JUSTICES TACKLE JUVENILE LIFE SENTENCING AGAIN
By Austin R. Ramsey
Oct. 16, 2019 | American University – Public Affairs Reporting
Now more than 17 years after the two so-called “D.C. snipers” carried out a murderous rampage in the Washington metro area, the U.S. Supreme Court on Wednesday heard oral arguments for a case that could decide if the younger of that pair will get a second chance at sentencing.
At its core, the case centers on the rights of juvenile defendants and how how far trial judges can go in sentencing them for capital convictions.
“It can be summarized in two words, which is that ‘youth matters’ and that you have to consider youth in making these sorts of sentencing determinations,” said Justice Elena Kagan, summarizing Wednesday’s arguments and the court decisions that fueled them.
In 2002, John Allen Muhammad, who was 41 at the time, and then-17-year-old Lee Boyd Malvo carried out a deadly, seven-week stretch of sniper attacks, killing 12 and seriously injuring six others. Both were convicted of several of the killings in Virginia courts a year later. Malvo was sentenced to life in prison without the possibility of parole, and Muhammad was sentenced to death and later executed by the state in 2009.
But a 2012 ruling by the nation’s highest judicial body barred lower courts from applying mandatory life-without-parole sentences to minors under the Constitution’s Eighth Amendment protection against cruel and unusual punishment. Four years later, the court retroactively extended that decision to include sentences that had been handed down before its initial ruling.
According to the Campaign for Fair Sentencing of Youth, those decisions affected 2,800 convicts nationwide and nearly three-fourths of them sought sentencing relief.
Malvo was among them.
Both the Virginia Supreme Court and Fourth Circuit U.S. Court of Appeals ruled in the now 34-year-old’s favor, but the office of Virginia’s attorney general has consistently argued that Malvo’s sentencing was not mandatory. In Virginia, juries decide sentences and judges hold the power only to lower them.
Virginia Solicitor General Toby Heytens told the court Wednesday that the power Malvo’s sentencing judge held during his 2004 hearing satisfied questions of “irreparable corruption” and the “transient immaturity of youth” the Supreme Court outlined in Miller v. Alabama, the 2012 constitutional ban on mandatory life sentences without parole.
By giving judges the opportunity to lower defendants' sentences, he argued, the state operates under a “discretionary” model of sentencing, which excludes it from Miller’s grasp.
In practice, however, that’s rarely, if ever, the case.
Justice Ruth Bader Ginsburg pointedly asked Heytens whether it had ever occurred before.
“Justice Ginsburg, I’m not aware of any Virginia judge ever reducing a juvenile life without parole sentence for a person convicted of capital murder, which is the offense that Malvo is convicted of,” he replied. “I believe it to be factually true, but I’m not aware of an example.”
At the time of Malvo’s conviction, in fact, the Supreme Court had not yet ruled on Roper v. Simmons, which determined that the death penalty was cruel and unusual punishment for minors.
Therefore, Ginsburg said, in practice, Malvo’s court had just two cruel decisions before it.
“The jury had only two choices: death or life without parole,” she said. “And nobody seemed to have appreciated at the time of Malvo’s convictions that there was any discretion.”
The Miller case did not make it unconstitutional for juveniles to be sentenced to life without the possibility of parole. Rather, it required judges to determine if juvenile defendants were “incorrigible,” meaning they are beyond the scope of behavioral correction, or whether they simply committed their crimes out of youthful immaturity. Later the case was followed by Montgomery v. Louisiana, which granted those legal tests to all juveniles, no matter when they were sentenced.
In his own line of questioning Wednesday, Justice Brett Kavanaugh suggested it may be impossible to know what Malvo’s trial judge did or did not consider.
“How do we know — and this is the tough part of the case for me — how do we know in that circumstance that the sentencing judge separated the incorrigible from the merely immature?” he asked.
Assistant Solicitor General Eric Feigin, who also addressed the court Wednesday on behalf of Virginia’s appeal, said he believed that terms like “immaturity” and “irreparability” were born from cases like Roper but that they were described not prescribed to the way a sentencing judge would handle a juvenile defendant.
Justice Kagan shot back, interrupting the attorney and drawing a wave of chuckles and head turns from the other eight justices.
“That’s just to say you wish Montgomery was a different opinion,” she said. “It’s not a different opinion. There’s a chain of decisions, but there’s a clear rule that comes out of it, which is this distinction between the irretrievably corrupt and all others.”
Danielle Spinelli, the attorney representing Malvo, built her argument early on around Kagan’s quip.
Her case was constructed around those two prior opinions, Miller and Montgomery. Virginia, she said, wants the court to ignore one in favor of the other.
Malvo’s case is not about him getting out of prison or getting a lesser sentence, she said. It’s about building a precedent that accepts the Supreme Court's first ruling in Miller.
Contrary to the government’s case, she said, it is not limited to mandatory sentencing structures where life without parole is the only possible punishment. It invalidated those schemes, because they guarantee that courts won’t consider whether a defendant’s age warrants a lower sentence, which creates “an unacceptable risk of excessive punishment. “
“But when a court has the theoretical power to consider a lower sentence but doesn’t do so, which is what happened here, it creates precisely the same risk,” she said.”
Virginia Attorney General Mark Herring released a written statement after Wednesday’s oral arguments that read, in part: “Malvo received a fair, lawful trial in which he presented significant evidence about his age. Malvo should not get out of jail, receive a lighter sentence or drag his victims’ families through yet another prolonged legal procedure.”
The case is called Mathena v. Malvo.
Justices recessed after Wednesday’s oral arguments. They will next hear oral arguments in early November and are likely to release a decision on their cases sometime in May or June.