                     Cite as: 580 U. S. ____ (2016)                    1

                       SOTOMAYOR, J., concurring

SUPREME COURT OF THE UNITED STATES
            BOBBY JERRY TATUM v. ARIZONA
  ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF 

           APPEALS OF ARIZONA, DIVISION TWO

               No. 15–8850. Decided October 31, 2016

   The motion of petitioner for leave to proceed in forma
pauperis and the petition for a writ of certiorari are granted.
The judgment is vacated, and the case is remanded to the
Court of Appeals of Arizona, Division Two for further
consideration in light of Montgomery v. Louisiana, 577
U. S. ___ (2016).
   JUSTICE SOTOMAYOR, concurring in the decision to
grant, vacate, and remand.*
   This Court explained in Miller v. Alabama, 567 U. S. ___
(2012), that a sentencer is “require[d] . . . to take into
account how children are different, and how those differ-
ences counsel against irrevocably sentencing them to a
lifetime in prison.” Id., at ___ (slip op., at 17). Children
are “constitutionally different from adults for purposes of
sentencing” in light of their lack of maturity and under-
developed sense of responsibility, their susceptibility to
negative influences and outside pressure, and their less
well-formed character traits. Id., at ___ (slip op., at 8).
Failing to consider these constitutionally significant dif-
ferences, we explained, “poses too great a risk of dispro-
portionate punishment.” Id., at ___ (slip op., at 17). In the
context of life without parole, we stated that “appropriate
occasions for sentencing juveniles to this harshest possible
penalty will be uncommon.” Ibid.
   Montgomery v. Louisiana, 577 U. S. ___ (2016), held
——————
  * This opinion also applies to No. 15–8842, Purcell v. Arizona; No. 15–
8878, Najar v. Arizona; No. 15–9044, Arias v. Arizona; and No. 15–
9057, DeShaw v. Arizona.
2                    TATUM v. ARIZONA

                   SOTOMAYOR, J., concurring

that Miller “announced a substantive rule of constitutional
law.” 577 U. S., at ___ (slip op., at 20). That rule draws “a
line between children whose crimes reflect transient im-
maturity and those rare children whose crimes reflect
irreparable corruption” and allows for the possibility “that
life without parole could be a proportionate sentence [only]
for the latter kind of juvenile offender.” Id., at ___ (slip
op., at 18).
   The petitioners in these cases were sentenced to life
without the possibility of parole for crimes they committed
before they turned 18. A grant, vacate, and remand of
these cases in light of Montgomery permits the lower
courts to consider whether these petitioners’ sentences
comply with the substantive rule governing the imposition
of a sentence of life without parole on a juvenile offender.
   JUSTICE ALITO questions this course, noting that the
judges in these cases considered petitioners’ youth during
sentencing. As Montgomery made clear, however, “[e]ven
if a court considers a child’s age before sentencing him or
her to a lifetime in prison, that sentence still violates the
Eighth Amendment for a child whose crime reflects unfor-
tunate yet transient immaturity.” Id., at ___–___ (slip op.,
at 16–17) (internal quotation marks omitted).
   On the record before us, none of the sentencing judges
addressed the question Miller and Montgomery require a
sentencer to ask: whether the petitioner was among the
very “rarest of juvenile offenders, those whose crimes
reflect permanent incorrigibility.” 577 U. S., at ___ (slip
op., at 17).
   Take Najar v. Arizona, No. 15–8878. There, the sen-
tencing judge identified as mitigating factors that the
defendant was “16 years of age” and “emotionally and
physically immature.” App. to Pet. for Cert. in No. 15–
8878, p. A–51. He said no more on this front. He then
discounted the petitioner’s efforts to rehabilitate himself
as “nothing significant,” despite commending him for those
                 Cite as: 580 U. S. ____ (2016)           3

                  SOTOMAYOR, J., concurring

efforts and expressing hope that they would continue. Id.,
at A–52. The sentencing judge did not evaluate whether
Najar represented the “rare juvenile offender who exhibits
such irretrievable depravity that rehabilitation is impos-
sible and life without parole is justified.” Montgomery, 577
U. S., at ___ (slip op., at 16).
  Purcell v. Arizona, No. 15–8842, is no different. The
sentencing judge found that Purcell’s age at the time of his
offense—16 years old—qualified as a statutory mitigating
factor. App. to Pet. for Cert. in No. 15–8842, p. A–80. He
then minimized the relevance of Purcell’s troubled child-
hood, concluding that “this case sums up the result of
defendant’s family environment: he became a double-
murderer at age 16. Nothing more need be said.” Id., at
A–83. So here too, the sentencing judge did not undertake
the evaluation that Montgomery requires. He imposed a
sentence of life without parole despite finding that Purcell
was “likely to do well in the structured environment of a
prison and that he possesses the capacity to be meaning-
fully rehabilitated.” App. to Pet. for Cert. in No. 15–8842,
at A–83.
  The other petitions are similar. In Tatum v. Arizona,
No. 15–8850, and DeShaw v. Arizona, No. 15–9057, the
sentencing judge merely noted age as a mitigating circum-
stance without further discussion. In Arias v. Arizona,
No. 15–9044, the record before us does not contain a sen-
tencing transcript or order reflecting the factors the sen-
tencing judge considered.
  It is clear after Montgomery that the Eighth Amend-
ment requires more than mere consideration of a juvenile
offender’s age before the imposition of a sentence of life
without parole. It requires that a sentencer decide whether
the juvenile offender before it is a child “whose crimes
reflect transient immaturity” or is one of “those rare chil-
dren whose crimes reflect irreparable corruption” for
whom a life without parole sentence may be appropriate.
4                   TATUM v. ARIZONA

