Lee Boyd Malvo and John Allen Muhammad killed 10 people in 2002. The attacks took place in Washington D.C., Virginia, and Maryland, thus giving rise to the name “D.C. Sniper.” After being sentenced to death, John Allen Muhammad was executed in 2009. Malvo however was only 17 at the time of the attacks and was subsequently sentenced to four terms of life imprisonment without parole. However, two Supreme Court decisions have given rise to further litigation in regards to Lee Boyd Malvo and his sentence. In Miller v. Alabama (2012), the Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eight Amendment’s prohibition on “cruel and unusual punishments.” In Montgomery v. Louisiana (2016), the Supreme Court held that because the decision in Miller represented a “substantive rule of constitutional law” that the ruling had retroactive effect. These cases give rise to Malvo’s claim that his sentence is unconstitutional and violates the prohibition on “cruel and unusual punishments.”
Kent Scheidegger joins us to discuss the oral arguments and their implications.
Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law & Procedure Practice Group, was recorded on Thursday, October 17, 2019, during a live teleforum conference call held exclusively for Federalist Society members.
Wesley Hodges: Welcome to The Federalist Society's teleforum conference call. This afternoon’s topic is a Courthouse Steps Oral Argument teleforum on Mathena v. Malvo (the D.C. Sniper case). My name is Wesley Hodges, and I'm the Associate Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the expert on today's call.
Today we are very fortunate to have with us Mr. Kent Scheidegger, who is the Legal Director and General Counsel for the Criminal Justice Legal Foundation. His organization filed an amicus brief in support of the state in this case. After our speaker has his remarks, we will have time for audience Q&A, so please keep in mind what questions you have for this case or for our speaker. Thank you very much for sharing with us today. Kent, the floor is yours.
Kent Scheidegger: Thank you. In 2002, John Allen Muhammad and Lee Boyd Malvo terrorized the D.C. area, gunning down people at random and killing 12 of them. Muhammad, the adult and the leader, was executed for these crimes. Malvo was a few months short of his 18th birthday. Under Virginia law and U.S. Supreme Court precedent at the time, he could have been sentenced to death or life without parole. The jury chose to be merciful and he was sentenced to life without parole.
Now, 17 years later, his case is before the U.S. Supreme Court on a claim that he has a right to resentencing and chance of a sentence with possibility of parole. Understanding why requires a summary of a long string of decisions.
Since the mid-1970s, the Supreme Court has issued many decisions creating many rules for capital sentencing. These rules are ostensibly based on the Eighth Amendment, even though they have no basis in the text or history of that amendment. At the time of the Founding, death was the mandatory punishment for murder and the only safety valve was executive clemency. This complex and frequently changing body of law was expressly premised on the often-repeated claim that, quote, “death is different.” Justice Scalia famously called it the “fog of confusion that is our annually improvised Eighth Amendment ‘death is different’ jurisprudence.”
Two lines of capital cases are important background here. One line imposes procedural requirements on the discretionary choice between a life sentence and a death sentence. The Supreme Court has micromanaged this procedure, even scrutinizing jury instructions. The second line has defined classes of people and particular crimes that are categorically exempt from the death penalty regardless of the procedure used. These include crimes other than homicide, minor accomplices who do not intend to kill who are swept up in the felony murder rule, persons with intellectual disability, and persons under 18 at the time of the crime.
Another line of cases, not limited to capital cases, defines the retroactive effect of new rules created by the Supreme Court. Griffith v. Kentucky in 1987 held that all new rules are fully retroactive to cases that are still on their initial direct appeal. Teague v. Lane, two years later, held that new rules of constitutional criminal procedure would not be retroactive to cases that are already final on direct appeal, with the theoretical exception that is never met in practice. Later, the Court clarified that the Teague rule does not apply to new rules of substantive criminal law, and that includes categorical exemptions from punishment such as those I noted previously.
Beginning with Roper v. Simmons in 2005, three years after Malvo’s crimes, the Supreme Court began cutting back on the sentencing of juveniles. In that case, the Court created a categorical exemption from capital punishment for killers under 18. Five years later in Graham v. Florida, the Court created a categorical exemption for life in prison without possibility of parole, which we call LWOP for short for non-killers under 18. In both cases the Court noted that a categorical exemption and not sentencing discretion that considers youth was required because of the near impossibility of distinguishing at sentencing between, quote, “the juvenile offender whose crime reflects unfortunate yet transient immaturity and the rare juvenile offender whose crime reflects irreparable corruption.”
In 2012, the Court decided Miller v. Alabama, taking a sharp turn. Miller required that for juvenile killers the sentencer has the discretion to impose a lesser sentence, importing into juvenile LWOP, the rule that had been applied to capital sentencing for adults since the 1976 case of Woodson v. North Carolina. The Court quoted the language from Roper about the near impossibility of judging “irreparable corruption” but did not make that standard a constitutional requirement. Instead, Miller made a more general statement that the sentencer must, quote, “take into account how children are different.”
As an aside, I find it really repugnant how defense advocates and sometimes the Court referred to teenagers as “children.” That is not how the word “children” is used in common speech today, and its purpose seems to be to mislead the public. Although the defendants in Miller were 14, the majority of juvenile killers are 17. And in most cases we’re talking about people who could legally be sentenced to death if they were less than a year older.
After Miller, the big question was how far back it would reach retroactively. The Miller opinion itself would seem to answer that question. The Miller Court said, quote, “Our decision does not categorically bar a penalty for a class of offenders or a type of crime as, for example, we did in Roper or Graham. Instead, it mandates only that the sentencer follow a certain process, considering an offender’s use and intended characteristics before imposing a particular penalty.” Put that statement together with the Teague rule and a conclusion clearly follows that Miller would not reach back to undo sentences that were already final on appeal before it was decided.
