A Debate Reemerges: The Virginia Supreme Court Splits 4-3 Over
Life Sentence for Juvenile Convicted of Capital Murder
On February 2, 2017, the Virginia Supreme Court decided the case of Donte Lamar Jones v. Commonwealth of Virginia, Record No. 131385 (“Jones II”). Justice D. Arthur Kelsey wrote for the four-justice majority. Justice Cleo E. Powell authored a dissent, joined by Justices S. Bernard Goodwyn and William C. Mims. As of this writing, the Jones II decision lacks either a Virginia Reporter or Southeastern 2nd Reporter citation.
The Jones II decision followed remand of the case from the U.S. Supreme Court, “for further consideration in light of Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718, 193 L.Ed. 2d 599 (2016).” See also, Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455, 183 L.Ed. 2d 407 (2012)(holding that “the Eighth Amendment forbids a sentencing scheme [applicable to juvenile offenders] that mandates life in prison without possibility of parole…By making youth (an all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment…Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing him to a lifetime in prison.”) 183 L.Ed. 2d at 424 (Kagan, J., for the majority). [Clarification added].
In Montgomery, the Court considered whether Miller’s holding must be retroactively applied. In an opinion authored by Justice Anthony M. Kennedy, the Court initially held “that when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule.” 193 L.Ed. 2d at 614. It then went on to address Miller’s retroactivity:
The Court now holds that Miller announced a substantive rule of constitutional law. The conclusion that Miller states a substantive rule comports with the principles that…balance the important goals of finality and comity with the liberty interests of those imprisoned pursuant to rules later deemed unconstitutional. Miller’s conclusion that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk that many are being held in violation of the Constitution.
Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them…Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.
Montgomery, 193 L.Ed. 2d at 622.
The remand vacated the Virginia Supreme Court’s earlier decision in Jones v. Commonwealth, 288 Va. 475, 763 S.E. 2d 823 (2014)(“Jones I”), from which decision Jones petitioned for certiorari. See, Jones v. Virginia, 194 L.Ed. 2d 340, 136 S.Ct. 1358 (2016). The U. S. Supreme Court granted certiorari and simultaneously remanded the case to the Virginia Supreme Court. Both Justices Clarence Thomas and Samuel A. Alito, Jr. concurred in granting certiorari and remanding. Their concurrence stated their position that in remanding, “the Court has not assessed whether [Jones’] asserted entitlement to retroactive relief ‘is properly presented in the case.’” Id. [Clarification added].
In Jones I, the Virginia Supreme Court, in an unanimous opinion authored by Justice Powell, considered Jones’ motion to vacate his sentence in light of Miller’s holding, “twelve years after he pled guilty to capital murder in exchange for a sentence of life without the possibility of parole.” 288 Va. at 477. Jones contended that Miller should apply retroactively and entitled him “to a new sentencing proceeding because he was seventeen years old when he committed the murder.” Id. The Court affirmed the trial court’s denial of Jones’ motion to vacate on grounds that did not address Miller’s retroactivity:
We hold that because the trial court has the ability under Code § 19.2-303 to suspend part or all of the life sentence imposed for a Class 1 felony conviction, the sentencing scheme applicable to Jones' conviction was not a mandatory life without the possibility of parole scheme. Therefore, even if Miller applied retroactively, it would not apply to the Virginia sentencing statutes relevant here. Thus, the circuit court lacked jurisdiction to grant Jones' motion [to vacate his sentence].
Id., at 477. [Clarification added].
In Jones II, the reconsideration of Jones I in light of Montgomery generated a sharp division in the Court. The justices’ divergence in Jones II is reminiscent of the doctrinal debate regarding de facto life sentences for juveniles that emerged among the justices in Vasquez v. Commonwealth, 291 Va. 232, 781 S.E. 2d 920, cert. denied, ___ U.S. ___, 137 S. Ct. 568, 196 L.Ed. 2d 448 (2016).
