Kavanaugh, Roberts Key to D.C. Sniper Outcome at High Court (1)

Oct. 16, 2019, 6:24 PMUpdated: Oct. 16, 2019, 9:30 PM

Justice Brett Kavanaugh and Chief Justice John Roberts hold key votes in deciding whether D.C. Sniper Lee Boyd Malvo can get a new sentencing hearing, and, more broadly, how the Supreme Court will interpret its recent juvenile sentencing precedents that apply to other convicts, too.

In particular, Kavanaugh’s questioning of both sides during oral arguments Oct. 16 showed that the fates of some killers sentenced for crimes they committed as minors might be in the newest justice’s hands.

How the high court resolves the case could give a glimpse at the Roberts Court’s current stance toward this area of the law, following Kavanaugh’s replacement of Anthony Kennedy, whose vote was pivotal for defendants in these cases. A decision is expected by late June.

The task ahead for the court in crafting that decision lies in applying key rulings from 2012 and 2016, handed down years after the 2002 Washington-area rampage by Malvo, then 17, and the much older John Allen Muhammad, but before Kavanaugh and Justice Neil Gorsuch joined the court.

In 2012, the court ruled in Miller v. Alabama that sentencing courts need to take juvenile defendants’ youth into account before imposing such sentences. Justice Elena Kagan wrote the 5-4 decision, striking down mandatory life-without-parole juvenile regimes, for the Democratic-appointees plus Kennedy, with Roberts, Samuel Alito, Clarence Thomas, and the since-deceased Antonin Scalia dissenting.

As Kagan put it during the argument in Malvo’s case, Miller can summarized in two words: “youth matters.”

In 2016, the court made Miller retroactive in Montgomery v. Louisiana. Kennedy wrote the 6-3 opinion, joined by the rest of the majority from Miller plus Roberts.

With Roberts having gone both ways in the juvenile cases, combined with the arrival of Gorsuch and Kavanaugh, the question now is how far Miller and Montgomery go in helping defendants. Malvo’s case could provide the answer, or at least more clarity.

The justices puzzled over that issue during the argument. Malvo’s lawyer, Danielle Spinelli of WilmerHale, argued that his 2004 Virginia state sentencing runs afoul of those precedents. The state, represented by its solicitor general, Toby J. Heytens, argued the opposite. The Justice Department weighed in at the argument, too, siding with Virginia although not in lockstep with the state.

A fair amount of the hour-long session focused on the nuts-and-bolts of how to administer proper sentencing schemes in light of Miller and Montgomery.

During Heyten’s argument, Kavanaugh said the “tough part of the case for me” is, in a situation where “youth is raised by the defense counsel, and the sentencing judge either says nothing, just imposes the sentence without explaining anything about youth, or just discusses youth but says ultimately still going to stick with life without parole,” how to know that the sentencing judge separated the “incorrigible” from the “merely immature.”

During Spinelli’s argument, Kavanaugh asked “why isn’t a discretionary sentencing regime enough procedurally to satisfy the substantive rule articulated in Miller and Montgomery?”

Spinelli later said “juveniles are entitled to at least one opportunity to show that they are not permanently incorrigible,” and that Virginia didn’t provide Malvo that opportunity.

Roberts’ questions didn’t give a clear indication whether he’ll rule for the defense, like he did in Montgomery, or for the government, like he did in Miller.

The case is Mathena v. Malvo, U.S., 18-217, oral argument 10/16/19.

(Adds more detail from the argument, context, and link to transcript. )

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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