STATE OF NORTH CAROLINA v. FRANCISCO EDGAR TIRADO
No. 267PA21
IN THE SUPREME COURT OF NORTH CAROLINA
Filed 31 January 2025
NEWBY, Chief Justice.
Jeff Jackson, Attorney General, by Heidi M. Williams, Special Deputy Attorney General, for the State-appellee.
Kellie Mannette for defendant-appellant.
NEWBY, Chief Justice.
In this case we consider whether the Court of Appeals denied merits review of defendant‘s constitutional challenge to his consecutive sentences of life imprisonment without parole (life without parole) under
I. Background & Procedural History
Defendant‘s violent crimes were thoroughly discussed in his first appeal to this Court. State v. Tirado (Tirado I), 358 N.C. 551, 559–62, 599 S.E.2d 515, 522–24 (2004). In short, in August of 1998, defendant was seventeen years old and a member of the notorious Crips gang. On the night of 16 August 1998, and in the early morning hours of 17 August 1998, defendant actively participated with eight other gang members in the abduction and robbery of three women and the murder of two of them. Defendant attempted to murder the third woman, volunteering to shoot her and expressing disappointment when his gang leader chose another gang member to carry out the execution. Fortunately, the gang member‘s attempted murder was unsuccessful, and the third woman survived.
Law enforcement arrested defendant, and a grand jury indicted him on numerous charges, including two counts of first-degree
Thereafter, the Supreme Court of the United States held that the
Following the Supreme Court‘s ruling in Montgomery v. Louisiana that Miller announced a substantive rule of constitutional law that must be applied retroactively on collateral review, 577 U.S. 190, 206, 212, 136 S. Ct. 718, 732, 736 (2016), defendant was granted appropriate relief and resentenced under a new statutory sentencing scheme enacted to comply with Miller.2 This Miller-Fix Statute gave trial courts the discretion to determine whether juvenile murderers receive life without parole or the lesser sentence of life imprisonment with parole (life with parole). S.L. 2012-148, § 1, 2012 N.C. Sess. Laws at 713–14 (codified at
At defendant‘s resentencing hearing, the trial court considered the sentencing options, mitigating factors, the evidence presented at the resentencing hearing, and transcripts from defendant‘s trial and original sentencing. The trial court decided to resentence defendant to two consecutive terms of life without parole. The trial court memorialized defendant‘s sentences in a written order on 16 March 2020. Therein, the trial court made numerous detailed findings of fact about the
At the Court of Appeals, defendant presented four arguments. First, he challenged several of the trial court‘s findings of fact, and second, defendant argued that the trial court abused its discretion when it considered the Miller factors. Third, in light of the foregoing alleged errors, defendant argued that, contrary to the trial court‘s conclusion, the evidence established that he was not permanently incorrigible or irreparably corrupt. Thus, defendant argued that under Miller, his consecutive sentences of life without parole violated the
After briefing, but before the Court of Appeals issued an opinion, the Supreme Court of the United States decided Jones v. Mississippi, 141 S. Ct. 1307 (2021). There the Supreme Court held that the
The Court of Appeals unanimously affirmed defendant‘s consecutive sentences of life without parole, holding that they withstood scrutiny under both constitutions. State v. Tirado (Tirado II), No. 20-213, slip op. at 13–14, 17 (N.C. Ct. App. June 15, 2021) (unpublished). The Court of Appeals held that competent evidence supported all challenged findings of fact and that the trial court did not abuse its discretion in its weighing of the Miller factors. Id. at 8–13. Accordingly, the Court of Appeals rejected defendant‘s contention that the trial court erred in determining that he was permanently incorrigible or irreparably corrupt. Id. at 15. Rather, the Court of Appeals agreed with the trial court, stating that “the evidence shows otherwise.” Id. The Court of Appeals further concluded that ”Jones ha[d] no effect on defendant‘s sentence[s].” Id. at 15; see also id. at 14 (similar). The Court of Appeals confirmed that the trial court complied with Miller, its progeny, and our General Statutes. Id. at 14–15. Moreover, it rejected defendant‘s argument that his two consecutive sentences of life without parole are unconstitutional per se. Id. at 15. Having considered defendant‘s constitutional challenge from all angles, the Court of Appeals concluded that his sentences were constitutionally compliant. Id.4
Defendant filed a notice of appeal based upon a constitutional question, arguing that the Court of Appeals misconstrued Jones to totally foreclose as-applied constitutional challenges to sentences. Defendant additionally filed a petition for discretionary review, seeking review of the same issue as presented in his notice of appeal. He also advanced a second issue in his petition, arguing that the Court of Appeals erred “in misapplying Jones, fail[ing] to consider not just [his] as-applied Eighth Amendment claim, but his claim that his sentence was unconstitutional under the more protective North Carolina Constitution.” This Court dismissed defendant‘s notice of appeal but allowed discretionary review of defendant‘s second proposed issue. This Court also specifically directed the parties to brief whether defendant‘s resentencing complied with State v. Kelliher, 381 N.C. 558, 873 S.E.2d 366 (2022), which was decided in the interim.
II. Analysis
Defendant asserts that the Court of Appeals erroneously failed to consider his constitutional challenge to his life without
A. Defendant‘s Assertion That the Cruel or Unusual Punishments Clause Provides “Broader” Protections for Criminal Defendants
We start with defendant‘s assertion that the Court of Appeals should have conducted an analysis under the state constitution‘s distinct protections. Defendant sought discretionary review in part because “[t]he Court of Appeals did not consider whether [his] sentence was unconstitutional under
By claiming that the state constitution provides more protection than the
1. Fundamental Principles of Constitutional Interpretation
Because “[a] frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty,”
North Carolinians, however, did not subject themselves to one government alone. Rather, nearly thirteen years after forming their state government, they “affirmatively conferred” some of their political power upon the federal government and “surrendered some of their authority to the United States” by ratifying the
Of those two documents, the
Unlike the state constitution, which is not a grant of power but rather limitations placed on the “power . . . [that] inheres in the people,” Harper, 384 N.C. at 323, 886 S.E.2d at 414 (quoting McIntyre v. Clarkson, 254 N.C. 510, 515, 119 S.E.2d 888, 891 (1961)), the
Notably, the
Because this Court‘s construction of state constitutional provisions is final, we interpret the
protections.
In our quest to determine the extent of
As an initial matter, we always presume that legislation is constitutional, and we require a constitutional limitation on the General Assembly to be explicit in the text and demonstrated beyond a reasonable doubt. Harper, 384 N.C. at 323, 886 S.E.2d at 414; Cmty. Success, 384 N.C. at 212, 886 S.E.2d at 32; Holmes, 384 N.C. at 435, 886 S.E.2d at 129. After all, “[t]he Legislature alone may determine the policy of the State, and its will is supreme, except where limited by constitutional inhibition.” Holmes, 384 N.C. at 435, 886 S.E.2d at 129 (quoting State v. Revis, 193 N.C. 192, 195, 136 S.E. 346, 347 (1927)). “When invoked,” such constitutional “exception[s] or limitation[s] . . . present[ ] a question of power for the courts to decide. But even then the courts do not undertake to say what the law ought to be; they only declare what it is.” Id. (quoting Revis, 193 N.C. at 195, 136 S.E. at 347).
The rationale for this framework is grounded in the structure of the state constitution. As discussed above, the people are the repository of all political power. The people exercise their inherent political power through their elected representatives in the General Assembly. State ex rel. Ewart v. Jones, 116 N.C. 570, 570, 21 S.E. 787, 787 (1895). We have therefore recognized that “the General Assembly serves as ‘the agent of the people for enacting laws,’ ” giving the legislature “the presumptive[, plenary] power to act.” Harper, 384 N.C. at 323, 886 S.E.2d at 414 (quoting State ex rel. Martin v. Preston, 325 N.C. 438, 448, 385 S.E.2d 473, 478 (1989)).
Moreover,
But because “[t]he people speak through the express language of their constitution, and only the people can amend it,” id. at 297, 886 S.E.2d at 398 (citing
Still, we must use the power of judicial review with “great reluctance,” Bayard, 1 N.C. (Mart.) at 6, resisting any temptation to intrude into the legislature‘s policy-making role, see Holmes, 384 N.C. at 439, 886 S.E.2d at 132 (“The power to invalidate legislative acts is one that must be exercised by this Court with the utmost restraint . . . .“). Our constitution makes plain that “a restriction on the General Assembly is in fact a restriction on the people.” Berger, 368 N.C. at 651, 781 S.E.2d at 259 (Newby, J., concurring in part and dissenting in part); see also Cmty. Success, 384 N.C. at 211, 886 S.E.2d at 31 (stating that acts of the General Assembly are “expressions of the people‘s will“). Thus, when the judiciary strikes down a duly enacted law of the General Assembly, it creates tension not only between the judicial and legislative branches but also between the judiciary and the people.
