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

v.

LEE BOYD MALVO

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

BRIAN A. BENCZKOWSKI

Assistant Attorney General

ERIC J. FEIGIN

FREDERICK LIU

Assistants to the Solicitor

General

ROBERT A. PARKER

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether Miller v. Alabama, which “h[e]ld that the

Eighth Amendment forbids a sentencing scheme that

mandates life in prison without possibility of parole for

juvenile offenders,” 567 U.S. 460, 479 (2012), entitles respondent to retroactive invalidation of the life-withoutparole sentences he received for multiple murders he

committed as a 17-year-old, even if they were imposed

under a sentencing scheme that did not mandate them.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statement:

A. Respondent’s offense conduct ..................................... 2

B. Respondent’s convictions and sentencing .................. 6

C. Collateral proceedings ................................................. 9

Summary of argument ............................................................... 11

Argument:

Discretionary life-without-parole sentences for

juveniles who commit homicide are not retroactively

invalid under Miller ............................................................. 12

A. Miller neither addressed nor invalidated

discretionary life-without-parole sentences for

juveniles who commit homicide................................. 13

B. Language in Montgomery, which held Miller

retroactive, has created confusion about the

scope of Miller ............................................................ 17

C. This Court should make clear that Miller did

not retroactively invalidate discretionary lifewithout-parole sentences for juvenile homicide

offenders ...................................................................... 22

1.

Montgomery’s core rationale does not

cover discretionary sentences ......................... 23

2.

The Court could also clarify that

Montgomery’s holding rests on the

narrower rationale suggested by the

government in that case ................................... 28

D. This Court should remand for a determination

of whether respondent’s life-without-parole

sentences were mandatory ........................................ 30

Conclusion ................................................................................... 31

(III)

IV

TABLE OF AUTHORITIES

Cases:

Page

Arkansas Game & Fish Comm’n v. United States,

568 U.S. 23 (2012) ............................................................... 22

Beard v. Banks, 542 U.S. 406 (2004) .................................... 27

Bousley v. United States, 523 U.S. 614 (1998) .............. 24, 25

Buchanan v. Angelone, 522 U.S. 269 (1998) ....................... 28

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821) ............. 22

Gaylor v. United States, 74 F.3d 214 (10th Cir.),

cert. denied, 517 U.S. 1211 (1996) ..................................... 21

Graham v. Florida, 560 U.S. 48 (2010) ............................... 14

Jones v. Commonwealth, 795 S.E.2d 705 (Va.),

cert. denied, 138 S. Ct. 81 (2017) ............................. 7, 22, 30

Landgraf v. USI Film Prods., 511 U.S. 244 (1994) ........... 22

Malvo v. Mathena, 259 F. Supp. 3d 321 (D. Md. 2017) ... 8, 9

Miller v. Alabama, 567 U.S. 460 (2012) ..................... passim

Montgomery v. Louisiana, 136 S. Ct. 718 (2016)...... passim

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

(Va. 2005), cert. denied, 547 U.S. 1136

(2006) .................................................................. 2, 3, 4, 5, 6, 9

Muhammad v. State, 934 A.2d 1059

(Md. Ct. Spec. App. 2007) ........................................ 3, 4, 5, 6

North Carolina v. Alford, 400 U.S. 25 (1970) ....................... 8

O’Dell v. Netherland, 521 U.S. 151 (1997)........................... 27

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

other grounds by Atkins v. Virginia, 536 U.S. 304

(2002) .............................................................................. 17, 18

People v. Davis, 6 N.E.3d 709 (Ill.), cert. denied,

135 S. Ct. 710 (2014) ........................................................... 29

People v. Holman, 91 N.E.3d 849 (Ill. 2017),

cert. denied, 138 S. Ct. 937 (2018) ..................................... 21

Roper v. Simmons, 543 U.S. 551 (2005) .............................. 14

V

Cases—Continued:

Page

Saff le v. Parks, 494 U.S. 484 (1990) ..................................... 27

Schriro v. Summerlin, 542 U.S. 348 (2004) ...... 17, 23, 24, 27

State v. Mantich, 842 N.W.2d 716 (Neb.),

cert. denied, 135 S. Ct. 67 (2014) ....................................... 29

State v. Montgomery, 242 So. 2d 818 (La. 1970) ................ 18

Steilman v. Michael, 407 P.3d 313 (Mont. 2017),

cert. denied, 138 S. Ct. 1999 (2018) ................................... 22

Teague v. Lane, 489 U.S. 288 (1989) .............................. 17, 24

United States v. Fareed, 296 F.3d 243 (4th Cir.),

cert. denied, 537 U.S. 1037 (2002) ..................................... 21

United States v. Stitt, 139 S. Ct. 399 (2018) ........................ 30

Welch v. United States, 136 S. Ct. 1257 (2016) ................... 29

Woodson v. North Carolina, 428 U.S. 280 (1976) .............. 14

Yakus v. United States, 321 U.S. 414 (1944) ....................... 30

Constitution and statutes:

U.S. Const. Amend. VIII .................................2, 11, 13, 15, 20

28 U.S.C. 2244(d)(1) ................................................................. 9

28 U.S.C. 2254 .......................................................................... 9

Va. Code Ann. (2004):

§ 19.2-264.4(A) ................................................................... 7

§ 19.2-303 ................................................................ 7, 10, 30

§ 53.1-165.1 (2002) ............................................................. 7

In the Supreme Court of the United States

No. 18-217

RANDALL MATHENA, WARDEN, PETITIONER

v.

LEE BOYD MALVO

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether Miller v. Alabama, 567 U.S. 460 (2012), which “h[e]ld that mandatory life without parole for those under the age of 18 at

the time of their crimes violates the Eighth Amendment[],” id. at 465, retroactively invalidated life-withoutparole sentences irrespective of whether they were

mandatory. The United States has an interest in

whether federal prisoners sentenced to discretionary

sentences of life imprisonment without parole before

Miller, for homicide offenses those prisoners committed as juveniles, may collaterally attack their sentences.

The United States also has a substantial interest in the

circumstances in which this Court’s rulings are given

retroactive effect in criminal cases.

(1)

2

STATEMENT

Following a jury trial and guilty pleas in Virginia

state court, respondent was convicted on three counts

of capital murder and one count of attempted capital

murder, among other charges. Pet. App. 8a-10a. He

was sentenced to four terms of life imprisonment without parole. Id. at 9a-10a. Respondent did not appeal his

convictions or sentences. Id. at 77a, 91a. Nearly nine

years later, he filed petitions for writs of habeas corpus

in federal district court, asserting that his life-withoutparole sentences violated the Eighth Amendment. Id.

at 76a-108a. The district court granted his petitions and

ordered that he be resentenced. Id. at 31a-62a. The

court of appeals affirmed. Id. at 1a-28a.

