. Davis,
137 S. Ct. 759 (2017)................................. .............. 18

Chandler v. Mississippi,
No. 8491, 2015 WL 13744176
(Cir. Ct. Oct. 9, 2015)............................... ........10, 11

Chandler v. Mississippi,
242 So. 3d 65 (Miss. 2018)........................ ..... 8, 9, 10

Davis v. Wyoming,
2018 415 P.3d 666 (Wyo. 2018)............... ................ 8

Furman v. Georgia,
408 U.S. 238 (1972)................................... ................ 1



Gall v. United States,
552 U.S. 38 (2007).................................................... 21

Graham v. Florida,
560 U.S. 48 (2010)...........   passim

Ham v. South Carolina,
409 U.S. 524 (1973).................................................... 1

J.B.D. v. North Carolina,
564 U.S. 261 (2011).................................................... 4

Johnson u. Idaho,
395 P.3d 1246 (Idaho 2017)....................................... 8

Johnson v. Texas,
509 U.S. 350 (1993)..................................   4

Kimbrough v. United States,
552 U.S. 85 (2007).......................................................1

Landrum v. Florida,
192 So. 3d 459 (Fla. 2016).................................. 8, 12

McCleskey v. Kemp,
481 U.S, 279 (1987).................................................... 1

Michigan v. Skinner,
Nos. 152448, 153081, 153345,
2018 WL 3059768 (Mich. June 20, 2018)...............8

iii

F A G E (S )



IV

P A G E (S )

Miller v. Alabama,
567 U.S. 460 (2012)......................................... passim

Miller-El u. Cockrell,
537 U.S. 322 (2003).....................................................1

Montgomery v. Louisiana,
136 S. Ct. 718 (2016)....................................... passim

Roper v. Simmons,
543 U.S. 551 (2005).......................................1, 4, 5, 6

Rose u. Mitchell,
443 U.S. 545 (1979)...................................................18

Swain v. Alabama,
380 U.S. 202 (1965).....................................................1

United States v. Briones,
890 F.3d 811 (9th Cir. 2018).....................................8

Veal v. Georgia,
784 S.E.2d 403 (Ga. 2016).................................. 11-12

Washington v. Ramos,
387 P.3d 650 (Wash. 2017)........................................ 8



V

STATUTES:

42 U.S.C. § 5601, et seq

OTHER AUTHORITIES:

P A G E (S )

.............14

PAGE(S)

Am. Bar Ass’n, Judges: 6 Strategies to Combat 
Implicit Bias on the Bench (Sept. 2016), 
https://www.americanbar.org/publications/ 
youraba/2016/september-2016/strategies-on- 
implicit-bias-and-de-biasing-for-judges-and- 
lawyer.html............................................................... 20

Peter Annin, Superpredators’ Arrive, NEWSWEEK,
Jan. 22, 1996............................................................. 16

Judge Mark W. Bennett, Unraveling the Gordian 
Knot of Implicit Bias in Jury Selection:
The Problems of Judge-Dominated Voir Dire, 
the Failed Promise of Batson, and Proposed 
Solutions,
4 HARV. L. & POL’y R eV. 149 (2010)..........18, 19, 20

The Campaign for the Fair Sentencing of Youth, 
From the Desk of the Director: Black History 
Month (Feb. 28, 2018),
https://www.fairsentencingofyouth.org/desk- 
director-black-history-month/.................................17

https://www.americanbar.org/publications/
https://www.fairsentencingofyouth.org/desk-director-black-history-month/
https://www.fairsentencingofyouth.org/desk-director-black-history-month/


V I

P A G E (S )

William J. Clinton, Statement on the Report on 
Juvenile Crime (Nov. 11, 1995), 
http://www.presidency.ucsb.edu/ws/index. 
php?pid=50761....................................................  16-17

Sean Darling-Hammond, Designed to Fail- 
Implicit Bias in Our Nation's Juvenile Courts,
21 U.C. D a v is  J. Juv. L. & P o l ’y  169 (2017).........20

John DiLuluio, The Coming of the 
Super-Predators, WEEKLY STANDARD 
(Nov. 27, 1995),
https://www.weeklystandard.com/john- 
j-dilulio-jr/the-coming-of-the-super-predators.....16

David Gergen, Editorial, Taming Teenage 
Wolf Packs,
U .S. N ew s  & W o rld  R e p ., Mar. 17, 1996.............16

Phillip Atiba Goff et al., The Essence of 
Innocence: Consequences of Dehumanizing 
Black Children,
106 J. P e r so n a l it y  & Soc. P s y c h o l . 526 
(2014)..........................................................................19

H eidi H s ia . O f f . o f  J u v . J u s t . & D e l in q . 
P r e v e n t io n , D e p ’t  of  J u s t .,
D is p r o p o r t io n a t e  M in o r it y  C o n t a c t  
T e c h n ic a l  A ssis t a n c e  M a n u a l  
(4th ed. 2009) 15

http://www.presidency.ucsb.edu/ws/index


V l l

P A G E (S )

Kurt Hugenberg et al., The Categorization 
Individuation Model: An Integrative Account 
of the Other-Race Recognition Deficit,
117 P s y c h o l . R e v . 1168 (2010)........................  20-21