                  SOTOMAYOR, J., concurring

577 U. S., at ___ (slip op., at 18). There is thus a very
meaningful task for the lower courts to carry out on
remand.
                     Cite as: 580 U. S. ____ (2016)                   1

                         ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES
            BOBBY JERRY TATUM v. ARIZONA
  ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF 

           APPEALS OF ARIZONA, DIVISION TWO

               No. 15–8850. Decided October 31, 2016

   JUSTICE ALITO, with whom JUSTICE THOMAS joins,
dissenting from the decision to grant, vacate, and
remand.*
   The Court grants review and vacates and remands in
this and four other cases in which defendants convicted of
committing murders while under the age of 18 were sen-
tenced to life without parole. The Court grants this relief
so that the Arizona courts can reconsider their decisions in
light of Montgomery v. Louisiana, 577 U. S. ___ (2016),
which we decided last Term. I expect that the Arizona
courts will be as puzzled by this directive as I am.
   In Montgomery, the Court held that Miller v. Alabama,
567 U. S. ___ (2012), is retroactive. 577 U. S., at ___ (slip.
op., at 20). That holding has no bearing whatsoever on the
decisions that the Court now vacates. The Arizona cases
at issue here were decided after Miller, and in each case
the court expressly assumed that Miller was applicable to
the sentence that had been imposed. Therefore, if the
Court is taken at its word—that is, it simply wants the
Arizona courts to take Montgomery into account—there is
nothing for those courts to do.
   It is possible that what the majority wants is for the
lower courts to reconsider the application of Miller to the
cases at issue,† but if that is the Court’s aim, it is misusing
——————
  * This opinion also applies to four other petitions: No. 15–8842, Pur-
cell v. Arizona; No. 15–8878, Najar v. Arizona; No. 15–9044, Arias v.
Arizona; and No. 15–9057, DeShaw v. Arizona.
  † This is certainly JUSTICE SOTOMAYOR’s explanation of the GVR. She
2                        TATUM v. ARIZONA

                          ALITO, J., dissenting

the GVR vehicle. We do not GVR so that a lower court can
reconsider the application of a precedent that it has al-
ready considered.
   In any event, the Arizona decisions at issue are fully
consistent with Miller’s central holding, namely, that
mandatory life without parole for juvenile offenders is
unconstitutional. 567 U. S., at ___ (slip op., at 2). A sen-
tence of life without parole was imposed in each of these
cases, not because Arizona law dictated such a sentence,
but because a court, after taking the defendant’s youth
into account, found that life without parole was appropri-
ate in light of the nature of the offense and the offender.
   It is true that the Miller Court also opined that “life
without parole is excessive for all but ‘the rare juvenile
offender whose crime reflects irreparable corruption,’ ”
Montgomery, supra, at ___ (slip op., at 17) (quoting Miller,
supra, at ___ (slip op., at 17) (internal quotation marks
omitted)), but the record in the cases at issue provides
ample support for the conclusion that these “children” fall
into that category.
   For example, in Purcell v. Arizona, No. 15–8842, a 16-
year-old gang member fired a sawed-off shotgun into a
group of teenagers, killing two of them, under the belief
that they had flashed a rival gang’s sign at him. He was
ultimately convicted of two counts of first-degree murder,
nine counts of attempted first-degree murder, and one
count each of aggravated assault and misconduct involv-
ing weapons. The trial court considered his youth, identi-
fied his age as a mitigating factor, and still sentenced him
to life without parole. The remaining cases are in the
same vein. See Tatum v. Arizona, No. 15–8850 (17-year-
——————
faults the lower courts for failing to heed the statement in Miller that
“appropriate occasions for sentencing juveniles to this harshest possible
penalty will be uncommon.” 567 U. S., at ___ (slip op., at 17). If the
others in the majority have a similar view, the Court should grant
review and decide the cases on the merits.
                 Cite as: 580 U. S. ____ (2016)            3

                     ALITO, J., dissenting

old defendant convicted of first-degree murder, conspiracy
to commit armed robbery, attempted armed robbery, and
aggravated assault); Najar v. Arizona, No. 15–8878 (juve-
nile convicted of first-degree murder and theft); Arias v.
Arizona, No. 15–9044 (16-year-old defendant pleaded
guilty to two counts of first-degree murder, two counts of
second-degree murder, two counts of kidnapping, four
counts of armed robbery, and one count each of first-
degree burglary, conspiracy to commit first-degree mur-
der, and conspiracy to commit armed robbery); DeShaw v.
Arizona, No. 15–9057 (17-year-old defendant convicted of
first-degree murder, armed robbery, and kidnapping).
   In short, the Arizona courts have already evaluated
these sentences under Miller, and their conclusions are
eminently reasonable. It is not clear why this Court is
insisting on a do-over, or why it expects the results to be
any different the second time around. I respectfully dissent.