A. Respondent’s Offense Conduct

In fall 2002, when respondent was 17 years old, he

and John Allen Muhammad murdered 12 people and seriously wounded six others during a seven-week shooting spree that “terrorized the entire Washington, D.C.

metropolitan area.” Pet. App. 4a.

1. The shootings began on September 5, 2002, when

respondent approached Paul LaRuffa outside a pizzeria

that LaRuffa owned in Clinton, Maryland. Pet. App. 5a,

65a; Muhammad v. Commonwealth, 619 S.E.2d 16, 25

(Va. 2005) (Muhammad (Va.)), cert. denied, 547 U.S.

1136 (2006). Respondent shot LaRuffa six times with a

.22-caliber handgun and stole LaRuffa’s laptop computer and $3500 in cash. Ibid.

Ten days later, respondent used the same handgun

to shoot Muhammad Rashid in the stomach as Rashid

was in the process of closing a liquor store in Prince

George’s County, Maryland. Pet. App. 5a, 65a. Respondent stole Rashid’s wallet and fled. Id. at 65a. Both

3

LaRuffa and Rashid survived their gunshot wounds.

See Muhammad (Va.), 619 S.E.2d at 25, 53.

2. Shortly after the Rashid shooting, respondent

and Muhammad traveled south. Pet. App. 5a. On September 21, 2002, Muhammad used a high-powered Bushmaster rifle to shoot Claudine Parker and Kelly Adams

right after they had closed a liquor store in Montgomery, Alabama. Ibid.; Muhammad (Va.), 619 S.E.2d at

25-26. The shots killed Parker and seriously injured

Adams. Ibid. Respondent was seen running up to Parker and Adams as they were being shot and then rummaging through their purses. Pet. App. 5a; Muhammad (Va.), 619 S.E.2d at 26.

Two days later, respondent and Muhammad used the

same Bushmaster rifle to shoot and kill Hong Im Ballenger as she was walking to her car after closing a

beauty-supply store in Baton Rouge, Louisiana. Pet.

App. 5a; Muhammad (Va.), 619 S.E.2d at 26. Respondent was seen leaving the scene with Ballenger’s purse.

Pet. App. 5a.

3. Respondent and Muhammad then returned to the

Washington, D.C. area. Pet. App. 5a. At about 6 p.m.

on October 2, 2002, they used the Bushmaster rifle to

shoot and kill James Martin, a systems analyst for the

National Oceanic and Atmospheric Administration, as

he was standing in a supermarket parking lot in

Wheaton, Maryland. Id. at 5a-6a; Muhammad v. State,

934 A.2d 1059, 1066 (Md. Ct. Spec. App. 2007) (Muhammad (Md.)).

The next morning, over a span of about two-and-ahalf hours, respondent and Muhammad used the same

rifle to murder four more people in Montgomery County,

Maryland. Pet. App. 6a; Muhammad (Md.), 934 A.2d

at 1067-1068. They shot and killed James Buchanan

4

while he was mowing a lawn outside an auto store near

White Flint Mall; they shot and killed Premkumar

Walekar while he was fueling his car at a Mobil station

in Aspen Hill; they shot and killed Maria Sarah Ramos

while she was sitting outside on a shopping-center

bench in Silver Spring; and they shot and killed Lori

Lewis-Rivera while she was vacuuming her minivan at

a Shell station in Kensington. Pet. App. 6a, 65a-66a;

Muhammad (Md.), 934 A.2d at 1067-1068; Muhammad

(Va.), 619 S.E.2d at 26.

That evening, respondent and Muhammad used the rifle to murder a 72-year-old man, Pascal Charlot, as he was

crossing a street in northwest Washington, D.C. Pet.

App. 6a, 66a; Muhammad (Md.), 934 A.2d at 1069-1070.

4. On October 4, 2002, respondent and Muhammad

expanded their “killing zone” to Northern Virginia. Muhammad (Md.), 934 A.2d at 1069 (capitalization altered;

emphasis omitted); see Muhammad (Va.), 619 S.E.2d

at 27. That afternoon, they used the Bushmaster rifle

to shoot and seriously injure Caroline Seawell as she

was loading goods into her minivan outside a Michael’s

art-supply store in Fredericksburg, Virginia. Pet. App.

6a, 66a; Muhammad (Va.), 619 S.E.2d at 27.

On the morning of October 7, respondent and Muhammad returned to Maryland, where they used the rifle to shoot and seriously injure a 13-year-old boy, Iran

Brown, right after he had been dropped off at his middle

school in Prince George’s County. Pet. App. 6a, 66a-67a;

Muhammad (Md.), 934 A.2d at 1070. Respondent and

Muhammad then drove back to Northern Virginia, where

they used the rifle to commit three more murders. Pet.

App. 6a.

On October 9, respondent and Muhammad shot and

killed Dean Harold Meyers while he was pumping

5

gas in Manassas. Pet. App. 67a; Muhammad (Va.),

619 S.E.2d at 24. On October 11, they shot and killed

Kenneth Bridges while he was pumping gas near Fredericksburg. Pet. App. 67a; Muhammad (Md.), 934 A.2d

at 1071. And on October 14, they shot and killed Linda

Franklin, an intelligence analyst for the Federal Bureau of Investigation (FBI), while she was loading her

car outside a Home Depot store in Falls Church. Pet.

App. 67a; Muhammad (Md.), 934 A.2d at 1072; Muhammad (Va.), 619 S.E.2d at 28.

On October 19, 2002, respondent and Muhammad

used the Bushmaster rifle to shoot and seriously injure

Jeffrey Hopper as he was leaving a Ponderosa steakhouse in Ashland, Virginia. Pet. App. 6a, 67a-68a; Muhammad (Va.), 619 S.E.2d at 28. Three days later, they

returned to Aspen Hill, Maryland, where they used the

rifle to shoot and kill a bus driver, Conrad Johnson, as

he was exiting his bus. Pet. App. 6a, 68a; Muhammad

(Md.), 934 A.2d at 1068-1069.

5. Throughout their shooting spree, respondent and

Muhammad placed telephone calls to the police and left

notes near the crime scenes, demanding $10 million

to stop the killing. Pet. App. 65a; Muhammad (Va.),

619 S.E.2d at 29. In several of their messages, respondent and Muhammad referred to themselves as “God”

and taunted the police, accusing them of responsibility

for the killings and warning that “[y]our children are

not safe anywhere at anytime.” Muhammad (Va.),

619 S.E.2d at 29; see id. at 27-29.

The crimes had a paralyzing effect on the entire

Washington, D.C. area. “Seized with epidemic apprehension of random and sudden violence, people were

afraid to stop for gasoline.” Muhammad (Md.), 934 A.2d

at 1066. “Schools were placed on lock-down status.”

