In 2012, in Miller v. Alabama, the Supreme Court ruled that a mandatory sentence of life without parole for juveniles convicted of murder violates the Eighth Amendment’s ban on cruel and unusual punishment. Four years later, in Montgomery v. Louisiana, the justices explained that their decision in Miller did bar life without parole “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” When the justices meet for their private conference on September 24, one of the cases before them will be that of Shawn Davis, a Mississippi inmate who was convicted of a murder that he committed at the age of 16. Davis has asked the justices to rule on two issues relating to the constitutionality of life without parole: First, whether the Constitution allows a sentence of life without parole without a finding that the juvenile is permanently incorrigible; and, second and more broadly, whether the Eighth Amendment bars a sentence of life without parole for juvenile offenders.

Davis is serving a life sentence without the possibility of parole for his role in the brutal murder of Dorian Johnson in 2004, shortly after Davis’ sixteenth birthday. Davis pleaded guilty to avoid the death sentence that he could have received at the time, and was sentenced to life in prison. After the Supreme Court’s decision in Miller, Davis was resentenced, but once again received life without parole. The sentencing court acknowledged that Davis had had a “difficult and dysfunctional family life” and characterized him as a “wild animal,” but it did not find that Davis was permanently incorrigible, nor did it refer to Davis’ age.

In his plea to have the justices hear his case, Davis argues that there is a “deep split of authority on whether the Eighth Amendment permits a juvenile to be sentenced to life without parole in the absence of a finding that the juvenile is permanently incorrigible.” And in urging the justices to outlaw life-without-parole sentences for juveniles, Davis characterizes such sentences as “a punishment that American society has come to reject. In the six years since Miller,” he continues, “States have moved decisively to prohibit life-without-parole sentences for juveniles. All told, the sentence is extinct, or nearly so, in 34 jurisdictions.”

Davis’ quest to have the Supreme Court hear his case and, eventually, rule in his favor could be a tougher one than he had anticipated when he filed his petition for review in late March: At the time, Justice Anthony Kennedy, who was one of the five justices in the majority in Miller, was still on the court, but his retirement went into effect at the end of July. If Judge Brett Kavanaugh is confirmed as Kennedy’s replacement, he may be less likely to vote in Davis’ favor than Kennedy.