Letter from the United States & Int’l Human 
Rights Orgs. to the Comm’n on the 
Elimination of Racial Discrimination 
(June 4, 2009),
http://www.aclu.org/files/pdfs/humanrights 
/j lwop_cerd__cmte.pdf................................................15

Ellen Marrus & Nadia N. Seeratan, What’s Race 
Got to Do with It? Just About Everything: 
Challenging Implicit Bias to Reduce Minority 
Youth Incarceration in America,
8 J. M a r sh a l l  L. J. 437 (2015)...............................20

O f f . of  J u v . J u s t . & D e l in q . Pr e v e n t io n ,
D e p ’t  o f  J u s t ic e , A  D is pr o po r t io n a te  
M in o r it y  C o n ta c t  (DMC) C h r o n o l o g y :
1988 to Date,
https://www.ojjdp.gov/dmc/chronology.html 
(last visited August 28, 2018)................................. 15

Off. of State Public Def., Miss., Juvenile Life 
Without Parole in Mississippi (2018)................ 13

O f f . of  Su r g e o n  G e n ., Y ou th  V io l e n c e :
A R e po r t  o f  th e  Su r g e o n  G e n e r a l  (2001).........17

http://www.aclu.org/files/pdfs/humanrights


vm

Jeffrey J. Rachlinski et al., Does Unconscious 
Racial Bias Affect Trial Judges?,
84 N otre  D a m e  L. R e v . 1195 (2009)......................19

Aneeta Rattan et al., Race and the Fragility 
of the Legal Distinction between Juveniles and 
Adults,
7 PLOS ONE 5 (May 2012)......................................19

W e n d y  Sa w y e r , P r io n  P o l ic y  In s t ., Y o u th  
C o n f in e m e n t : T h e  W h o le  P ie  (Feb. 27, 2018), 
https://www.prisonpolicy.org/reports/ 
youth2018.html.......................................................... 14

T h e  S e n t e n c in g  P r o j e c t , P o l ic y  B r ie f :
R a c ia l  D is p a r it ie s  in  Y o u th  C o m m it m e n t s  
a n d  A r r e sts  (2016)...................................................14

T h e  S e n te n c in g  P r o j e c t , S h a d o w  R e po r t  
o f  th e  S e n te n c in g  P r o je c t  to  th e  
C o m m itt e e  o n  th e  E lim in a t io n  o f  R a c ia l  
D isc r im in a t io n  (2014)............................................. 15

David S. Tanenhaus & Steven A. Drizin,
“Owing to the Extreme Youth of the Accused”:
The Changing Legal Response to Juvenile 
Homicide,
92 J. Cr im . L. & Cr im in o l o g y  641 (2002).......... 17

Richard Zoglin, Now for the Bad News:
A Teenage Time Bomb, TIME, Jan. 15, 1996....... 16

P A G E (S )

https://www.prisonpolicy.org/reports/


INTERESTS OF AMICUS CURIAE
The NAACP Legal Defense & Educational Fund, 

Inc. (LDF) is the nations first and foremost civil 
rights law organization. Since its incorporation in 
1940, LDF has fought to eliminate the arbitrary role 
of race in the administration of the criminal justice 
system by challenging laws, policies, and practices 
that discriminate against African Americans and 
other communities of color. LDF has served as counsel 
and/or as amicus curiae in this Court in many 
landmark cases affecting the rights of both adults and 
minors in the criminal justice system, including 
Miller u. Alabama, 567 U.S. 460 (2012); Graham v. 
Florida, 560 U.S. 48 (2010); Roper u. Simmons, 543 
U.S. 551 (2005); Kimbrough v. United States, 552 U.S. 
85 (2007); Miller-El v. Cockrell, 537 U.S. 322 (2003); 
Batson v. Kentucky, 476 U.S. 79 (1986); McCleskey u. 
Kemp, 481 U.S. 279 (1987); Ham v. South Carolina, 
409 U.S. 524 (1973); Alexander u. Louisiana, 405 U.S. 
625 (1972); Furman u. Georgia, 408 U.S. 238 (1972); 
and Swam v. Alabama, 380 U.S. 202 (1965). 
Moreover, in Brister u. Mississippi, LDF served as 
lead counsel and litigated the first case in 
Mississippi—and one of the first cases in the 
country—applying this Court’s ruling in Miller that 
mandatory life without the possibility of parole is 
unconstitutional for children. Nos. 251-11-696, 12-0- 
949 (Miss. July 26, 2012).1

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus 
curiae state that no counsel for a party authored this brief in 
whole or in part and that no person other than amicus curiae, its 
members, or its counsel made a monetary contribution to the 
preparation or submission of this brief. Pursuant to Supreme 
Court Rule 37.2, both parties have been timely notified of our 
intent file this brief and have consented to the filing of this brief.



2

INTRODUCTION AND 
SUMMARY OF ARGUMENT

This Court’s precedent is clear that children may­
be sentenced to die in prison only if they are among 
the “rarest of juvenile offenders” “whose crimes reflect 
permanent incorrigibility.”2 In this case, the 
Mississippi Supreme Court failed to adhere to this 
precedent. It held that a judge need not make an 
incorrigibility finding before sentencing a defendant 
to life without parole for a crime he committed as a 
child and need not consider evidence of his capacity 
for rehabilitation. Without requiring such a finding, 
there is a real risk judges will sentence youth to spend 
their lives behind bars arbitrarily. With this 
arbitrariness comes another risk: the likelihood of 
judges disproportionately imposing life without 
parole sentences against African American youth.