The presumption of constitutionality eases this tension. It is “a critical safeguard that preserves the delicate balance between this Court‘s role as the interpreter of our [c]onstitution and the legislature‘s role as the voice through which the people exercise their ultimate power.” Holmes, 384 N.C. at 435, 886 S.E.2d at 129; see also Harper, 384 N.C. at 299, 886 S.E.2d at 399 (“[T]he people act and decide policy matters through their representatives in the General Assembly. We are designed to be a government of the people, not of the judges.“); Cmty. Success, 384 N.C. at 211, 886 S.E.2d at 32 (stating that this Court does not strike dоwn the General Assembly‘s acts “unless [they] violate[ ] federal law or the supreme expression of the people‘s will, the
These standards are well-settled. See Harper, 384 N.C. at 378–79, 886 S.E.2d at 448–49. From the beginning, North Carolina‘s courts have exercised judicial review with the utmost caution, only declaring a law unconstitutional if it violated the express constitutional text. See Bayard, 1 N.C. (Mart.) at 6–7; see also Cooper v. Berger, 371 N.C. 799, 811, 822 S.E.2d 286, 296 (2018) (“Unless the [c]onstitution expressly or by necessary implication restricts the actions of the legislative branch, the General Assembly is free to implement legislation as long as that legislation does not offend some specific constitutional provision.” (emphases omitted) (quoting Baker v. Martin, 330 N.C. 331, 338–39, 410 S.E.2d 887, 891–92 (1991))). The same is true of our requirement that the challenging party demonstrate unconstitutionality beyond a reasonable doubt, an evidentiary standard that goes back centuries. See, e.g., State ex rel. Lee v. Dunn, 73 N.C. 595, 601 (1875) (“[I]t is for the appellant to show that the [l]egislature is restricted by the express provisions of the [c]onstitution, or by necessary implication therefrom. And this he must show beyond a reasonable doubt.” (citations omitted) (first citing State v. Adair, 66 N.C. 298, 303 (1872); and then citing King v. W. & W. R.R. Co., 66 N.C. 277, 283 (1872))); Daniels v. Homer, 139 N.C. 219, 227–28, 51 S.E. 992, 995 (1905) (“A statute will never be held unconstitutional if there is any reasonable doubt.” (quoting State v. Lytle, 138 N.C. 738, 741, 51 S.E. 66, 68 (1905))). This requirement serves as “a necessary protection against abuse of [the judicial review] power by unprincipled or undisciplined judges.” Holmes, 384 N.C. at 439, 886 S.E.2d at 132.
Having outlined our presumption of constitutionality, we now explain the methodology by which we evaluate a constitutional challenge. Every constitutional inquiry examines the text of the relevant provision, the historical context in which the people of North Carolina enacted it, and this Court‘s precedents interpreting it. Cmty. Success, 384 N.C. at 213, 886 S.E.2d at 33; Berger, 368 N.C. at 639, 781 S.E.2d at 252; see Harper, 384 N.C. at 323–70, 886 S.E.2d at 414–43.
We begin with the text of the applicable provision. Cmty. Success, 384 N.C. at 213, 886 S.E.2d at 33 (“[W]here the meaning is clear from the words used, we will not search for a meaning elsewhere.” (alteration in original) (quoting Preston, 325 N.C. at 449, 385 S.E.2d at 479)). “The constitution is interpreted based on its plain language. The people used that plain language to express their intended meaning of the text when they adopted it.” Harper, 384 N.C. at 297, 886 S.E.2d at 399. Because “[w]e[ ] the people” enshrined the constitution‘s protections,
We then study the historical background against which the people enacted the constitutional text. Cmty. Success, 384 N.C. at 213, 886 S.E.2d at 33; see also Harper, 384 N.C. at 351, 886 S.E.2d at 431. Our goal here is “to isolate the provision‘s meaning at the time of its ratification.” Cmty. Success, 384 N.C. at 213, 886 S.E.2d at 33; see Sneed v. Greensboro City Bd. of Educ., 299 N.C. 609, 613, 264 S.E.2d 106, 110 (1980) (“Inquiry must be had into the history of the questioned provision and its antecedents, the conditions that existed prior to its enactment, and the purposes sought to be accomplished by its promulgation.“). “We also seek guidance from any on-point precedents from this Court interpreting the provision.” Cmty. Success, 384 N.C. at 213, 886 S.E.2d at 33 (citing Elliott v. State Bd. of Equalization, 203 N.C. 749, 753, 166 S.E. 918, 921 (1932)).
Guided by these state constitutional principles, our sole goal in construing
2. The Cruel or Unusual Punishments Clause‘s Text
In
inflicted.”
As a textual matter, the Cruel or Unusual Punishments Clause generally forbids the infliction of “cruel” punishments and “unusual” punishments.
3. History of the Cruel or Unusual Punishments Clause
With respect to the history of the Cruel or Unusual Punishments Clause, its original intent was to protect against abuses of judicial power in the form of illegal and arbitrary sentencing practices. The clause finds its genesis in the English Bill of Rights of 1689, e.g., Driver, 78 N.C. at 424; see also Griffin, 190 N.C. at 136, 129 S.E. at 412; Harper, 384 N.C. at 360-61, 361 n.22, 886 S.E.2d at 437 & n.22; John V. Orth, The North Carolina State Constitution 5, 70 (1993) [hereinafter State Constitution], which stated “[t]hat . . . cruell and unusuall Punishments [ought not to be] inflicted,” Bill of Rights 1689, 1 W. & M. Sess. 2 c. 2 (Eng.). The English Parliament made this declaration in response to “unprecedented proceedings in the court of [K]ing‘s [B]ench in the reign of [K]ing James the Second.” 4 William Blackstone, Commentaries *378 [hereinafter Commentaries]. See generally Bill of Rights 1689, 1 W. & M. Sess. 2 c. 2 (Eng.) (“King James the Second[,] by the Assistance of diverse evill Councellors[,] Judges[,] and Ministers imployed by him[,] did endeavor to subvert and extirpate . . . the Lawes and Liberties of th[at] Kingdome . . . [b]y . . . [inflicting] illegall and cruellPunishments . . . .“). Specifically, historical evidence suggests that this prohibition was largely targeted at the King‘s Bench‘s exercise of “arbitrary sentencing power,” including accusations that Lord
Early English cases applying the English Bill of Rights‘s proscription confirm this scope. They were concerned with judges who had ignored “the bounds and limits which the law ha[d] set them,” thereby making punishment “depend[ent] upon the judge‘s pleasure.” Driver, 78 N.C. at 428-29 (quoting Lord Devonshire‘s Case, 11 How. St. Tr. 1354, 1357, 1361, 1372 (1689) (Eng.)). In other words, the English Bill of Rights aimed to limit judicial discretion in sentencing by limiting permissible punishments to those enacted by statute or derived from the common law. See Harmelin, 501 U.S. at 973, 111 S. Ct. at 2690 (opinion of Scalia, J., with Rehnquist, C.J.) (“In all these contemporaneous discussions, as in the prologue of the [English Bill of Rights,] a punishment is . . . considered objectionable . . . because it is ‘out of [the Judges‘] Power,’ ‘contrary to Law and ancient practice,’ without ‘Precedents’ or ‘express Lawto warrant,’ ‘unusual,’ ‘illegal,’ and imposed by ‘Pretence to a discretionary Power.‘” (second alteration in original)).8
Because the Cruell and Unusuall Punishments Clause‘s protections were “thought to be so appropriate,” our framers enshrined the Cruel or Unusual Punishments Clause into our Declaration of Rights even though “there never ha[d] been anything in our government, [s]tate or [n]ational, to provoke such a provision.” Driver, 78 N.C. at 427. And because the people adopted “all . . . such parts of the [English] common law” not “inconsistent with the freedom and independence” of North Carolina nor otherwise “abrogated, repealed, or . . . obsolete,” 1 Potter‘s Revisalof 1821, 1778, ch. 133, § 2,9 the English understanding of the Cruell and Unusuall Punishments Clause is instrumental to our understanding of the Cruel or Unusual Punishments Clause, see, e.g., Driver, 78 N.C. at 427-30. Indeed, our earliest cases applying the state constitutiоn‘s Cruel or Unusual Punishments Clause also understood it to be principally directed at the judiciary and only in cases in which the judge “ha[d] a discretion over the amount of bail, the quantum of the fine, and the nature of the punishment.” State v. Manuel, 20 N.C. (3 & 4 Dev. & Bat.) 144, 162 (1838)10; State v. Blake, 157 N.C. 608, 611, 72 S.E. 1080, 1081-82 (1911); State v. Smith, 174 N.C. 804, 805, 93 S.E. 910, 911 (1917); State Constitution 70.
Similar to the English‘s understanding of their Bill of Rights‘s proscription of “cruell and unusuall punishments,” this Court understood the state constitutional proscription of cruel or unusual punishments to forbid judges from imposing sentences “not sanctioned by common law or statute.” Harmelin, 501 U.S. at 984 n.10, 111 S. Ct. at 2696 n.10 (opinion of Scalia, J., with Rehnquist, C.J.) (first citing Driver, 78 N.C. at 425-27; and then citing Blake, 157 N.C. at 611, 72 S.E. at 1081-82). Inother words, the Cruel or Unusual Punishments Clause required judges to temper their sentencing discretion by law, conforming their judgments to the punishments authorized by statute or permitted at common law. See Driver, 78 N.C. at 428. Noting that if judges adhered to “what has formerly been expressly done in like cases“—or “for the want of such particular discretion,” if they sentenced by “consider[ing] that which comes nearest to it“—this Court stated “the punishment will be such as is ‘usual,’ and therefore not ‘excessive’ or ‘cruel.‘” Id. at 430 (quoting Lord Devonshire‘s Case, 11 How. St. Tr. at 1362).
