Lee Boyd Malvo was sentenced to life without the possibility of parole for his role in the 2002 sniper shootings in Washington D.C., Virginia, and Maryland, which occurred when he was seventeen years old. On October 16, 2019, the U.S. Supreme Court will hear oral arguments in the case of Mathena v. Malvo.

ACLU National, in partnership with the ACLU of Virginia and the ACLU of Maryland, authored an amicus brief on behalf of several notable constitutional law experts: Erwin Chemerinsky, Aziz Huq, Leah Litman, David Strauss, Carlos Vazquez, and Larry Yackle. These federal court scholars, with decades of experience and extensive scholarship examining issues implicated in this case, join as amici to support respondent Malvo’s position that a new constitutional rule established by the Court applies retroactively on collateral review.

Malvo’s challenge relies on Miller v. Alabama, which held that the Constitution’s Eighth Amendment bar on cruel and unusual punishment prohibits mandatory life-without-parole sentences for juveniles due to their “diminished culpability and heightened capacity for change,” except for the rare juvenile whose crime reflect “irreparable corruption.” 567 U.S. 460, 479-80 (2012). Because this was a substantive rule—one that placed a category of offenders outside of the state’s control to punish, regardless of the procedure used—the Court’s decision in Miller applies retroactively on collateral review, as held in Montgomery v. Louisiana. See Montgomery, 136 S. Ct. 718, 734 (2016). Virginia’s sentencing process not only fails to distinguish between juveniles and adults sentenced to life without parole, but also falls short of Miller’s requirement that a sentencing authority separate those “juvenile offenders whose crimes reflect the transient immaturity of youth.” Montgomery, 136 S. Ct. at 734. Although Virginia’s sentencing scheme makes a life-without-parole sentence discretionary, the Miller standard requires specific consideration of a juvenile’s reduced culpability and capacity for change, to distinguish between the majority of juveniles who are constitutionally protected against a life-without-parole sentence from those who may receive such punishment.



Eden Heilman and Jennifer Safstrom, ACLU of Virginia

Date filed

August 27, 2019


The Supreme Court of the United States



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