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People v. Skinner

Supreme Court of Michigan

June 20, 2018

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
TIA MARIE-MITCHELL SKINNER, Defendant-Appellee. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
KENYA ALI HYATT, Defendant-Appellee. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
KENYA ALI HYATT, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
TIA MARIE-MITCHELL SKINNER, Defendant-Appellee. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
KENYA ALI HYATT, Defendant-Appellee. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
KENYA ALI HYATT, Defendant-Appellant.

          Argued October 12, 2017

         SYLLABUS

         Following a jury trial in the St. Clair Circuit Court, Tia Marie-Mitchell Skinner was convicted of first-degree premeditated murder, conspiracy to commit murder, and attempted murder for acts committed when she was 17 years old. The court, Daniel J. Kelly, J., sentenced Skinner to life in prison without the possibility of parole. The Court of Appeals, Shapiro, P.J., and Servitto and Ronayne Krause, JJ., in an unpublished per curiam opinion issued February 21, 2013 (Docket No. 306903), remanded for resentencing under Miller v Alabama, 567 U.S. 460 (2012), which held that mandatory life-without-parole sentences for offenders under 18 years old violate the Eighth Amendment. The Supreme Court denied leave to appeal. 494 Mich. 872 (2013). On remand, the trial court reimposed a life-without-parole sentence. After Skinner was resentenced, MCL 769.25 took effect, setting forth a new framework for sentencing juveniles convicted of first-degree murder. The Court of Appeals remanded for resentencing under MCL 769.25 in an unpublished order entered July 30, 2014 (Docket No. 317892). On remand, the trial court again sentenced Skinner to life without parole. In a split, published decision, the Court of Appeals, Hoekstra, P.J., and Sawyer and Borrello, JJ., again remanded for resentencing, holding that a jury must decide whether Skinner should be sentenced to life without parole and that, to the extent that MCL 769.25 requires the trial court to make this determination, it is unconstitutional. 312 Mich.App. 15 (2015). The Supreme Court granted the prosecutor's application for leave to appeal, directing the parties to address whether the decision to sentence a person under the age of 18 to a prison term of life without parole under MCL 769.25 must be made by a jury beyond a reasonable doubt. 500 Mich. 929 (2017).

         Following a jury trial in the Genesee Circuit Court, Kenya A. Hyatt was convicted of first-degree felony murder, armed robbery, conspiracy to commit armed robbery, and possessing a firearm during the commission of a felony for acts committed when he was 17 years old. The court, Judith A. Fullerton, J., after an evidentiary hearing at which she considered the Miller factors, sentenced Hyatt to life in prison without the possibility of parole. In a published opinion, the Court of Appeals, Talbot, C.J., and Cavanagh and K. F. Kelly, JJ., affirmed Hyatt's convictions and would have affirmed his sentence but for Skinner, which held that a jury must decide whether to impose a life-without-parole sentence on a juvenile. 314 Mich.App. 140 (2016). The Court of Appeals declared a conflict pursuant to MCR 7.215(J) and, in a published decision, the conflict panel, Shapiro, P.J., and Markey, Meter, Beckering, Stephens, M. J. Kelly, and Riordan, JJ., unanimously disagreed with Skinner and held that a judge may decide whether to impose a nonparolable life sentence on a juvenile. 316 Mich.App. 368 (2016). However, the Court of Appeals reversed Hyatt's life-without-parole sentence and remanded the case to the trial court for resentencing at which "the trial court must not only consider the Miller factors, but decide whether defendant Hyatt is the truly rare juvenile mentioned in Miller who is incorrigible and incapable of reform." The Supreme Court ordered and heard oral argument on whether to grant the prosecution's application for leave to appeal or take other peremptory action, instructing the parties to address whether the conflict-resolution panel of the Court of Appeals erred by applying a heightened standard of review for sentences imposed under MCL 769.25. 500 Mich. 929 (2017).