These early cases did not treat the Cruel or Unusual Punishments Clause as completely inapplicable to the other branches of government; rather, they recognized that the proscription had some applicability to the legislative branch. See Manuel, 20 N.C. (3 & 4 Dev. & Bat.) at 162 (“No doubt the principles of humanity sanctioned and enjoined in this section [(i.e., Article I, Section 27‘s predecessor)] ought to command the reverence and regulate the conduct of all who owe obedience to the constitution.“); State Constitution 70. Nevertheless, given the legislature‘s prerogative to prescribe criminal punishment, Manuel, 20 N.C. (3 & 4 Dev. & Bat.) at 159, this Court acknowledged it would be hard-pressed to ever declare that an act of the General Assembly imposed a punishment violative of Article I, Section 27‘s general proscription, id. at 162. This Court stated that it could do so only when “the act complained of . . . contains such a flagrant violation of all discretion as to show a disregard of constitutional restraints.” Id.
Thus, the original meaning of the Article I, Section 27 was principally to place outer limits on judges’ sentencing discretion. The Cruel or Unusual Punishments Clause prohibited judges from imposing sentences that disregarded the parameters imposed by statutes or the common law. So long as a punishment comported with the boundaries imposed by law, it was not cruel or unusual in a constitutional sense.11
And although this
As with other “‘[b]asic principles’ contained within the Declaration of Rights,” the Cruel or Unusual Punishments Clause must be considered “in the context of later articles that give [it] more specific application.” Harper, 384 N.C. at 352, 886 S.E.2d at 432 (first alteration in original) (quoting State Constitution (2d ed.) 46).
Relevantly, when the people ratified their second constitution in 1868, they established Article XI, which concerned “Punishments, Penal Institutions[,] and Public Charities.”
In Article XI, Section 1, which is entitled “Punishments,” the people enumerated an exhaustive list of the types of punishments that may be constitutionally inflicted. In the current constitution, that section states:
The following punishments only shall be known to the laws of this State: death, imprisonment, fines, suspension of a jail or prison term with or without conditions, restitution, community service, restraints on liberty, work programs, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under this State.
The people were even more specific about the availability of the death penalty. In Article XI, Section 2, entitled “Death punishment,” the people limited the death penalty to certain crimes.
Because a constitution cannot violate itself, we must construe Article I, Section 27‘s proscription of cruel or unusual punishments and Article XI‘s enumeration of acceptable punishments harmoniously. Logically, therefore, the punishments the people sanctioned in Article XI, Sections 1 and 2 are inherently not “cruel or unusual” in a constitutional sense. E.g., State v. Jarrette, 284 N.C. 625, 655-56, 202 S.E.2d 721, 740-41 (1974), vacated on other grounds by 428 U.S. 903, 96 S. Ct. 3205 (1976) (mem.); Westbrook, 279 N.C. at 30, 181 S.E.2d at 579; Yoes, 271 N.C. at 631, 157 S.E.2d at 398; Revis, 193 N.C. at 197, 126 S.E. at 349 (“There are those who question the wisdom, and even the right, of the State to take life, or to inflict the death pеnalty, as a punishment for crime, but, in the face of [Article XI, Section 1,] . . . none can deny the power of the Legislature to prescribe the death penalty.“); see also, e.g., State v. Atkinson, 275 N.C. 288, 319, 167 S.E.2d 241, 260 (1969), rev‘d on other grounds, 403U.S. 948, 91 S. Ct. 2283 (1971) (mem.); State Constitution 157. Accordingly, an act of the General Assembly cannot violate the Cruel or Unusual Punishments Clause by prescribing a punishment allowable under Article XI, Sections 1 and 2, and similarly, judges cannot violate Article I, Section 27, by handing down a sentence in obedience to such an act. See, e.g., State v. Allen, 346 N.C. 731, 737, 488 S.E.2d 188, 191 (1997); Stansbury, 230 N.C. at 591, 55 S.E.2d at 187; see also Atkinson, 278 N.C. at 178, 179 S.E.2d at 417; Bruce, 268 N.C. at 185, 150 S.E.2d at 225 (quoting State v. McNally, 211 A.2d 162, 164 (Conn. 1965)).14
Notably, when the people desired to limit the State‘s ability to inflict punishments, they created and amended the working article of the constitution—Article XI—not the general provision in the Declaration of Rights. See Shore, 290 N.C. at 631, 227 S.E.2d at 557. It is therefore unsurprising that unlike the text of the Cruel or Unusual Punishments Clause, which has remained largely unaltered since 1776, the text of Article XI, describing approved punishments, has been altered several times over the years to reflect the people‘s changing understanding of crime and punishment.
For example, the 1868 Constitution included a lengthier and more detailed predecessor to the current Article XI. The original text reflected how North Carolinians of 1868 understood punishment, allowing, for example, “imprisonment, with or without hard labor.”
In 1996, the people again altered Article XI by adding new, alternative punishments such as probation, restitution, and community service.15 These reform efforts were intended to improve the offender‘s chances of rehabilitation and to relieve prison overcrowding. State Constitution (2d ed.) 193.
As can be seen, each change to the text of Article XI over the years reflects a decision made by the people—not judges—about what punishments are constitutionally permissible.16 When the people desired to restrict—and eventuallyforbid—“degrading” or “obsolete” methods of punishment, or to make specific provision for emerging methods of punishmеnt, they ratified amendments to Article XI, leaving Article I, Section 27 unaltered. As discussed above, by setting the “ceiling” for criminal punishments in Article XI, the people gave the General Assembly certain parameters within which it could freely set sentencing policies without transgressing Article I, Section 27‘s proscription of “cruel or unusual” punishments. In other words, the people prescribe the outer limits on punishment via Article XI, and any punishment within that outer limit is neither cruel nor unusual. As shown, our Cruel or Unusual Punishments Clause cases reflect this understanding. See, e.g., Stansbury, 230 N.C. at 591, 55 S.E.2d at 187. Thus, because Article XI—which has no counterpart in the Federal Constitution—expressly authorizes imprisonment without limitations based on the age of the offender, it is plain that a statuteprescribing life without parole—or a court‘s sentencing order inflicting a punishment in accordance therewith—cannot be “cruel or unusual” within the meaning of Article I, Section 27, regardless of the age of the offender. See, e.g., Allen, 346 N.C. at 737, 488 S.E.2d at 191 (“We conclude that the term ‘life imprisonment without parole’ falls within the meaning of the constitutional term ‘imprisonment,’ so the sentence was authorized by the [state] [c]onstitution.“); cf. State v. Womble, 343 N.C. 667, 688, 473 S.E.2d 291, 303 (1996) (holding the defendant‘s argument that “execution of juveniles constitutes cruel and unusual punishment in violation of the . . . North Carolina Constitution[ ] . . . is without merit” because “[t]his Court has repeatedly held that the North Carolina death penalty statute, which provide[d] that a person seventeen years old or older who commits first-degree murder may be sentenced to death, is not unconstitutional” (emphasis added) (citing State v. Skipper, 337 N.C. 1, 58, 446 S.E.2d 252, 284 (1994) (collecting cases))), invalidated on other grounds by Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2005).17
5. Interplay with the Eighth Amendment
As stated above, the Eighth Amendment‘s proscription of the infliction of “cruel and unusual punishments,”
This Court‘s early cases applying both Article I, Section 27 and the Eighth Amendment continued to apply the traditional rule that a sentence was neither cruel nor unusual so long as it did not exceed the limits fixed by a constitutional statute or common law. E.g., Greer, 270 N.C. at 146, 153 S.E.2d at 851. In fact, in several cases,this Court observed that “[t]he [f]ederal rule coincide[d] with the North Carolina rule.” Mitchell, 283 N.C. at 471, 196 S.E.2d at 742 (citing Martin v. United States, 317 F.2d 753, 755 (9th Cir. 1963)); accord, e.g., Frank, 284 N.C. at 147, 200 S.E.2d at 176; Tolley, 290 N.C. at 362, 226 S.E.2d at 364 (collecting cases).18 Over
however, federal courts began to read more protection into the Eighth Amendment. Thereafter, even if Article I, Section 27 did not provide the same protection, meaning a sentence would have survived the state constitution‘s traditional scrutiny, this Court dutifully invalidated sentences that transgressed the Eighth Amendment‘s changing safeguards. See, e.g., State v. Carroll, 282 N.C. 326, 333-34, 193 S.E.2d 85, 89-90 (1972).
Thus, although the Cruel or Unusual Punishments Clause now generally provides less protection for criminal defendants than its Eighth Amendment counterpart, this Court, “in recognition of the supremacy of the Federal Constitution,” has routinely applied Article I, Section 27 the same way as the Eighth Amendment—i.e., in lockstep. Kelliher, 381 N.C. at 612, 873 S.E.2d at 403 (Newby, C.J., dissenting);accord, e.g., Green, 348 N.C. at 603 & n.1, 502 S.E.2d at 828 & n.1 (rejecting calls to read broader protections into Article I, Section 27, specifically highlighting the lack of “any compelling reason to adopt such a position“); Medley v. N.C. Dep‘t of Corr., 330 N.C. 837, 842-45, 412 S.E.2d 654, 658-59 (1992) (construing the Eighth Amendment and Article I, Section 27 simultaneously to impose the same nondelegable duty to provide inmates adequate medical care upon the State); State v. Peek, 313 N.C. 266, 275-76, 328 S.E.2d 249, 255-56 (1985) (reviewing Eighth Amendment and Article I, Section 27 claims under the same standard and ultimately determining that a defendant‘s sentence did not violate either constitution). That is, even when a defendant asserts a constitutional challenge to his sentence under the state constitutional proscription of cruel or unusual punishments, this Court examines his claims “in light of the general principles enunciated by this Court and the Supreme Court [of the United States] guiding cruel and unusual punishment analys[e]s.” Green, 348 N.C. at 603, 502 S.E.2d at 828 (emphasis added).
