Amicus Curiae Brief — Randall Mathena, Warden, Petitioner v. Lee Boyd Malvo

No. 18-217

IN THE

Supreme Court of the United States

RANDALL MATHENA, Warden,

Petitioner,

vs.

LEE BOYD MALVO,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

KENT S. SCHEIDEGGER

KYMBERLEE C. STAPLETON

Counsel of Record

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

(916) 446-0345

briefs@cjlf.org

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

QUESTION PRESENTED

Did Montgomery v. Louisiana expand the reach of

Miller v. Alabama beyond mandatory juvenile LWOP

cases so as to require new sentencing proceedings for

17-year-old murderers who have already had one

discretionary sentencing hearing?

(i)

TABLE OF CONTENTS

Question presented.. . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Interest of amicus curiae. . . . . . . . . . . . . . . . . . . . . . . 1

Summary of facts and case.. . . . . . . . . . . . . . . . . . . . . 2

Summary of argument. . . . . . . . . . . . . . . . . . . . . . . . . 4

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I

The Fourth Circuit’s expansive application of

Montgomery to Malvo’s discretionary life sentences

was erroneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. Roper and Graham. . . . . . . . . . . . . . . . . . . . . 6

B. Miller and Montgomery.. . . . . . . . . . . . . . . . 12

II

A murderer close to legal adulthood is not a “child”

and should be held responsible for his acts. . . . . . 21

III

The Lockett line of cases is a train wreck and should

be scaled back, not expanded. . . . . . . . . . . . . . . . . 23

Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

(iii)

iv

TABLE OF AUTHORITIES

Cases

Abdul-Kabir v. Quarterman, 550 U. S. 233

(2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Callins v. Collins, 510 U. S. 1141 (1994). . . . . . . . . 24

Eddings v. Oklahoma, 455 U. S. 104 (1982). . . . . . 14

Graham v. Collins, 506 U. S. 461 (1993). . . . . . . . . 24

Graham v. Florida, 560 U. S. 48

(2010). . . . . . . . . . . . . . . . . . . . . 6, 8, 9, 10, 11, 12, 13

Harmelin v. Michigan, 501 U. S. 957 (1991). . . 14, 22

Hitchcock v. Dugger, 481 U. S. 393 (1987). . . . . . . . 25

Johnson v. Texas, 509 U. S. 350 (1993). . . . . . . . . . 14

Jones v. Commonwealth, 795 S. E. 2d 705

(Va. 2017).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Kennedy v. Louisiana, 554 U. S. 407 (2008).. . . . . . . 9

Lockett v. Ohio, 438 U. S. 586 (1978). . . . . . . . . 23, 24

Malvo v. Mathena, 254 F. Supp. 3d 820

(ED Va. 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 19

Malvo v. Mathena, 893 F. 3d 265

(CA4 2018). . . . . . . . . . . . . . . . . . . . . 2, 3, 4, 5, 19, 20

Miller v. Alabama, 567 U. S. 460

(2012). . . . . . . . 3, 6, 10, 11, 12, 13, 14, 15, 16, 17, 20

Montgomery v. Louisiana, 136 S. Ct. 718

(2016). . . . . . . . . . . . . . . . . . . . 3, 6, 14, 15, 16, 17, 18

v

Morris v. Slappy, 461 U. S. 1 (1983). . . . . . . . . . . . . 23

Muhammad v. Commonwealth, 619 S. E. 2d 16

(Va. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 21

Muhammad v. State, 934 A. 2d 1059

(Md. Spec. App. 2007). . . . . . . . . . . . . . . . . . . . . . . . 2

North Carolina v. Alford, 400 U. S. 25 (1970). . . . . . 3

Proffitt v. Florida, 428 U. S. 242 (1976). . . . . . . . . . 25

Ring v. Arizona, 536 U. S. 584 (2002).. . . . . . . . . . . 25

Roper v. Simmons, 543 U. S. 551

(2005). . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 8, 10, 11, 22

Silverman v. United States, 365 U. S. 505

(1961). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Stanford v. Kentucky, 492 U. S. 361 (1989). . . . . . . . 5

Teague v. Lane, 489 U. S. 288 (1989). . . . . . . . . . . . 18

Woodson v. North Carolina, 428 U. S. 280

(1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States Statute

28 U. S. C. § 2254. . . . . . . . . . . . . . . . . . . . . . . . . . 3, 19

State Statute

Va. Code Ann. § 19.2-303. . . . . . . . . . . . . . . . . . . . . . . 6

vi

Secondary Authorities

Associated Press, Sniper Victim’s Husband:

Something Hit My Face, Fox News (Updated

January 13, 2015), https://www.foxnews.com/

story/sniper-victims-husband-something-hitmy-face. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Center for Homeland and Defense and Security,

K-12 School Shooting Database, http://www.chds.us/

ssdb/incidents-by-age-of-shooter/. . . . . . . . . . . . . . 21

Clark County Prosecuting Attorney, John Allen

Muhammad, http://www.clarkprosecutor.org/

html/death/US/muhammad1181.htm. . . . . . . . . . . 2

Comment, Montgomery v. Louisiana: An Attempt to

Make Juvenile Life Without Parole a Practical

Impossibility, 32 Touro L. Rev. 679 (2016). . . 18, 19

Denno, The Scientific Shortcomings of Roper v.