6

Ibid. And “[o]n one occasion, Interstate 95 was closed

in an effort to apprehend the sniper.” Ibid.

6. Finally, early in the morning of October 24, 2002,

FBI agents found respondent and Muhammad sleeping

in a blue Chevrolet Caprice at a rest stop in Frederick

County, Maryland. Pet. App. 6a, 64a; Muhammad (Va.),

619 S.E.2d at 29. The car matched the description of a

vehicle that had been traced to the snipers. See Muhammad (Md.), 934 A.2d at 1074. The agents arrested

both of them. Pet. App. 64a.

Inside the car, the agents found the Bushmaster rifle, two walkie-talkies, maps with Bethesda and Silver

Spring circled, messages that matched those left for the

police, LaRuffa’s laptop computer, and other incriminating evidence. Pet. App. 6a, 64a; Muhammad (Va.),

619 S.E.2d at 29-30; Muhammad (Md.), 934 A.2d at

1075-1076. The car itself had been converted into a

“killing machine”: a hole had been “cut into the lid of

the trunk, just above the license plate, through which a

rifle barrel could be projected,” and “the backrest of the

rear seat had been modified so as to permit easy access

into the trunk from inside the car.” Muhammad (Md.),

934 A.2d at 1075; see Pet. App. 6a-7a, 64a.

Following his arrest, respondent admitted that he

and Muhammad “had acted as a sniper team, randomly

shooting people up and down the I-95 corridor in Maryland and Virginia, in an effort to extort ten million dollars from the ‘media and the government.’ ” Pet. App.

69a. Respondent also admitted to having been the “triggerman” in a number of the shootings. Id. at 7a; see id.

at 69a-70a.

B. Respondent’s Convictions And Sentencing

1. A grand jury in Fairfax County, Virginia, returned an indictment charging respondent as an adult

7

with, among other crimes, two counts of capital murder.

Pet. App. 7a. The Commonwealth sought the death penalty. Ibid. Respondent pleaded not guilty, and the case

was transferred to the state trial court in the City of

Chesapeake, Virginia, “to ensure an impartial jury pool.”

Ibid. At trial, respondent asserted an insanity defense

and argued that his youth and difficult upbringing had

made him susceptible to the “control” of Muhammad,

whom respondent viewed as a “surrogate father.” Id.

at 7a-8a. The jury rejected respondent’s insanity defense and found him guilty. Id. at 8a.

Under Virginia law at the time, a jury could recommend a sentence of either death or life imprisonment

without parole for a juvenile offender convicted of capital murder. See Va. Code Ann. § 19.2-264.4(A) (2004);

see also id. § 53.1-165.1 (2002) (abolishing parole for felony offenses committed after January 1, 1995). A Virginia jury’s recommendation of the appropriate sentence, however, is “not final or absolute.” Jones v. Commonwealth, 795 S.E.2d 705, 713 n.12 (Va.) (citation

omitted), cert. denied, 138 S. Ct. 81 (2017). The defendant retains the right to ask the sentencing court to “suspend [a] life sentence in whole or in part,” including

based on mitigating circumstances related to “his ‘youth

and attendant characteristics.’ ” Id. at 713 (citation omitted); see Va. Code Ann. § 19.2-303 (2004).

During the penalty phase of his trial, respondent

presented mitigating evidence about his “background

and history,” as well as his “youth and immaturity.”

Pet. App. 8a. After considering that evidence, the jury

recommended that respondent be sentenced to life imprisonment on each capital murder conviction. Id. at

8a-9a; J.A. 71. Respondent did not request that the sentencing court suspend a portion of his sentence, see J.A.

8

74-82, and the court sentenced him to two terms of life

imprisonment without parole, Pet. App. 9a; J.A. 81. Respondent did not appeal his convictions or sentences.

Pet. App. 91a.

2. After his sentencing in Chesapeake, respondent

entered into a plea agreement on separate charges in

Spotsylvania County, Virginia. Pet. App. 9a. Respondent admitted that the Commonwealth had sufficient evidence to convict him of, among other crimes, another

count of capital murder and a count of attempted capital

murder. Id. at 9a, 71a-72a; see North Carolina v. Alford, 400 U.S. 25, 37-38 (1970).

The plea agreement stated that respondent’s counsel

had advised respondent that he faced a sentence of

death or life imprisonment on the capital murder charge

and a sentence of 20 years to life imprisonment on the

attempted capital murder charge. Pet. App. 10a, 70a.

The plea agreement further stated that respondent “understood and agreed” that he would be sentenced to life

imprisonment without parole on each charge. Id. at 72a.

Accordingly, after accepting respondent’s guilty pleas,

the state court sentenced respondent to two terms of life

imprisonment without parole. Id. at 10a. Respondent

did not appeal those convictions or sentences. Id. at 77a.

3. In separate proceedings that are not directly at

issue here, respondent also pleaded guilty to, and was

convicted of, six counts of first-degree murder in Maryland, for which he was sentenced to six terms of life

imprisonment without parole. Malvo v. Mathena,

259 F. Supp. 3d 321, 325 (D. Md. 2017). He has challenged those sentences on grounds similar to the grounds

on which he has challenged his sentences here. See id.

at 326, 332-333. Muhammad was tried separately in Virginia, was sentenced to death, and was executed in 2009.

9

Id. at 324-325; Muhammad (Va.), 619 S.E.2d at 30; see

Muhammad v. Kelly, 558 U.S. 1019 (2009) (No. 09-7328).

C. Collateral Proceedings

In 2013, nearly nine years after all of his sentences

had become final, respondent filed petitions for writs of

habeas corpus in federal district court collaterally attacking his four Virginia life-without-parole sentences.

Pet. App. 80a, 96a; J.A. 1, 20; see 28 U.S.C. 2254.

1. Respondent asserted an entitlement to relief

based on this Court’s then-recent decision in Miller v.

Alabama, 567 U.S. 460 (2012), which “h[e]ld that mandatory life without parole for those under the age of 18

at the time of their crimes violates the Eighth Amendment[],” id. at 465. Pet. App. 80a, 96a. The district

court initially denied respondent’s petitions on the ground

that Miller did not apply retroactively to cases on collateral review and that his petitions therefore were

untimely. Id. at 11a; see 28 U.S.C. 2244(d)(1).