         In an opinion by Chief Justice Markman, joined by Justices Zahra, Viviano, and Wilder, the Supreme Court held:

         MCL 769.25 does not violate the Sixth Amendment because neither that statute nor the Eighth Amendment requires a judge to find any particular fact before imposing a sentence of life without parole; instead, that sentence is authorized by the jury's verdict alone. Accordingly, the Court of Appeals' judgment in Skinner was reversed in part, and the holding in Hyatt that a judge, not a jury, must determine whether to impose a life-without-parole sentence or a term-of-years sentence under MCL 769.25 was affirmed. However, the Court of Appeals' judgment in Hyatt was reversed to the extent that it adopted a heightened standard of review for life-without-parole sentences imposed under MCL 769.25 and remanded the case to the trial court for it to decide whether Hyatt was the "truly rare juvenile mentioned in Miller who is incorrigible and incapable of reform." No such explicit finding was required. Both cases were remanded to the Court of Appeals to review defendants' sentences under the traditional abuse-of-discretion standard of review.

         1. The Sixth Amendment provides that in all criminal prosecutions, the accused has the right to a speedy and public trial by an impartial jury of the state and the district wherein the crime was committed. The Eighth Amendment prohibits the infliction of cruel and unusual punishment. The United States Supreme Court held in Apprendi v New Jersey, 530 U.S. 466 (2000), that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt in order to satisfy the Sixth Amendment, and it held in Miller that mandatory life-without-parole sentences for juvenile offenders violate the Eighth Amendment. After the decision in Miller, the Michigan Legislature enacted MCL 769.25, which set forth a new framework for sentencing juveniles convicted of first-degree murder. Specifically, MCL 769.25(2) provides that a prosecutor may file a motion to sentence a juvenile defendant to life without parole if the juvenile was convicted of a violation of law involving the death of another person for which parole eligibility is expressly denied under state law. If such a motion is filed, MCL 769.25(6) requires the sentencing court to conduct a hearing at which it considers the factors set forth in Miller, which take into account the defendant's chronological age and its hallmark features, including immaturity, impetuosity, and failure to appreciate risks and consequences; the defendant's family and home environment; the circumstances of the offense, including the extent of the defendant's participation in the offense and the possible effect of familial and peer pressures; the possibility that the defendant would have been charged with and convicted of a lesser offense but for the incompetencies associated with youth; and the possibility of rehabilitation. Under MCL 769.25(7), the court must specify on the record the aggravating and mitigating circumstances it considered and the reasons supporting the sentence it imposed. If the court decides not to impose a sentence of life without parole, MCL 769.25(9) requires the court to sentence the defendant to imprisonment for a term of years, the minimum term being not less than 25 years or more than 40 years and the maximum term being not less than 60 years.

         2. Statutes are presumed to be constitutional, and the Court has a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent. Assuming that there are two reasonable ways of interpreting MCL 769.25, one of which renders it unconstitutional and one of which renders it constitutional, the Court has a duty to choose the interpretation that renders it constitutional. The issue was whether MCL 769.25 removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he or she would receive if punished according to the facts reflected in the jury verdict alone in violation of the Sixth Amendment. If the jury's verdict alone does not authorize the sentence but instead the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied. The fact that a term-of-years sentence constituted the default sentence in the absence of a motion by the prosecutor seeking a life-without-parole sentence did not mean that the jury must find additional facts before a life-without-parole sentence could be imposed. The critical question was whether additional factual findings have to be made, not whether an additional motion had to be filed.

