Tennessee Supreme Court Holds Mandatory Life Sentences for Juvenile Offenders Are Unconstitutional

“In fulfilling our duty to decide constitutional issues, we hold that an automatic life sentence when imposed on a juvenile homicide offender with no consideration of the juvenile’s age or other circumstances violates the prohibition against cruel and unusual punishment under the Eighth Amendment to the United States Constitution.” Justice Sharon G. Lee State v. Tyshon Booker, (Tenn., November 18, 2022)

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Tyshon Booker, who lived in Knoxville, was 16-years old when he shot and killed G’Metrik Caldwell. After juvenile court transferred his case to Knox County Criminal Court, prosecutors charged him with first-degree felony murder and especially aggravated robbery (involving Mr. Caldwell’s cell phone). The year Tyshon turned 18-years old, a jury convicted him as charged. As Tennessee law required, on the felonymurder conviction, the trial court sentenced Tyshon, without a hearing, to life in prison. In Tennessee, life in prison carries a 60-year term of imprisonment, to be served day for day, less only sentence credits earned and retained that cannot exceed nine years. On November 18, 2022, the year Tyshon turned 23 years old, the Tennessee Supreme Court held that his automatic life sentence violated the Eighth Amendment. As a result, Tyshon is now eligible for (but not guaranteed) supervised release on parole after serving between 25 and 36 years. His earliest parole date will occur in 2040, the year he turns 41-years old. The same time frame of parole eligibility after serving 25 to 36 years will also apply to over 100 other juvenile homicide offenders serving automatic life sentences. At these parole hearings, the defendants will be entitled to individualized consideration in which age, rehabilitation, and other circumstances will be taken into account.

Many articles analyzing the landmark Booker opinion are available. Owing to the word limitation for feature KBA articles and recognizing that the Tennessee Supreme Court’s decision was not unanimous, this article will focus on the competing legal viewpoints expressed by the Justices. East Tennessee Justice Sharon Lee authored the plurality opinion. Special Justice William C. Koch, Jr, who was enlisted after the death of Justice Connie Clark, joined Justice Lee’s opinion. Justice Holly Kirby filed an opinion concurring in the judgment, and Justice Jeffrey S. Bivins, filed a dissenting opinion in which Chief Justice Roger A. Page joined.

Prior to Booker, Tennessee was not aligned with either a majority or with a minority of states that had addressed the constitutionality of automatic or mandatory sentencing of juvenile offenders convicted of homicide offenses. Rather, Tennessee was a one-off. “In the entirety of the nation, Tennessee [stood] alone.”1 Justice Lee punctuated the point: Tennessee’s life sentence when automatically imposed on a juvenile is the harshest of any sentence in the country. No one, including the dissent, disputes that a juvenile offender serving a life sentence in Tennessee is incarcerated longer than juvenile offenders serving life sentences in other states. For example, had Mr. Booker committed felony murder in nearby Alabama, he would have been eligible for release in fifteen years; twenty years in Virginia; twenty-five years in North Carolina, Kentucky, and Missouri; thirty years in Georgia; and twenty-five to thirty years in Arkansas.2

The disparity between Tennessee and other states is essential to understanding the nature of the Eighth Amendment violation. Justice Lee anchored the plurality opinion in existing United States Supreme Court’s precedents. Central to the Supreme Court’s Eighth Amendment jurisprudence is its firm conviction that “children are constitutionally different from adults for purposes of sentencing.”3 Three key differences between juveniles and adults are at play: (1) juveniles lack maturity and have an underdeveloped sense of responsibility; (2) juveniles are more susceptible to negative influences and outside pressures; and (3) the character of a juvenile is not as well formed as that of an adult. Juveniles have lesser culpability and greater amenability to rehabilitation than adult offenders. Tennessee’s scheme, however, makes no allowances for these constitutional differences, thereby violating the Eighth Amendment.