The facts of this case highlight these risks and 
make it an ideal vehicle for this Court to address the 
proper application of Miller u. Alabama and 
Montgomery u. Louisiana. Joey Chandler, who is 
Black, was sentenced to life without the possibility of 
parole for a murder that he committed when he was 
seventeen years old. Mr. Chandler’s crime 
undoubtedly warranted a serious sentence, but 
nothing about the circumstances of his crime 
suggested permanent incorrigibility. Indeed, over the 
next ten-plus years in prison, Mr. Chandler proved 
his capacity for rehabilitation by taking advantage of 
educational and rehabilitative programs in prison, 
building a strong relationship with his son and

2 Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016).



3

family, and maintaining a nearly spotless record. Yet, 
at a post-Miller resentencing, a trial judge again 
sentenced Mr. Chandler to life without parole. The 
judge did so without addressing whether Mr. 
Chandler’s crime reflected “permanent 
incorrigibility” and without meaningfully reviewing 
the relevant factors this Court established in Miller 
or considering the evidence of Mr. Chandler’s 
rehabilitation.

The Court should grant certiorari and hold that a 
judge must find permanent incorrigibility before 
sentencing a child to life without parole. The Court 
should do so to: (1) ensure juvenile life without parole 
sentences remain the rare exception and not the rule; 
(2) protect against racial biases affecting sentencing 
decisions; (3) guarantee meaningful appellate review; 
and (4) maintain the public’s faith in the judiciary and 
norms of procedural justice. Consistent with Miller 
and Montgomery, this Court should ensure that 
judges consider the relevant factors before sentencing 
children to life without parole, especially the child’s 
ability to live a productive adult life.



4

ARGUMENT

I. THE EIGHTH AMENDMENT REQUIRES 
JUDGES TO MAKE A PERMANENT 
INCORRIGIBILITY FINDING BEFORE 
SENTENCING A CHILD TO LIFE WITHOUT 
THE POSSIBILITY OF PAROLE.
The concept of “proportionality is central to the 

Eighth Amendment,”3 and children are 
constitutionally different than adults in analyzing 
whether a sentence is proportional. This difference is 
rooted in the fact that children possess three 
characteristics that make them less culpable and 
blameworthy than adults. First, a “lack of maturity 
and an underdeveloped sense of responsibility are 
found in youth more often than in adults.”4 Second, 
children “are more vulnerable or susceptible to 
negative influences,” which, in turn, means they have 
less control over their environments.5 Third, a child’s 
character is “less formed and his personality traits are 
less fixed when compared to adults.”6 7

Because of these differences, the Court in Roper 
v. Simmons held that the Eighth Amendment 
categorically forbids states from executing persons for 
crimes they committed before the age of eighteen.'

3 Graham v. Florida, 560 U.S. 48, 59 (2010).
4 Roper v. Simmons, 543 U.S. 551, 569 (2005) (citing Johnson v. 
Texas, 509 U.S. 350, 367 (1993)) (per curiam); see also J.B.D. v. 
North Carolina, 564 U.S. 261, 271-72 (2011).
5 Roper, 543 U.S. at 569.
6 Id. at 570.
7 Id. at 574-75.



5

The Court reasoned that sentencing a child to death 
would not adequately serve any legitimate 
penological purpose.8 And it was concerned that the 
disturbing circumstances of a crime would prevent 
sentencers from fully considering the child’s 
youthfulness and other mitigating evidence.9 The 
Court therefore concluded that a categorical ban on 
the death penalty for juveniles was necessary because 
the differences between children and adults are ‘too 
marked and well understood to risk allowing a 
youthful person to receive the death penalty despite 
insufficient culpability.”10

Expanding on Roper, the Court in Graham u. 
Florida held it unconstitutional to sentence juveniles 
to life without parole for non-homicide offenses.11 The 
Graham Court found that no penological theory was 
“adequate to justify” such a sentence.12 The Court 
explained that life without parole sentences are 
second only to death sentences in their severity and 
irrevocability.13 The Court again held that a 
categorical ban was warranted, explaining that 
“discretionary, subjective judgment by a judge or jury 
that the offender is irredeemably depraved, are

8 Id. at 567.
9 See id. at 573.
10 Id. at 572-73.
11 Graham, 560 U.S. at 82.
12 Id. at 74.
13 Id. at 69.



6

insufficient to prevent the possibility” of a 
disproportionate sentence.14

In Miller v. Alabama, the Court reviewed the 
constitutionality of sentencing schemes mandating 
life without parole for juveniles convicted of homicide 
offenses. Relying on the principles established in 
Roper and Graham, Miller held that such mandatory 
sentencing schemes violated the Eighth Amendment 
because they do not provide an opportunity for courts 
to consider a child’s age, the nature of the crime, and 
other mitigating factors before imposing the harshest 
available sentence for children.15 The Court 
reiterated that “children are different” and “youth 
matters for purposes of meting out the law’s most 
serious punishments.”16 The Court further made clear 
that sentencing judges are required to consider 
mitigating factors to evaluate how “children are 
different, and how those differences counsel against 
irrevocably sentencing them to a lifetime in prison.”17 
And the Court opined that “appropriate occasions for 
sentencing juveniles to this harshest possible penalty 
will be uncommon,” because it will be the “rare 
juvenile offender whose crime reflects irreparable 
corruption.”18