Simmons, 3 Ohio St. J. Crim. L. 379, 380

(2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Lerner, Sentenced to Confusion: Miller v. Alabama

and the Coming Wave of Eighth Amendment Cases,

20 Geo. Mason L. Rev. 25 (2012). . . . . . . . . . . . 9, 12

Moose & Fleming, Three Weeks in October,

The Manhunt for the Serial Sniper (2003). . . . . . 22

Murderpedia, http://www.murderpedia.org/male.M/

m/malvoleeboyd1.htm. . . . . . . . . . . . . . . . . . . . . . . 21

vii

National Conference of State Legislatures, Juvenile

Age of Jurisdiction and Transfer to Adult Court

Laws, http://www.ncsl.org/research/civil-andcriminal-justice/juvenile-age-of-jurisdiction-andtransfer-to-adult-court-laws.aspx.. . . . . . . . . . . . . . 5

National Organization of Victims of Juvenile

Murderers, http://www.teenkillers.org/

index.php/about-us/.. . . . . . . . . . . . . . . . . . . . . 10, 11

Stimson & Grossman, Adult Time for Adult Crimes,

Life Without Parole for Juvenile Killers and Violent

Teens (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12

Swift, Earl, The Beltway Sniper’s seventh victim:

Dean Meyers, The Virginian Pilot, Nov. 7, 2009,

https://pilotonline.com/news/article_689ad6a656cd-5433-938e-2697ea39a4b2.html. . . . . . . . . . . 22

United States Department of Justice, Office of

Juvenile Justice and Delinquency Prevention,

Statistical Briefing Book, Offending by Juveniles:

Homicide, https://www.ojjdp.gov/ojstatbb/

offenders/qa03104.asp?qaDate=

2016&text=yes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Waters, Kenny, Recalling a Father and Worthy

Friend, Philadelphia Tribune, Oct. 25, 2005,

republished at http://kenbridges.org/.. . . . . . . . . . 23

IN THE

Supreme Court of the United States

RANDALL MATHENA, Warden,

Petitioner,

vs.

LEE BOYD MALVO,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)1 is a

non-profit California corporation organized to participate in litigation relating to the criminal justice system

as it affects the public interest. CJLF seeks to bring the

constitutional protection of the accused into balance

with the rights of the victim and of society to rapid,

efficient, and reliable determination of guilt and swift

execution of punishment.

A mandatory sentence of life without the possibility

of parole cannot be imposed on a homicide offender

1. The parties have consented to the filing of this brief.

No counsel for a party authored this brief in whole or in part,

and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief.

No person other than amicus curiae CJLF made a monetary

contribution to its preparation or submission.

2

under age 18. This rule is retroactive to cases on

collateral review. The Fourth Circuit’s expansive

application of this rule to defendant’s discretionary lifewithout-parole sentence opens up the possibility of

courts reexamining all juvenile life sentences imposed

long ago. Such a result would be severely detrimental

to the interests of victims of crime that CJLF was

formed to protect.

SUMMARY OF FACTS AND CASE

In the fall of 2002, 17-year-old defendant Lee Boyd

Malvo, and his adult accomplice, John Muhammad,

embarked on a weeks-long crime spree that terrorized

the Washington, D.C. metropolitan area. Malvo v.

Mathena, 893 F. 3d 265, 267 (CA4 2018). The pair

“embarked on a series of indiscriminate sniper shootings” that killed twelve people and critically wounded

six others. Id., at 267-268. Malvo and Muhammad

were finally captured while sleeping in their car at a

rest stop in Frederick County, Maryland. Id., at 268.

Malvo was charged as an adult with capital murder

in two separate Virginia jurisdictions, Fairfax County

and Spotsylvania County. The Fairfax case was transferred to Chesapeake where Malvo was convicted by a

jury of two counts of capital murder. Id., at 268-269.

At sentencing, the jury had the choice between the

death penalty or life in prison. Id., at 269.2 The jury

2. Muhammad was sentenced to six terms of life in prison without

parole in Maryland and to two death sentences in Virginia.

Muhammad v. State, 934 A. 2d 1059, 1065 (Md. Spec. App.

2007); Muhammad v. Commonwealth, 619 S. E. 2d 16, 24

(Va. 2005). Muhammad was put to death in Virginia by lethal

injection on November 10, 2009. Clark County Prosecuting

Attorney, John Allen Muhammad, http://www.clarkprosecutor

3

selected life in prison. After the jury was excused, the

trial court conducted a final sentencing hearing on

March 10, 2004, and Malvo was formally sentenced to

two terms of life in prison. Under Virginia law, Malvo

was not eligible for parole. Malvo subsequently entered

an “Alford plea”3 pursuant to a plea agreement in

Spotsylvania County, pleading guilty to another count

of capital murder and one count of attempted capital

murder, and he was sentenced to two additional terms

of life in prison without parole. Id., at 269-270. Malvo

did not appeal.

In 2013, Malvo filed two petitions for writs of habeas

corpus in the U. S. District Court for the Eastern

District of Virginia pursuant to 28 U. S. C. § 2254,

challenging his life without parole (“LWOP”) sentences

imposed by the two Virginia trial courts. Malvo argued

that his sentences were rendered unconstitutional by

this Court’s then-recent decision in Miller v. Alabama,

567 U. S. 460 (2012). The District Court denied both

petitions after concluding that Miller was not retroactive to cases on collateral review and that the claim was

also time barred. Malvo, 893 F. 3d, at 270. While an

appeal to the Fourth Circuit was pending, this Court

decided Montgomery v. Louisiana, 136 S. Ct. 718

(2016). Montgomery held that Miller applies retroactively. Malvo’s petition was remanded to the District

Court for further consideration in light of Montgomery.

The District Court subsequently granted both of

Malvo’s habeas petitions. Malvo v. Mathena, 254

F. Supp. 3d 820, 835 (ED Va. 2017). The state appealed.

.org/html/death/US/muhammad1181.htm (as visited June 7,

2019).

3. North Carolina v. Alford, 400 U. S. 25 (1970).

4

The Fourth Circuit affirmed the District Court and

held that under Montgomery, an LWOP sentence

imposed on a juvenile homicide offender violates the

Eighth Amendment if it was imposed “without first

concluding that the offender’s ‘crimes reflect permanent incorrigibility,’ as distinct from ‘the transient

immaturity of youth.’ ” Malvo, 893 F. 3d, at 274

(quoting Montgomery, 136 S. Ct., at 734). Because

Malvo did not receive such a proceeding when he was

initially sentenced, which according to the Fourth

Circuit “is now a prerequisite to imposing a lifewithout-parole sentence on a juvenile homicide offender,” id., at 275, he is entitled to “the retroactive

benefit of new constitutional rules that treat juveniles

different for sentencing.” Id., at 277.