Relevant here, although a truly independent interpretation of the state constitution would mean life without parole sentences for juveniles are not “cruel or unusual” punishments, the Eighth Amendment provides juvenile offenders protections that Article I, Section 27 does not, including heavily restricting the availability of life without parole sentences. See, e.g., Miller, 567 U.S. at 479-80, 489, 132 S. Ct. at 2469, 2475 (ending mandatory life without parole sentences for juvenile offenders but allowing discretionary life without parole sentences for juvenile
offenders); Montgomery, 577 U.S. at 208–09, 136 S. Ct. at 733–34 (clarifying that life without parole is forbidden for juvenile offenders whose crimes only “reflect the transient immaturity of youth“). Therefore, the Court of Appeals properly evaluated defendant‘s constitutional challenge under the general principles guiding the
B. Merits Review of Defendant‘s Constitutional Challenge
We now turn to consider defendant‘s contention that the Court of Appeals totally denied merits review of his constitutional challenge to his sentences. Our review of the Court of Appeals’ opinion reveals that it addressed the arguments defendant presented. Indeed, the Court of Appeals fully resolved defendant‘s challenges to the trial court‘s findings of fact, weighing of mitigating factors, and application of legal standards and found no error. Tirado II, slip op. at 8–13, 15–17. Importantly, the court also fully addressed defendant‘s constitutional attacks on his sentences, observing that the trial court complied with ”Miller and its progeny,” as well as North Carolina‘s discretionary sentencing procedure, by “consider[ing] all relevant mitigating circumstances and evidence before deciding whether to impose [life without parole] sentences.” Id. at 13–15. The Court of Appeals then addressed the heart of defendant‘s constitutional argument—that consecutive sentences of life without parole were inappropriate because “the ‘evidence established that [defendant] was not one of the rare juveniles who is permanently incorrigible or irreparably corrupt.‘” Id. at 15 (alteration in original). The Court of Appeals rejected this argument, concluding that “the evidence shows otherwise“—namely, that defendant‘s crimes show he was one of the rare, permanently incorrigible juveniles for whom a sentence of life without parole was appropriate. Id. After considering all of defendant‘s arguments, the Court of Appeals concluded, “In sum, the resentencing in defendant‘s case complied with binding statutory authority and case law precedent as the sentence imposed was not mandatory and because the trial judge had the discretion to impose a lesser punishment in light of defendant‘s youth.” Id.
Defendant‘s argument that the Court of Appeals declined to perform merits review of his constitutional challenge appears to hang on one concluding sentence in the Court of Appeals’ analysis: “For these reasons, and those discussed above, we need not address any as-applied constitutional challenge.” Id. (citing State v. Goodman, 298 N.C. 1, 20, 257 S.E.2d 569, 582 (1979)). As we have shown, however, the Court of Appeals confirmed that defendant received a constitutional sentence under both the
C. Compliance with State v. Kelliher
Finally, in response to our special order‘s directive, defendant concedes that on the facts of this case, the trial court‘s sentencing did not run afoul of State v. Kelliher, 381 N.C. 558, 873 S.E.2d 366 (2022). We have conducted an independent review of the trial court‘s resentencing оrder and conclude that the order does not implicate Kelliher at all for at least two reasons.
First, defendant, whom the trial court expressly found to be irreparably corrupt and sentenced to consecutive sentences of life without parole, is not a member of the narrow subset of juvenile homicide offenders to which Kelliher could apply. The narrow question before the Court in Kelliher was whether sentencing the defendant to two consecutive sentences of life with parole for his two first-degree murder convictions was unconstitutional when the trial court expressly found that the defendant was neither incorrigible nor irredeemable. Id. at 560–66, 597, 873 S.E.2d at 370–74, 393–94 (forging a theory of de facto life sentences to answer the question affirmatively). Accordingly, Kelliher applies only to juvenile homicide offenders whom the trial court (1) expressly finds to be neither incorrigible nor irredeemable and (2) sentences to multiple, consecutive terms of life with parole. Id. at 561–64, 873 S.E.2d at 371–73. Because defendant does not meet either of these criteria, Kelliher is facially inapplicable to his case.
Second, the only portion of the Kelliher‘s analysis that is arguably applicable to the present case is nonbinding obiter dictum. See generally, e.g., Trs. of Rowan Tech. Coll. v. J. Hyatt Hammond Assocs., Inc., 313 N.C. 230, 242, 328 S.E.2d 274, 281 (1985) (“Language in an opinion not necessary to the decision is obiter dictum and later decisions are not bound thereby.” (emphasis omitted)). Kelliher suggested that
III. Conclusion
In sum, the Court of Appeals properly analyzed defendant‘s state constitutional objections to his consecutive sentences of life without parole. As we have explained,
AFFIRMED.
STATE V. TIRADO
Justice BERGER concurring.
Justice BERGER concurring.
I concur with the majority but write separately because my concurring colleague‘s discussion of Kelliher and the precedential weight to which it is entitled misses the mark. That opinion squarely addressed findings that should be made by a trial court when sentencing juvenile defendants convicted of homicide. But the decoupling of
The concurrence acknowledges that “we did indeed take a lockstep approach, treating [Article I,] Section 27 as a carbon copy of the
So, what in the text of
While every policy consideration set forth in Kelliher and reiterated in the concurrence here “may be very sensible,” they are not found in our state Constitution. Antonin Scalia, Scalia Speaks: Reflections on Law, Faith, and Life Well Lived 192 (Christopher J. Scalia & Edward Whelen eds., 2017). In addition, and critical to the discussion of precedent, the reasoning in Kelliher did not flow from a series of decisions issued by this Court. Because Kelliher is an isolated opinion met with a well-reasoned dissent, it is entitled to little precedential weight.
Legal commentators have stated that “the principle of stare decisis proclaims, in effect, that where a principle of law has become settled by a series of decisions, it is binding on courts and should be followed in similar cases.” Allyson K. Duncan & Frances P. Solari, North Carolina Appellate Advocacy § 1–9, at 8 (1989) (emphasis added). Indeed, this Court has stated that, contrary to the creative approach in Kelliher, “[t]he principle of stare decisis directs this Court to adhere to its long-established precedent to provide consistency and uniformity in the law.” West v. Hoyle‘s Tire & Axle, LLC, 383 N.C. 654, 659 (2022) (emphasis added). See also State v. Ballance, 229 N.C. 764, 767 (1949) (“[W]here a principle of law has become settled by a series of decisions, it is binding on the courts and should be followed in similar cases.” (emphasis added)); Lowdermilk v. Butler, 182 N.C. 502, 506 (1921) (“[A] point which has often been adjudged should be permitted to rest in peace.” (emphasis added) (citing Spicer v. Spicer, Cro. Jac. 527, 79 Eng. Reprint, 451; 1 Kent‘s Com. 477)); Harper v. Hall, 384 N.C. 292, 374 (2023) (“[The previous opinion of the Court] does not meet any criteria for adhering to stare decisis—it is neither long-standing nor has it been relied upon in other cases.“); Williamson v. Rabon, 177 N.C. 302, 307 (1919) (“[A] single decision can seldom serve as a basis for stare decisis . . . .” (cleaned up)); State v. Walker, 385 N.C. 763, 769 (2024) (Berger, J., concurring) (“Put another way, an isolated holding may be persuasive, but it is not binding . . . .“).
Although we tether our reasoning to prior decisiоns “both out of respect for the opinions of our predecessors and because it promotes stability in the law and uniformity in its application,” Wiles v. Constr. Co., 295 N.C. 81, 85 (1978),2 “stare
“When we are presented with a single decision which we believe to have been inadvisedly made, it is encumbent on us to overrule it if we entertain a different opinion on the question submitted.” Sidney Spitzer & Co. v. Comm‘rs of Franklin Cnty., 188 N.C. 30, 32 (1924) (cleaned up) (emphasis added). See also Ballance, 229 N.C. at 767 (“[S]tare decisis will not be applied . . . to preserve and perpetuate error
and grievous wrong.“); Patterson v. McCormick, 177 N.C. 448, 457 (1919) (“The rule of stare decisis cannot be applied to perpetuate error.“)3.
Kelliher, however, did not suggest that our prior precedent was wrong, only that, as admitted by the concurrence here, our Constitution “evolved” along with other policy considerations. But, a legal rule, like the lockstepping of the
Justice BARRINGER and Justice ALLEN join in this concurring opinion.
STATE V. TIRADO
Justice EARLS concurring in the result only.
Justice EARLS concurring in the result only.