Finally, in Montgomery v. Louisiana, this Court 
clarified that the rule it announced in Miller was a

14 Id. at 77.
15 Miller, 567 U.S. at 488.
16 Id. at 484.
17 Id. at 480.
18 Id. at 479-80 (quotation marks omitted).



7

substantive rule that had retroactive effect.19 In 
Montgomery, the Court again emphasized that 
“children’s diminished culpability and heightened 
capacity for change” means that “sentencing juveniles 
to this harshest possible penalty will be uncommon.”20 
The Montgomery Court explained that “Miller 
requires a sentencer to consider a juvenile offender’s 
youth and attendant characteristics before 
determining that life without parole is a 
proportionate sentence.”21 Indeed, a sentencing judge 
must hold a hearing where “youth and its attendant 
characteristics are considered as sentencing factors” 
to ensure that a life without parole sentence is not 
constitutionally excessive.22 These special procedures 
are necessary, this Court held, to ensure that life 
without parole sentences are reserved only for “those 
rare children whose crime reflects irreparable 
corruption.”23 The Montgomery Court made this point 
more than once: under Miller, life without parole is 
available only “for the rarest of juvenile offenders, 
those whose crimes reflect permanent 
incorrigibility.”24

Despite this unequivocal language, some courts— 
including the Mississippi Supreme Court in the 
decision below—have held that neither Miller nor 
Montgomery requires a finding of “permanent

19 Montgomery, 136 S. Ct. at 732.
20 Id. at 733-34 (quoting Miller, 567 U.S. at 479).
21 Id. at 734 (emphasis added).
22 Id. at 735 (quotation marks omitted).
23 Id. at 734.
24 Id.



8

incorrigibility” or “irreparable corruption” before 
sentencing a defendant to life without parole for a 
crime he committed as a child.25 But without 
requiring such a finding, there is no way to ensure 
that life without parole will in fact be reserved for 
only “the rarest of juvenile offenders, those whose 
crimes reflect permanent incorrigibility.”26 Without 
an incorrigibility finding, judges could arbitrarily 
impose the harshest sentence available against 
juveniles, even without considering all the relevant 
evidence, and even though the sentence does not serve 
a legitimate penological purpose. This invites the 
arbitrary and standardless imposition of the most 
serious sentence a child defendant can face.

Joey Chandler’s case illustrates the grave 
dangers of dispensing with the permanent 
incorrigibility finding requirement. After Miller was 
decided, Mr. Chandler, then twenty-six years old, 
filed a motion to have his sentence set aside. At a 
hearing on the motion, the sentencing judge made no 
attempt to assess whether Mr. Chandler’s crime 
reflected permanent incorrigibility. Had he done so,

25 Chandler v. Mississippi, 242 So. 3d 65, 70 (Miss. 2018); see also 
United States v. Briones, 890 F.3d 811, 818-19 (9th Cir. 2018); 
Michigan v. Skinner, Nos. 152448, 153081, 153345, 2018 WL 
3059768, at 15* (Mich. June 20, 2018); Johnson v. Idaho, 
395 P.3d 1246, 1259 (Idaho 2017); Washington v. Ramos, 387 
P.3d 650, 665 (Wash. 2017); Arizona v. Valencia, 386 P.3d 392, 
393, 394-95 (Ariz. 2016). Other states, applying Miller and 
Montgomery, require an incorrigibility finding. See, e.g., Davis v. 
Wyoming, 2018 415 P.3d 666, 680 (Wyo. 2018); Landrum v. 
Florida, 192 So. 3d 459, 465-66 (Fla. 2016).
26 Montgomery, 136 S. Ct. at 734.



9

the evidence of rehabilitation would have made clear 
that Mr. Chandler’s juvenile homicide offense 
reflected immaturity, not permanent incorrigibility. 
Following his conviction, Mr. Chandler completed 
anger-management and drug-counseling sessions, 
obtained his GED, completed college-level courses in 
Bible studies, and earned several certifications in 
construction-related trade skills.27 Mr. Chandler also 
developed a “great bond” with his son and married a 
woman from the community that he lived in prior to 
prison.28

Mr. Chandler has a virtually spotless disciplinary 
record, with not one rule violation in the five years 
before the hearing.29 Several people who knew Mr. 
Chandler sent letters to the circuit court in support of 
a reduced sentence. Although he did not condone the 
terrible crime Mr. Chandler committed as a juvenile, 
Tommy Coleman, a retired Mississippi State Trooper, 
wrote, “given a second chance Joey could be an [asset] 
to the community.”30

As recognized by the four dissenting Justices of 
the Mississippi Supreme Court, Mr. Chandler’s 
educational achievements, strong familial

27 All references to “R.” and “Supp. Tr.” hereinafter are to the 
record clerk’s papers and record transcript on file with the 
Supreme Court of Mississippi, No. 2015-KA-01636-SCT. Supp. 
Tr. 60-63; see also Chandler v. Mississippi, 242 So. 3d 65, 73 
(Miss. 2018) (Wall, J., dissenting).
28 Supp. Tr. 57, 59.
29 Supp. Tr. 28, 62; see also Chandler, 242 So. 3d at 72-73 (Wall, 
J., dissenting).
30 R. 23.