Justice Lee acknowledged that the Court was not free to write “personal opinions on public policy into law.”4 Even so, the Court has the sole authority and responsibility to determine the constitutionality of actions taken by the other two branches of government. The Court must not shirk its duty to “say what the law is.”5 That a party may disagree with the Court’s determination about the constitutionality of a statute does not signify that the judiciary has “usurped the legislative prerogative.”6

Justice Kirby’s concurrence and contribution to the Booker plurality opinion deserve separate recognition. She firmly planted her flag on the existence of “unequivocal objective data” demonstrating “that a national

COVER STORY By: Ann Short

The Bosch Law Firm, P.C.

consensus had formed against juvenile sentencing statutes like Tennessee’s.”7 [T]the Supreme Court’s body of Eighth Amendment cases, taken as a whole, requires that we consult objective data. The proportionality assessment under the Eighth Amendment “does not call for a subjective judgment. It requires, rather, that we look to objective indicia that reflect the public attitude toward a given sanction.”8

To that end, Justice Kirby examined the number of states that have overtly rejected Tennessee’s challenged practice, either legislatively or judicially; the frequency with which Tennessee’s challenged sentencing practice is actually used; and indicia of trends among states, including the direction and pace of change regarding Tennessee’s challenged sentencing practice. Such an examination, she emphasized, “ensures principled constitutional analysis that is not premised on the subjective sensibilities of individual judges.”9 Justice Kirby’s examination revealed that “there is now a national consensus against the type of statute Tennessee has.”10

Justice Kirby called out the dissent for ignoring the irrefutable objective indicia of a national consensus against a sentencing statute like the one in Tennessee. “The dissent’s only response to it is to shrug – in a footnote – that there is no way to ‘predict with confidence what the Supreme Court may say’ if it were faced with the data Mr. Booker presents.” She added, “This is weak tea.”11

The remedy that the plurality and concurring opinions in Booker crafted and applied does not disturb Tyshon Booker’s 60-year sentence; instead, reasoning from a previously enacted and never repealed statute, the plurality Court held that Tyshon Booker will be eligible for, although not guaranteed, supervised release on parole after serving between 25 and 36 years. This remedy had been agreed upon by the parties in the event Tyshon Booker’s mandatory sentence was ruled unconstitutional. Justice Lee further explained the benefits thusly: We exercise judicial restraint when remedying the unconstitutionality of the current statutory schemed for sentencing juvenile homicide offenders. Rather than creating a new sentencing scheme or resentencing Mr. Booker, we apply the sentencing policy adopted by the General Assembly in its previous enactment of section 40-35-501. In doing so, we make no policy decisions. Nor do we substitute our judgment for that of the General Assembly.12

Turning to Justice Bivins’s dissent in which Justice Page joined, the primary message is that the plurality “impermissibly moves the Court into an area reserved to the legislative branch.”13 This is particularly true, according to the dissent, because the United States Supreme Court has not specifically addressed whether a mandatory life sentence, such as legislatively designed for Tennessee, as applied to juveniles violates the Eighth Amendment. Even so, the dissent regarded the result of the plurality to be “sound,” albeit a misguided policy decision that cannot be reconciled with judicial restraint.14 So, how does Booker bear on future cases? One view is that no other juveniles convicted as adults of firstdegree murder or felony murder will automatically receive life sentences because judges will have discretion to impose lesser sentences. This writer disagrees. The legislature could, if it was so inclined, give the trial courts discretion under a modified sentencing scheme, but the Booker decision itself doesn’t establish a new scheme. Absent legislative intervention, a mandatory life sentence will still be required, but it will be life with release to supervised parole eligibility after serving between 25 and 36 years.

On a concluding personal note, I am proud that East Tennessee is home to some of the finest legal minds anywhere and to the highest standards of professionalism, as exhibited in this case by Tyshon’s lead trial and appellate advocates, Jonathan Harwell and Chloe Akers.

1 Slip op. at 1 (Kirby, J., concurring) 2 Slip op. at 13 (Lee, J., plurality opinion). 3 Miller v. Alabama, 567 U.S. 460, 471 (2012). 4 Slip op. at 4 (Lee, J., plurality opinion). 5 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). 6 Slip op. at 19 (Lee, J., plurality opinion). 7 Slip op. at 1 (Kirby, J., concurring). 8 Slip op. at 4 (Kirby, J., concurring) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976). 9 Slip op. at 5 (Kirby, J., concurring). 10 Slip op. at 8 (Kirby, J., concurring). 11 Slip op. at 11 (Kirby, J., concurring). 12 Slip op. at 18-19 (Lee, J., plurality opinion). 13 Slip op. at 1 (Bivins, J., dissenting). 14 Drawing upon Supreme Court Justice Kavanaugh’s words in Jones v. Mississippi, 141 S. Ct. 1307, 1322 (2021), that the Court’s ruling on the legal issue “should not be construed as agreement or disagreement with the sentence imposed against Jones,” Justice Bivins stressed that he did not arrive at his conclusion “without serious concerns and reservations,” Slip op. at 18 (Bivins, J., dissenting).