The Court today resolves two narrow questions: whether the Court of Appeals considered Mr. Tirado‘s claim under
But the majority ventures beyond the issues before us to offer a gratuitous and sweeping commentary on Section 27 and its overlap with the
I. The Majority‘s Discussion of Section 27 is Dicta.
A dictum is “an assertion in a court‘s opinion of a proposition of law which does not explain why the court‘s judgment goes in favor of the winner.” See Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1256 (2006). Said differently, any “[l]anguage in an opinion not necessary to the decision is . . . dictum, and later decisions are not bound thereby.” See Trs. of Rowan Tech. Coll. v. J. Hyatt Hammond Assocs., 313 N.C. 230, 242 (1985). This rule rests on principles of pragmatism and judicial restraint. See Moose v. Bd. of Comm‘rs, 172 N.C. 419, 433–34 (1916). Because judges cannot prеdict the future or foresee how a decision will “bear[ ] on all other cases,” an opinion‘s language is necessarily tethered to “the facts of the case under consideration.” Id. at 434 (cleaned up). Relevant, too, is the judiciary‘s assigned function: deciding the questions “presented to it for solution in the proper course of judicial proceedings.” Hayes v. City of Wilmington, 243 N.C. 525, 537 (1956) (cleaned up).
In line with that role, “[o]fficial character attaches only to those utterances of a court which bear directly upon the specific and limited questions” properly before it. Id. (cleaned up). The inverse is also true—statements “[o]ver and above what is needed for the solution of these questions” are “unofficial.” Id. (cleaned up); see also Over-Look Cemetery, Inc. v. Rockingham Cnty., 273 N.C. 467, 471 (1968) (explaining that an “expression of opinion upon an incidental question not presented in the appeal” lacks “the force of an adjudication upon the point” (quoting Miller v. Lash, 85 N.C. 51, 56 (1881))). This means that assertions made “by the reviewing court, or by the writing justice, on points arising outside of the case and not embodied in the determination made by the court” are “rendered without jurisdiction or at least extrajudicial.” Hayes, 243 N.C. at 536–37 (cleaned up).
Under our precedent, a statement is dictum if it (1) goes beyond the “specific and limited questions” that are “actually presented” or (2) is not “necessarily involved in determining the case.” Id. at 536–37; see also State v. Spence, 274 N.C. 536, 542 (1968) (instructing that a statement is dictum if it was not “directly presented” for review or “necessary to a decision“). The majority‘s Section 27 discussion meets both prongs.
To start, the scope of Section 27‘s protections is not “directly presented” by Mr. Tirado‘s appeal. Id. This case‘s path to this Court makes that clear. Mr. Tirado sought discretionary review on two precise issues. This Court, in a special order, allowed just one without changing Mr. Tirado‘s formulation: “Did the Court of Appeals fail to consider Mr. Tirado‘s claim under
Given the scope of our review, this сase is straightforward. In response to our special order, Mr. Tirado concedes that his sentence complies with Kelliher.1 The trial court expressly found him to be “permanently incorrigible,” placing him outside Kelliher‘s protective
parties disagree on this procedural point. Mr. Tirado contends that the lower court “simply did not review” this issue, while the State maintains that the court “did acknowledge and rule on [Mr. Tirado‘s] state constitutional challenge.” Past that narrow dispute, however, the parties see eye to eye. Both agree that Section 27, applied to Mr. Tirado‘s case, does not extend distinct or broader protections than the
The majority answers the narrow question in dispute, concluding that the Court of Appeals did not withhold review of Mr. Tirado‘s state constitutional claim. That court, as the majority explains, reached and considered the substance of his constitutional arguments. While some of the opinion‘s language may have been inartful, the court reviewed the permissibility of Mr. Tirado‘s sentence under the state and federal constitutions. On this point, I agree.
That should end the matter. With Kelliher conceded and the state constitutional claim reviewed, there is nothing left to decide. By affirming the Court of Appeals—both its analysis and the bottom-line decision—the majority resolves everything properly before us. See Est. of Fennell v. Stephenson, 354 N.C. 327, 331–32 (2001) (limiting review to issues raised in the petition for discretionary review); State v. Miller, 369 N.C. 658, 671–72 (2017) (declining to address issues not included in the petition). Our work is done.
The majority then ventures beyond this Court‘s proper task, gratuitously redefining the scope of Section 27 and its overlap with the
This reasoning is flawed. Mr. Tirado has centered this appeal—from petition, to briefing, to oral argument—on the Court of Appeals’ alleged refusal to consider his constitutional claims at all. The language quoted from his PDR only underscores that focus. True, Mr. Tirado mentioned North Carolina‘s “increased protection” in passing, as part of a general observation about the scope of state versus federal constitutional rights. But these remarks were ancillary to his core argument. He did not call for this Court to redefine Section 27 but simply contextualized his procedural claim about the alleged denial of appellate review. Most tellingly, Mr. Tirado himself formulated the issues on appeal, asking us to decide whether the Court of Appeals “fail[ed] to consider” his Section 27 challenge to his sentence. We allowed review on that question without modifying it, even though we issued a special order directing the parties to brief a related but distinct issue.
The parties’ briefs confirm the limited “scope of review on appeal.” See
Lastly, the majority‘s constitutional commentary is “unnecessary to the decision.” Trustees, 313 N.C. at 242. Although it ultimately affirms the Court of Appeals’ reasoning and result, the majority spends pages justifying why that court should not “have conducted an analysis under the state constitution‘s distinct protections.” But the Court of Appeals did no such thing. Instead, it treated the state and federal claims as aligned and addressed them in tandem. Mr. Tirado and the State agree that Section 27 and the
Fitting the pieces together, the majority‘s editorial on Section 27 and its overlap with the
Our role is to decide the questions “presented to [us] for solution in the proper course of judicial proceedings,” rather than to opine on “points arising outside of the case.” Hayes, 243 N.C. at 536–37 (cleaned up). Adhering to that principle here, I concur in the result based on the issues correctly before this Court. Beyond that, though, the majority‘s commentary should be left where it belongs—on the sidelines.
II. The Majority‘s Dicta Dilutе and Misinterpret Section 27.
The majority purports to read Section 27 as less protective than—but interpreted in lockstep with—the
A. Text
The majority starts by asserting that the people use the “plain language” of constitutional provisions to “express their intended meaning of the text when they adopted it.” Extending that logic, the majority reasons that the words inscribed in the Constitution have no “hidden meanings or opaque understandings—the kind that can only be found by the most astute justice or academic.” This makes intuitive sense. A constitution created by and for the people should be accessible to the people it governs.
One might think such adulation of plain language would preface a discussion of Section 27‘s text. Not so. Instead, the majority declares that the words of Section 27 hold little constitutional significance because that provision “does not expressly set out . . . what it means for a punishment to be ‘cruel or unusual.’ ” Since the “use of the disjunctive ‘or’ does not clarify this obscurity,” we are told, the “meaning the people intended” must be found elsewhere.
This reasoning is baffling. The majority extols “plain language” on one page, only to dismiss the plain language of Section 27 a few pages later. If the people‘s word choice is the best reflection of their intent, we must faithfully consult the language they used—even if doing so does not yield the preferred result. See State ex rel. Martin v. Preston, 325 N.C. 438, 449 (1989). Yet rather than grapple with Section 27‘s text, the majority sidesteps it.
On one score, though, the majority is correct: Section 27 does not contain a checklist of its meaning. But that is a feature rather than flaw. See State ex rel. Attorney-General v. Knight, 169 N.C. 333, 347-48 (1915). Constitutional provisions are written for the ages and “lay down general principles of government which must be observed amid changing conditions.” See Report of the North Carolina State Constitution Study Commission 150 (1968), available at https://www.ncleg.gov/Files/Library/studies/1968/st12308.pdf. By design, then, they do not resemble “elaborate legislative provisions,” but instead set out “briefly and clearly the fundamental principles upon which the government shall proceed.” Id. And here, the text of Section 27 prescribes state-specific values—both in what it says and what it omits. At a minimum, Section 27‘s language and its constitutional trajectory confirm that its protections are distinct from, and broader than, those provided by the Eighth Amendment.
Start with Section 27‘s unique phrаsing. Unlike the Eighth Amendment, which forbids only “cruel and unusual punishments,” Section 27 bars punishments that are either “cruel” or “unusual.” See State v. Conner, 381 N.C. 643, 667 (2022). This Court has long recognized the significance of disjunctive versus conjunctive language. See In re Duckett‘s Claim, 271 N.C. 430, 437 (1967) (“[T]he disjunctive participle ‘or’ is used to indicate a clear alternative. The second alternative is not a part of the first, and its provisions cannot be read into the first.“); Routten v. Routten, 374 N.C. 571, 575-76 (concluding that “the disjunctive term ‘or’ in N.C.G.S. § 50-13.5(i) establishes that either of the circumstances is sufficient to justify the trial judge‘s decision to deny visitation“), cert. denied, 141 S. Ct. 958 (2020); Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 519 (2004) (noting “that the natural and ordinary meaning of the disjunctive ‘or’ permits compliance with either condition“).