         3. MCL 769.25 does not expressly require the court to find any particular fact before imposing life without parole, and such a requirement should not be read into the statute, especially given that doing so would render the statute unconstitutional. MCL 769.25(6) requires that the court conduct a hearing to consider the Miller factors, and MCL 769.25(7) requires the court to specify on the record the aggravating and mitigating circumstances considered by the court and the court's reasons supporting the sentence imposed. While the argument that these provisions implicitly require the trial court to find an aggravating circumstance before it imposes a life-without-parole sentence is not unreasonable, it is also not clearly apparent that such a finding is required. MCL 769.25(6) merely requires the trial court to consider the factors listed in Miller, and because they are all mitigating factors, the Sixth Amendment does not prohibit trial courts from considering them when choosing an appropriate sentence because doing so does not expose a defendant to a sentence that exceeds the sentence that is authorized by the jury's verdict. MCL 769.25(7) requires the court to specify on the record the aggravating and mitigating circumstances considered by the court and the court's reasons supporting the sentence imposed, and aggravating circumstances, unlike mitigating circumstances, do have the effect of increasing a defendant's sentence. However, aggravating circumstances do not increase a defendant's sentence beyond that authorized by the jury's verdict, because the trial court does not have to find an aggravating circumstance in order to sentence a juvenile to life without parole. If the trial court finds that there are no mitigating circumstances, there is nothing in the statute that prohibits the trial court from sentencing a juvenile to life without parole. Given that the statute does not require the trial court to affirmatively find an aggravating circumstance in order to impose a life-without-parole sentence, that sentence is necessarily authorized by the jury's verdict alone. And given that a life-without-parole sentence is authorized by the jury's verdict alone, additional fact-finding by the court is not prohibited by the Sixth Amendment. The United States Supreme Court's Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence. Instead, the Sixth Amendment question is whether the law forbids a judge to increase a defendant's sentence unless the judge finds facts that the jury did not find and that the offender did not concede. Nothing within MCL 769.25 forbids the judge from imposing a life-without-parole sentence unless the judge finds facts that the jury did not find and that the offender did not concede.

         4. The Eighth Amendment, under either Miller or Montgomery, does not require additional fact-finding before a life-without-parole sentence can be imposed. Although there was language in those cases that could be read to suggest that the sentencer must find that the juvenile offender's crime reflects irreparable corruption before a life-without-parole sentence could be imposed, Miller simply held that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment and that before such a sentence could be imposed on a juvenile, the sentencer must consider the mitigating qualities of youth, and Montgomery expressly stated that Miller did not require trial courts to make a finding of fact regarding a child's incorrigibility. Montgomery held that while the substantive rule is that juveniles who are not irreparably corrupt cannot be sentenced to life without parole, the states were free to develop their own procedures to enforce this new substantive rule. In this sense, the "irreparable corruption" standard was analogous to the proportionality standard that applied to all criminal sentences: just as courts are not allowed to impose disproportionate sentences, courts are not allowed to sentence juveniles who are not irreparably corrupt to life without parole. And just as whether a sentence is proportionate is not a factual finding, whether a juvenile is "irreparably corrupt" is not a factual finding. Because the Eighth Amendment does not require the finding of any particular fact before imposing a life-without-parole sentence, the Sixth Amendment is not violated by allowing the trial court to decide whether to impose life without parole.

         5. The Court of Appeals' opinion in Hyatt erred by holding that the trial court was required to explicitly decide whether defendant was the truly rare juvenile who is irreparably corrupt. Miller used the word "uncommon" only once and the word "rare" only once, and when those words were read in context it was clear that Miller did not hold that a trial court must explicitly find that a defendant is "rare" or "uncommon" before it could impose life without parole. Although Montgomery quoted Miller's references to "uncommon" and "rare, " it did not impose any requirement on sentencing courts to determine whether a juvenile offender was rare before sentencing him or her to life without parole. Similarly, neither Miller nor Montgomery imposed a presumption against life without parole for those juveniles who have been convicted of first-degree murder on either the trial court or the appellate court. Those cases simply required that the trial court consider an offender's youth and attendant characteristics before imposing life without parole.

         6. Neither Miller nor Montgomery required Michigan's appellate courts to deviate from their traditional abuse-of-discretion standard in reviewing a trial court's decision to impose life without parole. The Legislature imposed on the trial court the responsibility of making the difficult decision regarding whether to impose a sentence of life without parole or a term of years on the basis of the case-specific detailed factual circumstances. Because of the trial court's familiarity with the facts and its experience in sentencing, the trial court is better situated than the appellate court to determine whether a life-without-parole sentence is warranted in a particular case. Accordingly, review de novo, in which a panel of appellate judges could substitute its own judgment for that of the trial court, was not the appropriate standard by which to review the determination that a life-without-parole sentence is warranted; instead, the appellate court must accord this determination some degree of deference.