10

relationships, disciplinary record, and letters of 
support constitute “substantial evidence of 
Chandlers rehabilitation in prison.”31 In many ways, 
this evidence of rehabilitation exemplifies the 
“evolution from a troubled, misguided youth to a 
model member of the prison community” that this 
Court recognized as demonstrating rehabilitation in 
Montgomery,32

The sentencing judge, however, did not assess or 
consider this substantial evidence of Mr. Chandler’s 
rehabilitation. Nor did he acknowledge that such 
evidence made clear that Mr. Chandler was not 
among the rare offenders whose crime reflected 
permanent incorrigibility. Instead, the judge 
concluded that Mr. Chandler was, at the time of the 
crime, “mature enough to father a child with his 
girlfriend and [] was selling drugs to help pay for the 
expenses” associated with his child.33 As a point of 
comparison to Mr. Chandler at seventeen years old, 
the judge cited the heroism of a seventeen-year-old 
who was awarded the Congressional Medal of Honor 
for throwing his body upon a “Japanese grenade” 
during World War II. This display of maturity by an 
individual seventeen-year-old army member, 
according to the circuit court, countered arguments 
that Mr. Chandler’s conduct at the “age of seventeen

31 Chandler, 242 So. 3d at 72 (Wall, J., dissenting).
32 Montgomery, 136 S. Ct. at 736.
33 Chandler v. Mississippi, No. 8491, 2015 WL 13744176 at *2 
(Cir. Ct. Oct. 9, 2015).



11

is a per se sign of immaturity.”34 The judge made no 
attempt to address whether Mr. Chandler was 
permanently incorrigible, even though it is the 
touchstone under Miller and Montgomery.

The circuit court also concluded that the State’s 
ability to pardon and commute a sentence is sufficient 
to resolve concerns about Mr. Chandler’s prospect for 
continued rehabilitation.35 But in Graham, this Court 
rejected the “remote possibility” of executive clemency 
as a justification to disregard evidence of 
rehabilitation.36 Miller and Montgomery thus 
mandate that sentencing authorities must first 
consider whether a life without parole sentence for 
juveniles should be imposed at all. In this case, the 
sentencing judge’s misplaced reliance on a possible 
commutation, and focus on subjective indicia of 
maturity, contravenes the substantive guarantee in 
Miller and Montgomery that permanent incarceration 
may be only imposed on “the rarest juvenile 
offenders” who show no capacity for rehabilitation.

The risks of disregarding Miller and 
Montgomerys principles have manifested in cases 
outside of Mississippi, too. For example, in Veal u. 
Georgia, the sentencing judge exercised unfettered

34 Id. at *3 n.4.
35 Id. at *3. (“The United States Supreme Court also talks about 
rehabilitation and the defendant’s prospects for future 
rehabilitation. This Court notes that the Executive Branch has 
the ability to pardon and commute sentences in this State should 
it deem such action warranted.”).
33 Graham. 560 U.S. at 69-70.



12

discretion when sentencing Robert Veal to life 
without parole for a crime he committed as a juvenile 
by looking only at the circumstances of the crime, 
ignoring Mr. Veal’s youthful characteristics, and 
disregarding the evidence he presented showing his 
capacity for change.37 Similarly, a Florida judge 
sentenced Laisha Landrum to life without parole for 
a crime she committed as a juvenile by stating only 
that she was guilty and would be “confined in state 
prison for the remainder of her natural life.”38 
Without requiring a permanent incorrigibility 
finding, juvenile offenders will serve a life sentence 
even though they—like Mr. Chandler—have shown a 
demonstrated capacity for change.

II. JUDGES MUST MAKE A PERMANENT 
INCORRIGIBILITY FINDING TO AVOID 
ARBITRARY AND RACIALLY
DISCRIMINATORY DECISIONMAKING 
AND TO ENSURE MEANINGFUL 
APPELLATE REVIEW.
Not only is the lack of an incorrigibility finding 

contrary to the tenets of Roper, Graham, Miller, and 
Montgomery, as a structural matter, the absence of 
such fact-finding invites arbitrary and racially biased 
sentencing. Sentencing judges must make a 
permanent incorrigibility finding before sentencing a 
juvenile to life without parole to avoid impermissibly 
arbitrary sentencing. Without this fact-finding

37 784 S.E.2d 403, 412 (Ga. 2016).
38 Landrum, 192 So. 3d at 466-68.



13

requirement, judges are more likely to take improper 
factors into account (whether consciously or 
subconsciously), disregard relevant information, and 
allow their biases, including racial biases, to influence 
their sentencing decisions. If this Court does not 
grant review and reverse the decision below, juvenile 
life without parole sentences will not be reserved for 
only the rarest cases where rehabilitation is truly 
impossible, but instead will be (and already have 
been) imposed against juveniles who are capable of 
reform, and who are disproportionately Black.