While respondent’s appeal was pending, this Court

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

(2016), which considered “whether Miller’s prohibition

on mandatory life without parole for juvenile offenders

* * * announce[d] a new substantive rule that, under

the Constitution, must be retroactive” to judgments

that were final before Miller. Id. at 732. Montgomery

held “that Miller announced a substantive rule of constitutional law” that applies on collateral review. Id. at

736. The court of appeals remanded respondent’s case

to the district court for further consideration in light of

Montgomery. Pet. App. 11a.

2. On remand, the Commonwealth maintained that

Miller and Montgomery apply only to “mandatory” sentences of life imprisonment without parole and that

10

“Virginia’s life-without-parole penalty scheme” is “discretionary” because Virginia law “gives sentencing

courts the option of suspending a defendant’s sentence

in whole or in part.” Pet. App. 41a; see Va. Code Ann.

§ 19.2-303 (2004). The district court, however, concluded

that “the rule announced in Miller,” as “clarified” by

Montgomery, “applies to all situations in which juveniles

receive a life-without-parole sentence.” Pet. App. 42a.

In the district court’s view, respondent was entitled

to vacatur of all four of his life-without-parole sentences, irrespective of whether they were mandatory,

on the ground that that his sentences did not reflect a

specific finding of “irreparable corruption.” Pet. App.

41a-51a; see id. at 51a-61a (finding that respondent’s

Spotsylvania County plea agreement had not waived his

Miller claim). The court cited, among other things,

Montgomery’s statement that “Miller determined that

sentencing a child to life without parole is excessive for

all but ‘the rare juvenile offender whose crime reflects

irreparable corruption.’ ” 136 S. Ct. at 734 (quoting Miller, 567 U.S. 479-480) (citation and internal quotation

marks omitted); see Pet. App. 42a.

3. The court of appeals affirmed. Pet. App. 1a-28a.

Like the district court, the court of appeals deemed it

unnecessary to “resolve whether any of [respondent’s]

sentences were mandatory.” Id. at 19a. The court reasoned that “Montgomery has now made clear that Miller’s rule has applicability beyond those situations in

which a juvenile homicide offender received a mandatory life-without-parole sentence.” Ibid. In particular,

the court read Montgomery to “confirm[]” that a sentencing court “violates Miller’s rule any time it imposes

a discretionary life-without-parole sentence on a juvenile homicide offender without first concluding that the

11

offender’s ‘crimes reflect permanent incorrigibility,’ as

distinct from ‘the transient immaturity of youth.’ ” Id.

at 20a (citation omitted). And it agreed with the district

court that the cases should return to state court for a

determination of whether respondent’s “crimes reflect

permanent incorrigibility.” Id. at 4a (citation omitted).

SUMMARY OF ARGUMENT

No decision of this Court should be construed to provide an escape hatch that would entitle respondent to

retroactively invalidate discretionary life-without-parole

sentences for his heinous crimes.

In Miller v. Alabama, 567 U.S. 460 (2012), the Court

held only that the Eighth Amendment forbids “mandatory” sentences of life without parole for homicides committed by juveniles. Id. at 465. The sentencing schemes

at issue in Miller required sentences of life without parole in all cases, irrespective of any age-related factors,

and the Court’s reasoning relied on the conjunction of

its juvenile-sentencing and individualized-sentencing

precedents. The Court expressly limited its holding to

mandatory punishments and declined to consider

broader rationales that would have applied equally to

discretionary sentences.

In Montgomery v. Louisiana, 136 S. Ct. 718 (2016),

the Court held that Miller’s rule is retroactive to sentences that became final before that rule was announced. That case, like Miller, involved a defendant

who had received a mandatory sentence of life without

parole, not a discretionary one. Some of the language

in Montgomery, however, did not distinguish between

mandatory and discretionary sentences. Accordingly,

the government and lower courts have generally (though

not invariably) felt constrained to understand Montgomery’s reasoning (though not its actual holding) as

12

requiring the retroactive invalidation of both types of

sentences.

This Court, however, is not so constrained, and it

should take the opportunity in this case to reemphasize

the express limits of Miller. One way to do so is to

clarify that Montgomery’s core rationale—that retroactive application of the Miller rule was necessary to eliminate a “substantial risk” of disproportionate sentences,

136 S. Ct. at 736—applies only to mandatory sentences,

not discretionary ones. Under Miller, only mandatory

sentences, imposed indiscriminately on all juvenile offenders, create the degree and kind of risk that would

require retroactive invalidation. Another way is to clarify that Miller’s retroactivity rests on the narrow rationale advocated by the government in Montgomery—

namely, that a rule invalidating a mandatory sentencing

scheme is retroactive because it alters the range of possible substantive outcomes. Under either approach, the

decision below should be vacated and the case remanded

so that the lower courts can determine in the first instance whether respondent was sentenced under a mandatory regime of the sort that is covered by Miller.

ARGUMENT

DISCRETIONARY LIFE-WITHOUT-PAROLE SENTENCES

FOR JUVENILES WHO COMMIT HOMICIDE ARE NOT

RETROACTIVELY INVALID UNDER MILLER

In Miller v. Alabama, 567 U.S. 460 (2012), this Court

“h[e]ld that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” Id. at 479. Four

years later, in Montgomery v. Louisiana, 136 S. Ct. 718

(2016), the Court “h[eld] that Miller announced a substantive rule of constitutional law” that is retroactive to

13

sentences that were already final when Miller was decided. Id. at 736. Neither Miller nor Montgomery involved a defendant who received a life-without-parole

sentence as a matter of discretion. Although some of

Montgomery’s language went beyond the mandatory

nature of the sentences at issue in both cases, this Court

should make clear that it has not in fact retroactively

invalidated discretionary life-without-parole sentences

for juvenile homicide offenders. And it should remand

respondent’s case for a determination of whether the

life-without-parole sentences for his horrific crimes

were in fact “mandatory,” 567 U.S. at 465, for purposes

of Miller.*

A. Miller Neither Addressed Nor Invalidated Discretionary

Life-Without-Parole Sentences For Juveniles Who

Commit Homicide

Miller did not consider whether, much less hold that,

a life-without-parole sentence imposed as a matter of

discretion for a murder committed by a juvenile violates

the Eighth Amendment. The two defendants in Miller

had been sentenced under schemes that mandated life

without parole for their homicide offenses. 567 U.S. at

466-467 & n.2, 469. “In neither case did the sentencing

authority have any discretion to impose a different punishment.” Id. at 465. Accordingly, the Court’s descriptions of its “hold[ing]” limited that holding to the invalidation of sentences that were “mandatory.” Ibid.; see

id. at 479 (“We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in

The Commonwealth has not requested that Miller be overruled,

so the government takes no position on that issue in this brief.