This Court granted certiorari on March 18, 2019.

SUMMARY OF ARGUMENT

Miller’s holding is limited to sentencing schemes

that mandate life without parole for juvenile homicide

offenders. The Miller Court was concerned that an

automatic life sentence without parole deprives a

juvenile of the opportunity to present mitigating

evidence of “youth and attendant characteristics” that

may justify a lesser sentence. Malvo was sentenced to

life in prison without parole for capital murder. However, under Virginia law, the trial court retained the

authority to suspend all or part of his life sentences.

The power to suspend the sentence renders Virginia’s

sentencing scheme discretionary. The question in

Montgomery was limited to whether Miller’s holding

was retroactive to final cases. Because Miller is limited

to mandatory life-without-parole sentences upon which

a juvenile had no opportunity to present mitigating

evidence of youth, the Fourth Circuit’s expansive

5

application of Montgomery to Malvo’s life sentences was

erroneous.

ARGUMENT

I. The Fourth Circuit’s expansive application

of Montgomery to Malvo’s discretionary life

sentences was erroneous.

All 50 states currently have laws that allow juveniles

who commit serious crimes to be prosecuted and

sentenced as an adult either by transfer from juvenile

court or by direct filing.4 Malvo was 17 years old at the

time of his murder spree, and he was charged as an

adult with capital murder. Malvo v. Mathena, 893 F. 3d

265, 268 (CA4 2018). He was convicted and sentenced

to two terms of LWOP and also entered into a plea deal

agreeing to two more terms of LWOP. Id., at 269.5

Virginia trial courts are not required to accept a jury’s

sentencing decision and may suspend imposition of a

sentence altogether, or suspend it in whole or in part.

4. Today, the majority of states set the maximum age of juvenile

court jurisdiction at age 17. National Conference of State

Legislatures, Juvenile Age of Jurisdiction and Transfer to

Adult Court Laws, http://www.ncsl.org/research/civil-andcriminal-justice/juvenile-age-of-jurisdiction-and-transfer-toadult-court-laws.aspx (as visited June 7, 2019). A few states

draw the line even younger, at age 16. Ibid.

5. Prosecutors sought the death penalty for Malvo, which at the

time was permitted for juvenile homicide offenders age 16 and

older. Id., at 266; Stanford v. Kentucky, 492 U. S. 361 (1989),

overruled in part by Roper v. Simmons, 543 U. S. 551 (2005).

After deliberation in which evidence of Malvo’s youth and

family life was introduced, the jury declined to recommend the

death penalty and, under Virginia law, he was sentenced to life

in prison. Malvo, 893 F. 3d, at 269. State law required his

sentence to be without possibility of parole. Ibid.

6

Va. Code Ann. § 19.2-303; Jones v. Commonwealth, 795

S. E. 2d 705, 711-712 (Va. 2017). The trial court judge

in Malvo’s case did not exercise this opportunity to

suspend Malvo’s sentences.

After Malvo’s convictions became final, this Court

decided a series of cases involving the constitutionality

of juvenile sentencing practices. At issue was whether

these sentencing practices violated the Cruel and

Unusual Punishments Clause of the Eighth Amendment. Beginning with Roper v. Simmons, 543 U. S. 551

(2005), the focus on juvenile offenders being generally

less culpable than adults, more amenable to reformation, and thus less deserving of severe penalties came to

fruition. Roper categorically barred imposition of the

death penalty for defendants under age 18. Id., at 570571. The Roper Court assured the nation that the

penalty of life imprisonment without parole remained

available for deterrence. See ibid.; see also Graham v.

Florida, 560 U. S. 48, 90 (2010) (Roberts, J., concurring

in judgment) (“Roper explicitly relied on the possible

imposition of life without parole on some juvenile

offenders”). Next, Graham, supra, at 74, categorically

barred LWOP for juveniles convicted of nonhomicide

offenses. At issue in this case is the application and

interpretation of this Court’s two most recent decisions

on juvenile sentencing: Miller v. Alabama, 567 U. S.

460 (2012), and Montgomery v. Louisiana, 136 S. Ct.

718 (2016). To adequately analyze Miller and Montgomery, the constitutional framework as established by

Roper and Graham must first be briefly discussed.

A. Roper and Graham.

Christopher Simmons was 17 years old when he told

his friends “he wanted to murder someone.” Roper,

543 U. S., at 556. He planned the details of the intended murder and set his plan into action when he

7

broke into Shirley Crook’s home. He subdued her,

covered her eyes and mouth with duct tape, and bound

her hands. Ibid. Simmons and two teenage friends

stole her minivan and drove her to a state park. Upon

arrival, they covered her head with a towel and walked

her to a railroad trestle that ran above a river. Id., at

556-557. They then tied her hands and feet together

with electrical wire, wrapped duct tape around her face,

and threw her from the bridge. Her dead body was

later discovered by two fisherman. Ibid.

The “bright line” of adulthood is considered age 18

not because the “qualities that distinguish juveniles

from adults” magically disappear at the stroke of

midnight on an individual’s 18th birthday, but because

the majority concluded that “a line must be drawn”

that can be broadly applied. Id., at 574. Simmons was

sentenced to death. He argued that the Eighth Amendment prohibited the execution of a juvenile. This Court

agreed and categorically barred the imposition of the

death penalty for all juveniles under age 18. Ibid.

“[T]he death penalty is reserved for a narrow

category of crimes and offenders.” Id., at 569 (emphasis added). There is no question that Christopher

Simmons’ heinous murder of Shirley Crook fell within

the “narrow category of crimes” most deserving of a

death sentence. However, in Roper great focus was

placed on the “diminished culpability” of juvenile

offenders as a class. Id., at 571. Roper identified three

general differences between adults and juveniles that

signify why “juvenile offenders cannot with reliability

be classified among the worst offenders.” Id., at 569.

“Juveniles are relatively more (1) immature and

irresponsible, (2) vulnerable to negative pressures from

their peers and environment, and (3) fragile and

unstable in their identities.” Denno, The Scientific

8

Shortcomings of Roper v.

