A lawyer for Lee Boyd Malvo, the junior member of a two-man sniper team that killed 10 people in Virginia, Maryland and Washington, D.C., in 2002, will argue to the U.S. Supreme Court on Wednesday that he is entitled to be resentenced.
Malvo was sentenced to four life-without-parole terms for his part in some of the Virginia shootings, which were committed when he was 17 years old. Now 34, he is an inmate at Virginia's maximum-security Red Onion State Prison and has been behind bars for half his life.
John Allen Muhammad, his adult mentor who orchestrated the "Beltway sniper" attacks, was sentenced to death and executed in 2009. Their victims were shot with a rifle often fired from the modified trunk of a blue 1990 Chevrolet Caprice in random attacks that terrorized the region in October 2002.
Three people were shot dead in Virginia, and two more were wounded, including a man outside a steakhouse in Ashland.
At issue on Wednesday is whether Malvo's life-without-parole sentences were mandatory and therefore barred under a 2012 U.S. Supreme Court decision, and whether a 2016 decision by the justices means that the 2012 decision applies retroactively to Malvo.
The rulings were among several starting in 2005 — when the death penalty was ruled out for juveniles — that have lessened punishments for juvenile offenders. Justice Anthony Kennedy, the author of the 6-3 ruling in 2016, has since retired.
Should the Supreme Court side with Malvo, it could prove more beneficial to other juvenile offenders than it does to him.
Craig S. Cooley, a Richmond lawyer who helped defend Malvo in his 2003 jury trial, said that while Malvo might ultimately get a lesser sentence in Virginia, he also received life sentences in Maryland.
"Even if they went from life without parole to 10 years on each one of them, he's not getting out,” Cooley said. "And there are other states that could prosecute him for other offenses as well. Realistically, this [primarily] has precedential value for other cases and Lee understands that. He understands that that's important."
In a prepared statement on Wednesday, Virginia Attorney General Mark Herring said, “Malvo received a fair, lawful trial in which he presented significant evidence about his age. Malvo should not get out of jail, receive a lighter sentence, or drag his victims’ families through yet another prolonged legal procedure.”
During Malvo’s 2003 jury trial that resulted in two capital murder convictions related to a slaying in Fairfax County, his lawyers presented dozens of mitigating witnesses and focused on his young age in his successful effort to avoid a death sentence.
After that trial, Malvo avoided a death sentence in Spotsylvania County by agreeing to plead guilty to one count of capital murder and attempted capital murder and receiving two more life-without-parole sentences.
But last year, a unanimous three-judge panel of the Richmond-based 4th U.S. Circuit Court of Appeals upheld a lower court order that Malvo be resentenced. The Virginia attorney general’s office appealed to the Supreme Court asking it to reverse the order.
The 4th Circuit cited the U.S. Supreme Court decisions in the cases of Miller v. Alabama in 2012, and Montgomery v. Louisiana in 2016.
Under the two rulings, the appeals court held that in a homicide case, a court cannot impose a mandatory life-without-parole sentence on a minor unless it determines that he or she is "so permanently corrupt and incorrigible" that the person could never be rehabilitated.
The Virginia Supreme Court ruled to the contrary in another case, holding that those U.S. Supreme Court decisions did not concern Virginia, which does not have a mandatory sentencing scheme.
Although Virginia law makes only two sentences available for people convicted of capital murder — death and life without parole — circuit court judges in Virginia have the power to suspend some or all of a sentence.
In a brief to the U.S. Supreme Court, the Virginia attorney general’s office wrote, "The court of appeals was wrong and this Court should reverse.”
A brief filed by 15 other states supporting Virginia's position, complains that the 4th Circuit wrongly held that the Eighth Amendment bars such sentences for juvenile murder defendants unless the sentencing judge makes an explicit finding that "the crimes reflected irreparable corruption or permanent incorrigibility."
"The Eighth Amendment contains no such magic-words requirement," argue the 15 states. "Rather, this Court has held that the Eighth Amendment merely prohibits grossly disproportionate sentences and, in order to prevent the risk of such sentences, requires sentencers to consider a juvenile offender’s youth before imposing a sentence of life without parole."
The Maryland Crime Victims' Resource Center Inc. complained in its brief that the 4th Circuit's ruling could mean "that virtually all juvenile murders that were sentenced to life without parole, no matter how long ago, would, per se, need a new sentencing hearing.”
Such a hearing, argued the victims' resource center, would mean “victims would have to both intellectually and emotionally re-experience their horror at this crime spree and crime scene more than a dozen years after the original sentencing."
Malvo's lawyers argue that the 4th Circuit’s decision was correct and that Miller v. Alabama requires that before a life-without-parole sentence can be imposed on a juvenile, judges must "'take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”
"That proposition by itself resolves this case," they argue. In addition, Virginia concedes that, under Montgomery v. Louisiana, Miller’s rule is retroactive, Malvo's attorneys argue.
The judge and jury that sentenced Malvo did not consider "whether his youth might have warranted a sentence less than life without parole. Malvo is thus entitled to resentencing under Miller, as the court of appeals correctly held."
If Virginia wins, Malvo argues that juvenile offenders “already serving that sentence will die in prison, with no consideration of their youth at the time of their crimes and no chance to show that they have changed.”
Arguments are set to begin at 1 p.m.
Virginia Solicitor General Toby J. Heytens will represent Virginia and Danielle Spinelli, a Washington, D.C., lawyer will argue for Malvo.
Arguments filed on behalf of Malvo by some former Virginia prosecutors assert that Virginia and the other states are urging the Supreme Court "to carve out an unwarranted exception to the constitutional principles recognized in Miller v. Alabama."
They contend that accepting Virginia's request to limit Miller only to sentencing schemes that impose a "mandatory life-without-parole sentence, without assessing whether the sentencing court has in fact taken account of the offender’s youth when imposing a sentence, would gut Miller."