In Vasquez, the Court considered the issue whether Vasquez’ aggregate term-of-years sentence violated the Eighth Amendment’s prohibition of cruel and unusual punishment. Id., at 236. Upon conviction for numerous violent felony offenses, Vasquez received 283 years imprisonment, with 150 years suspended. Id., at 239. Vasquez contended that his net 133 years to serve constituted a de facto life sentence, thus violating the U.S. Supreme Court’s determination that the Eighth Amendment prohibits the imposition of a life sentence without parole “on a juvenile offender who did not commit homicide.” Graham v. Florida, 560 U.S. 48, 82, 130 S. Ct. 2011, 176 L.E. 2d 825 (2010).
The Court disagreed with Vasquez in an opinion written by Justice Kelsey, declining to extend Graham, and noting, “[t]he only reason that the aggregate sentences exceeded [Vasquez life expectancy] was because [he] committed so many crimes. [This case] is nothing like Graham, which involved a single crime resulting in a single life-without-parole sentence.” 291 Va. at 243. [Clarifications added]. The Court concluded that Graham did not control, as that precedent “does not apply to aggregate term-of-years sentences involving multiple crimes…we reject the argument of Vasquez…that [his sentence] violate[s]” the Eighth Amendment. Id., at 246. [Clarifications added].
Justice Mims concurred in the Vasquez result, joined by Justice Goodwyn. 291 Va. at 251-59. Justice Mims articulated his unwillingness to wholly join the majority opinion:
I write separately because I respectfully disagree with the Court's conclusion that Graham…does not apply when determining the constitutionality of those sentences. I believe that Graham's prohibition on sentences of life without parole for juveniles who commit non-homicide offenses does apply to a term-of-years sentence that constitutes a de facto life sentence imposed in a single sentencing event. Nonetheless, our precedent precludes reversing the Court of Appeals even after applying Graham. In Angel v. Commonwealth, 281 Va. 248, 704 S.E.2d 386 (2011), this Court held that Virginia's geriatric release statute provides the requisite meaningful opportunity for release based on demonstrated maturity and rehabilitation that Graham requires. Vasquez…will be eligible for such release.
Id., at 252; and see Va. Code §53.1-40.01 (geriatric release statute).
The concurrence went on to express serious concerns about the application of Virginia’s geriatric release statute, and its implications for the future of juvenile justice:
I note, though, that whether the geriatric release statute as applied will continue to provide the "meaningful opportunity for release" required by Graham is subject to debate. Statistics describing the frequency with which geriatric release has been granted post-Angel are troubling: less than 4% of the eligible offenders who applied for geriatric release have received early release…If these trends continue as juvenile offenders become eligible for geriatric release, it may become increasingly difficult to maintain that geriatric release as applied truly provides a "meaningful opportunity" for release.
291 Va. at 258.
In March 2016, I blogged about the Vasquez decision, and the justices’ differences regarding Graham’s extension to de facto life sentences imposed upon juvenile offenders in non-homicide cases. See the blog post here. With Justices Mims and Goodwyn joining Justice Powell’s Jones II dissent, the Court’s factional division reemerged as to juvenile justice issues vis-à-vis life sentences without parole.
In Jones II, the Court stated that Jones’ certiorari petition, inter alia, “argued that the power to suspend a life sentence…was an insufficient ‘opportunity’ for the sentencing court to take into account ‘mitigating circumstances before imposing the harshest possible penalty for juveniles.’” Jones II, at *5, in part quoting Miller, 132 S.Ct. at 2475. It noted the intervening decision in Montgomery, and the concurrence of Justices Thomas and Alito in the grant of certiorari and remand of Jones I for further consideration.
The Court then crystallized Jones’ position “that we must order the trial court to resentence him to a specific term of years (not life) and to ensure him that the term of incarceration is not long enough to be the ‘functional equivalent of a life sentence.’” In denying Jones the requested relief the Court made a number of findings, including:
(1) That Jones’ life sentence was not a mandatory life sentence in violation of Miller, expressly reaffirming its decision in Jones I;
(2) That Virginia’s sentencing statutes do not treat a capital life sentence as mandatory, as a sentencing judge possesses statutory authority to suspend all or a portion of such a sentence;
(3) That Montgomery did not interpret Miller to require “a hearing where youth and its attendant characteristics are considered as sentencing factors in order to separate those juveniles who may be sentenced to life without parole and those who may not;”
(4) That Jones’ “plea agreement, in which he stipulated to a life sentence ‘without the possibility of parole’ on the capital murder charge,” expressly waiving his right to appeal, (“and a fortiori, any right to collaterally attack” his sentence), served to waive his statutory right to present mitigating evidence at his sentencing proceeding;
(5) That Jones’ sentence was not void ab initio, as he contended, but at most, potentially voidable, and properly subject to Jones’ waiver of any right to contest that sentence;
(6) That under applicable Virginia procedural law, Jones incorrectly utilized a motion to vacate to challenge his sentence as the trial court, under Rule 1:1, had “lost active jurisdiction over the case;” and
(7) That Montgomery did not interpret Miller to require “a Miller hearing before a juvenile offender can be sentenced to life without parole, regardless of whether the sentence is mandatory or discretionary.
