Lockstep Application of North Carolina’s Cruel or Unusual Punishments Clause with the Eighth Amendment in Juvenile LWOP Sentencing

Introduction

This commentary examines State v. Tirado, 385 N.C. 1 (2025), in which the Supreme Court of North Carolina addressed whether the Court of Appeals erred by refusing to conduct an independent merits review of the defendant’s challenge to consecutive life‐without‐parole (LWOP) sentences under Article I, Section 27 (“cruel or unusual punishments”) of the North Carolina Constitution. The case arises from the resentencing of Francisco Edgar Tirado—originally sentenced to death for first‐degree murder committed at age 17, then to consecutive LWOP sentences under the State’s Miller‐Fix statutory scheme. Tirado contended that these sentences violated both the Eighth Amendment and Section 27, and that the Court of Appeals improperly declined to assess his claim under the “more protective” state provision. The Supreme Court affirmed the Court of Appeals, holding (1) no separate state‐constitutional analysis was required because North Carolina courts “lockstep” Section 27 to the federal Eighth Amendment to ensure no citizen has fewer rights, and (2) the trial court’s resentencing fully complied with State v. Kelliher, 381 N.C. 558 (2022).

Summary of the Judgment

• The Supreme Court granted discretionary review of whether the Court of Appeals should have analyzed Tirado’s Section 27 claim independently of the Eighth Amendment and whether his LWOP sentences flouted this Court’s decision in State v. Kelliher.
• It held that Article I, Section 27 affords no less protection than the Eighth Amendment and that, by longstanding practice, North Carolina courts apply Section 27 in lockstep with federal precedent. Consequently, no separate state‐only analysis was necessary.
• The Court found that the Court of Appeals did review the merits of Tirado’s Section 27 challenge—examining his objections to factual findings, weighing of Miller factors, and proportionality arguments—and correctly concluded his sentences complied with both constitutions.
• Because Tirado was found “irreparably corrupt” at resentencing, Kelliher—which protects only those juveniles deemed not permanently incorrigible—did not apply. His order was therefore fully compliant with North Carolina precedent.
• The Supreme Court affirmed the Court of Appeals’ unanimous unpublished decision.

Analysis

1. Precedents Cited

• Roper v. Simmons, 543 U.S. 551 (2005) – Eighth Amendment bars juvenile death penalty.
• Miller v. Alabama, 567 U.S. 460 (2012) – Eighth Amendment forbids mandatory LWOP for juveniles; trial courts must have discretionary authority and consider specific “Miller factors.”
• Montgomery v. Louisiana, 577 U.S. 190 (2016) – Miller announced a substantive rule that applies retroactively; States must give relief on collateral review.
• Jones v. Mississippi, 141 S. Ct. 1307 (2021) – Eighth Amendment does not require express findings of “permanent incorrigibility,” but discretionary LWOP must still be reserved for the rare irreparable juvenile offender.
• State v. James, 371 N.C. 77 (2018) – Upheld North Carolina’s Miller‐Fix statutory scheme under both the Eighth Amendment and Section 27.
• State v. Kelliher, 381 N.C. 558 (2022) – Held that Section 27 may provide broader protections than the Eighth Amendment for juvenile homicide offenders and that courts must find a juvenile irreparably corrupt before imposing LWOP; consecutive life‐with‐parole sentences may create de facto LWOP.
• State v. Conner, 381 N.C. 643 (2022) – Reinforced that Section 27’s “cruel or unusual” phrasing is disjunctive and can offer broader protection than the federal “cruel and unusual” standard.