St. J. Crim. L. 379, 380 (2006).

Simmons,

3

Ohio

“It is difficult even for expert psychologists to

differentiate between the juvenile offender whose crime

reflects unfortunate yet transient immaturity, and the

rare juvenile offender whose crime reflects irreparable

corruption.” Roper, 543 U. S., at 573. Because “trained

psychiatrists” have difficulty making that distinction,

this Court held that “States should refrain from asking

jurors to issue a far graver condemnation—that a

juvenile offender merits the death penalty.” Ibid. A

sentence of death is very different from life in prison

and the ever evolving death penalty jurisprudence over

the years is indicative of that difference. Id., at 568

(“[b]ecause the death penalty is the most severe punishment, the Eighth Amendment applies to it with special

force”).

Five years later, this Court was asked to decide if

sentencing a juvenile to LWOP for a nonhomicide crime

violates the Eighth Amendment in Graham v. Florida,

560 U. S. 48 (2010). Terrance Graham was a month

short of his 18th birthday when he committed a robbery

for which he received a life sentence. Id., at 55-57.

This Court was asked for the first time to categorically

exclude a class of offenders (nonhomicide juveniles)

from receiving an LWOP sentence. Up until this point,

categorical exclusions from punishment under the

Eighth Amendment had been limited to death sentences. This Court relied heavily on Roper and delved

further into selective studies on brain science and

research into developmental psychology to again lump

9

all juveniles into one generic group of individuals with

diminished culpability. Id., at 67-68.6

In support of its finding that a juvenile’s “transgression[s]” are “‘not as morally reprehensible as that

of an adult,’ ” Graham points to Roper’s “hallmark

features of adolescence” and again states that experts

have difficulty differentiating “between the juvenile

offender whose crime reflects unfortunate yet transient

immaturity, and the rare juvenile offender whose crime

reflects irreparable corruption.’ ” 560 U. S., at 68

(quoting Roper, 543 U. S., at 573).

Because Graham was considering a categorical

challenge, it examined culpability in light of the nature

of the crimes committed. Id., at 68-69. Graham

distinguished murder from other violent nonhomicide

offenses against individuals. Id., at 69; see also Kennedy v. Louisiana, 554 U. S. 407, 437-438 (2008)

(nonhomicide offenders cannot be sentenced to death).

“[D]efendants who do not kill, intend to kill, or foresee

that life will be taken are categorically less deserving of

the most serious forms of punishment than are murderers.” Graham, 560 U. S., at 69. A line is drawn between murder and violent nonhomicide offenses and the

two cannot be compared. Ibid.; Kennedy, supra, at 438.

Even though crimes such as robbery and rape are

“ ‘devastating in their harm,’ ” murder is distinguishable in both its “ ‘severity and irrevocability.’ ” Graham, 560 U. S., at 69 (quoting Kennedy, 554 U. S., at

438). Despite the fact that 37 states, the District of

6. “Graham suffers from the faulty premise that juveniles who

commit heinous crimes are typical juveniles, and that they are

categorically less culpable than young adult offenders.”

Lerner, Sentenced to Confusion: Miller v. Alabama and the

Coming Wave of Eighth Amendment Cases, 20 Geo. Mason

L. Rev. 25, 26 (2012).

10

Columbia, and the Federal Government all allowed

LWOP for juvenile nonhomicide offenders, Graham

categorically excluded all juveniles who did not commit

homicide from being sentenced to LWOP. Id., at 62, 7475.7

It is no doubt true that the “hallmark features of

adolescence” include immaturity, irresponsibility,

vulnerability to peer pressure, impulsivity, and less

understanding of the consequences of their actions. See

Roper, 543 U. S., at 588 (O’Connor, J., dissenting);

Miller, 567 U. S., at 471-472. Roper described these

“ ‘signature qualities of youth [as] transient.’ ” 543

U. S., at 570 (quoting Johnson v. Texas, 509 U. S. 350,

368 (1993)). However, to broadly conclude that all

individuals under age 18 “cannot with reliability be

classified among the worst offenders” or that “‘their

irresponsible conduct is not as morally reprehensible as

that of an adult’ ” is ludicrous. Many families of loved

ones who were brutally murdered by juveniles would

agree with this sentiment. See id., at 558 (evidence of

devastation the murder victim’s death brought to her

family’s lives); see also Stimson & Grossman, Adult

Time for Adult Crimes, Life Without Parole for Juvenile

Killers and Violent Teens (2009) (case studies).8

7. “This clear line is necessary to prevent the possibility that life

without parole sentences will be imposed on juvenile nonhomicide offenders who are not sufficiently culpable to merit

that punishment.” Ibid.

8. The National Organization of Victims of Juvenile Murderers

(“NOVJM”) advocates for family members and friends of loved

ones who were murdered by teenagers. “Murder victims

families and friends are traumatized, and damaged for life.

They need to be supported and embraced by the community in

their long journey post-homicide. All of their victims’ rights

must be respected and enforced for the duration. This means

for a lifetime.” http://www.teenkillers.org/index.php/about-us/

11

Roper and Graham prohibited categories of punishment from being imposed upon offenders under age 18

“[b]ecause juveniles have diminished culpability and

greater prospects for reform” and are thus “ ‘less

deserving of the most severe punishments.’ ” Miller,

567 U. S., at 471 (quoting Graham, 560 U. S., at 68).9

Roper prohibited the death penalty for juveniles who

murder because of their “diminished culpability” and

because the “penological justifications” (retribution and

deterrence) for the death penalty apply to juveniles with

less force. 543 U. S., at 571. Graham prohibited LWOP

for nonhomicide offenses because of “diminished

culpability” and because “defendants who do not kill,

intend to kill, or foresee that life will be taken are

categorically less deserving of the most serious forms of

punishment than are murderers.” 560 U. S., at 69.

