In 2005, the United States Supreme Court decided 5-4 that it is unconstitutional under the Eighth Amendment to execute those who committed crimes when they were under eighteen years old. Roper v. Simmons, 543 U.S. 551 (2005). Post-Roper, a criminal defendant charged with an otherwise capital offense from when s/he was a juvenile will have no incentive to accept a plea offer that agrees to a non-parolable life sentence. That avenue should only be considered by capital defendants who were adults at the time of the crime.

How does, or does not, Roper help capital defendants who committed then-capital crimes when juveniles and took non-parolable life sentence deals pre-Roper in order to avoid the death penalty? Today’s Virginia Supreme Court opinion on the matter seems to say they are out of luck. Donte Lamar Jones v. Virginia, __ Va. __ (Feb. 2, 2017). Jones got prosecuted for a murder committed when he was under eighteen and before Roper was decided, and avoided the death penalty by accepting a non-parolable life sentence.

Jones subsequently contested his non-parolable life sentence right up to the United States Supreme Court, which sent Jones’s sentencing back to Virginia’s Supreme Court in the light of the U.S. Supreme Court’s then-developing retroactive caselaw prohibiting mandatory minimum life sentencing for those who were juveniles when their offenses were committed, and allowing such defendants to argue for sentences less than life. Jones v. Virginia, 136 S. Ct. 1358 (2016),

On remand from the United States Supreme Court, and through overly-crabbed reasoning, Virginia’s Supreme Court denied Jones any further relief, seeing that Jones could have argued mitigation at sentencing against a non-life sentence, but bargained that option away. Jones. What a Hobson’s choice. Jones bargained away his option to argue for a sentence better than life without parole, at a time when he was facing the risk at a trial of a death sentence. Were he in our post-Roper world that prohibits executing those who committed their crime when a juvenile, he would not have agreed to a non-parolable life sentence. ”

The three-justice dissent in Jones calls the majority on this crabbed decision:

“I find it highly unlikely that the [United States] Supreme Court would tolerate any life sentence without parole to be imposed upon a juvenile without consideration of the relevant factors, especially considering that “the penological justifications for life without parole collapse in light of ‘the distinctive attributes of youth.’” Montgomery, 577 U.S. at ___, 136 S. Ct. at 734 (quoting Miller, 567 U.S. at ___, 132 S. Ct. at 2465).4 Yet the majority concludes that this substantive constitutional right does not extend to juveniles facing discretionary life sentences without the possibility of parole. The more logical approach, and the approach I believe is required by Montgomery, would be 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, thus affording the same constitutional protections to all juvenile offenders.”

Jones.