For punishments, in particular, our cases give special weight to disjunctive phrasing. As far back as 1820, we admonished that: “If ‘or’ could, under any circumstances, be construed ‘and’ in a penal law, it must be to lessen, not to aggravate, the evil of punishment.” State v. Kearney, 8 N.C. (1 Hawks) 53, 55 (1820). In other words, “the word ‘or,’ in criminal statutes, cannot be interpreted to mean ‘and,’ when the effect is to aggravate the offense, or increase the punishment.” State v. Walters, 97 N.C. 489, 490 (1887). This interpretive maxim reflects ordinary language and grammar. See id. More fundamentally,
Applying those principles here, the text of Section 27 casts a wider net than the Eighth Amendment. See Conner, 381 N.C. at 667 (explaining that Section 27 “abrogates a range of sentences which is inherently more extensive in number by virtue of the provision‘s disjunctive term ‘or’ than the lesser amount of sentences prohibited by the federal constitutional amendment due to its conjunctive term ‘and‘“). That is because the Eighth Amendment “requires two elements of the punishment to be present for the punishment to be declared unconstitutional (‘cruel and unusual‘),” while Section 27 “only requires one of the two elements (‘cruel or unusual‘).” Id. at 668. So while this disjunctive phrasing does not alone decode Section 27‘s scope, it does signal a broader sweep than its federal analogue.5
The trajectory of Section 27‘s language confirms that point. When North Carolina adopted its first constitution in 1776, it drew inspiration from its sister states but chose its own path. New Jersey‘s Constitution, for instance, did not mention punishments at all. See
For another reason, Section 27‘s unique language stands out. The first two versions of North Carolina‘s Constitution, in 1776 and 1868, used the “cruel or unusual” phrasing before the Eighth Amendment applied to the states. This means that when North Carolina crafted and reaffirmed Section 27, the federal Eighth Amendment had no binding effect on state law. At the time, the state constitution was the sole protection against excessive punishment for North Carolinians. The choice of “cruel or unusual” over “cruel and unusual” was a conscious effort to provide a distinct shield where federal law offered none. And this broader protection was no fleeting experiment. The disjunctive language first used in 1776 survived each constitutional overhaul in 1868 and 1971. This even as the Eighth Amendment has kept its narrower phrasing since its ratification in 1789.
The timing of the 1971 constitutional revision is especially significant. By then, the Eighth Amendment had been incorporated against the states in Robinson v. California, 370 U.S. 660 (1962), making its “cruel and unusual” standard binding on North Carolina. Yet, knowing this, the people of North Carolina again reaffirmed the broader “cruel or unusual” language in Section 27. This decision is critical because it shows that even with the federal Eighth Amendment now in force, North
Why, then, should North Carolina‘s broader constitutional language be tethered to a federal provision that our state deliberately avoided? The people of North Carolina made their choice—three times, across almost as many centuries. They rejected the federal phrasing every time, selecting and retaining language distinct from the Eighth Amendment. Yet the majority treats the people‘s repeated choices as if they mean nothing.
Rather than give independent weight to Section 27, the majority effectively writes it out of the Constitution. It shifts focus to Article XI, Section 1, which provides:
The following punishments only shall be known to the laws of this State: death, imprisonment, fines, suspension of a jail or prison term with or without conditions, restitution, community service, restraints on liberty, work programs, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under this State.
The majоrity purports to harmonize that provision with Section 27. Reasoning that Article XI “prescribe[s] the outer limits on punishment,” the majority concludes that “any punishment within that outer limit“—that is, mentioned in Article XI—is “inherently not ‘cruel or unusual’ in a constitutional sense.” Section 27, in other words, has no force on its own. So long as a statute prescribes a punishment listed in Article XI, neither that statute nor a sentence imposed under it can be cruel or unusual. That rule, says the majority, does not distinguish between juveniles and adults. Because Article XI lists death and imprisonment without limiting punishments based on an offender‘s age, the majority concludes that JLWOP cannot violate Section 27. This conclusion is flawed in both reasoning and result.
For one, the majority ignores the structural and functional differences between Article XI and Section 27. Article XI, Section 1 enumerates the forms of punishment the state may impose—death, imprisonment, fines, and others. It is a catalog of permissible options, meant to prevent the state from reviving archaic punishments like branding or the stocks. See Albert Coates, Punishment for Crime in North Carolina, 17 N.C. L. Rev. 205, 206 (1939). But this list is not a constitutional blank check. It merely describes what is permissible in kind—not what is proportional or reasonable in degree.
That task belongs to Section 27. As this Court has repeatedly emphasized, Section 27 sets substantive limits on how and on whom punishments may be applied. See State v. Driver, 78 N.C. 423, 430 (1878) (exhorting “our duty so to declare” that a sentence of five-years imprisonment for assault and battery “is not only ‘unusual’ but unheard of, and that it is ‘cruel‘“). Yes, the legislature enjoys broad authority to define the scope of criminal penalties. But the nature of constitutional rights limits that discretion. State v. Griffin, 190 N.C. 133, 137 (1925). Section 27 fills that role here, requiring that “a criminal sentence fixed by the legislature must be proportionate to the crime committed.” State v. Green, 348 N.C. 588, 609 (1998), cert. denied, 525 U.S. 1111 (1999), overruled on other grounds, State v. Kelliher, 381 N.C. 558 (2022). This means that a penalty listed in Article XI must, in application, be reasonable and proportionate to the offender and the offense. See State v. Woodlief, 172 N.C. 885, 891 (1916) (“Whether the punishment [i]s cruel or unusual depends upon the nature of the crime and the circumstances under which it was committed and other relevant facts.“); State v. Lee, 166 N.C. 250, 257 (1914) (noting constitutional concerns because a sentence did “not commend itself to us as being at all commensurate with the offense,” since “neither aggravation nor circumstances” justified that degree of severity).
Constitutional structure reinforces this point. Article I, the Declaration of Rights, is the bedrock of individual liberties in North Carolina. Our cases enshrine “the supremacy of rights protected in Article I” as a core principle of the state‘s constitutional framework. Corum v. Univ. of N.C., 330 N.C. 761, 783 (1992). These rights were crafted to ensure that no actor invested with the powers of the state—whether legislative, executive, or judicial—could violate them. Id. Indeed, Article I was so important to the framers that they approved it “the day before the Constitution itself was adopted,” underscoring its primacy. Id. at 782. Rights like Section 27 are thus “logically, as well as chronologically, prior to the constitutional text.” John V. Orth & Paul M. Newby, The North Carolina Constitution 5-6 (2d ed. 2013).
Like other provisions following Article I, Article XI deals with the mechanics of governance and spells out the state‘s powers and duties. It delineates the range of available punishments but does not—and cannot—supersede the rights enshrined in the Declaration of Rights. See Blankenship v. Bartlett, 363 N.C. 518, 525 (2009) (explaining that the right to vote for superior court judges guaranteed in Article IV “must be construed in conjunction with the Equal Protection Clause” in Article I, Section 19 to “prevent internal conflict“); Stephenson v. Bartlett, 355 N.C. 354, 378 (2002) (construing constitutional provisions in Article II “in conjunction with” a provision in Article I “in such a manner as to avoid internal textual conflict“); accord In re Peoples, 296 N.C. 109, 159-63 (1978). To suggest otherwise would invert the Constitution‘s design, downgrading fundamental rights to second-class status. This principle is grasped in every other realm of constitutional law. By analogy, imagine if a statute reserved life imprisonment for defendants of a particular race or gender. Although “imprisonment” is certainly listed in Article XI, that statute would violate Article I‘s guаrantees of equal protection. Article XI does not override these fundamental safeguards. The same logic applies here: Section 27 acts as a substantive limit on the punishments authorized by Article XI, ensuring they comply with constitutional standards of reasonableness and proportionality. Cf. In re Watson, 157 N.C. 340, 350-51 (1911) (reasoning that a statute allowing civil detention for an offense far longer than the possible range of criminal sanctions “would be violative of section 14 of the Bill of Rights, which prohibits ‘cruel or unusual punishment‘“).
The majority, however, flattens these distinctions. Rather than harmonize Section 27 with Article XI, it reads the latter to swallow the former. If a statute allows a punishment listed in Article XI, the majority says, Section 27 vanishes from the analysis. In the majority‘s hands, Section 27 becomes a redundancy—a hollow phrase offering no protection beyond the mechanical enumeration in Article XI. The majority thus retreats from the basic principle that constitutional provisions have independent significance. See Blankenship, 363 N.C. at 525; Stephenson, 355 N.C. at 378.
Compounding that error, the majority ignores the broader constitutional framework governing punishments and juveniles. The punishments
Take Section 2 of the same Article, which explains that the “object of punishments” in North Carolina is “not only to satisfy justice, but also to reform the offender and thus prevent crime.”
This focus on rehabilitation carries special significance for juvenile offenders. By their nature, children are uniquely vulnerable and capable of change. See, e.g., Burnett, 179 N.C. at 741-42. Article XI, Section 4 contemplates this reality, instructing the State to care for vulnerable groups, including orphans, not only as a moral obligation but as a hallmark of a civilized society.
The same principles prompted this Court‘s more recent recognition that “life without parole sentences for juveniles should be exceedingly rare and reserved for specifically described individuals.” State v. James, 371 N.C. 77, 96-97 (2018). That is so, we have explained, because juveniles are “inherently malleable” and have a “heightened capacity for change.” Kelliher, 381 N.C. at 585-86. And because age matters to the “object of punishments” guiding our penal philosophy, age matters to whether a punishment is “cruel or unusual” under Section 27. Id. at 585; see also In re Watson, 157 N.C. at 350 (“[A] system which does no more than measure the days and years, which must be paid by him who has violated law, ‘to satisfy justice,’ is a survival of the days when the only object of punishment was vengeance.“). For the “vast majority of juvenile offenders,” then, JLWOP is cruel because it is misaligned with the “penological functions enumerated in North Carolina‘s Constitution“:
Given juveniles’ diminished moral culpability, it is unjustifiably retributive; given juveniles’ heightened capacity for change, it unjustifiably disavows the goal of reform.