A juvenile murderer’s culpability must be considered

“in light of their crimes and characteristics, along with

the severity of the punishment in question.” Id., at 67

(emphasis added). Thus, if a teen commits the heinous

crime of intentional homicide, then Graham’s logic

dictates that he or she is categorically more deserving of

the most serious punishment. Because Roper prohibits

a sentence of death, and because LWOP “is ‘the second

(as visited June 10, 2019). NOVJM “stand[s] for the

importance of giving devastated victims’ families LEGAL

FINALITY in their cases so that they do not have to spend

much of the rest of their lives constantly having to re-engage

with the person who destroyed their lives by murdering their

loved ones.” http://www.teenkillers.org (as visited June 10,

2019).

9. For an explanation of why the science cited in Graham does

not actually support this blanket statement or the rule of that

case, see Brief for the Criminal Justice Legal Foundation as

Amicus Curiae in Graham v. Florida, No. 08-7412, at 14-25,

http://www.cjlf.org/program/briefs/GrahamSullivan.pdf.

12

most severe penalty permitted by law,’ ” id., at 69

(quoting Harmelin v. Michigan, 501 U. S. 957, 1001

(1991) (Kennedy, J., concurring in part and concurring

in judgment)), then LWOP should be considered a

proportionate sentence.10 However, “[t]he jurisprudence of the Eighth Amendment was long ago untethered from its text ...,” Lerner, supra, at 25; see also

Stimson & Grossman, supra, at 23-39, and Miller took

Graham’s logic and threw it out the window.

B. Miller and Montgomery.

In Miller, the two 14-year-old defendants were

convicted of murder. State law mandated they be

automatically sentenced to LWOP upon their convictions and in neither case did a judge or jury have the

discretion to impose a lesser punishment. 567 U. S., at

465. Both defendants argued that the mandatory

nature of their states’ sentencing schemes violated the

Eighth Amendment. Id., at 467. This Court agreed and

held that a mandatory LWOP sentence imposed upon a

convicted teenage murderer under the age of 18 is

considered cruel and unusual. Id., at 465. This Court

built upon the reasoning and analysis of both Roper and

Graham, but unlike those two cases, did not categorically bar sentencing a teenage killer to LWOP. Only

mandatory sentencing schemes were held to be unconstitutional.

Miller expressly declined the invitation to bar all

juvenile offenders from being sentenced to LWOP. See

10. “A life sentence is of course far less severe than a death

sentence, and we have never required that it be imposed only

on the very worst offenders, as we have with capital

punishment.” Id., at 89 (Roberts, C.J., concurring in

judgment).

13

567 U. S., at 483.11 This Court acknowledged that

Graham “took care to distinguish [nonhomicide]

offenses from murder, based on both moral culpability

and consequential harm.” Id., at 473. But, the Court

found that “Graham’s reasoning implicates any lifewithout-parole sentence imposed on a juvenile, even as

its categorical bar relates only to nonhomicide offenses.” Ibid. Because Miller refused to ban all juvenile LWOP’s, this Court turned its focus to the mandatory nature of the sentencing schemes involved.

Miller was particularly concerned that all of these

mandatory schemes provided no opportunity for a judge

or jury to consider youth as a mitigating factor and

impose any other lesser punishment. Id., at 473-474.

“[M]andatory penalties, by their nature, preclude a

sentencer from taking account of an offender’s age and

the wealth of characteristics and circumstances attendant to it.” Id., at 476-477. In reaching that conclusion, this Court focused on (1) precedent discussing the

differences in culpability between juveniles and adults

for purposes of sentencing and that (2) mandatory

sentencing schemes preclude the consideration of those

differences. See id., at 471, 483.

Graham equated some aspects of juvenile LWOP

with death in that it “alters the offender’s life by a

forfeiture that is irrevocable.” 560 U. S., at 69. Miller

picked up on this comparison and in turn implicated the

line of cases “demanding individualized sentencing

when imposing the death penalty.” 567 U. S., at 475.

11. “Our decision does not categorically bar a penalty for a class of

offenders or type of crime . . . . Instead, it mandates only that

a sentencer follow a certain process . . . before imposing a

particular penalty.” Ibid. Those two sentences establish

conclusively that Montgomery’s Teague analysis is wrong. See

infra at 18.

14

The mandatory imposition of a death sentence for

murder was held to be unconstitutional in Woodson v.

North Carolina, 428 U. S. 280 (1976). In the death

penalty context, individualized sentencing permits

capital defendants the opportunity to introduce evidence of mitigating circumstances pertaining to their

individual characteristics (family background, etc.) and

also the details attendant to their crime. The introduction of such evidence allows a sentencer to evaluate this

evidence when deciding the appropriate sentence under

the circumstances. Miller, 567 U. S., at 475-476 (“[t]he

death penalty is reserved only for the most culpable

defendants committing the most serious offenses”).

In the capital context, youth is to be considered as a

mitigating factor when assessing an offender’s culpability. Johnson v. Texas, 509 U. S. 350, 367 (1993); see

also Eddings v. Oklahoma, 455 U. S. 104, 115-116

(1982). Although a mandatory LWOP scheme imposed

on an adult does not run afoul of the Eighth Amendment, see Harmelin v. Michigan, 501 U. S. 957, 996

(1991), Miller stated that the same cannot be true when

applied to juveniles. “Such mandatory penalties, by

their nature, preclude a sentencer from taking account

of an offender’s age and the wealth of characteristics

and circumstances attendant to it.” 567 U. S., at 476.

Miller’s holding declared unconstitutional mandatory sentencing schemes in 29 jurisdictions and invalidated over 2000 LWOP sentences, many of which were

imposed for aggravated murder. Id., at 482, and n. 9;

id., at 493-494 (Roberts, C.J., dissenting). Four years

later, this Court was asked to decide in Montgomery if

Miller’s holding applied retroactively. 136 S. Ct., at

15

725.12 This Court’s answer to that question was yes.

Id., at 734. However, the route this Court took in

Montgomery to reach that conclusion is problematic and

has been the source of much confusion for many lower

state and federal courts trying to apply the correct rule.

