Two years before he stepped down from the Supreme Court, Justice Anthony Kennedy pushed to expand the Constitution’s protection of juvenile offenders. In 2016’s Montgomery v. Louisiana, Kennedy sharply limited states’ ability to imprison minors for life without the possibility of parole. He also applied this rule retroactively, giving thousands of rehabilitated felons a new shot at early release. Kennedy’s Montgomery ruling was a liberal landmark, compelling courts to reserve juvenile life without parole, or JLWOP, for “all but the rarest of children, those whose crimes reflect irreparable corruption.” Lower courts have interpreted it, correctly, to create a strong presumption against JLWOP, one that prosecutors must rebut “beyond a reasonable doubt.”
And on Monday morning, the Supreme Court signaled that it may toss Kennedy’s expansive safeguards for juvenile offenders into the dustbin of history. The court announced that it will hear Mathena v. Malvo, which revolves around one of the “D.C. snipers.” Malvo is an emotionally charged case involving heinous, notorious, and relatively recent crimes—an ideal weapon for SCOTUS’s hard-line conservatives to use against Montgomery. If Kennedy were still on the court, the formal abolition of JLWOP might be on the horizon. But with Justice Brett Kavanaugh serving in his stead, the court seems poised to scrap a central facet of Kennedy’s legacy.
The United States is the only country in the world that imposes life sentences without parole on juveniles. As of 2018, more than 2,000 people were serving JLWOP sentences, and Kennedy spent his later years on the bench trying to shrink that number. (Today, 1,100 people are still serving JLWOP sentences; 1,700 have been resentenced under Montgomery but remain in prison, while 450 people have been released.)* In 2010’s Graham v. Florida, the Supreme Court struck down JLWOP sentences for non-homicide crimes in an opinion written by Kennedy. Then, in 2012’s Miller v. Alabama, the Supreme Court struck down mandatory JLWOP schemes—laws that automatically imposed life without parole on minors convicted of certain offenses, usually murder. (By contrast, discretionary JLWOP allows, but does not force, a judge to imprison a minor for life.)
In Miller, a 5–4 decision with Kennedy joining the liberals, the court explained that children have an “underdeveloped sense of responsibility” and a vulnerability to “negative influences.” Children also have “limited control over their own environment” and thus “lack the ability to extricate themselves from horrific, crime-producing settings.” Moreover, minors’ characters are not “well formed”; their traits are “less fixed” than adults. Put simply, juvenile offenders are “less culpable” than adults and more likely to be rehabilitated. In light of these conclusions, the court held that the Eighth Amendment’s bar against “cruel and unusual punishments” outlaws mandatory JLWOP sentences. Instead, a judge must provide an “individualized sentencing” to minors and apply JLWOP only when their crimes reflect “irreparable corruption.”
Four years later, in Montgomery, the court revisited and expanded this holding. First, the court applied Miller retroactively, to all offenders sentenced to JLWOP before 2012. Second, the court clarified (and arguably expanded) the meaning of Miller. In his opinion for the court, Kennedy explained that judges violate the Eighth Amendment any time they impose JLWOP without first deciding that the offender’s “crimes reflect permanent incorrigibility” rather than “the transient immaturity of youth.” In other words, the Constitution doesn’t just prohibit mandatory JLWOP laws. It forbids the application of JLWOP in all circumstances unless prosecutors have proved an offender’s “permanent incorrigibility.” And any prisoner currently serving a JLWOP sentence, whether mandatory or discretionary, has a constitutional right to either be considered for parole or be resentenced.
Given the clear meaning of Montgomery, the Supreme Court’s decision to hear Malvo is puzzling. The case involves Lee Boyd Malvo, who was 17 years old when he helped John Allen Muhammad murder 10 people during the “D.C. sniper” shootings. After a Virginia jury convicted Malvo, a judge sentenced him to life without parole. Malvo, who was allegedly brainwashed by Muhammad, now profoundly regrets his actions and seeks a new sentence under Montgomery. In 2018, the 4th U.S. Circuit Court of Appeals ruled that Malvo does, indeed, have a right to resentencing to determine whether his “crimes reflect permanent incorrigibility.”
Under any plausible reading of Montgomery, the 4th Circuit is plainly correct. Yet now the Supreme Court will review its decision—an ominous sign. In its petition, Virginia asks SCOTUS to rule that Montgomery does not actually require a new sentence or parole hearing for juveniles who were sentenced to life without parole at a judge’s discretion, rather than under a mandatory scheme. But that is obviously untrue; by its own terms, Montgomery applies to all JLWOP offenders, regardless of whether a judge had discretion in condemning them to die behind bars. So, as Malvo’s attorneys note, Virginia is really just asking SCOTUS to overturn Montgomery.
Few seriously believe that Kavanaugh will adopt Kennedy’s expansive interpretation of the Eighth Amendment and continue his pursuit of justice for juvenile offenders. To the contrary, it seems likely that Kavanaugh, along with Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch, voted to take this case because it allows them to bolster JLWOP using a very unsympathetic defendant. (Who wants to go to bat for one of the D.C. snipers?) It takes just four votes to hear a case, so the court’s arch-conservatives may be forcing Chief Justice John Roberts to decide whether to maintain his Eighth Amendment centrism—or veer rightward in Kennedy’s absence. If so, they’ve put Roberts in a tough spot. The chief justice dissented in Miller, but joined the majority in Montgomery, perhaps out of respect for precedent. Once again, Roberts will have to choose whether his preference for institutional stability outweighs his conservative instincts.
The tragedy of Malvo is that it forces JLWOP opponents to play defense when they should be on the brink of total victory. Since Miller, at least 18 states and the District of Columbia have abolished JLWOP. Six had already eliminated the sentence before 2012. Thirteen more states have effectively abandoned JLWOP by ceasing its imposition. Under the “evolving standards of decency” test, the Supreme Court should consider this trend as evidence that JLWOP is no longer compatible with “civilized society” and rule that it always runs afoul of the Eighth Amendment.
Kennedy favored this standard and seemed to be moving in that direction on this issue when he retired. Now he is gone, and Roberts must decide how quickly he will kick Kennedy’s more progressive Eighth Amendment jurisprudence to the curb. Malvo will be a momentous test of his priorities as the new swing justice. Will Roberts stand by Montgomery or turn it into an empty promise? Kennedy’s legacy, and the Supreme Court’s commitment to juvenile justice, appears to lie entirely in his hands.
Update, March 18, 2019: This article has been updated to include a breakdown of current JLWOP sentences.