Mississippi has been one of the most punitive 
states in the nation when it comes to resentencing 
post-Miller—over a quarter of people were again 
sentenced to life without parole for offenses they 
committed as children.39 In other words, Mississippi 
courts apparently consider over a quarter of 
defendants at post-Miller resentencings to be among 
the “rarest” of offenders who have no capacity for 
change and for whom rehabilitation is impossible— 
even, in instances such as Joey Chandler’s case, 
where there is ample evidence of rehabilitation.

Moreover, failing to require fact-finding related to 
permanent incorrigibility introduces a serious risk 
that racial discrimination will infect the sentencing of 
juvenile offenders who committed homicide crimes. 
The racial disparities that plague the criminal justice 
system start at a young age and have a particularly

39 Off. of State Public Def., Miss., Juvenile Life Without 
Parole in Mississippi 3 (2018).



14

severe impact on Black boys. While Black children 
comprise less than 14 percent of all youth under the 
age of 18 in the United States, Black boys make up 43 
percent of the male population confined in juvenile 
facilities.40 In Mississippi, Black children are six 
times more likely than white children to receive 
adjudications or sentences causing them to be locked 
up in juvenile facilities, a racial gap that increased by 
79 percent between 2003 and 2013.41 This racial 
disparity cannot be explained by differences in 
offending status or delinquent behaviors, which are 
minimal between Black and white youth.42

The federal government has long recognized the 
racial disparities in the juvenile justice system. In 
1988, “in response to overwhelming evidence that 
minority youth were disproportionately confined in 
the nation’s secure facilities,” Congress amended the 
Juvenile Justice and Delinquency Prevention Act (42 
U.S.C. § 5601, et seq.) to require that states address 
racial inequality—referred to as “Disproportionate 
Minority Contact” or “DMC”—in their juvenile

40 Wendy Sawyer, Prion Policy Inst., Youth Confinement:
The Whole Pie (Feb. 27, 2018),
https://www.prisonpolicy.org/reports/youth2018.html.
41 The Sentencing Project, Policy Brief: Racial Disparities 
in Youth Commitments and Arrests 10,12 (2016).
42 See id. at 6 (“Researchers have found few group differences 
between youth of color and white youth regarding the most 
common categories of youth arrests. While behavioral 
differences exist, black and white youth are roughly as likely to 
get into fights, carry weapons, steal property, use and sell illicit 
substances, and commit status offenses, like skipping school.”).

https://www.prisonpolicy.org/reports/youth2018.html


15

systems.43 In 1992, DMC was elevated to a “core 
requirement,” with the mandate that “each state 
must address efforts to reduce the proportion of youth 
. . . confined in secure detention facilities . . . who are 
members of minority groups if it exceeds the 
proportion of such groups in the general
population.”44

Racial disparities have been especially
pronounced with respect to life without parole 
sentences for children. Shortly before Graham and 
Miller, Black youth were subject to such sentences at 
a rate ten times higher than that of white children.45 
And for Black youth convicted of killing a white 
victim, the odds of being sentenced to life without 
parole are even higher, particularly when compared 
to a white defendant convicted of killing a Black 
victim.46

«  Heidi Hsia, Off. of Juv. Just. & Delinq. Prevention, Dep’t 
of Just., Disproportionate Minority Contact Technical 
Assistance Manual l  (4th ed. 2009).
44 Off. of Juv. Just. & Delinq. Prevention, Dep’t of Justice, 
A Disproportionate Minority Contact (DMC) Chronology: 
1988 TO DATE, https://www.ojjdp.gov/dmc/chronology.html (last
visited September 30, 2018).
46 Letter from the United States & Int’l Human Rights Orgs. to 
the Comm’n on the Elimination of Racial Discrimination 2 
(June 4, 2009),
http ://www. aclu. org/files/pdfs/humanrights/ 
jlwop_cerd_cmte.pdf.
46 See The Sentencing Project, Shadow Report of the 
Sentencing Project to the Committee on the Elimination 
of Racial Discrimination 3 (2014).

https://www.ojjdp.gov/dmc/chronology.html


16

Such disparities result in part from racial 
stereotypes, which perpetuate biases that inflict 
harms on Black lives. One stereotype that has 
plagued Black boys is the myth of the “super­
predator”—an especially depraved, immoral,
relentless, and dangerous class of teenage offenders, 
molded in stereotypes of racial criminality, who are 
responsible for the most heinous crimes.47 In 1995, 
John J. DiLulio, Jr., then a professor of criminology at 
Princeton University, coined the term “super- 
predator,” which he described as “tens of thousands of 
severely morally impoverished” and “super crime- 
prone young males . . .  on the horizon.”48 For “super­
predators,” according to DiLulio, committing acts like 
“murder [and] rape” comes “naturally.”49 And if there 
were any doubt as to whom DiLulio was describing, 
he clarified that “the trouble will be greatest in black 
inner-city neighborhoods.”50 The myth of the super­
predator spread across the country, influencing 
policies locally and nationally,51 shaping harsh