Miller clearly held that sentencing schemes that

automatically sentence juveniles to LWOP without any

opportunity to consider youth as a mitigating factor

violate the Eighth Amendment. 567 U.S., at 470.13 In

so holding, Miller stated:

“By making youth (and all that accompanies it)

irrelevant to imposition of that harshest prison

sentence, such a scheme poses too great a risk of

disproportionate punishment. . . . But given all we

have said in Roper, Graham, and this decision about

children’s diminished culpability and heightened

capacity for change, we think appropriate occasions

for sentencing juveniles to this harshest possible

penalty will be uncommon. That is especially so

because of the great difficulty we noted in Roper and

Graham of distinguishing at this early age between

‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile

offender whose crime reflects irreparable corruption.’ [Citations.] Although we do not foreclose a

12. “In the wake of Miller, the question has arisen whether its

holding is retroactive to juvenile offenders whose convictions

and sentences were final when Miller was decided.” Ibid.

13. “[T]he mandatory penalty schemes at issue here prevent the

sentencer from taking account of these central considerations.

By removing youth from the balance—by subjecting a juvenile

to the same life-without-parole sentence applicable to an

adult—these laws prohibit a sentencing authority from

assessing whether the law’s harshest term of imprisonment

proportionately punishes a juvenile offender.” Id., at 474.

16

sentencer’s ability to make that judgment in homicide cases, we require it to take into account how

children are different, and how those differences

counsel against irrevocably sentencing them to a

lifetime in prison.” Id., at 479-480 (internal citations omitted).

Montgomery cites to the above paragraph from

Miller, and “explains” it as follows:

“These considerations underlay the Court’s

holding in Miller that mandatory life-without-parole

sentences for children ‘pos[e] too great a risk of

disproportionate punishment.’ Miller requires that

before sentencing a juvenile to life without parole,

the sentencing judge take into account ‘how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime

in prison.’ The Court recognized that a sentencer

might encounter the rare juvenile offender who

exhibits such irretrievable depravity that rehabilitation is impossible and life without parole is justified.

But in light of ‘children’s diminished culpability and

heightened capacity for change,’ Miller made clear

that ‘appropriate occasions for sentencing juveniles

to this harshest penalty will be uncommon.’ ” 136

S. Ct., at 733-734.

This portion of the analysis tracks language in

Miller, though arguably dicta rather than holding.

Miller prohibits sentencing schemes that mandate

LWOP and do not allow a judge or jury the opportunity

to consider how juveniles are “constitutionally different” from adults. Miller, 567 U. S., at 474, 489. In the

next paragraph, however, Montgomery went beyond the

scope of Miller and imposed a new categorical ban on

punishment not found in Miller:

17

“Miller, then, did more than require a sentencer

to consider a juvenile offender’s youth before imposing life without parole; it established that the

penological justifications for life without parole

collapse in light of ‘the distinctive attributes of

youth.’ Even if a court considers a child’s age before

sentencing him or her to a lifetime in prison, that

sentence still violates the Eighth Amendment for a

child whose crime reflects ‘unfortunate yet transient

immaturity.’

Because Miller determined that

sentencing a child to life without parole is excessive

for all but ‘the rare juvenile offender whose crime

reflects irreparable corruption,’ it rendered life

without parole an unconstitutional penalty for ‘a

class of defendants because of their status’—that is,

juvenile offenders whose crimes reflect the transient

immaturity of youth.” 136 S. Ct., at 734 (emphasis

added; internal citations omitted).

Miller does not hold what this portion of Montgomery purports it to hold. Roper, Graham, and Miller all

discussed “transient immaturity” and “irreparable

corruption” in the context of its difficulty to ascertain.

Roper and Graham decided that such a determination

was too difficult to leave in the hands of a judge or jury,

and thus withdrew it altogether. Miller, however,

mandates individualized sentencing in homicide cases,

which includes “tak[ing] into account the differences

among defendants and crimes.” 567 U. S., at 480, n. 8.

Miller requires the opportunity for “a sentencer [to]

follow a certain process—considering an offender’s

youth and attendant characteristics—before imposing

a particular penalty.” Id., at 483. Given that opportunity, a sentencer can consider whether the crime

reflected transient immaturity or irretrievable corruption while evaluating the defendant’s youth and other

attendant circumstances. But for Montgomery to say

18

that a specific finding of irretrievable corruption must

be established in order to sentence a juvenile to LWOP

is not what Miller mandates.

As noted, Montgomery’s sole issue was whether

Miller applied retroactively to cases on collateral

review. Miller announced a new rule, and generally

new constitutional rules of criminal procedure will not

be applied retroactively on collateral review. Teague v.

Lane, 489 U. S. 288, 310 (1989). One exception to this

rule is for “substantive rules of constitutional law.”

Montgomery, 136 S. Ct., at 728. Montgomery described

these as “ ‘rules forbidding criminal punishment of

certain primary conduct,’ as well as ‘rules prohibiting

a certain category of punishment for a class of defendants because of their status or offense.’ ” Ibid. (quoting

Penry v. Lynaugh, 492 U. S. 302, 330 (1989)).

Montgomery determined that Miller announced a

substantive rule and was therefore retroactive. 136

S. Ct., at 734. In order to fit a square peg (Miller) into

a round hole (substantive rule) so that existing mandatory sentences would be reconsidered, Montgomery

focused on the class (juveniles) and then divided the

class by status (those who are irretrievably corrupt and

those who are experiencing transient immaturity).

Roper acknowledged that distinguishing the two types

was nearly impossible, see supra at 8, but Montgomery

claims that Miller made it constitutionally required.

Montgomery could not focus on class alone because

Miller expressly refused to categorically ban all LWOP

sentences for juvenile homicide offenders. See Montgomery, 136 S. Ct., at 743 (Scalia, J., dissenting). “This

new description of the Miller holding is utilized by the

majority to fit the holding nicely into a retroactive

application exception.” Comment, Montgomery v.

Louisiana: An Attempt to Make Juvenile Life Without

Parole a Practical Impossibility, 32 Touro L. Rev. 679,

19

702 (2016). The Eighth Amendment contains no

substantive standard that mandates what a court must

consider and Montgomery’s “intellectually dishonest”

reinterpretation of Miller has left lower state and

federal courts in a difficult position. Id., at 704. This

case is a prime example.

