By: Nicolas Jesús Monarrez

The phrase “kids will be kids” is thrown around colloquially without much thought. A teen gets in trouble at school for passing notes. Two toddlers fight over blocks until someone cries. That cliché applies to most children, but what do we say about a child who commits a crime? Is a “kid being a kid” when they commit murder? The courts have been wrestling with this question since 2004 when the U.S. Supreme Court decided Roper v. Simmons, the first of four cases shaping the way juvenile offenders are sentenced. While there is greater clarification, we now face the always lovely gray area between a permissible sentence and one that violates the Eighth Amendment’s protection against cruel and unusual punishment. In this gray area, many attorneys have set up camp arguing that their clients have received “de facto” life sentences or non-life sentences that are so long the sentenced person will likely die. Understanding juvenile sentencing has been difficult, as shown by arguments at the U.S. Supreme Court on October 16 of this year in Mathena v. Malvo. Excitingly, the Supreme Court is expected to provide a clarifying decision in this area that will have profound effects on the juvenile/criminal justice system, but first, we need a little background.


Roper v. Simmons began to move the locomotive in 2005. The U.S. Supreme Court determined, in a 5-4 decision, that executing minors violates the Eighth Amendment’s protection against cruel and unusual punishment. [1] The court relied on “evolving standards of decency” in deciding that execution was disproportionate punishment for minors. [2] The Roper court found three differences between minor offenders and adult offenders that make minors less culpable; and, therefore, less deserving of the harshest punishment— death. [3] These factors are: (1) lack of maturity/underdeveloped sense of responsibility, (2) vulnerability to outside negative forces such as peer pressure, and (3) the lack of character formation as compared to an adult. [4]

In 2010, when deciding Graham v. Florida, the Supreme Court determined that life without parole (LWOP) sentences also violate the Eighth Amendment’s protection. [5] The Court found a minor convicted to a LWOP sentence was not awarded a “meaningful opportunity to obtain release” and had diminished culpability, and the sentence lacked penological justification. [6]

These cases are brought up often in de facto arguments, but the following two cases are the crux of the confusion. Miller v. Alabama was decided in 2012. This case concerned a fourteen-year-old murderer who had been sentenced pursuant to a mandatory sentencing scheme to LWOP. [7] The Court felt that the mandatory sentencing scheme could not conform with the mandates of Roper and Graham which made clear that children are “constitutionally different from adults for purposes of sentencing.” [8] Therefore, youth and immaturity must be adequately considered when a minor could spend their life in prison. [9] The Miller Court therefore determined mandatory LWOP sentencing schemes, which left no discretion for the judge to adequately assess youth, violated the Eighth Amendment. [10] This is where the gray area rears its head. Advocates argued that Miller was more expansive than mandatory LWOP sentencing schemes and the same reasoning applied to discretionary LWOP sentences. The opposition argued that Miller only addressed mandatory LWOP because that was the only category the Court intended the rule to cover.

Naturally, past juvenile offenders brought cases under Miller, claiming the rule applied retroactively to absolve them of their LWOP sentences, which were given under then mandatory schemes. The Court looked to the issue of applying a substantive rule retroactively in Montgomery v. Louisiana. [11] They stated

Miller, then, did more than require a sentencer to consider a juvenile offender’s youth before imposing life without parole; it established that the penological justifications for life without parole collapse in light of “the distinctive attributes of youth.” Id., at ___ (slip op., at 9). Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects “‘unfortunate yet transient immaturity.’ ” Id., at ___ (slip op., at 17) (quoting Roper, 543 U. S., at 573). Because Miller determined that sentencing a child to life without parole is excessive for all but “ ‘the rare juvenile offender whose crime reflects irreparable corruption,’ ” 567 U. S., at ___ (slip op., at 17) (quoting Ropersupra, at 573), it rendered life without parole an unconstitutional penalty for “a class of defendants because of their status”—that is, juvenile offenders whose crimes reflect the transient immaturity of youth. Penry, 492 U. S., at 330. As a result, Miller announced a substantive rule of constitutional law.

[12] While clarifying the content of Miller, Montgomery also opened an interesting question. If considering age is not enough to impose a lifetime in prison, can discretionary sentencing schemes allow judges to give aggregate sentences outlasting a defendant’s life if their crimes reflect transient immaturity under Miller/Montgomery? This is where the gray area was given room to stretch its legs.


