Do the Court’s decisions in Miller v. Alabama and Montgomery v. Louisiana require the resentencing of juvenile offender Lee Boyd Malvo because the sentencing court did not find him to be irreparably corrupt before sentencing him to life without parole?
Lee Boyd Malvo was one of the two infamous “D.C. snipers.” Over a seven-week period in the fall of 2002, Malvo and John Allen Muhammad murdered 12 individuals, inflicted serious injuries on 6 others, and generally terrorized the D.C. metro area. The targeted, unpredictable killings took place at gas stations, an elementary school, and outside public establishments, with Malvo or Muhammad shooting the unsuspecting victims at random from far away, sometimes through a hole bored through the trunk of Muhammad’s car.
Malvo was seventeen years old at the time of the killings and was operating under the influence and leadership of Muhammad, who was acting as a surrogate father to Malvo. Muhammad had essentially adopted Malvo after meeting him in Antigua when Malvo was an abandoned 14-year old and Muhammad was hiding with his three children, of whom he had lost legal custody.
In 2001, Muhammad brought Malvo from Jamaica to the United States. After Muhammad’s children were returned to his ex-wife, Muhammad focused on “training” Malvo. Muhammad drastically restricted Malvo’s diet, inundated Malvo with tenets of Islam and Muhammad’s own violent worldview, and trained Malvo in military maneuvers and tactics, including daily shooting lessons. The sniper shootings were the “mission” that Muhammad devised as a means to get his children back from his ex-wife.
At issue in the case before the Supreme Court are three killings in Virginia. On October 4, 2002, Caroline Seawell, age 43, was shot in the back as she loaded her car outside the Michael’s craft store near Spotsylvania Mall in Spotsylvania County, Virginia. On October 11, 2002, Kenneth Bridges, age 53, was fatally shot in the upper back while pumping gasoline at an Exxon station in Spotsylvania County, Virginia. On October 14, 2002, Linda Franklin, age 47, was fatally shot in the head outside a Home Depot store in Fairfax County, Virginia, while Franklin and her husband were loading their purchases into their car.
Malvo and Muhammad were tried separately for the shootings in Virginia. Muhammad was convicted of capital murder in Virginia and sentenced to death. Virginia executed him in 2009.
Malvo was indicted for capital murder in the commission of an act of terrorism in the two separate Virginia counties, Spotsylvania and Fairfax. Because the cases were prior to the Supreme Court’s 2005 decision in Roper v. Simmons, 543 U.S. 551 (2005), that barred the death penalty for minors, Malvo faced the death penalty in both jurisdictions. Malvo was first tried for the murder of Franklin. He pleaded not guilty by reason of insanity, claiming that he had been indoctrinated by Muhummad during his adolescence and was operating under Muhammad’s control. The jury rejected Malvo’s arguments and convicted him of first-degree murder. The jury recommended a sentence of “imprisonment for life.” Under Virginia law at the time, the only two available sentences for capital murder were the death penalty and life without parole. At sentencing, Malvo did not ask the court to depart from the jury’s recommendation, and the judge sentenced him to life without parole.
After being sentenced for Franklin’s murder, Malvo entered Alford pleas to the capital murder of Kenneth Bridges and the attempted murder of Caroline Seawell. On October 26, 2004, the trial court accepted Malvo’s pleas, and, pursuant to the plea agreement, sentenced him to two additional terms of life without parole. Having avoided the death penalty, Malvo did not appeal.
In 2012, the Supreme Court decided Miller v. Alabama, 567 U.S. 460 (2012), which held that the Eighth Amendment barred the imposition of mandatory life-without-parole sentences on juvenile offenders. In 2013, Malvo filed two petitions for writs of habeas corpus in federal district court, arguing that the three life-without-parole sentences imposed in Virginia were unconstitutional. The district court initially dismissed Malvo’s petitions, finding them time-barred, in concluding that the holding in Miller did not apply retroactively to cases on collateral review.
In 2016, the Supreme Court decided Montgomery v. Louisiana, 136 S.Ct. 718 (2016), which held that Miller applied retroactively to cases on collateral review. The Court of Appeals for the Fourth Circuit subsequently remanded Malvo’s case to the district court for reconsideration in light of Montgomery.
On remand, the warden, Randall Mathena, argued that Miller and Montgomery did not apply to Malvo’s case because Virginia does not impose mandatory life-without-parole sentences. The district court, however, rejected the warden’s argument, finding that the question at issue was not one of mandatory or discretionary sentencing. Instead, the court explained that the requirement of Miller that offenders receive individualized sentencing consideration prior to receiving a life-without-parole sentence applies to all juvenile life-without-parole (JLWOP) cases. Based on this reasoning, the court vacated all three of Malvo’s life-without-parole sentences and ordered new sentencing hearings for Malvo.