Justice Powell’s dissent sharply disagreed with the majority in several respects. Her dissent asserted:
(a) That Montgomery clarified “and, in my opinion, expanded the holding in Miller, thereby revealing why this Court’s previous interpretation of Miller in Jones I was misguided;”
(b) That the scope of Miller “is not limited to mandatory life sentences,” but applies to both mandatory and discretionary impositions of life without parole sentences upon juvenile offenders;
(c) That Montgomery made clear that “the focus of Miller was not that only mandatory life sentences are unconstitutional; rather it is that the Eighth Amendment requires individualized consideration before a juvenile can be sentenced to life in prison without the possibility of parole;”
(d) That the burden rests upon the Commonwealth, not the defendant, to demonstrate that the juvenile offender is “not the rare exception to the rule” who would warrant a life without parole sentence;
(e) That Jones did not waive his constitutional challenge to his sentence, in that Miller announced a new substantive rule of constitutional law and Montgomery required that rule’s retroactive application;
(f) That Jones’ sentence was void ab initio, and that a motion to vacate provided an appropriate procedural vehicle to challenge that sentence; and
(g) That the majority’s decision incorrectly left Jones without any procedural vehicle by which to challenge his sentence, as the habeas corpus limitations period expired several years earlier.
The dissent concluded, “I would vacate the circuit court’s decision to deny Jones’ motion to vacate and remand the matter for further proceedings to determine whether Jones was properly sentenced on his capital murder charge.”
Perhaps Jones will obtain a writ of certiorari for U.S. Supreme Court review of Jones II. If so, a future decision of the U.S. Supreme Court may settle issues regarding when a state court must conduct a post-sentencing Miller hearing, and by what procedural devices such hearing may be obtained. Until then, I believe that the Virginia Supreme Court justices’ divergent positions in Jones II herald sharp differences in future juvenile justice cases.
Clearly, notions of juvenile justice are evolving in modern society. The U.S. Supreme Court’s constitutional law decisions in such cases as Miller, Montgomery and Graham reflect that evolution. Yet juvenile offenders sometimes commit heinous crimes, including capital murder. When they do, in Virginia and many other jurisdictions, they are traditionally tried and sentenced as adults.
Virginia law provides but two sentencing possibilities for capital murder: death (for adults) or life imprisonment without parole (for adults and juveniles). Historically, I wonder how often sentencing judges have suspended all or a portion of a capital life sentence imposed upon a juvenile? My career experience leads me to suspect that it occurs infrequently. Will such historical statistics arise in a future case and bear upon the constitutionality of Virginia’s capital murder sentencing scheme as applied to juvenile offenders?
How does Miller now affect Virginia capital sentencing proceedings for juvenile offenders? Must the sentencing judge consider factors in addition to the mitigating factors traditionally considered at such sentencing hearings? Does Miller require a sentencing judge to articulate some number of specific factual findings about a juvenile offender’s incorrigibility before imposing a capital life sentence and suspending none of it? Does the burden of proof rest upon the Commonwealth to demonstrate a juvenile offender’s incorrigibility to an extent that justifies a life without parole sentence? If so, is the standard of proof beyond a reasonable doubt, clear and convincing evidence, or a preponderance of the evidence? Will the U.S. Supreme Court impose a particular standard of appellate review applicable to such sentencing decisions? Will the U.S. Supreme Court ultimately require automatic appellate review of such sentences?
In the future, these and other questions will arise in juvenile justice litigation, and duly receive their answers. In the meantime, our society, including our courts, will continue to struggle with how to administer juvenile justice, and especially in homicide and other violent crime cases.