47 See, e.g., Peter Annin, Superpredators’ Arrive, NEWSWEEK, 
Jan. 22, 1996, at 57; David Gergen, Editorial, Taming Teenage 
Wolf Packs, U.S. News & WORLD Rep., Mar. 17, 1996, at 68; 
Richard Zoglin, Now for the Bad News: A Teenage Time Bomb, 
TIME, Jan. 15, 1996, at 52.
48 John DiLuluio, The Coming of the Super-Predators, WEEKLY
Standard (Nov. 27, 1995),
https://www.weeklystandard.com/john-j-dilulio-jr/the-coming-
of-the-super-predators.
49 Id.
so Id.
51 At the end of 1995, President Clinton called “juvenile violence” 
“the number one crime problem in America.” William J. Clinton,

https://www.weeklystandard.com/john-j-dilulio-jr/the-coming-


17

juvenile justice laws and contributing to a climate 
that encouraged life without parole sentences for 
children.52 Many of these punitive measures, which 
included laws to remove discretion from juvenile court 
judges and to make it easier to sentence children as 
adults,53 have continued despite the thorough 
discrediting of the “super-predator” myth and the 
sharp decline in the juvenile crime rate.54

If this Court permits judges to sentence juveniles 
to life without parole without requiring an 
incorrigibility finding or consideration on the record 
of all the relevant factors, there is a serious risk that 
these racist stereotypes could either explicitly or 
implicitly affect the sentencing decision. The 
disparities in the criminal justice system generally, 
and juvenile justice system in particular, are driven 
by harmful stereotypes about the dangerousness of 
Black people, and especially Black males. This Court

Statement on the Report on Juvenile Crime (Nov. 11, 1995), 
http://www.presidency.ucsb.edu/ws/index.php7pid-50761.
52 The Campaign for the Fair Sentencing of Youth, From the Desk 
of the Director: Black History Month (Feb. 28, 2018), 
https://www.fairsentencingofyouth.org/desk-director-black- 
history-month/.
53 See David S. Tanenhaus & Steven A. Drizin, “Owing to the 
Extreme Youth of the Accused”: The Changing Legal Response 
to Juvenile Homicide, 92 J. CRIM. L. & CRIMINOLOGY 641, 642 
(2002).
54 See, e.g., Off. of Surgeon Gen., Youth Violence: A Report
of the Surgeon General (2001),
https://www.ncbi.nlm.nih.gov/books/NBK44294/ (debunking the 
“super-predator” myth and repudiating the racial mythology 
that youth of color were more likely to become involved in youth 
violence).

http://www.presidency.ucsb.edu/ws/index.php7pid-50761
https://www.fairsentencingofyouth.org/desk-director-black-history-month/
https://www.fairsentencingofyouth.org/desk-director-black-history-month/
https://www.ncbi.nlm.nih.gov/books/NBK44294/


18

has sought to eradicate the pernicious influence of 
such stereotypes in the criminal justice system.55 In 
Buck v. Davis, for example, this Court reversed a 
death penalty sentence because testimony was 
introduced at trial relying on the false and repugnant 
stereotype that the defendant was more prone to 
commit criminal acts of violence because he was 
Black.56

With respect to implicit biases in the criminal 
justice system, studies have shown that such biases 
directly affect people’s views of Black men and boys. 
Perhaps one of the most famous examples of this is 
the “shooter bias” studies.57 These studies involve 
“custom-designed video games” where “participants 
are instructed to shoot the bad guys, regardless of 
race, but not to fire at the innocent bystanders.”58 The 
studies found that participants have a “propensity to 
shoot Black perpetrators more quickly and more 
frequently than White perpetrators and to decide not 
to shoot White bystanders more quickly and 
frequently than Black bystanders.”59

55 Rose v. Mitchell, 443 U.S. 545, 555 (1979) (“Discrimination on 
the basis of race, odious in all aspects, is especially pernicious 
in the administration of justice.”).
56 137 S. Ct. 759 (2017).
57 Judge Mark W. Bennett, Unraveling the Gordian Knot of 
Implicit Bias in Jury Selection: The Problems of Judge- 
Dominated Voir Dire, the Failed Promise of Batson, and 
Proposed Solutions, 4 HARV. L. & POL’Y Rev. 149, 155 (2010).
ss Id.
59 Id.



19

Another study demonstrated that, as compared to 
similarly situated white children, people are likely to 
perceive Black children as older, less innocent, and 
more culpable.60 Yet another study found that simply 
bringing to mind a Black juvenile defendant as 
opposed to a white juvenile defendant led participants 
to be significantly more likely to consider a child’s 
inherent culpability as similar to that of an adult and 
to favor more severe sentencing.61

Judges are not immune from these racial biases. 
In one study, researchers “found a strong white 
preference among white [trial] judges,” stronger even 
than that observed among a sample of white subjects 
from the general population obtained online.62 By 
contrast, Black judges did not show a clear racial 
preference.63 Another study of trial judges found that 
trial judges often rely on intuitive, rather than 
deliberative, decisionmaking processes, which risks 
leading to reflexive, automatic judgments, such as 
intuitively “associating] . . . African Americans with 
violence.”64 Yet another study found that “judges 
harbor the same kinds of implicit biases as others 
[and] that these biases can influence their

60 See Phillip Atiba Goff et ah, The Essence of Innocence: 
Consequences of Dehumanizing Black Children, 106 J. 
Personality & Soc. Psychol. 526, 540 (2014).
61 Aneeta Rattan et al„ Race and the Fragility of the Legal 
Distinction between Juveniles and Adults, 7 PLoS ONE 5 (May 
2012).
62 Jeffrey J. Rachlinski et al., Does Unconscious Racial Bias 
Affect Trial Judges?, 84 NOTRE DAME L. REV. 1195, 1210 (2009).
63 Id.
64 Bennett, supra note 57, at 156-57.