*

14

prison without possibility of parole for juvenile offenders.”). And the mandatory nature of the sentences at

issue was integral to the Court’s reasoning.

The Court grounded its “conclusion that mandatory

life-without-parole sentences for juveniles violate the

Eighth Amendment” in the “confluence of * * * two

lines of precedent.” Miller, 567 U.S. at 470. The “first”

of those lines of precedent consists of decisions that

have “adopted categorical bans on sentencing practices

based on mismatches between the culpability of a class

of offenders and the severity of a penalty.” Ibid. The

Court identified Roper v. Simmons, 543 U.S. 551 (2005),

which “held that the Eighth Amendment bars capital

punishment for children,” and Graham v. Florida,

560 U.S. 48 (2010), which “concluded that the Amendment also prohibits a sentence of life without the possibility of parole for a child who committed a nonhomicide

offense,” as examples. Miller, 567 U.S. at 470. The

Court understood Roper and Graham to “establish that

children are constitutionally different from adults for

purposes of sentencing.” Id. at 471. And Miller reasoned that the “mandatory penalty schemes at issue

here prevent the sentencer from taking account of these

central considerations,” because they “prohibit a sentencing authority from assessing whether the law’s

harshest term of imprisonment proportionately punishes a juvenile offender.” Id. at 474.

The “second line” of relevant precedent the Court

identified in Miller consists of decisions “demanding individualized sentencing when imposing the death penalty.” Miller, 567 U.S. at 475. The Court cited Woodson

v. North Carolina, 428 U.S. 280 (1976) (plurality opinion), which “held that a statute mandating a death sentence for first-degree murder violated the Eighth

15

Amendment.” Miller, 567 U.S. at 475. The Court also

cited “[s]ubsequent decisions [that] have elaborated on

the requirement that capital defendants have an opportunity to advance, and the judge or jury a chance to assess, any mitigating factors,” including the “ ‘mitigating

qualities of youth.’ ” Id. at 475-476 (citation omitted).

The Court reasoned that “these decisions too show the

flaws of imposing mandatory life-without-parole sentences on juvenile homicide offenders” because “[s]uch

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.” Id. at 476; see id. at 477-478 (detailing individualized sentencing considerations that a mandatory

scheme precludes).

The Court emphasized that its decision in Miller established “individualized sentencing” as a constitutional

requirement for juvenile homicide offenders (similar to

Woodson), not “a flat ban” on life-without-parole sentences for such offenders. Miller, 567 U.S. at 474 n.6.

For example, the Court explained that Miller was “different from the typical [case] in which [it] ha[s] tallied

legislative enactments” to inform its consideration of

whether a particular practice is cruel and unusual under

the Eighth Amendment, because the decision it was issuing “does not categorically bar a penalty for a class of

offenders or type of crime—as, for example, [the Court]

did in Roper or Graham.” Id. at 483. “Instead,” the

Court stressed, the decision “mandates only that a sentencer follow a certain process—considering an offender’s

youth and attendant characteristics—before imposing a

particular penalty.” Ibid. And the Court distinguished

“mandatory” schemes from “discretionary” schemes in

16

observing that, “when given the choice, sentencers impose life without parole on children relatively rarely.”

Id. at 484 n.10; see id. at 482 & n.9 (counting the number

of jurisdictions that “make a life-without-parole term

mandatory for some juveniles convicted of murder in

adult court”).

The Court additionally made clear that it was not addressing, let alone adopting, broader arguments that

would have encompassed discretionary sentences. The

Court explained that its “holding” that “the Eighth

Amendment forbids a sentencing scheme that mandates

life in prison without possibility of parole for juvenile

offenders” was “sufficient to decide these cases.” Miller, 567 U.S. at 479. It thus did not consider the defendants’ “alternative argument that the Eighth Amendment requires a categorical bar on life without parole

for juveniles, or at least for those 14 and younger,” ibid.,

which would apply equally to mandatory and discretionary sentences. The Court also did not adopt the view—

advanced in Justice Breyer’s concurrence—that one of

the defendants’ sentences may have been unconstitutional, “regardless of whether its application [wa]s mandatory or discretionary under state law.” Id. at 490.

While allowing for life-without-parole sentences for

juvenile homicide offenders, the Court expressed the

belief that “appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon,” “especially * * * because of the great difficulty”

of distinguishing between “ ‘the juvenile offender whose

crime reflects unfortunate yet transient immaturity,

and the rare juvenile offender whose crime reflects irreparable corruption.’ ” Miller, 567 U.S. at 479-480 (citations omitted). “Although we do not foreclose a sentencer’s ability to make that judgment in homicide

17

cases,” the Court continued, “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 480.

B. Language In Montgomery, Which Held Miller Retroactive,

Has Created Confusion About The Scope Of Miller

After Miller, the lower courts reached conflicting

conclusions about whether it had announced a “retroactive” rule—i.e., a rule applicable not only to future sentences, or those still on direct review, but also those that

had already become final. Montgomery, 136 S. Ct. at

725. This Court granted certiorari in Montgomery to

resolve the conflict about Miller’s retroactivity, see

ibid., and concluded that “Miller announced a substantive rule that is retroactive in cases on collateral review,”

id. at 732. See Pet. for Cert. at i, Montgomery, supra

(No. 14-280). Although the circumstances of Montgomery, like Miller, involved mandatory sentencing, some

of Montgomery’s language was not tied to that fact.

1. As described in Teague v. Lane, 489 U.S. 288 (1989),

“new” constitutional rules—those not “dictated by precedent existing at the time the defendant’s conviction became final”—generally “will not be applicable to those

cases which have become final before the new rules are

announced.” Id. at 301, 310 (plurality opinion) (emphasis omitted); see Penry v. Lynaugh, 492 U.S. 302, 313314 (1989) (adopting the Teague plurality’s approach to

retroactivity), overruled on other grounds by Atkins v.

Virginia, 536 U.S. 304 (2002). That general limitation

accords comity to the judgments of the States and respects their strong interests in the finality of criminal

cases. See, e.g., Montgomery, 136 S. Ct. at 736; Schriro

v. Summerlin, 542 U.S. 348, 352 (2004).