         In Skinner, Court of Appeals judgment reversed; case remanded to the Court of Appeals.

         In Hyatt, Court of Appeals judgment affirmed in part and reversed in part; case remanded to the Court of Appeals.

         Justice McCormack, joined by Justice Bernstein, dissenting, would have held that MCL 769.25 is unconstitutional because the most natural reading of that provision requires a trial court to make factual findings beyond those found by the jury before it can impose a sentence of life without parole on a juvenile, which violates the Sixth Amendment under Apprendi and its progeny. She would have declined to read the statute not to require these findings because such a reading would violate the Eighth Amendment under Miller and Montgomery. Justice McCormack also dissented from the majority's conclusion that traditional abuse-of-discretion review applies to juvenile sentences of life without parole because a determination of whether a sentence is constitutional, like any constitutional question, requires review de novo.

          Justice Clement took no part in the decision of this case.

         BEFORE THE ENTIRE BENCH (except Clement, J.)

          Justices Stephen J. Markman Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein, Kurtis T. Wilder, Elizabeth T. Clement

          OPINION

          MARKMAN, C.J.

         At issue here is whether MCL 769.25 violates the Sixth Amendment because it allows the decision whether to impose a sentence of life without parole to be made by a judge, rather than by a jury beyond a reasonable doubt. We hold that MCL 769.25 does not violate the Sixth Amendment because neither the statute nor the Eighth Amendment requires a judge to find any particular fact before imposing life without parole; instead, life without parole is authorized by the jury's verdict alone. Therefore, we reverse the judgment of the Court of Appeals in Skinner and affirm the part of Hyatt that held that "[a] judge, not a jury, must determine whether to impose a life-without-parole sentence or a term-of-years sentence under MCL 769.25." People v Hyatt, 316 Mich.App. 368, 415; 891 N.W.2d 549 (2016). However, we reverse the part of Hyatt that adopted a heightened standard of review for life-without-parole sentences imposed under MCL 769.25 and that remanded this case to the trial court for it to "decide whether defendant Hyatt is the truly rare juvenile mentioned in [Miller v Alabama, 567 U.S. 460; 132 S.Ct. 2455; 183 L.Ed.2d 407 (2012)] who is incorrigible and incapable of reform." Hyatt, 316 Mich.App. at 429. No such explicit finding is required. Finally, we remand both of these cases to the Court of Appeals for it to review defendants' sentences under the traditional abuse-of-discretion standard of review.

         I. FACTS AND HISTORY

         A. SKINNER

         Following a jury trial, defendant was convicted of first-degree premeditated murder, conspiracy to commit murder, and attempted murder for acts committed when defendant was 17 years old. Defendant was sentenced to life in prison without the possibility of parole. The Court of Appeals remanded for resentencing under Miller, 567 U.S. 460, which held that mandatory life-without-parole sentences for offenders under 18 years old violate the Eighth Amendment. People v Skinner, unpublished per curiam opinion of the Court of Appeals, issued February 21, 2013 (Docket No. 306903). This Court denied leave to appeal. People v Skinner, 494 Mich. 872 (2013). On remand, the trial court reimposed a life-without-parole sentence. After defendant was resentenced, MCL 769.25 took effect, setting forth a new framework for sentencing juveniles convicted of first-degree murder. The Court of Appeals remanded for resentencing under MCL 769.25. People v Skinner, unpublished order of the Court of Appeals, entered July 30, 2014 (Docket No. 317892). On remand, the trial court again sentenced defendant to life without parole.

         In a split, published decision, the Court of Appeals again remanded for resentencing, holding that a jury must decide whether defendant should be sentenced to life without parole and that, to the extent that MCL 769.25 requires the trial court to make this determination, it is unconstitutional. People v Skinner, 312 Mich.App. 15; 877 N.W.2d 482 (2015). This Court granted the prosecutor's application for leave to appeal and directed the parties to address "whether the decision to sentence a person under the age of 18 to a prison term of life without parole under MCL 769.25 must be made by a jury beyond a reasonable doubt[.]" People v Skinner, 500 Mich. 929, 929 (2017).