The Court took that question up in Montgomery v. Louisiana. You can’t go much further back than Montgomery. He committed his murder when JFK was president. Reading Montgomery, it is evident that the majority was intent on the result of resentencing the remaining prisoners who had received mandatory LWOP sentences as juveniles. Yet, Justice Kennedy, who was one of the main architects of the Court’s retroactivity jurisprudence, probably did not want to dismantle that work, and it is likely that Chief Justice Roberts did not either. And they were necessary votes to the majority.
So to achieve the result, Justice Kennedy’s opinion for the Court needed to pound the square peg of Miller into the round hole of substantive, not procedural, law. Such pounding results in the deformation of the peg, the hole, or both. In this case, most of the damage was done to the peg. The Montgomery opinion says that the Miller opinion identified a class of defendants: those whose crime, quote, “reflects unfortunate, yet transient, immaturity,” and barred life without parole for that class.
Justice Scalia, of course, noted in dissent that the Miller opinion expressly stated it was not creating a categorical exemption but only requiring a process. He said the majority was simply rewriting Miller, and he was correct.
The Virginia Supreme Court tried to get around Miller by declaring its sentencing process was not really mandatory, as far as life without parole went, because the judge had the ability to suspend the sentence. When Malvo got the Fourth Circuit on federal habeas corpus, that court assumed that the state court’s characterization was correct, but it held, based on Montgomery, that the sentence was unconstitutional despite the discretionary nature because the judge did not make the determination that Miller supposedly requires in its retroactive operation.
At oral argument, it was clear that the Supreme Court was splintered. Justices Ginsberg and Breyer questioned whether the sentence was really discretionary at all. They don’t seem willing to accept the Virginia Supreme Court’s determination. If that were the basis of a decision in Malvo’s favor, it would bypass, for now, whether Miller has any application to discretionary systems. Justices Kagan and Sotomayor seemed inclined to accept Montgomery’s rewrite of Miller on its face. Federal constitutional law would then intrude deeply into the sentencing of juvenile killers, bringing in the “fog of confusion,” as Justice Scalia put it, that we have long seen in capital cases.
Justice Gorsuch was skeptical that Montgomery really could have created a factual finding requirement for sentencing. If it did, he says, the friendly rule would require that juries make that finding. And the Court probably isn’t willing to go that far. Justice Kavanaugh was the most active questioner during the argument, and he may end up as the deciding vote. His position is somewhat difficult to read, as he probed both sides. His main question was whether the existence of discretion is enough to satisfy Miller or whether something more is required as a matter of federal constitutional law.
There’re a number of ways this case could go. The Court could reject the premise that Virginia’s system is actually discretionary and vacate and remand for a decision on that point. The Court could decide that Miller requires only the existence of discretion. That would be true to Miller but not to Montgomery. Or the Court could accept Montgomery as precedent in all its expansive language, whether honest or not, and usher in a new era of scrutiny of non-capital sentencing. We will have to await the decision. Thank you, and we can take questions now.
Wesley Hodges: Thank you very much, Kent. Kent, is there anything we can turn your attention to for more detail or anything else you’d like to discuss today?
Kent Scheidegger: I do think this is a particularly difficult argument to read in terms of results, given the number of different ways that the justices seem to be going. There isn’t a liberal or conservative block that seems to be hanging together as there are in some cases. I think Justices Breyer and Ginsberg have a different view of the case than Justices Kagan and Sotomayor seem to have, for example. So it could come out any one of a number of different ways. Hopefully, we don’t get one of those awful splintered opinions that nobody knows what they mean because there’s no majority. Those really cause a lot of confusion.
Wesley Hodges: Absolutely. Maybe for our benefit, and forgive me if you feel like you’ve already addressed this, what are some of the many ways that this could fall out? What are some of the possible outcomes?
Kent Scheidegger: Well, the Fourth Circuit just took it face value, the Virginia Supreme Court’s decision that their system is indeed discretionary because the judge has the authority to suspend the sentence. But I think there’s reason to doubt that, and I think Breyer and Ginsberg are very skeptical of that.
Suspending a sentence in a case of capital murder doesn’t seem like a very realistic option. So those are usually given for use -- and that authority is given for use typically in much lesser offenses. There wasn’t any provision in Virginia law to actually enter a sentence of life with possibility of parole, which would normally be the alternative. So it is possible they could simply reject the Fourth Circuit’s assumption and say, “Send it back,” and say, “Re-decide it on this basis.” That would avoid some of the more difficult questions presented in this case.
Another possibility they could say we accept Montgomery as precedent for the limited point that Miller is retroactive, but we don’t accept a lot of its language and rationale. And we will just look to Miller itself for what it requires. And what it requires is a discretionary proceeding and that is all. That would be probably the most favorable result that the State could get in this case.
Wesley Hodges: Well, seeing no immediate questions from the audience, Kent, is there another item that you’d like to address? Anything else about the case or should we wrap up here today?
Kent Scheidegger: Well, one thing about this particular case is I think most observers expect that Melvo himself is not going to get any benefit out of it no matter how it comes down because if it does go back for a full discretionary sentencing, he’ll either get life without parole or a sufficient number of consecutive life sentences that he’s never going to see the outside of the prison wall again. But even so, the victims of the offense would probably have to pay attention to the resentencing proceeding and relive that worst day of their lives when their family members were killed. And I think that would be an unfortunate result in this particular case.
Wesley Hodges: Well, thank you for that comment, and Kent, for all your remarks today. It’s been a concise entry to this case. And like you said, who knows what way it’s going to go. On behalf of The Federalist Society, I'd like to thank you for the benefit of your time and expertise. We welcome all listener feedback by email at firstname.lastname@example.org. Thank you all for joining us for the call. We are now adjourned.
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