2. Legal Reasoning

The Court’s opinion rests on three pillars:

1. Presumption of Constitutionality & Separation of Powers
   North Carolina courts apply a strong presumption that statutes are constitutional absent clear textual limits. Article I, Section 6 (Separation of Powers) prevents judges from intruding on legislative policy choices unless a law clearly violates a constitutional prohibition. Here, because the General Assembly expressly authorized LWOP for juvenile murderers (pre‐Miller fix), and later codified Miller factors, the sentences at issue were on their face lawful.
2. Lockstep Application of Section 27 and the Eighth Amendment
   Although Section 27’s “cruel or unusual” language predates the Federal Constitution and is phrased disjunctively, this Court has long interpreted it in tandem with the Eighth Amendment to ensure no citizen has fewer rights under state law. Even if Section 27 alone would allow broader review or protection, the supremacy of the Federal Constitution, U.S. Const. art. VI, cl. 2, demands that state courts at least afford the floor of Eighth Amendment protections. Because federal case law (Miller, Jones, etc.) sets out stringent safeguards for juvenile LWOP, North Carolina courts need not re‐litigate basic Eighth Amendment precedents to satisfy Section 27—they simply “lockstep” the analysis to ensure state rights are never below federal minimums.
3. Kelliher Does Not Apply to This Case
   Kelliher protects only those juveniles expressly found not to be irreparably corrupt and who receive consecutive life‐with‐parole sentences that effectively amount to LWOP. Tirado’s trial court, by contrast, found him permanently incorrigible after considering Miller factors and imposed consecutive LWOP sentences. Because Tirado falls outside Kelliher’s narrow category, his re‐sentencing complied fully with North Carolina law.

3. Impact

• Reaffirmation of Lockstep Approach
  This decision cements the practice that Section 27 claims will track Eighth Amendment analysis—state courts are bound to extend at least the same protections as federal law dictates. Defendants cannot invoke Section 27 to secure protections below the federal floor, nor can they demand an entirely distinct state constitutional framework unless and until North Carolina’s electorate or courts explicitly depart from federal precedent.
• Limits on State‐Only Expansion of Juvenile Protections
  By rejecting an independent Section 27 analysis for juvenile LWOP claims, the Court signals that any expansion of juvenile sentencing protections must come from the legislature or a future controlling decision of the Supreme Court, not from ad hoc invocation of a “more protective” state clause.
• Clarification of Kelliher’s Scope
  The ruling limits Kelliher to its facts—juveniles not found irreparably corrupt who receive de facto LWOP via consecutive life‐with‐parole terms. The broad category of discretionary LWOP for violent juvenile offenders with express findings of irreparable corruption remains permissible.

Complex Concepts Simplified

• Life Without Parole (LWOP): A sentence that permanently bars release, meaning the offender will spend the remainder of their life in prison.
• Consecutive Sentences: Multiple terms of imprisonment served one after another, rather than at the same time.
• Miller Factors: The mitigating circumstances a court must consider before imposing LWOP on a juvenile, including age, family environment, and the nature of the offense.
• Lockstep Application: The practice of applying two constitutional provisions—here, Section 27 and the Eighth Amendment—with the same substantive test, ensuring no lesser protection under state law.
• Section 27 vs. Eighth Amendment: Article I, Section 27 of the North Carolina Constitution bars “cruel or unusual punishments.” The Eighth Amendment bars “cruel and unusual punishments.” Federal supremacy requires state courts to afford at least the protections of the Eighth Amendment, so North Carolina ordinarily “locks” Section 27 to federal precedent.
• Kelliher Exception: A narrow rule that if a court finds a juvenile neither irreparably corrupt nor permanently incorrigible, even a life‐with‐parole sentence (or two consecutively) may amount to de facto LWOP, forbidden by Section 27.

Conclusion

State v. Tirado reaffirms that North Carolina courts will not apply Article I, Section 27 in a manner that affords defendants fewer rights than the Eighth Amendment. By endorsing a lockstep approach, the Supreme Court ensures uniform protection for juveniles facing LWOP sentences and places the onus on the legislature or future controlling decisions—not ad hoc judicial readings—to expand juvenile sentencing safeguards under state law. The decision also clarifies the limited reach of Kelliher, shielding only juveniles found not irreparably corrupt who receive multiple consecutive sentences amounting to de facto LWOP. In so doing, the Court strikes a measured balance between legislative sentencing authority and constitutional limits, preserving the fundamental right to proportionate punishment in North Carolina’s criminal justice system.