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March 9, 2020

SCOTUS grants cert on a Mississippi case on the application of Miller to replace dismissed Malvo case

In this new order list, the Supreme Court this morning granted certain in one case, Jones v. Mississippi, No. 18-1259.  Here is the straight-forward question presented in Jones' cert petition:

Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.

As explained in this post and this post, after Virginia enacted new legislation to make all juvenile offenders eligible for parole, SCOTUS had to dismiss, more than four months after oral argument, the Malvo case which concerned whether infamous DC sniper Lee Malvo was constitutionally entitled to be considered for resentencing for a series of murders committed when he was 17.  It was expected that the Justice would be inclined to take up a "replacement case," and that now appears to be the Jones case.

Notably, the facts and legal realities surrounding the Jones case are strikingly different that the Malvo case.  Lee Malvo was just shy of 18 when he was involved is a high-profile series of thrill killings; Brett Jones had just turned 15 when he stabbed to death his grandfather in an altercation in which Jones claimed (unsuccessfully) he acted in self-defense.  In addition, the Malvo case involved the extra complications of federal habeas review of (unclear) state procedures; the Jones case involves a direct appeal from the state court on the question of what process or finding is required to impose a discretionary life without parole sentence on a juvenile killer.

Because of the somewhat simpler facts and simpler procedural posture, it would seem that Jones will present an interesting opportunity to essentially relitgate a range of issues left behind in the wake of the Miller and Montgomery cases.  I suspect some amici may argue, for example, that is is now time for the Eighth Amendment to be interpreted to categorically ban all juve LWOP (or at least to ban all LWOP sentences for crimes committed under the age of 16).  Some other amici might argue, however, that no particular finding or process should be required for before any juve LWOP sentence is imposed despite suggestions otherwise in Montgomery.

Importantly, because of the timing of all these developments, the oral argument in this case will not be until the Fall and we ought not expect an opinion before early 2021.

March 9, 2020 at 10:01 AM | Permalink


While we will not know for sure until we see the opinion, Jones is a very good opportunity to clear up some of the ambiguities in Miller and Montgomery.

Both opinions describe the type of things that a reasonable judge would be considering in any resentencing hearing. Some of have interpreted that language as mandatory things requiring formal findings. (And if those are formal findings, are they findings for a jury rather than a judge.) Others merely see that language as a non-exclusive list of things that a party might want to argue to the trial judge to persuade the trial judge. And the state statutes and opinions implementing Miller and Montgomery are all over the map as to which -- if any -- factors are mandatory.

My hunch is that, with the change in personnel, we are going to be seeing an opinion that will describe those as selection factors rather than eligibility factors (to use death penalty language) with the sentencer making a decision based on all of the evidence rather than any specific factor(s) being controlling. In other words, sentencing decision has to be discretionary with no specific findings required before imposing a sentence of life without parole.

Posted by: tmm | Mar 10, 2020 11:49:47 AM

Good points here, tmm, and I think your prediction is pretty sound. But the Chief (who was in the majority in Montgomery) might be the one who decides just what is of most importance here.

Posted by: Doug B. | Mar 10, 2020 11:23:12 PM

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