The Fourth Circuit Court of Appeals affirmed the district court’s decision. Like the district court, the appellate court read Montgomery to mean that the rule in Miller has applicability beyond situations where the juvenile homicide offender received a “mandatory” life-without-parole sentence. Specifically, the court understood the decisions in Miller and Montgomery to include the discretionary imposition of life-without-parole sentences on juvenile offenders without first concluding that the offender’s crimes reflect permanent incorrigibility.
Mathena subsequently filed a petition for certiorari, which the Supreme Court granted on March 18, 2019.
The Supreme Court’s decisions in Miller and Montgomery have opened the door to significant litigation and confusion in lower courts as to the scope of the Eighth Amendment and what it requires in the sentencing of juvenile homicide offenders.
In Woodson v. North Carolina, 428 U.S. 280 (1976), the Supreme Court held that the Eighth Amendment barred the imposition of the mandatory death penalty. The Court outlined the requirement of individualized consideration in capital sentencing, mandating that the sentencing court consider and weigh relevant aggravating and mitigating factors prior to imposing a death sentence. In Roper, the Supreme Court established that the death penalty did not apply to juvenile offenders in light of the evolving standards of decency doctrine under the Eighth Amendment. At the heart of Roper was the Court’s determination that juvenile offenders did not possess the same culpability as adult offenders. In Graham v. Florida, 560 U.S. 48 (2010), the Court held that the Eighth Amendment applies to juvenile life-without-parole sentences, barring the imposition of such sentences in non-homicide cases. An important part of Graham emphasized the increased possibility of rehabilitation for juvenile offenders.
The Court’s decision in Miller married the concepts from Woodson, Roper, and Graham. The Court focused on the “differentness” of juvenile offenders, both in their decreased culpability and their capacity for rehabilitation, concluding that juvenile life-without-parole sentences were to receive similar constitutional scrutiny as death sentences. This included applying the Woodson requirement of individualized consideration for JLWOP sentences.
As such, Miller barred the imposition of mandatory JLWOP sentences; before imposing a juvenile life-without-parole sentence, the Eighth Amendment requires consideration of the individualized characteristics of the criminal offense and offender by the sentencing court.
After the Court decided Miller, states split over whether to apply the decision retroactively. As a result, the Court granted certiorari in Montgomery, both to address the retroactivity question and to clarify the meaning of Miller. With respect to the retroactivity question, the Court found that the decision in Miller was substantive, not procedural, and therefore applied retroactively under the Court’s decision in Teague v. Lane, 489 U.S. 288 (1989). Specifically, the individualized consideration required by the Eighth Amendment in JLWOP cases was not simply a procedural requirement, but instead had a substantive component related to what the sentencing court had to consider. In articulating that it disfavored JLWOP sentences, the Court indicated, “Miller did bar life without parole, however, for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” In other words, Miller “drew a line between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption.”
Mathena argues first that the issue of whether Virginia’s sentencing system is mandatory or discretionary—dismissed as not dispositive by the lower courts—should control in Malvo’s case. In Mathena’s view, the holding in Miller applies only to mandatory sentencing schemes, and so does not apply to Virginia’s sentencing of Malvo.
The corollary part of Mathena’s argument is that Montgomery did nothing more than allow the retroactive application of Miller to mandatory sentencing schemes. As Mathena explains, the basic error of the court of appeals and the district court lies in construing a decision about retroactivity as one about rights. In Mathena’s view, Miller must apply to non-mandatory sentences or Montgomery must have announced a new substantive constitutional rule that applies retroactively in order for Malvo to prevail in his appeal of non-mandatory JLWOP sentences.
As to the Fairfax County sentencing, Mathena argues that the sentence was the product of judicial discretion and was not a mandatory sentence. Mathena likewise argues that Malvo’s sentence in the Spotsylvania County cases was not mandatory because it was the product of a plea deal entered into voluntarily by Malvo. Mathena’s reading of Miller and Montgomery as requiring a mandatory sentencing scheme means that neither case provides a basis for Malvo to prevail on his habeas claims.
Malvo does not read Miller and Montgomery so narrowly. Malvo argues that the core point of Miller concerns the requirement that a court assess whether a juvenile offender should receive a life-without-parole sentence. This means that a mandatory JLWOP sentence is one where the court imposes the JLWOP sentence without considering the individual characteristics of the offender and offense, irrespective of whether the state designates the sentencing scheme as “mandatory.” The Eighth Amendment, under Malvo’s reading, requires the sentencing court to consider the characteristics of individual crime and their possible justification for a JLWOP sentence. Any JLWOP sentence that fails to examine the specific details of the crime is a “mandatory” sentence in that the court has not exercised any sentencing discretion.
Malvo interprets Montgomery as simply providing further detail about the meaning of Miller, not adding a new substantive rule. For Malvo, Montgomery merely provides more specified information about the individualized sentencing consideration required by Miller so as to ensure that the imposed sentence is not mandatory. The consideration, as explained in Montgomery, ought to reflect a strong presumption against JLWOP sentences, such that the only offenders that receive JLWOP are those who are irreparably corrupt/permanently incorrigible. According to Malvo, the irreparable corruption determination does not constitute a new substantive test for JLWOP; rather, it simply describes the type of offender that might receive JLWOP when a court exercises its sentencing discretion.