Kelliher, 381 N.C. at 585-86; see also Miller v. Alabama, 567 U.S. 460, 473 (2012) (“Life without parole forswears altogether the rehabilitative ideal. It reflects an irrevocable judgment about an offender‘s value and place in society, at odds with a child‘s capacity for change.” (cleaned up)).
Aside from its methodological flaws, the majority‘s interpretation also raises separation of powers concerns. In practice, the majority reduces section 27 to a rubber stamp of any punishment authorized by the legislature, so long as it is enumerated in Article XI. By doing so, the majority effectively kneecaps the judiciary‘s role as the guardian of constitutional rights, instead granting lawmakers carte blanche to define the scope of constitutional limits on punishments. This is an inversion of constitutional design.
It is true that penal policy is primarily entrusted to the General Assembly. This Court has therefore tread cautiously in that domain, cognizant of the legislature‘s policymaking authority “to define crimes and fix their punishment.” Griffin, 190 N.C. at 137 (cleaned up). But that discretion, though broad, is not limitless—it must yield if it “encounters in its exercise a constitutional prohibition.” Id. (cleaned up). When penal policy collides with fundamental rights, we have explained, the “legislative power is brought to the judgment of a power superior to it for the instant.” Id. (cleaned up). In those cases, the “judiciary must judge” those constitutional limits as part of its “legal duty, strictly defined and imperative in its direction.” Id. (cleaned up). For that reason, this Court has never relinquished its duty to enforce Section 27 and shield citizens from cruel or unusual punishment. See Woodlief, 172 N.C. at 891. In some cases, we have vindicated that constitutional guarantee by deeming sentences as excessive or unreasonable. Driver, 78 N.C. at 430; State v. Smith, 174 N.C. 804, 805 (1917); State v. Tyson, 223 N.C. 492 (1943); State v. Blackmon, 260 N.C. 352 (1963). And even when affirming the legislature‘s choice of punishment, this Court has recognized the “frequently enunciated” constitutional “principle that a criminal sentence fixed by the legislature must be proportionate to the crime cоmmitted.” Green, 348 N.C. at 609.
The majority suggests that judicial enforcement of Section 27 sidelines the people and subverts our constitutional order. It warns of judges deciding, “without direction from the people, when the General Assembly‘s prescribed punishments have become cruel or unusual.” But Section 27 is the people‘s direction—it reflects an abiding limit on the state‘s power to punish.
What this Court has made clear—and what the majority ignores—is the very purpose of North Carolina‘s Declaration of Rights: to secure fundamental rights “against state officials and shifting political majorities” by “limit[ing] our actions as the body politic.” Corum, 330 N.C. at 787-88. Constitutional provisions like Section 27 thus inscribe the people‘s profound, enduring judgments—their commitment to core principles
This principle guides the analysis of Section 27, which, by its plain language, ties its protections to the world in which it is applied. A punishment is “unusual” if it deviates from the penalties imposed on similar offenders for similar crimes. See Driver, 78 N.C. at 426; id. at 430. A punishment is “cruel” if it inflicts gratuitous suffering that exceeds what is necessary to serve the Constitution‘s enumerated goals of punishment: “satisfy[ing] justice” and “reform[ing] the offender.”
The majority today retreats from that obligation. By reducing Section 27 to a mere restatement of Article XI, the majority allows the legislature to define the constitutional limits of its penal authority. In practice, that decision surrenders the judiciary‘s “responsibility to protect the state constitutional rights of the citizens,” Corum, 330 N.C. at 783, and cedes Section 27‘s limits to the very body it was meant to restrain.
B. History
After dismissing Section 27‘s text, the majority turns to the “historical context in which the People of North Carolina enacted it.” This exercise, we are told, seeks to “isolate” the provision‘s meaning at the time of ratification. The majority seems to fix its gaze on the 1776 Constitution, though it does not explain why that moment should control. I address the deep flaws in this approach elsewhere. See McKinney, No. 109PA22-2, slip op. at 37-38, 78-80 (Earls, J., concurring in result only). The same critiques hold here.
To start, the majority‘s historical anchor is telling. It focuses on the 1776 Constitution, the only version never directly voted on and approved by the electorate. That document, crafted by the Fifth Provincial Congress, was adopted into law “in December, 1776, without submission to the people.” John L. Sanders, The Constitutional Development of North Carolina: A Brief History of the Constitutions of North Carolina, in North Carolina Government 1585-1974: A Narrative and Statistical History 795 (John L. Cheney Jr. ed., 1981). In many ways, this charter reflected the worldview of its makers, creating “a republic of free males with full participation reserved for property owners.” Orth & Newby, at 3. Soon after its ratification, the “undemocratic features” of the 1776 Constitution—“especially its property and religious qualifications for officeholding“—stoked “sectional controversies” and “disillusioned the masses.” Hugh Talmage Lefler & Albert Ray Newsome, The History of a Southern State: North Carolina 229 (3d ed. 1973).
Compare that with the state‘s later constitutions. In 1868, North Carolina rewrote its charter with input from a diverse delegation. See Orth & Newby, at 19. This new constitution abolished property qualifications for voting, expanded women‘s property rights, and charted a more inclusive path. Id. And for the first time, it was ratified by the people. The same is true of the 1971 Constitution, the version that governs us today. These later constitutions bear the mark of broader participation and more equitable values.
The majority‘s reliance on State v. Manuel, 20 N.C. (3 & 4 Dev. & Bat.) 144 (1838), underscores the perils of this approach. In Manuel, this Court upheld a law allowing county sheriffs to “hire out” poor, non-white defendants who could not pay criminal fines. Id. at 148. The law targeted free people of color, using their race and poverty as the “aggravating circumstances of [the] crime.” Id. at 161. Yet the Court deemed this punishment a valid legislative choice within “the great powers confided to the Legislature for the suppression and punishment of crime.” Id. at 163. Later cases, like the majority today, cite Manuel to argue that, considering the legislature‘s policymaking authority, punishments that are statutorily allowed and listed in Article XI cannot be “cruel or unusual.”
Manuel is indeed instructive—but not in the way the majority suggests. It shows, in essence, the dangers of using history as the yardstick for modern constitutional rights. Manuel‘s deference to legislative discretion was not neutral—it reflected a discriminatory view of who deserved constitutional protections and who did not. According to Manuel, the legislature had the authority to “apportion punishments” based on an offender‘s “condition, temptations to crime, and ability to suffer.” Id. That discretion allowed the legislature to vary criminal penalties based on race, gender, and wealth. A punishment‘s cruelty, in other words, was a sliding scale based on a defendant‘s place in the social hierarchy:
What would be cruelty if inflicted on a woman or a child[ ] may be moderate punishment to a man. What might not be felt by a man of fortune would be oppression to a poor man. What would be a slight inconvenience to a free negro might fall upon a white man as intolerable degradation.
Applying that framework, this Court found nothing “cruel or unusual” about a statute subjecting poor, non-white defendants to quasi-enslavement. For that punishment, as Manuel saw it, was simply a permissible exercise of legislative discretion that the judiciary should not second-guess. See id. at 162-63. The rule extracted from Manuel—that punishments authorized by the legislature are policy judgments beyond constitutional reach—rests on this discriminatory logic. There is no reason why a two-centuries-old case, infected with antebellum prejudice and interpreting a since-eclipsed version of the Constitution, should dictate the meaning of Section 27 today.6 In a democracy, especially,
C. Precedent
The majority closes with a selective and incomplete account of our Section 27 jurisprudence. It declares, in sweeping terms, that “in recognition of the supremacy of the Fеderal Constitution,” this Court has “routinely” interpreted Section 27 in lockstep with the Eighth Amendment. The majority frames this as an unbroken historical tradition. But this recitation of our caselaw is conspicuously incomplete. The majority relies on outdated precedent (its most recent opinion of the Court is from 1998), while ignoring key inflection points in our jurisprudence. More recent decisions—including James, 371 N.C. 77; Kelliher, 381 N.C. 558; and Conner, 381 N.C. 643—repudiated the flawed reasoning of earlier cases and rejected the lockstep approach the majority now resurrects.
Consider Green—a repeat player in the majority‘s analysis. 348 N.C. 588. When this Court decided that case in 1998, we did indeed take a lockstep approach, treating Section 27 as a carbon copy of the Eighth Amendment. Id. at 603. Green involved a thirteen-year-old defendant sentenced to life imprisonment for a first-degree sexual offense. Id. at 592-94. This Court acknowledged the textual differences between Section 27 and the Eighth Amendment but declined to give those differences meaning. Id. Instead, we relied on the supposed “historical[ ]” practice of treating the two provisions the same. Id. Justice Martin, writing in another case, urged this Court to take seriously the disjunctive phrasing of “cruel or unusual punishments” in Section 27. See Medley v. N.C. Dep‘t of Correction, 330 N.C. 837, 846 (1992) (Martin, J., concurring). But Green declined that request, sensing no “subsequent movement” towards that position by this Court or a “compelling reason” to adopt that view. Green, 348 N.C. at 603 n.1.
But even Green understood that it was a product of its time. The opinion itself acknowledged the then-prevailing belief that “serious youthful offenders must be dealt with more severely” but predicted that “[t]hese tides of thought may ebb in the future.” Id. at 608. And ebb they did. In the years since Green, this Court has retreated from Green‘s rigid framework, recognizing its failure to account for evolving understandings of adolescence and punishment.