Currently, over twenty states and several federal circuits have made attempts to conform their sentencing of juveniles to the mandates of the cases above. Some, such as Wyoming, have created bright-line rules that an aggregate sentence over a certain number of years triggers Miller/Montgomery scrutiny. [13] Other states, such as Washington, have read their state constitution to provide broader protection than the Eighth Amendment; thus, getting rid of de facto life sentences. [14] The steady stream of states and circuits seem to be moving away from imposing the harshest punishments on juvenile offenders.

But the gray area doesn’t stop there. The Arizona Supreme Court currently has two cases with de facto arguments that they have conferenced and continued multiple times. While not stating it explicitly, they seem to be waiting for a decision from the U.S. Supreme Court that could add a fifth case to this line.

The case, Mathena v. Malvo, was argued before the Supreme Court on October 16th. [15] In October 2002, at age seventeen, defendant Malvo was a part of the D.C. sniper attacks in which ten people were killed. [16] Malvo was sentenced, under a discretionary scheme, to life in prison for his participation in the attacks. [17] Malvo argued that Virginia’s sentencing scheme did not pass Miller/Montgomery muster at the time of sentencing, which was before those cases were decided, and that Montgomery announced Miller applied retroactively. [18] Therefore, Malvo argued, his life sentence must be vacated, and a resentencing hearing must be held to determine if at the time the crimes were committed, he was transiently immature or of the rare type of juvenile offender needing the harshest of punishment. [19] The State of Virginia argued the sentences were discretionary and therefore do not fall under Miller’s mandatory LWOP scheme umbrella. [20] A decision for Malvo will have profound effects on thousands of cases where discretionary sentencing has allowed many states to skirt their responsibilities under the Miller line.

Potential Effects

There are three potential effects a decision for Malvo can have. The first is stated above: if discretionary life sentences are no longer able to avoid Miller, then thousands of individuals, currently sentenced and to be sentenced in the future, will argue for resentencing hearings. Going one step further, the argument that aggregate consecutive sentences constitute de facto life is strengthened. As it stands, de facto life sentences are believed to have the same practical effects as a life sentence: death of the defendant, serves no penological purpose, fails to provide a meaningful opportunity for release, and does not properly account for a defendant’s transient immaturity.

The second effect stems from the first. Courts will begin the slow process of reviewing petitions for review to determine whether defendants are entitled to individualized sentencing hearings under Miller.

The final effect on the justice system would be a concrete change in sentencing juveniles. This effect may be seen in Arizona where the supreme court has continued two cases State v. Helm and State v. Soto Fung. These state cases, and alike cases in other states, would set new precedent on how de facto life sentences, and juvenile sentencing in general, are conducted. This change would also take some discretion from sentencing judges who would have to follow Miller’s mandate of finding irreparable corruption before giving a sentence that would outlast a juvenile defendant’s life.


The current state of juvenile sentencing may be changing in the new year. The line of cases addressing this issue has been progressing for over fifteen years and seems poised to add a new decision to its belt.  Very possibly, a decision may have a significant impact on the discretion of judges by limiting the sentences possible for the most egregious juvenile offenders. This decision will also have impact on thousands of inmates and the processes of the courts. It’s an exciting time in the area of juvenile law, and I’m looking forward to reading the U.S. Supreme Court’s opinion in Mathena v. Malvo. You should be too.


[1] Roper v. Simmons, 543 U.S. 551 (2005).

[2] Id. at 561 (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958)).

[3] Id. at 569.

[4] Id.

[5] Graham v. Florida, 560 U.S. 48, 75 (2010).

[6] Id. at 82.

[7] Miller v. Alabama, 567 U.S. 460, 471-72 (2012).

[8] Graham, 560 U.S. at 68.

[9] Id.

[10] Miller, 567 U.S. at 465.

[11] Montgomery v. Louisiana, 136 S. Ct. 718, 732 (2016).

[12] Id. at 734.

[13] State v. Sam, 401 P.3d 834, 860 (Wyo. 2017).

[14] State v. Bassett, 428 P.3d 343, 346 (Wash. 2018).

[15] Mathena v. Malvo, No. 18-217, 2019 U.S. LEXIS 1905 (2019).

[16] Ariane de Vogue & Devan Cole, Supreme Court Agrees to take up D.C. Sniper Case, Cnn Politics, (Mar. 18, 2019),

[17] Id.

[18] Id. 

[19] Id.

[20] Id.