The concept of irreparable corruption echoes the rationale of Miller in barring mandatory JLWOP sentences. The reason for requiring individualized consideration lies in the significant possibility and perhaps likelihood that juvenile offenders could be rehabilitated. A mandatory JLWOP sentence forecloses the consideration of the character of the offender, imposing a sentence that should be available only when the offender cannot be rehabilitated and is irreparably corrupt.
Along the same lines, Malvo also does not agree with Mathena’s characterization of Virginia’s sentencing scheme as entirely discretionary with respect to JLWOP. In the Fairfax County case, the only sentencing options once Malvo received a first-degree murder conviction were the death penalty and JLWOP. While the Virginia scheme was technically not mandatory, the discretion permitted mandated that Malvo would receive a JLWOP sentence or something worse (the death penalty). Now that death is not a possibility for him as a juvenile offender, Malvo argues that his Fairfax County sentence is, for all practical purposes, the equivalent of a mandatory sentence. To this end, Malvo emphasizes that the sentencing court did not consider whether he is irreparably corrupt, or consider his case individually where it had discretion to give something less than a life sentence.
With respect to the Spotsylvania County case, Malvo similarly argues that his Alford plea should not prevent his resentencing because the court never made a determination as to his individual characteristics and possible irreparably corruptness. While a sentencing decision made as the result of a plea agreement ordinarily is not appealable, Malvo claims that the Court should treat it as a mandatory sentence because the lowest available sentence for a conviction of the first-degree murder charge to which he pleaded guilty was JLWOP. Further, the possibility of a now unconstitutional punishment—a juvenile death penalty—provided the motivation for his foregoing of a discretionary sentencing determination by the Spotsylvania County court.
This case is the next battle in the ongoing war against juvenile life-without-parole sentences. The United States remains the only country in the world that still allows the imposition of JLWOP sentences. Since the Court decided Miller, a number of states have abandoned the practice, and over half of the states currently either bar such sentences or do not have an offender serving a JLWOP sentence.
For Malvo, this case is clearly significant because it provides him a chance at resentencing, and ultimately, at parole. He is 34 years old, and has spent half of his life incarcerated.
On a broader level, the scope of the Eighth Amendment doctrine after Miller and Montgomery becomes what is at stake. If the Court follows Malvo’s approach, as many lower courts have done already, then juvenile offenders sentenced to JLWOP without individualized sentencing consideration will have the opportunity to have a new sentencing hearing. Many JLWOP offenders have already had this opportunity after Miller and Montgomery, with some receiving a lesser sentence and a guarantee of a future opportunity for a parole hearing.
There is a precedent for this kind of decision in the capital context. Two years after Woodson, the Supreme Court held in Lockett v. Ohio, 438 U.S. 586 (1978), that the proscription against mandatory death sentences included a requirement that the Court consider all relevant mitigating evidence at capital sentencing. The Court struck down Ohio’s capital statute as unconstitutional under the Eighth Amendment because it limited individualized consideration to statutorily enumerated mitigating factors.
If the Court follows Mathena’s approach, the holding in Miller and Montgomery will only apply to sentencing schemes that are explicitly mandatory. Juveniles like Malvo sentenced prior to Roper in jurisdictions that mandated a death or LWOP sentence for first-degree murder would be unable to gain relief under the Eighth Amendment.
Given the egregious facts of Malvo’s case, the Court may use this case as a vehicle to narrow the holdings of Miller and Montgomery even further than Mathena proposes. The retirement of Justice Anthony Kennedy opens the door to a narrowing of the Court’s JLWOP constitutional restrictions to whatever degree Chief Justice John Roberts deems appropriate. While Chief Justice Roberts dissented in Miller, he joined the majority in Montgomery, suggesting a wholesale reversal of these cases is unlikely.
Ultimately, the Court will have to decide whether Miller and Montgomery apply only to explicitly mandatory sentencing schemes or also to sentencing schemes that have a similar effect in failing to allow for individualized consideration of the offender’s possible irreparable corruption.
A number of amici have written in support of each party. In support of the petitioner, a group of 15 states (led by Indiana), the United States, professors Jonathan F. Mitchell and Adam K. Mortara, the Criminal Justice Legal Foundation, and the Maryland Crime Victims’ Resource Center have all filed briefs.
In support of respondent, briefs have been filed by a group of victims’ families (led by Isa Nichols), a group of current and former prosecutors, DOJ officials, and judges, a group of defense lawyers (led by David I. Bruck), a group of current and former state legislators (led by John Ellem), a group of federal courts scholars (led by Erwin Chemerinsky), the American Bar Association, and advocacy groups for adolescents (led by the Juvenile Law Center).