In 2013, Malvo submitted two 28 U. S. C. § 2254

petitions for writs of habeas corpus in Federal District

Court. Malvo v. Mathena, 254 F. Supp. 3d 820, 823 (ED

Va. 2017). Malvo argued that Miller and Montgomery

rendered his LWOP sentences unconstitutional. Id., at

824. In response, the Warden (Mathena) argued that

because Virginia’s LWOP sentencing scheme is not

mandatory, Miller and Montgomery do not apply to

Malvo’s sentences. Ibid. The District Court held that

it “need not determine whether Virginia’s penalty

scheme is mandatory or discretionary because this

Court finds that the rule announced in Miller applies to

all situations in which juveniles receive a life-withoutparole sentence.” Id., at 827.

The District Court stated that Montgomery “clarified the scope of the rule in Miller” and thus “the

purpose of the Miller rule [is] to evaluate all juveniles

facing life imprisonment without parole and sort out

which ones are irreparably corrupted and which are

not.” Ibid. The District Court granted Malvo’s petitions, vacated his sentences, and remanded for

resentencing. Id., at 835. The Fourth Circuit agreed

and affirmed the finding that Montgomery applies to

both mandatory and discretionary sentences. Malvo,

893 F. 3d, at 274.

“[T]he Montgomery Court confirmed that, even

though imposing a life-without-parole sentence on a

juvenile homicide offender pursuant to a mandatory

penalty scheme necessarily violates the Eighth

Amendment as construed in Miller, a sentencing

20

judge also violates Miller’s rule any time it imposes

a discretionary life-without-parole sentence on a

juvenile homicide offender without first concluding

that the offender’s ‘crimes reflect permanent incorrigibility,’ as distinct from ‘the transient immaturity

of youth.’ ” Ibid. (quoting Montgomery, 136 S. Ct.,

at 734) (emphasis in original).

Miller’s core holding is that LWOP sentencing

cannot be mandatory for murderers under age 18.

There must be a discretionary individualized sentencing

process upon which a judge or jury has the opportunity

to consider mitigating evidence. Miller, 567 U. S., at

489. Montgomery was asked to decide whether that

core holding was retroactive to final cases. Montgomery

reinterpreted Miller in an intellectually dishonest way

in order to reach a desired result. Although acknowledging this reality undermines the rationale of Montgomery with regard to the Teague rule, this Court need

not reconsider Montgomery’s core holding in this case

because it is not at issue, and given the passage of time

that question is rapidly becoming moot. Those juveniles who were sentenced under the mandatory schemes

deemed unconstitutional in Miller have reaped the

benefit of Montgomery and have been provided with the

opportunity to present mitigating evidence of youth

that may justify a lesser sentence than LWOP, which is

all that Miller, and therefore Montgomery, demand.

Malvo was sentenced to LWOP, and under Virginia

law, the trial court had the discretion to order a lesser

sentence. State judgments should not be reopened

when a state’s sentencing scheme in effect at the time

of sentencing gave the trial court the opportunity to

impose a less severe sentence. The Fourth Circuit’s

expansive application of Montgomery to Malvo’s discretionary LWOP sentences was erroneous.

21

II. A murderer close to legal adulthood is

not a “child” and should be held

responsible for his acts.

Malvo was 17 years and 246 days old when he

murdered his last victim. Two days later, Malvo and

Muhammad’s reign of terror came to an end.14 Malvo

and others like him are not “children,” but rather are

on the cusp of legal adulthood. It is no secret that the

majority of homicides committed by juveniles increases

as they age. In 2016, there were 877 homicides committed by juveniles in the United States.15 The breakdown

by age is as follows: 14 years old—46; 15 years

old—115; 16 years old—262; and 17 years old—429.

Ibid. The number of murders committed by 17-yearolds is greater than the number committed by offenders

14-16 years old combined.16

Had Malvo’s killing spree continued after his 18th

birthday, either a sentence of death or LWOP could

14. Malvo’s birth date is February 18, 1985. He murdered his last

victim, Conrad Johnson, on October 22, 2002. He was arrested

on October 24, 2002. Muhammad v. Commonwealth, 619

S. E. 2d, 16, 29 (Va. 2005); Murderpedia, http://www.

murderpedia.org/male.M/m/malvoleeboyd1.htm (as visited June

7, 2019).

15. United States Department of Justice, Office of Juvenile Justice

and Delinquency Prevention, Statistical Briefing Book,

Offending by Juveniles: Homicide, https://www.ojjdp.gov/

ojstatbb/offenders/qa03104.asp?qaDate=2016&text=yes (as

visited June 7, 2019).

16. The incidents of school shootings nationwide since 1970 also

show that the greatest number of shooters are older juveniles:

age 17 (160) and age 16 (150). Center for Homeland and

Defense and Security, K-12 School Shooting Database,

http://www.chds.us/ssdb/incidents-by-age-of-shooter/ (as visited

June 7, 2019).

22

have (and should have) been imposed upon him without

violating the Eighth Amendment. Roper, 543 U. S., at

574 (18 is “the age at which the line for death eligibility

ought to rest”); Harmelin v. Michigan, 501 U. S. 957,

996 (1991) (mandatory LWOP imposed on individual

age 18 or older is constitutional).

Too often in these cases, the victims of juvenile

murderers are relegated to the background. Charles

Moose, Chief of the Montgomery County, Maryland

Police Department who was instrumental in tracking

down and apprehending Malvo and Muhammad, sums

up the gravity of these crimes as follows:

“The three-week sniper siege left a permanent

mark on Montgomery County and the Washington

D.C., area. The snipers’ bullets did permanent

damage. They left ten people dead. They seriously

wounded three others. The snipers’ marksmanship

shot holes in the lives of the families of these victims. Some of that damage can never be repaired.

The people who died will be missed, forever, by their

loved ones. Some of the people who lived through

the siege will be frightened, forever, by what happened to them. The sniper shootings will be the

defining moment in the childhoods of little boys and

girls who had to go to school terrified that some

unknown person was going to shoot them down on

the playground.” Moose & Fleming, Three Weeks in

October, The Manhunt for the Serial Sniper 309

(2003).