18

The Teague doctrine, however, recognizes “two categories of rules that are not subject to its general retroactivity bar”—namely, “new ‘watershed rules of criminal procedure’ ” and “new substantive rules of constitutional law.” Montgomery, 136 S. Ct. at 728 (citation

omitted). Only the category of “substantive rules” was

at issue in Montgomery. The Court’s conclusion that it

had jurisdiction rested on its determination “that when

a new substantive rule of constitutional law controls the

outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that

rule.” 136 S. Ct. at 729; see ibid. (declining to address

corresponding issue with respect to “watershed rules of

procedure”). And its consideration of retroactivity was

limited to whether Miller set forth a “substantive” rule,

which Montgomery defined as one that “forbids ‘criminal punishment of certain primary conduct’ or prohibits

‘a certain category of punishment for a class of defendants because of their status or offense.’ ” Id. at 732 (quoting Penry, 492 U.S. at 330).

2. The defendant in Montgomery, like the defendants in Miller, received a mandatory sentence of life

without parole for a murder that he had committed as a

juvenile. Montgomery, 136 S. Ct. at 726; see State v.

Montgomery, 242 So. 2d 818 (La. 1970). “Under Louisiana law, th[e] verdict required the trial court to impose a sentence of life without parole.” Montgomery,

136 S. Ct. at 726. “The sentence was automatic upon the

jury’s verdict, so Montgomery had no opportunity to

present mitigation evidence to justify a less severe sentence.” Ibid.

The opinion in Montgomery recognizes the mandatory aspect of the sentencing schemes at issue in Miller

and Montgomery as a limitation on the decisions’ scope.

19

For example, the Court described Miller as having

“held that mandatory life without parole for juvenile

homicide offenders violates the Eighth Amendment[].”

Montgomery, 136 S. Ct. at 726 (emphasis added). The

Court correspondingly framed its retroactivity inquiry

as presenting “the question whether Miller’s prohibition on mandatory life without parole for juvenile offenders indeed did announce a new substantive rule

that, under the Constitution, must be retroactive.” Id.

at 732 (emphasis added). And without any mention of

discretionary sentences, it assuaged practical concerns

about “[g]iving Miller retroactive effect” by emphasizing that doing so “does not require States to relitigate

sentences, let alone convictions, in every case where a

juvenile offender received mandatory life without parole,” because a “State may remedy a Miller violation”

by instead “permitting juvenile homicide offenders to

be considered for parole.” Id. at 736.

3. Unlike Miller itself, however, Montgomery did

not consistently tether its discussion to mandatory sentences. For example, Montgomery highlighted Miller’s

reliance on decisions such as Roper and Graham—

which held “certain punishments disproportionate when

applied to juveniles,” Montgomery, 136 S. Ct. at 732 (citation omitted)—without also mentioning the line of “individualized sentencing” decisions whose “confluence”

with the Roper-Graham line had undergirded Miller’s

holding about mandatory sentencing schemes, 567 U.S.

at 475; see Montgomery, 136 S. Ct. at 732-734.

In addition, one paragraph after referring to “the

Court’s holding in Miller that mandatory life-withoutparole sentences for children pose too great a risk of

20

disproportionate punishment,” 136 S. Ct. at 733 (emphasis added; brackets, citation, and internal quotation

marks omitted), Montgomery stated that Miller

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. As a result, Miller announced a substantive rule of constitutional law. Like other substantive rules, Miller is

retroactive because it necessarily carries a significant risk that a defendant—here, the vast majority

of juvenile offenders—faces a punishment that the

law cannot impose upon him.

Id. at 734 (quoting Miller, 567 U.S. at 472, 479-480)

(brackets, citations, and internal quotation marks omitted).

Although that passage quotes Miller, it does not provide the same context to the quoted language as Miller

itself. The first quotation from Miller (“the distinctive

attributes of youth”) is from Miller’s discussion of

Roper and Graham—decisions that Miller did not treat

as sufficient in themselves to justify its holding. See

21

Miller, 567 U.S. at 472 (“Roper and Graham emphasized that the distinctive attributes of youth diminish

the penological justifications for imposing the harshest

sentences on juvenile offenders, even when they commit

terrible crimes.”); see id. at 470 (relying on “the confluence of * * * two lines of precedent”). The other two

quotations from Miller (“unfortunate yet transient immaturity” and “the rare juvenile offender whose crime

reflects irreparable corruption”) are from the same paragraph in which Miller stressed that its “hold[ing] that

the Eighth Amendment forbids a sentencing scheme

that mandates life in prison without possibility of parole

for juvenile offenders * * * is sufficient to decide these

cases.” Id. at 479-480 (emphasis added; citation omitted). Language from those latter two quotations is also

reflected in Montgomery’s later statement that Miller

“bar[red] life without parole * * * for all but the rarest

of juvenile offenders, those whose crimes reflect permanent incorrigibility.” 136 S. Ct. at 734.

4. Litigants and lower courts cannot lightly disregard any statements in an opinion of this Court. Cf.,

e.g., United States v. Fareed, 296 F.3d 243, 247 (4th Cir.)

(explaining that federal courts of appeals are “bound by

Supreme Court dicta almost as firmly as by the Court’s

outright holdings”) (quoting Gaylor v. United States,

74 F.3d 214, 217 (10th Cir.), cert. denied, 517 U.S. 1211

(1996)), cert. denied, 537 U.S. 1037 (2002). Accordingly,

in light of Montgomery’s language, the government and

lower courts have generally (although not invariably)

viewed Montgomery’s reasoning as implicating the validity of discretionary sentences as well as mandatory

ones. See, e.g., Gov’t Letter at 2-3, United States v.

Mejia Velez, No. 13-cv-3372 (E.D.N.Y. July 24, 2017);

Pet. App. 20a; People v. Holman, 91 N.E.3d 849, 861

22

(Ill. 2017), cert. denied, 138 S. Ct. 937 (2018); Steilman

v. Michael, 407 P.3d 313, 318-319 (Mont. 2017), cert. denied, 138 S. Ct. 1999 (2018). But see, e.g., Gov’t Supp.

Br. at 1-2, Johnson v. United States, No. 08-cr-10 (W.D.

Va. May 24, 2016) (arguing that the rule announced in

Miller and made retroactive in Montgomery applies

only to mandatory life-without-parole sentences); Jones

v. Commonwealth, 795 S.E.2d 705, 721 (Va.) (declining

to read the holdings of Miller and Montgomery to apply

to “non-mandatory life sentences”) (emphasis omitted),

cert. denied, 138 S. Ct. 81 (2017). This Court, however,

is not so constrained, and it should take this opportunity

to clarify the limits of Miller and Montgomery.

