MARY REICHARD, HOST: It’s Monday morning and we’re up and at ’em for another week … the beneficiaries of an extra sixty minutes … a 25-hour Sabbath rest. This is The World and Everything in It for the 4th of November, 2019. Good morning to you, I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher. Hard to believe, but it’s been 17 years since this story dominated headlines. ABC anchor Peter Jennings, October 2002.
JENNINGS: …a terrifying situation for thousands of people: gunman in the neighborhood, killing individuals in a methodical way. When the news got on the radio and the television, people were too frightened to go outside. It happened again, and again, and again. This is what it’s been like in Montgomery County, Maryland, which is basically part of Washington….
EICHER: Authorities caught the snipers, but not before they killed 12 people and injured six. One of the killers was a middle-aged man. The state executed him seven years later. The other killer received life in prison without parole. Lee Boyd Malvo was 17 at the time of that killing spree.
REICHARD: Within a decade of Malvo’s sentence, the Supreme Court was busy carving out special rules for young people convicted of crimes.
In 2005, the high court ruled convicts under age 18 cannot be sentenced to death.
In 2012, a case called Miller v Alabama, Justice Elena Kagan announced another protection for minors:
KAGAN: We hold today that mandatory sentences of life without the possibility of parole for juveniles violate the Eighth Amendment’s prohibition of cruel and unusual punishment. …The punishment for crime should be graduated and proportioned to both the offender and the offense.
EICHER: A few years later, the court made that rule retroactive. Lots of prisoners sought to be resentenced after that.
Here are a couple of terms you’ll want to keep in mind as we go along, and in particular what distinguishes one from another: sentences that are either mandatory or discretionary.
A mandatory sentence requires an offender serve a predefined term for certain crimes. A discretionary sentence allows a judge to impose a term of years within a range, say 10 to 20 years, after considering the particular facts of a case.
Here’s one more term to remember: the Miller rule. The courts deemed the Miller rule retroactive, except for juvenile offenders whose crimes are said to reflect “permanent incorrigibility.”
In other words, beyond reform.
REICHARD: Back to the Malvo argument before the Supreme Court.
Lee Boyd Malvo is now 34 years old, and his lawyers cite the Miller ruling to argue his sentence is unconstitutional.
He asks for another hearing that takes into consideration his age when he committed the crimes, and to show that he is not incorrigible.
Malvo’s lawyer, Danielle Spinelli, argued the immaturity and vulnerability of youth ought to be considered before sentencing. She fended off Justice Samuel Alito’s concerns in this exchange. Listen:
SPINELLI: And he is entitled to have one opportunity to make the case that he is not permanently incorrigible.
ALITO: Is not now or was not at the time?
SPINELLI: Well, I think by hypothesis —
ALITO: At the time of the sentencing?
SPINELLI: — this is — you know, if one is permanently incorrigible, that’s a permanent quality. So it certainly is relevant on resentencing what someone has done since they committed the crime. They may well have, you know, been able to provide evidence based on what they did after the crime, that they are not, in fact, permanently incorrigible.
ALITO: So, if he can demonstrate, as a result of good behavior in prison, for example, that he has been rehabilitated, then he must be released?
SPINELLI: No. No, absolutely not. That’s one piece of evidence that the sentencer can consider. The sentencer then can decide what is the sentence going to be. … So we are — we are nowhere near any prospect of being released.
REICHARD: Malvo’s attorney acknowledges that her client isn’t likely ever to be released from prison given his multiple life terms in Maryland alone. He’s also suspected of murders in four other states.
Still, the outcome of this case matters as a precedent to other young convicts.
Virginia Solicitor General Toby Heytens defended his state’s sentencing of Malvo. Malvo leans on Supreme Court precedents far different from the facts of this case, he argued. Those cases dealt with mandatory sentencing. Virginia’s sentencing scheme was discretionary.
But Heytens got push back from Justice Kagan.
KAGAN: I mean, all of Miller, it’s a 30-page opinion and it can be summarized in two words, which is that ‘youth matters’. And that you have to consider youth in making these sorts of sentencing determinations. And, again, of course, it talks a lot about mandatory schemes because a mandatory scheme was in front of it, but the entire reasoning was about how much youth matters and how a judge or a jury, whoever the sentencer is, has to take that youth into account. That’s the lesson of Miller.
REICHARD: But what about other lessons that ought to be considered, Heytens countered. A victory for Malvo here means imposing harm upon innocent people.
