Additional Malvo Replacement Candidates

Yesterday, I noted the case of Newton v. Indiana, No. 17-1511 as a possible replacement for the recently-dropped Malvo case on sentencing juvenile murderers to life-without-parole. I have since been made aware of four other cases also listed for tomorrow’s U.S. Supreme Court conference. Update: See end of post.

In Jones v. Mississippi, No. 18-1259, defendant states the question presented as:

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.

The State of Oregon seeks review of decisions of its own Supreme Court in the cases of twin brothers Lydell White and Laycelle White. They are Kelly v. White, No. 19-264, and Kelly v. White, No. 19-265, respectively. The QP in both cases, as stated by the State, is:

Respondent received a 67-year non-mandatory sentence 25 years ago, when he was 15 years old, for the murder of an elderly couple.

Does the Eighth Amendment, under Miller v. Alabama, 567 U.S. 460 (2012), which applies to mandatory sentences, require invalidation of respondent’s sentence?

The QP in the Mississippi case focuses more on the “incorrigible” finding, while the QP in the Oregon cases focuses more on the discretionary versus mandatory nature of the sentencing proceeding. There is less to this distinction than meets the eye, though. There is no doubt that Miller banned mandatory LWOP sentencing for juveniles. The question is whether that decision, as [mis]interpreted in Montgomery further added a requirement for an explicit “incorrigibility” finding on discretionary proceedings.

Unlike the Malvo case, all three of these cases come from the state courts, so the Supreme Court can address the Eighth Amendment issues directly without viewing them through the lens of statutory limits on federal habeas corpus for state prisoners.

Finally, another variation on the theme comes from Oklahoma. That State’s Court of Criminal Appeals held in an earlier case that incorrigibility must not only be found, but it is an Apprendi/Ring fact that must be found by a jury beyond a reasonable doubt under the Fifth and Sixth Amendments. The State seeks review of this holding in Oklahoma v. Johnson, No. 19-250.

Thanks to Jimmy Harmon of the Oklahoma County District Attorney’s Office for noting these cases.

Update: The Oregon Attorney General has weirdly thrown in the towel in the twin murderer cases, asking the Court to dismiss. Unlike Virginia, the cases are not moot. The AG has simply decided to cave in.

Update 2: The Oregon AG’s motions to dismiss were granted March 16.