“Youth matters” in determining a juvenile’s sentence declared Supreme Court Justice Elena Kagan. This comment was offered during oral arguments for Mathena v. Malvo, a statement that seven of the nine justices appeared to agree with.
Malvo is the most recent case in front of the Supreme Court concerning how juveniles should be treated in the criminal justice system. In 2005, the Supreme Court ruled, in Roper v. Simmons, that youth could not be sentenced to death. Subsequently, the court decided in Miller v. Alabama that youth could be sentenced to life without parole (LWOP) only if the child was found to be “permanently incorrigible.” In 2016, in Montgomery v. Louisiana, the court found that this rule applies retroactively to youth sentenced to LWOP prior to the Miller decision.
The question now before the court: Whether the Miller decision applies in Malvo and, if so, whether the judge properly considered his status as a “youth” at the sentencing hearing in 2004. At the end of 2018, approximately 1,000 youth facing LWOP were awaiting resentencing. A favorable ruling in Malvo will reiterate to all states that the youth sentenced to LWOP must be resentenced in a constitutionally correct manner. Additionally, the Supreme Court has an opportunity to define that process for courts to use in sentencing youth in the future.
In 2003, Lee Boyd Malvo was convicted on charges in Virginia of crimes related to his role as an accomplice in the 2002 D.C. sniper shootings. He was 17 at the time. In 2004, he was sentenced to LWOP after a jury declined to recommend the death penalty, which was still an option before Roper.
While Virginia law allowed a judge the ability to suspend all or part of his LWOP sentence, Malvo’s judge did not mention this option and Malvo’s attorney failed to argue for it at all. This was not an uncommon practice, according to Virginia Solicitor General Toby J. Heytens, as no court in that state had ever suspended a juvenile LWOP sentence.
Was sentence discretionary?
After the decision in Montgomery, Malvo filed a habeas corpus petition requesting a new sentencing hearing. However, Virginia objected, alleging that habeas was not the correct vehicle to make a constitutional challenge to his sentence and, even if it was, the Miller and Montgomery verdicts only apply to mandatory LWOP sentences. The government argued that because the judge had the availability of suspending the sentence, Malvo’s LWOP was discretionary.
Malvo’s request for a new sentencing hearing ultimately prevailed with the Virginia Supreme Court as well as with the 4th Circuit Court of Appeals. Virginia, joined by the United States, brought their argument to the Supreme Court on Oct. 16, 2019.
During arguments, the court quickly dispensed with the issue of retroactivity to a collateral matter with a majority of seven of the nine justices ostensibly agreeing with the premise that the question of retroactivity applied to Malvo. Justice Clarence Thomas, characteristically, refrained from asking any questions during the proceedings; and Justice Samuel Alito’s line of questioning generally supported the government’s position.
The remainder of the arguments focused on the issue of the circumstances surrounding Malvo’s sentencing. Was the sentence that Malvo received truly discretionary? Did the sentencing court properly consider Malvo’s youth status in 2004? Finally, what should be done to ensure that in the event a court is presented with the option of sentencing a youth to LWOP the court fully considers whether the youth’s actions were transient in nature or if they resulted in permanent incorrigibility, warranting a life sentence.
Since Malvo’s sentencing, there has been monumental change within the juvenile justice system — a recognition that, for a myriad of reasons, youth are different from their adult defendant counterparts under the law and those differences should be reflected in their treatment within the judicial system.
The immature brain
One example of these fundamental differences is the development of the executive functioning of the brain. Executive functioning is the part of the brain that helps people understand right from wrong and controls impulsivity. According to the Massachusetts General Hospital Center for Law, Brain and Behavior, brain science shows that a person’s executive functioning development does not fully mature until their mid-20s. This is why, for example, young people are more susceptible to peer pressure than fully matured adults.
Several states have passed laws that take these scientific truths under consideration when sentencing juvenile offenders. In Oregon, for example, the legislature passed a law, effective on Jan. 1, 2020, prohibiting youth from receiving an automatic waiver into adult court in the case of serious crimes. Instead, the prosecutors must now convince a juvenile court judge that the youth had the maturity of an adult when the crime was committed.
In Michigan, Gov. Gretchen Whitmer signed a bill on Oct. 31, 2019 that raises the age of who is considered an adult under the criminal justice system from 17 to 18. Other states are considering similar “raise the age” bills. In addition to ensuring that youth under 18 are kept in juvenile court rather than being treated as adults, other legislation has focused on fee reforms, maintaining youth in the community and redirecting cases through less formal processes such as diversion or peer courts.
Unfortunately, in the case of Malvo, and the approximately 1,000 other young offenders sentenced to LWOP prior to Montgomery, the alternatives offered through the evolution of American jurisprudence continue to prove elusive. The lack of mature executive functioning and susceptibility to peer pressure could have been in play during Malvo’s commission of his crimes — but the degree to which those questions impacted him remain unknown since he was denied any opportunity to present evidence of his “youth” at sentencing.
The reaction, focus and concerns of the justices during arguments were varied. Justice Stephen Breyer noted “the odds are greater than 50/50 that no one ever thought about whether he was, in fact, immature.” Justices Kagan and Brett Kavanaugh were the most inquisitive throughout, posing questions that focused on the procedure a sentencing judge must follow to responsibly consider if the youth’s actions were transient in nature.
Justice Alito’s primary concern was whether Malvo would be released if the court affirmed the 4th Circuit Court’s ruling. Danielle Spinelli, Malvo’s lawyer, responded that Malvo’s singular goal was to be granted a constitutionally adequate sentencing hearing and acknowledged his release from prison would be unlikely.
Mandatory argument seems to fail
Ultimately, the government argument that Miller and Montgomery only apply to mandatory LWOP sentences while Malvo’s judge had discretion under Virginia law to suspend all or part of his sentence and, therefore was distinguishable, appeared to fail. Ultimately, the majority of the justices seemed unconvinced that Miller and Montgomery apply only to mandatory cases.
Instead, they focused on the issue of whether the Virginia law was truly discretionary given that it had never been used to suspend a LWOP sentence in the past. Justices Ruth Bader Ginsburg, Kagan, Sonia Sotomayor and Breyer all ostensibly agree that it was not discretionary and Justice Kavanaugh seemed to be leaning in the same direction. Finally, their focus narrowed to the specific procedure a sentencing judge should follow to ensure a defendant’s age and biological immaturity is weighted as a constitutional factor when considering a sentence of LWOP.
After arguments concluded, it appears likely that the case will be sent back to lower courts. If the court rules narrowly, the question for lower courts would be to determine if Malvo’s youth was properly considered for sentencing by the judge. A broader decision will send the case for a new sentencing hearing and prescribe a consistent procedure for state court judges to follow when determining whether a youth’s criminal actions were transient or permanently incorrigible.
A court-mandated procedure would be a welcome outcome for all youth facing a potential sentence of the rest of their lives behind bars, as it would ensure that their sentence is constitutionally sound.
Justice Anthony Kennedy noted in Montgomery that youth “must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.” Malvo and all similarly situated youth should be afforded that same opportunity.
UPDATE: Virginia Gov. Ralph Northam signed HB35 on Feb. 24. It grants parole eligibility for youth after 20 years of incarceration. This bill moots Malvo’s case and the parties have requested an order dismissing it from the Supreme Court.
Meghan Bishop is an associate fellow for innovation and technology for the Joseph Rainey Center for Public Policy. A juvenile defense attorney for 10 years, she now focuses on how technology can help improve the lives of children and families involved in the justice system.
This column has been updated.