         B. HYATT

         Following a jury trial, defendant was convicted of first-degree felony murder, armed robbery, conspiracy to commit armed robbery, and possessing a firearm during the commission of a felony for acts committed when defendant was 17 years old. Following an evidentiary hearing at which the trial court considered the Miller factors, defendant was sentenced to life in prison without the possibility of parole. In a published opinion, the Court of Appeals affirmed defendant's convictions and would have affirmed his sentence but for Skinner, which held that a jury must decide whether to impose a life-without-parole sentence on a juvenile. People v Hyatt, 314 Mich.App. 140; 885 N.W.2d 900 (2016).

         The Court of Appeals declared a conflict pursuant to MCR 7.215(J) and, in a published decision, the conflict panel unanimously disagreed with Skinner and held that a judge may decide whether to impose a nonparolable life sentence on a juvenile. Hyatt, 316 Mich.App. at 415. However, the Court of Appeals reversed defendant's life-without-parole sentence and remanded the case to the trial court for resentencing at which "the trial court must not only consider the Miller factors, but decide whether defendant Hyatt is the truly rare juvenile mentioned in Miller who is incorrigible and incapable of reform." Id. at 429. We directed that oral argument be heard on the prosecutor's application for leave to appeal and instructed the parties to address "whether the conflict- resolution panel of the Court of Appeals erred by applying a heightened standard of review for sentences imposed under MCL 769.25." People v Hyatt, 500 Mich. 929, 929-930 (2017).

         II. STANDARD OF REVIEW

         Matters of constitutional and statutory interpretation are reviewed de novo. People v Hall, 499 Mich. 446, 452; 884 N.W.2d 561 (2016). In analyzing constitutional challenges to statutes, this Court's "authority to invalidate laws is limited and must be predicated on a clearly apparent demonstration of unconstitutionality." People v Harris, 495 Mich. 120, 134; 845 N.W.2d 477 (2014). We require these challenges to meet such a high standard because "[s]tatutes are presumed to be constitutional, and we have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent." In re Sanders, 495 Mich. 394, 404; 852 N.W.2d 524 (2014), citing Taylor v Gate Pharm, 468 Mich. 1, 6; 658 N.W.2d 127 (2003).

         III. BACKGROUND

         The issue here involves the interplay between the Sixth and Eighth Amendments of the United States Constitution. The Sixth Amendment provides, in pertinent part:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and the district wherein the crime shall have been committed . . . . [US Const, Am VI.]

         The Eighth Amendment provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. [US Const, Am VIII.]

         Specifically, the issue here is whether Apprendi v New Jersey, 530 U.S. 466; 120 S.Ct. 2348; 147 L.Ed.2d 435 (2000), and its progeny require jury findings beyond a reasonable doubt before a sentence of life without parole may be imposed on a person under the age of 18 under MCL 769.25.

         MCL 750.316(1) provides, in pertinent part:

Except as provided in sections 25 and 25a of chapter IX of the code of criminal procedure, 1927 PA 175, MCL 769.25 and 769.25a, a person who commits any of the following is guilty of first degree murder and shall be punished by imprisonment for life without eligibility for parole:
(a) Murder perpetrated by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing.
(b) Murder committed in the perpetration of, or attempt to perpetrate, arson, criminal sexual conduct in the first, second, or third degree, child abuse in the first degree, a major controlled substance offense, robbery, carjacking, breaking and entering of a dwelling, home invasion in the first or second degree, larceny of any kind, extortion, kidnapping, vulnerable adult abuse in the first or second degree under [MCL 750.145n], torture under [MCL 750.85], aggravated stalking under [MCL 750.411i], or unlawful imprisonment under [MCL 750.349b].