C. This Court Should Make Clear That Miller Did Not

Retroactively Invalidate Discretionary Life-WithoutParole Sentences For Juvenile Homicide Offenders

The Court’s grant of certiorari in this case provides

an opportunity to make clear that Miller does not, in

fact, require courts to revisit final life-without-parole

sentences imposed as a matter of discretion. This Court

has previously “recall[ed] Chief Justice Marshall’s sage

observation that ‘general expressions, in every opinion,

are to be taken in connection with the case in which

those expressions are used. If they go beyond the case,

they may be respected, but ought not to control the

judgment in a subsequent suit when the very point is presented for decision.’ ” Arkansas Game & Fish Comm’n

v. United States, 568 U.S. 23, 35 (2012) (quoting Cohens

v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821)). That

“canon of unquestionable vitality,” Landgraf v. USI

Film Prods., 511 U.S. 244, 265 (1994), is applicable here.

Neither Montgomery nor Miller involved a defendant who had received a non-mandatory sentence following a proceeding that included the opportunity to seek

23

a lower sentence based on the mitigating qualities of

youth. Retroactively invalidating such sentences would

implicate a distinct set of issues, and disrupt a distinct

set of final judgments, that neither case discussed.

And adherence to the actual holdings of Miller and

Montgomery—that mandatory life-without-parole sentences are unconstitutional both prospectively and

retrospectively—does not require that result. Instead,

the Court should clarify either that Montgomery’s core

rationale does not encompass discretionary sentences

or that Montgomery’s holding rests on the narrower rationale that the government advocated in that case.

1. Montgomery’s core rationale

discretionary sentences

does

not

cover

Nowhere did the Court in Montgomery expressly

state that discretionary life-without-parole sentences

are retroactively invalid. And to the extent that some

of the opinion’s statements have that implication, they

are at odds with the crux of Montgomery’s logic. Montgomery concluded that “Miller is retroactive because it

‘necessarily carries significant risk that a defendant’—

here, the vast majority of juvenile offenders—‘faces a

punishment that the law cannot impose upon him.’ ”

136 S. Ct. at 736 (quoting Summerlin, 542 U.S. at 352)

(emphasis added; brackets, citation, and internal quotation marks omitted). That reasoning is consistent only

with the retroactive invalidation of a mandatory sentence, which carries such a risk, as opposed to a discretionary sentence, which does not.

a. The fundamental premise of this Court’s modern

retroactivity jurisprudence is that final criminal judgments should be disturbed only when the risk of an erroneous judgment is unacceptably high. “The Teague

24

doctrine is founded on the notion that one of the principal functions of habeas corpus is to assure that no man

has been incarcerated under a procedure which creates

an impermissibly large risk that the innocent will be

convicted.” Bousley v. United States, 523 U.S. 614, 620

(1998) (brackets, citations, and internal quotation marks

omitted); see Teague, 489 U.S. at 312 (plurality opinion).

Montgomery could not hold Miller retroactive without finding such a risk. The key distinction between a

retroactive “substantive” rule—as Montgomery held

the Miller rule to be—and a non-retroactive “procedural” rule is that only the former “necessarily carr[ies]

a significant risk that a defendant stands convicted of

an act that the law does not make criminal or faces a

punishment that the law cannot impose upon him.”

Summerlin, 542 U.S. at 352 (citation and internal quotation marks omitted). Accordingly, in emphasizing

that its “hold[ing] that Miller announced a substantive

rule of constitutional law * * * comports with the principles of Teague,” the Montgomery opinion focused on

the “grave risk” raised by “Miller’s conclusion that the

sentence of life without parole is disproportionate for

the vast majority of juvenile offenders.” 136 S. Ct. at 736.

b. Montgomery’s conclusion that Miller created a

“grave” or “significant” risk of a disproportionate punishment, 136 S. Ct. at 736, was necessarily limited to

mandatory sentences. Whatever else Montgomery said

about Miller, its discussion of risk in connection with

Miller was expressly tied to the mandatory aspect of

the sentences at issue.

Both of Montgomery’s references to the high risk of

an unconstitutional outcome in the absence of Miller

were cabined to mandatory sentencing schemes. First,

Montgomery referenced risk in describing why “Miller

25

held that mandatory life without parole for juvenile

homicide offenders violates the Eighth Amendment[].”

136 S. Ct. at 726 (emphasis added). “ ‘By making youth

(and all that accompanies it) irrelevant to imposition of

that harshest prison sentence,’ ” Montgomery explained,

“mandatory life without parole ‘poses too great a risk

of disproportionate punishment.’ ” Ibid. (quoting Miller, 567 U.S. at 479) (emphasis added). Second, Montgomery described the differences between juveniles

and adults as “considerations underl[ying] the Court’s

holding in Miller that mandatory sentences for children ‘pos[e] too great a risk of disproportionate punishment.’ ” Id. at 733 (quoting Miller, 567 U.S. at 479) (emphasis added).

At the core of Montgomery’s reasoning, then, is the

recognition that a mandatory life-without-parole sentence, which is invariably applied, naturally creates “a

significant risk that a defendant * * * faces a punishment” that is unconstitutionally disproportionate. Summerlin, 542 U.S. at 352 (citation and internal quotation

marks omitted); see Montgomery, 136 S. Ct. at 734.

That risk is analogous to the “significant risk” that

marks other substantive rules—such as the “significant

risk that a defendant” convicted under an overly broad

interpretation of a criminal statute “stands convicted of

an act that the law does not make criminal,” Bousley,

523 U.S. at 620 (citation and internal quotation marks

omitted). A new rule invalidating the application of a

mandatory sentence, like a new rule invalidating the application of a criminal statute, focuses on the categorical

risk that inherently exists when a criminal prohibition

or punishment is applied indiscriminately to all offenders.

26

c. Montgomery did not find that discretionary sentences likewise present the excessive degree of risk necessary to justify retroactive invalidation. And Miller itself had treated discretionary sentencing schemes as a

benchmark against which to measure the risk of mandatory schemes. See 567 U.S. at 484 n.10.

Miller viewed evidence “indicat[ing] that when given

the choice, sentencers impose life without parole on

children relatively rarely” to “support[] [its] holding”

invalidating schemes that mandate such sentences.

567 U.S. at 484 n.10. Miller did not suggest any substantial risk that those “relatively rare[]” discretionary

life-without-parole sentences were themselves erroneous. To the contrary, Miller created a constitutional

regime—one that “d[oes] not foreclose a sentencer’s

ability” to impose a life-without-parole sentence, but

anticipates that “occasions for sentencing juveniles to

this harshest possible penalty will be uncommon,” id. at

479-480—that corresponded to the discretionary sentencing schemes that it surveyed.

Courts imposing discretionary life-without-parole

sentences on juvenile homicide offenders before Miller

may not have framed their exercise of discretion specifically in terms of distinguishing between crimes showing “irreparable corruption” and those showing “transient immaturity,” 567 U.S. at 479-480, as Miller later

would. But a conscientious decisionmaker would be

aware of the implications of a life-without-parole sentence for a juvenile offender. If not barred by law from

doing so, it would ordinarily take into account agerelated factors in assessing the propriety of such punishment for the offense and offender, regardless of the

degree to which those factors were made explicit.