In 2018, for instance, our decision in James acknowledged that “children are different” from adults in ways that profoundly matter to criminal sentencing. 371 N.C. at 96 (quoting Miller, 567 U.S. at 480). Though Green downplayed juveniles’ unique traits, James recognized that a child‘s “chronological age and its hallmark features” undermine the penological justifications for imposing extreme sentences. Id. The Court upheld North Carolina‘s Miller-fix statute by interpreting it to align with modern principles—that life without parole should be an exceedingly rare sentence for juveniles. See id. at 92-93. This marked a shift away from Green‘s rationale, focusing on the unique developmental characteristics of juveniles as informed by modern science and legal developments.
Kelliher built on this evolution, decisively breaking from the lockstep approach embraced by past cases. See 381 N.C. at 579-81. That case addressed Green‘s outdated logic directly, explaining that its depiction of children as “predators” fundamentally misunderstood the nature of childhood and, in some cases, reflected racialized stereotypes. Id. at 582-83; see also The Superpredator Myth, 25 Years Later, Equal Just. Initiative (Apr. 7, 2014), https://eji.org/news/superpredator-myth-20-years-later); State v. Null, 836 N.W.2d 41, 56 (Iowa 2013) (noting that the propagators of the juvenile “predator” theory ultimately acknowledged
Conner—issued the same day as Kelliher—reaffirmed the unique constitutional protections afforded by Section 27. 381 N.C. at 667-68. Like Kelliher, Conner emphasized how the language of the “state constitutional provision abrogates a range of sentences which is inherently more extensive in number by virtue of the provision‘s disjunctive term ‘or’ than the lesser amount of sentences prohibited by the federal constitutional amendment due to its conjunctive term ‘and.‘” Id. at 667; see also id. at 667-68 (“On its face, the Constitution of North Carolina appears to offer criminal defendants—such as juvenile offenders—more protection against extreme punishments than the Federal Constitution‘s Eighth Amendment, because the Federal Constitution requires two elements of the punishment to be present for the punishment to be declared unconstitutional (‘cruel and unusual‘), while the state constitution only requires one of the two elements (‘cruel or unusual‘).“). Also like Kelliher, Conner explained why past cases—Green in particular—no longer controlled. See id. at 668 n.14. Issued in 1998, that decision “preceded the United States Supreme Court decisions in Roper, Graham, Miller, and Montgomery,” and reflected a “view of juvenile offenders” that “is in direct conflict with subsequent research and with our nation‘s evolution in its understanding of the culpability of juvenile offenders.” Id. Thus, as these cases show, the reasons that once justified lockstepping—a lаck of legal “movement toward” and “compelling reasons” for reading Section 27 differently—no longer hold. Cf. Green, 348 N.C. at 603 n.1.
Rather than meaningfully grapple with this precedent, the majority distorts it. It glosses over the substance of Kelliher before reducing that decision to a single fragment: that “Article I, Section 27 requires a trial court to expressly find that a juvenile homicide offender is one of those exceedingly rare juveniles who cannot be rehabilitated before sentencing him to life without parole.” That portion of Kelliher, says the majority, was “unnecessary in determining the outcome of the case” and therefore nonbinding dicta.
The irony, of course, is that the same critique dooms most of the majority‘s own opinion. At any rate, the majority mischaracterizes what parts of Kelliher are “arguably applicable” here. For Kelliher expressly rejected a lockstep approach to Section 27 and held that this provision “offers protections distinct from, and in this context broader than, those provided under the Eighth Amendment.” Kelliher, 381 N.C. at 579. That conclusion was not an aside—it was central to this Court‘s “ultimate holding.” Cf. Amos v. N.C. Farm Bureau Mut. Ins. Co., 331 N.C. 340, 359 (1992). Kelliher held that the Eighth Amendment and Section 27 prohibit a sentence of JLWOP if a juvenile, like Mr. Kelliher, is “neither incorrigible nor irredeemable.” Kelliher, 381 N.C. at 585. It also held that consecutive life-with-parole sentences can amount to de facto JLWOP under Section 27. See id. at 560; see also id. at 587-90. That second holding, rooted entirely in the state Constitution, was key to the first, since the U.S. Supreme Court has never read the Eighth Amendment to cover de facto
Like the other facets of the majority‘s analysis, its discussion of precedent ignores the broader arc of our jurisprudence, choosing a one-sided historical narrative that cherry-picks precedent to suit its conclusion. Our cases, our Constitution, and our understanding of juvenile justice have evolved. Compare Green, 348 N.C. at 610 (deeming irrelevant the “special considerations due children under the criminal justice system” because a thirteen-year-old defendant‘s traits—including his “difficulty controlling his temper, his previous record and his unsupportive family situation“—were “not the type attributable to or characteristic of a ‘child‘“), with James, 371 N.C. at 209 (emphasizing the “necessity for requiring sentencing authorities” to give mitigating weight to “chronological age and its hallmark features,” including “immaturity,” “impetuosity,” “failure to appreciate risks and consequences,” and “the family and home environment that surrounds the juvenile” (quoting Miller, 567 U.S. at 477-80) (cleaned up)). By pretending otherwise, the majority does a disservice to the law and North Carolina‘s unique constitutional values.
III. Conclusion
The disposition of this case does not turn on whether Section 27 of the North Carolina Constitution provides more or less protection to juvenile defendants than the Eighth Amendment. But the majority‘s sweeping conclusions from isolated fragments of constitutional text are dangerous not only for what they mean about the proper way to interpret the freedoms enshrined in the North Carolina Constitution but also for how we understand the role of the judiciary. Because none of the majority‘s pronouncements about Section 27 are required to decide the issues before us, they are nonbinding dicta, and I concur in the result only.
Justice RIGGS joins in this concurring in the result only opinion.
Notes
But because it was “[w]e[ ] the people,” not we the Justices, who ordained and established the constitution,
First, this Court did not adopt the concurrence‘s view in the early cases interpreting the 1971 constitution. See, e.g., Mitchell, 283 N.C. at 471, 196 S.E.2d at 742; Frank, 284 N.C. at 147, 200 S.E.2d at 176; Tolley, 290 N.C. at 362, 226 S.E.2d at 364.
Second, the 1971 constitution did not create the Cruel or Unusual Punishments Clause. Rather, the 1971 constitution carried over the Clause from Article I, Section 14 of the 1868 constitution, which itself adopted the Clause from Section X of the Declaration of Rights in the 1776 constitution. And as discussed above, the Cruel or Unusual Punishments Clause has even more ancient roots, stemming from the English Bill of Rights. The modern text remains in line with that found in our earlier constitutions. Thus, analysis of Article I, Section 27 must begin with the 1776 constitution and the context in which the people adopted the provision. See, e.g., Harper, 384 N.C. at 351-64, 886 S.E.2d at 431-39 (noting that “[the Free Elections C]lause first appeared in the 1776 constitution,” acknowledging its roots in English law, and then explaining how the Clause evolved through the 1868 and 1971 constitutions). To pretend that constitutional history began in 1971 would require this Court to turn a blind eye to centuries of constitutional and precedential context paramount in understanding the Cruel or Unusual Punishment Clause‘s meaning and scope.
Third, the historical context in which the people enacted the 1971 constitution lacks much persuasive value. The Study Commission that proposed the 1971 constitution stated that it was principally concerned with “clarity and consistency of language” and that although “[s]ome of the changes [were] substantive, . . . none [were] calculated to impair any present right of the individual citizen or to bring about a fundamental change in the power of state and local government or the distribution of that power.” Report of the North Carolina State Constitution Study Commission 10 (emphasis added); see also Berger, 368 N.C. at 643, 781 S.E.2d at 255 (stating the primary goal of the 1971 constitution was “editorial pruning, rearranging, rephrasing, and modest amendments” and that “the great majority of the changes embraced in the [1971] constitution [took] the form of [non-substantive] deletions ofor contractions in language” (quoting Repоrt of the North Carolina State Constitution Study Commission 71, 73)). Our precedents have repeatedly relied on the Study Commission‘s characterization of its edits as non-substantive. E.g., N.C. State Bar v. DuMont, 304 N.C. 627, 636, 286 S.E.2d 89, 95 (1982) (“An intent to modernize the language of the existing constitution does not, in our opinion, show that the framers of the 197[1] [c]onstitution intended that instrument to enlarge upon the rights granted by the 1868 [c]onstitution. Indeed, we think that such an intent shows that the 197[1] framers intended to preserve intact all rights under the 1868 [c]onstitution.“); Sneed, 299 N.C. at 616, 264 S.E.2d at 112 (concluding, with respect to the substantive purpose of the 1971 constitution, that “we cannot read into the voice of the people an intent that in all likelihood had no occasion to be born“).
Fourth, the concurrence‘s position that the 1971 constitution evinced the people‘s unquestionable intention to adopt protections above and beyond those afforded by the Eighth Amendment suffers from a practical shortcoming. If the people intended to incorporate the Eighth Amendment‘s protections by reference and enshrine more protections, there was no reason to reinclude Article XI‘s provisions concerning the availability of punishments. Indeed, the people would have expected the judicial branch to simply refer to federal caselaw interpreting the Cruel and Unusual Punishments Clause to determine what punishments were allowed or disallowed. But this interpretation would render Article XI superfluous. The people certainly did not intend this meaning.