         MCL 769.25, which was enacted in the wake of Miller, provides, in pertinent part:

(1) This section applies to a criminal defendant who was less than 18 years of age at the time he or she committed an offense described in subsection (2) . . . .
* * *
(2) The prosecuting attorney may file a motion under this section to sentence a defendant described in subsection (1) to imprisonment for life without the possibility of parole if the individual is or was convicted of any of the following violations:
* * *
(d) Any violation of law involving the death of another person for which parole eligibility is expressly denied under state law.
(3). . . If the prosecuting attorney intends to seek a sentence of imprisonment for life without the possibility of parole for a case described under subsection (1)(b), the prosecuting attorney shall file the motion within 90 days after the effective date of the amendatory act that added this section. The motion shall specify the grounds on which the prosecuting attorney is requesting the court to impose a sentence of imprisonment for life without the possibility of parole.
(4) If the prosecuting attorney does not file a motion under subsection (3) within the time periods provided for in that subsection, the court shall sentence the defendant to a term of years as provided in subsection (9).
* * *
(6) If the prosecuting attorney files a motion under subsection (2), the court shall conduct a hearing on the motion as part of the sentencing process. At the hearing, the trial court shall consider the factors listed in [Miller v Alabama] and may consider any other criteria relevant to its decision, including the individual's record while incarcerated.
(7)At the hearing under subsection (6), the court shall specify on the record the aggravating and mitigating circumstances considered by the court and the court's reasons supporting the sentence imposed. The court may consider evidence presented at trial together with any evidence presented at the sentencing hearing.
* * *
(9) If the court decides not to sentence the individual to imprisonment for life without parole eligibility, the court shall sentence the individual to a term of imprisonment for which the maximum term shall be not less than 60 years and the minimum term shall be not less than 25 years or more than 40 years.

         In People v Carp, 496 Mich. 440; 852 N.W.2d 801 (2014), this Court noted that

[r]ather than imposing fixed sentences of life without parole on all defendants convicted of violating MCL 750.316, MCL 769.25 now establishes a default sentencing range for individuals who commit first-degree murder before turning 18 years of age. Pursuant to the new law, absent a motion by the prosecutor seeking a sentence of life without parole,
the court shall sentence the individual to a term of imprisonment for which the maximum term shall be not less than 60 years and the minimum term shall be not less than 25 years or more than 40 years. [Id. at 440, quoting MCL 769.25.]

         A. UNITED STATES SUPREME COURT PRECEDENT

         Apprendi, 530 U.S. at 490, held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Emphasis added.) In other words, any fact that "expose[s] the defendant to a greater punishment than that authorized by the jury's guilty verdict" is an "element" that must be submitted to a jury. Id. at 494 (emphasis added). See also Blakely v Washington, 542 U.S. 296, 303; 124 S.Ct. 2531; 159 L.Ed.2d 403 (2004) ("[T]he 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.") (emphasis altered).

         In Ring v Arizona, 536 U.S. 584, 609; 122 S.Ct. 2428; 153 L.Ed.2d 556 (2002), the Court held that the jury, rather than the judge, must determine whether an aggravating circumstance exists in order to impose the death penalty.[1] In addition, in Hurst v Florida, 577 U.S. ___, ___; 136 S.Ct. 616, 619; 193 L.Ed.2d 504 (2016), the Court held that "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death" and that "[a] jury's mere recommendation [of a death sentence] is not enough" to satisfy the Sixth Amendment.[2]

         Miller, 567 U.S. at 465, held that "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.' " (Emphasis added.) Instead, "a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles." Id. at 489 (emphasis added).[3] The Court indicated that the following factors should be taken into consideration: "[defendant's] chronological age and its hallmark features-among them, immaturity, impetuosity, and failure to appreciate risks and consequences"; "the family and home environment that surrounds him-and from which he cannot usually extricate himself-no matter how brutal or dysfunctional"; "the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him"; whether "he might have been charged [with] and convicted of a lesser offense if not for incompetencies associated with youth-for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys"; and "the possibility of rehabilitation . . . ." Id. at 477-478. Although the Court declined to address the "alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger, " it stated:

But given all we have said in Roper, [4]Graham, [5] and this decision about children's diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between "the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption." Although we do not foreclose a sentencer's ability to make that judgment in homicide cases, we require it to take into ...

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