Is This Child Incorrigible or Immature?

The Supreme Court is struggling to make sense of former Justice Anthony Kennedy’s landmark juvenile justice opinions.

Retired U.S. Supreme Court Justice Anthony Kennedy at Justice Brett Kavanaugh’s ceremonial swearing-in in the East Room of the White House on Oct. 8, 2018.
Chip Somodevilla/Getty Images

Lee Boyd Malvo was 17 years old when he and John Allen Muhammad shot and killed 10 people in the D.C. area. Muhammad had allegedly brainwashed Malvo for more than two years, taking the teenager under his wing after he had been abandoned by his family. The older man reportedly sexually abused Malvo and indoctrinated him with a violent ideology. Muhammad also convinced Malvo that their killing spree was a divinely inspired mission that would help them build a utopian society.


Virginia executed Muhammad in 2009, but Malvo remains in prison, sentenced to life without parole. Today he is fully rehabilitated, expressing profound remorse for his role in the murders. He has already served half his life behind bars, and Virginia intends to keep him there until he dies. On Tuesday, however, Malvo’s attorneys urged the Supreme Court to give him a chance to convince a judge to reduce his sentence. The case, Mathena v. Malvo, is the court’s first case about juvenile life without parole, or JLWOP, since Justice Anthony Kennedy retired in 2018. And Tuesday’s arguments revealed that the conservative justices are not yet sure how quickly they want to erase Kennedy’s legacy.

Malvo turns on two earlier cases, Miller v. Alabama and Montgomery v. Louisiana, that interpreted the Eighth Amendment’s bar on “cruel and unusual punishments.” In Miller, the court struck down laws that require a life sentence without the possibility of parole for minors convicted of certain crimes, known as mandatory JLWOP schemes. In Montgomery, the court applied Miller retroactively, meaning thousands of people sentenced to mandatory JLWOP could petition for a new sentence. The court also clarified that JLWOP must be reserved for the rare minor “whose crimes reflect permanent incorrigibility.” Juvenile offenders, the court explained, must “be given the opportunity to show their crime did not reflect irreparable corruption.” It also suggested that this rule applies to every minor sentenced to life without parole, not just those sentenced under a mandatory scheme.

Both Miller and Montgomery continued a line of cases that shielded minors against extreme criminal penalties. The court was reacting to a growing body of research demonstrating that, because of their developing brains, children are less culpable for their crimes and more likely to be rehabilitated than adult offenders. These facts had already led the court to outlaw the death penalty for juvenile offenders in Roper v. Simmons, as well as JLWOP for nonhomicide offenses in Graham v. Florida. The court rooted its analysis in the long-standing rule that the Eighth Amendment embodies “evolving standards of decency that mark the progress of a maturing society.” (Kennedy wrote the majority opinions in Roper, Graham, and Montgomery; he cast the fifth vote in Miller, a 5–4 decision authored by Justice Elena Kagan.)

One big question in Malvo is who gets to benefit from these evolving standards of decency. Recall that Miller dealt with mandatory JLWOP, laws that left the judge no choice but to sentence a minor to die in prison. Virginia claims that Malvo was sentenced at the discretion of a judge who had the opportunity to consider his youth. As a result, he has no right to a new hearing. Malvo counters that, even if a judge imposed JLWOP by choice, offenders must get a new hearing to argue that his crimes did not “reflect irreparable corruption.”


Justice Brett Kavanaugh, Kennedy’s successor, appeared genuinely torn over the case. “Suppose I try to read Miller and Montgomery together to figure out what the substantive rule is,” he told Virginia Solicitor General Toby Heytens, “and that I conclude the substantive rule is that the state cannot impose life without parole on youth who are merely immature but can impose it on those who are incorrigible.” If that’s right, Kavanaugh said, “we have to figure out what the procedural rule attached to that was.” Is it enough to know the judge could have taken an offender’s age into account? Or “does there have to be something more on the record stated by the sentencing judge about youth?”

“This is the tough part of the case for me,” Kavanaugh added. How can the court know “that the sentencing judge separated the incorrigible” from the “merely immature”?

Kagan tried to help Kavanaugh along, asserting her authority as the author of Miller. That decision, she told Heytens, “can be summarized in two words, which is that youth matters, and that you have to consider youth in making these sorts of sentencing determinations.” Justice Sonia Sotomayor pitched in too. “The substantive ruling of Miller was very clear,” she said: It rendered life without parole sentences “an unconstitutional penalty” for “juvenile offenders whose crime reflect the transient immaturity of youth.” Under that ruling, it doesn’t matter if a minor was sentenced to life without parole automatically or not. What matters is that the judge considered the minor’s youth. And absent any evidence that the judge considered Malvo’s age, he has a right to a new sentence that assesses his potential for rehabilitation.


That raises another question: If Malvo gets a new hearing, what would it look like? How does a judge prove she took age into account? Could a state, Chief Justice John Roberts asked, just tell a judge: “Here are the things you need to consider, and transient youth or incorrigibility is one of them?”

It was amusing to watch the justices debate what Kennedy meant to say in Montgomery. Kennedy wrote notoriously hazy opinions that lower courts, and the public, have struggled to interpret for decades. In that sense, his opinion in Montgomery was a Kennedy classic. He seemed to broaden Miller as he applied it retroactively, turning a bar against mandatory JLWOP into a strict limitation on all JLWOP. And he appeared to give all juvenile offenders a right to argue that they were not “incorrigible” before receiving a sentence of life without parole. But he did not explain any of this with clarity. So now the court must suss out the contours of his decision—giving the conservatives an opportunity to rewrite and narrow it.

Justices Samuel Alito and Neil Gorsuch were certainly eager to do just that on Tuesday. Kavanaugh and Roberts were harder to read. Although Roberts dissented in Miller, he joined the majority in Montgomery. And Kavanaugh did not dispute that the two decisions bar the imposition of JLWOP on all but the rare “incorrigible” offender. That leaves one remaining question: How, exactly, can a judge determine whether a child is incorrigible or immature?

There is, no doubt, room for judicial mischief here. Roberts and Kavanaugh mused that a judge could check a box that says “THIS OFFENDER IS INCORRIGIBLE.” That would not live up to the promise of Miller and Montgomery. But the judge who sentenced Malvo did less than that—she didn’t say a thing about his youth. A rule that compels judges to check a box, at a minimum, would probably free Malvo, as well as many other offenders still awaiting parole or resentencing. But it could let judges impose JLWOP with ease in the future, allowing them to skirt their constitutional obligations.


Roberts and Kavanaugh may not go as far as Kennedy would’ve liked. But they likely won’t use this case to destroy the Eighth Amendment either. On this court, a small ruling for decency is about as big a victory as progressives can expect.

You must subscribe to access this content.
To continue viewing the content you love, please choose one of our subscriptions today.
Please register to access this content.
To continue viewing the content you love, please sign in or create a new account
You have used all of your free pageviews.
Please subscribe to access more content.
Access denied!