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INSIGHT: Listen to States on Child Sentencing, Bipartisan Legislators Tell High Court

Oct. 10, 2019, 11:41 AM

On Oct. 16, the U.S. Supreme Court will hear oral argument in a case that involves Lee Boyd Malvo, one of the two “D.C. Snipers.” Malvo committed serious crimes when he was 17 years old and must be held accountable, but he also must be afforded constitutional protections, like all other child offenders.

In 2012, the Supreme Court held in Miller v. Alabama that the Eighth Amendment forbids sentencing children to life without parole without consideration of their youth. The court explained that children are different than adults: they are less mature, more vulnerable, and more capable of change. And given “children’s diminished culpability and heightened capacity for change … appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”

Courts must therefore “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison” before imposing a life without parole sentence on a child.

In 2016, in Montgomery v. Louisiana, the court held that Miller is retroactive, meaning that it applies to children, like Malvo, who were sentenced before Miller was decided. The court also explained that a state that does not want to resentence children currently serving life without parole has another option. It can instead make child offenders eligible for parole. That does not guarantee release, but it ensures that a child offender will at least have a chance to demonstrate that he has changed. This is how my home state of West Virginia, as well as 21 other states and the District of Columbia treat children convicted of serious crimes.

Because Malvo’s trial occurred in 2004, eight years before Miller, the judge in his case did not consider the characteristics of youth and how they counsel against a life without parole sentence. The U.S. Court of Appeals for the Fourth Circuit followed the Supreme Court’s precedent and held that Malvo is entitled to be sentenced again, so that the judge can take his youth into account in determining the appropriate sentence. The Supreme Court should affirm the Fourth Circuit’s decision.

Bipartisan Support for Banning Life Without Parole for Children

I am one of eight current or former state legislators who successfully sponsored or co-sponsored state legislation that banned the use of life without parole sentences for children following the court’s rulings in Miller and Montgomery. We filed an amicus brief in support of Malvo to inform the court that state legislators of diverse political ideologies endorse the basic constitutional principles set out in Miller and relied on them in passing that legislation.

Our group of amici includes Republican and Democratic state legislators from across the country, including Arkansas, Hawaii, Nevada, Utah, Vermont, and West Virginia. Some of the amici describe themselves as very conservative, some describe themselves as very liberal, and some fall somewhere in between. Yet, we are united in the view that the court should leave Miller and Montgomery in place.

One of the amici, Nevada Assemblyman John Hambrick, a Republican and a former law enforcement officer, was Speaker of the Nevada Assembly when he sponsored a bill—which passed unanimously—ending life without parole sentences for children. Then-Speaker Hambrick explained: “Whether you are a Republican or a Democrat, a conservative or a liberal, this is about the soul of America and who we want to be as a country … there is no reason to extinguish all hope from children. We can protect public safety and still show child offenders compassion.”

Before 2012, eight states had already banned life without parole sentences for children or had no children serving such sentences. Since then, legislatures and courts in an additional 36 states and the District of Columbia have relied on Miller and Montgomery to pass laws or issue court rulings providing children sentenced to life without parole with a resentencing hearing, to establish new sentencing procedures, and/or to eliminate life without parole sentences for children.

The great majority of states have understood that Miller’s holding is applicable to all sentencing schemes permitting a child to be sentenced to life without parole and have taken action to implement that holding. Only six states out of 50 have failed to pass legislation or begin the resentencing process for children serving life without parole.

Broad Consensus

As argued in our amici brief, the actions of 44 states reflect a broad consensus that the imposition of life without parole sentences on children, without the protections afforded by Miller and Montgomery, is cruel and unusual punishment.

What distinguishes the use of life without parole sentences on children from other Eighth Amendment issues is that state lawmakers of different parties, representing many different regions of the country support the court’s decision that life without parole is cruel and unusual punishment for the vast majority of children.

Thus, given the actions of the various states in response to Miller and Montgomery, the Malvo case is unlike others in the history of U.S. Supreme Court jurisprudence. Our amici group of current and former state legislators hope that the court will maintain the stability of the law applicable to all states.

Under Miller and Montgomery, children must be afforded the opportunity to show that they are capable of change—either at a sentencing hearing that takes their youth into account or through the parole process. Any other result creates too great a risk of an excessive punishment that no state can constitutionally impose.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

John Ellem, a Republican and former member of the West Virginia House of Delegates, is part of a bi-partisan group of current and former state legislators who submitted an amicus brief to the Supreme Court in support of Lee Boyd Malvo and co-counsel for the amici. He is currently a solo practitioner in West Virginia.