20

judgment.”65 Judges’ biases undoubtedly contribute to 
the fact that “at virtually every stage of the juvenile 
justice process, Black youth receive harsher 
treatment than white youth, even when faced with 
identical charges and offending histories.”66

Requiring specific fact-finding— such as a finding 
about incorrigibility—based on a full review of the 
relevant evidence mitigates the risk that these biases 
will affect judicial decisionmaking. In a publication 
advising judges on how to “combat implicit bias on the 
bench,” for example, the American Bar Association 
recommends the strategy of “Individuation,” which 
includes “gathering very specific information about a 
person’s background, tastes, hobbies and family so 
that your judgment will consider the particulars of 
that person, rather than group characteristics.”67 
Research demonstrates that “individuation, or the 
process of seeing others as being more than 
stereotypes, requires both having and focusing on 
‘individuating information.’”68 When judges lack

65 Id. at 157.
66 Ellen Marrus & Nadia N. Seeratan, What’s Race Got to Do 
with It? Just About Everything: Challenging Implicit Bias to 
Reduce Minority Youth Incarceration in America, 8 J. MARSHALL 
L. J. 437, 440 (2015).
67 Am. Bar Ass’n, Judges: 6 Strategies to Combat Implicit Bias
on the Bench (Sept. 2016),
https://www.americanbar.org/publications/youraba/2016/septe 
mber-2016/strategies-on-implicit-bias-and-de-biasing-for- 
judges-and-lawyer.html.
68 Sean Darling-Hammond, Designed to Fail: Implicit Bias in
Our Nation's Juvenile Courts, 21 U.C. DAVIS J. JUV. L. & POL’Y 
169, 186 (2017) (quoting Kurt Hugenberg et al., The
Categorization Individuation Model: An Integrative Account of

https://www.americanbar.org/publications/youraba/2016/septe


21

factual individuating information, or choose to not 
consider it, they “may struggle to view out-group 
members (like Black juveniles) through non- 
stereotypical lenses.”69

The persistence of racist stereotypes about Black 
boys, culpability, and dangerousness highlights the 
importance of requiring a permanent incorrigibility 
finding before sentencing a juvenile offender to life 
without parole. While not a foolproof bulwark, 
permanent incorrigibility findings direct judges to 
make sentencing decisions grounded in the record and 
predicated on proper considerations. That reduces the 
risk of arbitrariness and racial bias.

Finally, the permanent incorrigibility finding 
required by this Court’s precedent is necessary to 
ensure meaningful appellate review and encourage 
public confidence in the judicial system.70 Without 
such a finding, appellate judges are not in a position 
to determine whether and why a trial judge 
determined that a child was among those few 
defendants whose crime reflects incorrigibility. Nor 
can appellate judges ensure uniformity in such 
sentencing decisions. This, in turn, harms public 
confidence in the judicial system, particularly given

the Other-Race Recognition Deficit, 117 PSYCHOL. REV. 1168 
(2010)).
69 Id.
70 Cf. Gall v. United States, 552 U.S. 38, 50 (2007) (“After settling 
on the appropriate sentence, he must adequately explain the 
chosen sentence to allow for meaningful appellate review and to 
promote the perception of fair sentencing.”).



22

the severity of the sentence and the risk of it being 
imposed in a biased and arbitrary fashion.

CONCLUSION

This Court should grant certiorari to resolve the 
divide among the courts about whether the Eighth 
Amendment requires judges to find permanent 
incorrigibility before sentencing a juvenile offender to 
life without parole. The jurisdictions that do not 
require a permanent incorrigibility finding, including 
Mississippi, have failed to heed Montgomery and 
Miller—which clearly require such a finding—and 
therefore are failing to ensure that life without parole 
sentences are reserved for the “rarest of juvenile 
offenders.”



23

Respectfully submitted,

SHERRILYN A. Ifill  
Director- Counsel 

J a n a i S. N e lso n  
Sa m u e l  Sp it a l*
J o h n  S. Cu sic k  
A a r o n  Su ssm a n  
NAACP L e g a l  D e fe n se  & 

E d u c a t io n a l  F u n d , In c . 
40 Rector St., 5th Floor 
New York, NY 10006 
(212) 965-2200 
sspital@naacpldf.org

October 2, 2018

D a n ie l  S. H a r a w a  
NAACP L e g a l  D e fe n se  & 

Ed u c a t io n a l  F u n d , In c . 
700 14th St. NW 
Suite 600
Washington, DC 20005

Counsel for Amicus Curiae 

* Counsel of Record

mailto:sspital@naacpldf.org