27

A defendant who had the opportunity to argue for a

lesser sentence based on age-related factors, and who

nonetheless received a sentence of life without parole as

a matter of discretion, is thus far less likely to have suffered a disproportionate punishment than a defendant

for whom a life-without-parole sentence was mandatory. To the extent that a defendant sentenced under a

discretionary scheme may in fact have received a constitutionally disproportionate life-without-parole sentence, see Montgomery, 136 S. Ct. at 734, the question

for retroactivity purposes is whether an erroneous outcome of that sort was so likely that it “produce[d] an

impermissibly large risk of injustice,” Summerlin,

542 U.S. at 356 (citation and internal quotation marks

omitted). And this Court’s precedents illustrate that a

rule does not meet that bar when it simply changes the

contours of a preexisting discretionary sentencing determination. See, e.g., Beard v. Banks, 542 U.S. 406,

408, 420 (2004) (rule that capital-sentencing juries may

consider mitigating factors even if not found unanimously was not retroactive); Saffle v. Parks, 494 U.S.

484, 486, 494-495 (1990) (proposed rule about capitalsentencing jury instruction not to rely on sympathy for

the defendant would not be retroactive).

That is true even though such a rule inherently has

“some effect on the likelihood that [a particular] punishment would be imposed,” Montgomery, 136 S. Ct. at 736

(emphasis added). In O’Dell v. Netherland, 521 U.S.

151 (1997), for example, the Court rejected retroactive

application of a rule that altered the parameters of a

“future dangerousness” determination, necessary to

trigger eligibility for death sentence, by requiring that

the determination take into account a defendant’s permanent incarceration. Id. at 154 n.1; see id. at 153, 167;

28

see also Buchanan v. Angelone, 522 U.S. 269, 276 (1998)

(noting that determination of such an aggravating factor “narrow[s] the class of defendants eligible for the

death penalty”). The risk that defendants were misclassified as death-eligible before the rule changed the classification factors was insufficient to justify reopening final discretionary sentences.

Any similar misclassification risk with respect to the

“rare[]” juvenile homicide offenders who received lifewithout-parole sentences under a scheme that allowed

consideration of age-related factors, Miller, 567 U.S.

484 n.10, would likewise fail to justify invalidating those

sentences. And Montgomery does not require this

Court to say otherwise.

2. The Court could also clarify that Montgomery’s

holding rests on the narrower rationale suggested by

the government in that case

Although Montgomery’s core rationale can be reconciled with a limitation to mandatory sentences, the Court

could also reaffirm the limits of Miller by clarifying that

Montgomery’s holding rests on the narrower rationale

set forth in the government’s brief in Montgomery—

namely, that by foreclosing mandatory life-withoutparole sentences for juvenile homicide offenders, Miller

expanded the substantive range of possible sentencing

outcomes. Gov’t Br. at 13-25, Montgomery, supra

(No. 14-280). Holding Miller retroactive on that basis

would not implicate the constitutionality of discretionary life-without-parole sentences for juvenile homicide

offenders and would create no tension with existing retroactivity doctrine.

Before Miller, a juvenile convicted of homicide in a

jurisdiction that mandated life without parole for that

offense could receive only one possible sentence. After

29

Miller, a juvenile offender convicted in the same jurisdiction for the same offense could receive a range of

possible sentences—not only life imprisonment without

parole but also some lesser sentence (either life imprisonment with parole or a term of years). See 567 U.S. at

489. That change—from a mandatory sentence to a

range of possible discretionary sentences—is a substantive one. Indeed, expanding the set of possible sentencing outcomes is the flip side of narrowing the set of possible sentencing outcomes, which is traditionally substantive. See, e.g., Welch v. United States, 136 S. Ct.

1257, 1264-1265 (2016). Such a rule changes not just

how a sentencing determination is made—as a procedural rule would, see id. at 1265—but also what the

bottom-line determination can be.

The experience post-Miller confirms that distinction. After Miller, every homicide statute that mandates a sentence of life without parole cannot be enforced as written in cases involving juvenile offenders.

States and the federal government must instead either

modify the sentence to allow for parole or else provide

a range of sentencing outcomes that includes the possibility of a lesser sentence. See, e.g., People v. Davis,

6 N.E.3d 709, 722 (Ill.) (recognizing that “Miller mandates a sentencing range broader than that provided by

statute” for certain juvenile offenders) (citation omitted), cert. denied, 135 S. Ct. 710 (2014); State v. Mantich, 842 N.W.2d 716, 731 (Neb.) (recognizing that “Miller required Nebraska to change its substantive punishment for the crime of first degree murder when committed by a juvenile”), cert. denied, 135 S. Ct. 67 (2014). A

requirement that courts and legislatures provide sentencing options that did not previously exist is a substantive change in the law.

30

D. This Court Should Remand For A Determination Of

Whether Respondent’s Life-Without-Parole Sentences

Were Mandatory

The lower courts granted relief in this case based on

their view that, after Montgomery, Miller’s holding applies equally to mandatory and discretionary sentences

of life without parole. Pet. App. 19a, 42a. Clarifying or

revising Montgomery to eliminate any such implication

would therefore necessitate a remand for further proceedings.

In Jones v. Commonwealth, supra, the Supreme

Court of Virginia made clear that, under state law, a

capital defendant retains the right to ask the sentencing

court to “suspend [his] life sentence in whole or in part,”

including based on mitigating circumstances related to

“his youth and attendant characteristics.” 795 S.E.2d

at 713 (citation and internal quotation marks omitted).

Although the statutory provision authorizing sentence

suspension existed at the time of respondent’s state

sentencings, see Va. Code Ann. § 19.2-303 (2004), he did

not invoke it. See Pet. App. 9a-10a; cf. Yakus v. United

States, 321 U.S. 414, 444 (1944) (“No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil

cases by the failure to make timely assertion of the right

before a tribunal having jurisdiction to determine it.”).

The implications of those facts would appropriately be

addressed in the first instance on remand. See United

States v. Stitt, 139 S. Ct. 399, 407 (2018) (“[W]e are a

court of review, not of first view.”) (citation omitted).

31

CONCLUSION

The judgment of the court of appeals should be

vacated, and the case should be remanded for further

proceedings.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

BRIAN A. BENCZKOWSKI

Assistant Attorney General

ERIC J. FEIGIN

FREDERICK LIU

Assistants to the Solicitor

General

ROBERT A. PARKER

Attorney

JUNE 2019