HEYTENS: Malvo’s victims were already required to endure one full trial and sentencing hearing more than a decade ago, and the Court should not lightly ask them to go through another, particularly given that the original sentencing fully complied with then controlling constitutional restrictions.
REICHARD: Not only that. Heytens pointed out the judge in Malvo’s case could have lightened his sentence from what the jury imposed. He did have discretion. That, even though the jury was presented with just two choices: death, or life in prison without parole.
But lawyer Spinelli, again for Malvo, scoffed at that.
SPINELLI: The notion that somehow Miller was satisfied by …the theoretical opportunity to consider youth, when it wasn’t actually considered, simply can’t be squared with the language of Miller itself…
REICHARD: The argument then shifted to whether someone—judge or jury—actually might have considered Malvo’s youth at trial.
Justice Stephen Breyer had his doubts, given the choices the jury had.
BREYER: first case, you cannot sentence under state law that’s mandatory, a juvenile to life without parole. Why not? Because nobody’s really considered whether he’s immature …That’s the reasoning. This case, they sentence him to life without parole. And the odds are greater than 50/50 that no one ever thought about whether he was, in fact, immature. Okay?
REICHARD: Justice Brett Kavanaugh tried to get at some principled way to sentence juveniles no matter the state’s system of sentencing.
And Justice Neil Gorsuch wasn’t so sure Supreme Court precedent was quite as cut and dried in favor of Malvo as his lawyer was making it out to be.
GORSUCH: …if the substantive right is that you cannot do life without parole for an incorrigible youth, there has to be a hearing and somebody has to make a finding about that. It’s not just a matter of discretion any more. It’s a matter of a factual finding…. And I would have thought in those circumstances we might have specified who would do that finding and how that hearing would be conducted, consistent with the Constitution.
SPINELLI: Well, that issue was not resolved in Miller or Montgomery, and I don’t think it needs to be resolved today.
GORSUCH: Isn’t that — isn’t that a further strike, though, against your interpretation of Miller and Montgomery? That the Court would have created a new substantive right that implicates the Sixth Amendment and not ever said so or even hinted at it or even acknowledged the question?
SPINELLI: I actually don’t think that’s unusual…
REICHARD: So, the justices must once again parse whether the text means what it says, or whether some larger principle not expressed was intended instead.
Fifteen states and the Trump administration side with the state of Virginia, that the way Malvo’s sentence came down was within the law.
Among those on Malvo’s side is the ACLU and the American Bar Association, that Malvo’s constitutional rights were violated and a new sentencing hearing is required.
Finally, a case that asks what I admit may be less than riveting to us normal folks. But still important to the people involved.
Who should pay the winning side’s attorney fees in a patent dispute?
What happened here is that the United States Patent and Trademark Office declined to register a patent. The patent applicant appealed to district court and lost, then appealed again, and lost again.
The Patent office wants reimbursement for what it spent on lawyers during all that. It’s a lot of money—more than $100,000.
But at the Supreme Court, the Patent Office ran into a little thing called “The American Rule.” The patent applicant who lost doesn’t want to pay for the Patent Office’s lawyers. Listen to the patent applicant’s lawyer, Morgan Chu, extol the virtue of that.
CHU: First, the American rule is a bedrock principle, and this court has recognized and applied that rule for two centuries. Second, the government is arguing for a radical departure from the American rule. It is arguing that when a private party sues the government for its improper action, then that private party must pay for the government’s attorneys, even if the government and its attorneys are flatly wrong.
REICHARD: The “American Rule” says each litigant pays for his own lawyer, win or lose. That is, unless Congress specifies otherwise.
Now, patent law has unique rules. Applicable law allows for, quote, “the expenses of the proceedings” to be reimbursed.
And attorneys fees apparently used to be reimbursed, but they haven’t been for the past 150 years.
You can probably guess the probable ruling in this comment from Justice Neil Gorsuch, addressing the government’s lawyer:
GORSUCH: Counsel, your interpretation of “expenses” includes attorneys’ fees, you argue in this case. Is there anything that would inhibit the government from suggesting that other forms of overhead might also be allocated to litigants? The electric bill? The sewage bill?…
STEWART: Well the statute refers to expenses of the proceeding and so we’d have to show the requisite connection…
REICHARD: As artfully as Deputy Solicitor General Malcolm Stewart phrased arguments for the patent office, well even a guy who sounds a lot like Jimmy Stewart probably can’t win this one!
And that’s this week’s Legal Docket.