Dean Harold Meyers was shot to death as he was

pumping gas.17 Kenneth Bridges, a father of six chil-

17. Earl Swift, The Beltway Sniper’s seventh victim: Dean Meyers,

The Virginian Pilot, Nov. 7, 2009, https://pilotonline.com/

news/article_689ad6a6-56cd-5433-938e-2697ea39a4b2.html (as

visited June 10, 2019).

23

dren, had just left a business meeting. Like Meyers, he

stopped for gas and was similarly assassinated.18 Linda

Franklin had just sold her house and was in the process

of moving. She stopped at Home Depot with her

husband. As they were loading a shelf into the trunk of

their car, Franklin was shot in the head and instantly

died.19 Nine other unsuspecting victims were similarly

hunted down and savagely killed. The victims must

always remain at the forefront of the discussion.

Morris v. Slappy, 461 U. S. 1, 14 (1983).

III. The Lockett line of cases is a train wreck

and should be scaled back, not expanded.

One particularly disturbing aspect of Miller is its

invocation of Lockett v. Ohio, 438 U. S. 586, 602-608

(1978) (plurality opinion), expanding that case and its

progeny beyond its explicit “death is different” boundary. Cf. id., at 604-605 (“in noncapital cases, the established practice of individualized sentences rests not on

constitutional commands, but on public policy written

into statutes”). The Lockett line of cases is a train

wreck which should be scaled back, not expanded.

It is one thing to say that there must be a discretionary process where mitigating evidence is considered.

That is the holding for capital cases in Woodson and

that is the core holding of Miller. It is quite another for

18. Kenny Waters, Recalling a Father and Worthy Friend,

Philadelphia Tribune, Oct. 25, 2005, republished at

http://kenbridges.org/ (as visited June 10, 2019).

19. Associated Press, Sniper Victim’s Husband: Something Hit

My Face, Fox News (updated January 13, 2015),

https://www.foxnews.com/story/sniper-victims-husband-some

thing-hit-my-face (as visited June 10, 2019).

24

this Court to usurp to itself the power to decide what

criteria must be employed in sentencing, stripping the

people of the states of the power to decide that important question of policy through the democratic process.

That is what this Court did for capital cases in Lockett

and its progeny, and that is what Montgomery claimed

for Miller in cases of under-18 murderers facing life

without parole.

Lockett is a train wreck. It was illegitimate the day

it was decided. Conspicuously absent from the plurality

opinion on this point is any basis in the text or history

of the Constitution.20 It contradicted precedents less

than two years old without expressly overruling them.

See id., at 622-624 (White, J., dissenting in part); id., at

629-631 (Rehnquist, J., dissenting in part). This led to

decades of confusion, and the line that followed dismantled “[w]hatever contribution to rationality and consistency [this Court] made in Furman [v. Georgia, 428

U. S. 153 (1972)] .... ” Graham v. Collins, 506 U. S.

461, 492 (1993) (Thomas, J., concurring). This Court’s

“two quite incompatible sets of commands” regarding

the death penalty was due to the fact that at least one

of them, the Lockett line, had been “invented without

benefit of any textual or historical support ....” Callins

v. Collins, 510 U. S. 1141, 1141-1142 (1994) (Scalia, J.,

concurring in denial of certiorari).21

The wreckage of Lockett includes miscarriages of

justice on a vast scale, as well-deserved sentences for

20. A more thorough examination of this line of cases than is

possible in this brief is forthcoming in the Ohio State Journal

of Criminal Law in the Fall in an article by CJLF’s Legal

Director Kent Scheidegger.

21. Justice Scalia believed that neither had any support, see ibid.,

but there is no need to reconsider Furman.

25

atrocious crimes were overturned merely because state

courts and legislatures had not been clairvoyant and

failed to anticipate the extent to which this Court would

contradict its earlier decisions. For example, in Hitchcock v. Dugger, 481 U. S. 393, 394 (1987), a man who

molested his niece and strangled her to death to keep

her quiet had his sentence overturned because at trial

the judge had “violated” the Eighth Amendment by

instructing the jury according to the statute that had

just been upheld in Proffitt v. Florida, 428 U. S. 242

(1976).

The damage of Lockett is not limited to old cases,

though. The “dog’s breakfast of divided, conflicting, and

ever-changing analyses” continues to cause problems in

relatively recent cases. See Abdul-Kabir v. Quarterman,

550 U. S. 233, 267 (2007) (Roberts, C.J., dissenting).

Between the Lockett line’s initial illegitimacy, its

conflict with other precedents, the amount of damage it

has caused, its continuing incoherence, and the number

of Justices of this Court who have denounced it over the

years, it is most surprising to see Miller blithely extending its antidemocratic mandate into territory that

Lockett itself expressly says remains within the legislative authority of the states. Such encroachment on the

people’s right of self-government requires much more

justification.

At this point, the discussion should be about

whether and how much of the Lockett doctrine can be

pruned back consistently with the principles of respect

for precedent.22 Extension of a line of cases that has no

22. “Although the doctrine of stare decisis is of fundamental

importance to the rule of law, our precedents are not

sacrosanct. [Citation.] We have overruled prior decisions where

the necessity and propriety of doing so has been established.”

Ring v. Arizona, 536 U. S. 584, 608 (2002) (internal quotation

26

basis whatever in the text or original understanding of

the constitutional provision at issue should not even be

open to serious consideration.

Overruling or limiting Lockett is not an issue in this

case, but this Court should “decline to go beyond it, by

even a fraction of an inch.” Cf. Silverman v. United

States, 365 U. S. 505, 512 (1961). Any implication in

Miller and Montgomery that the “dog’s breakfast” of

the Lockett line extends to any noncapital cases should

be expressly disclaimed.

CONCLUSION

The decision of the Court of Appeals for the Fourth

Circuit should be reversed.

June, 2019

Respectfully submitted,

KYMBERLEE C. STAPLETON

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

marks and alterations omitted).