It’s been 17 years since teenager Lee Boyd Malvo and his deranged mentor John Allen Mohammad terrorized millions of Americans during their “Beltway Sniper” shooting spree through Washington, Maryland, and Virginia. Before the two were caught in October 2002, they had killed at least 10 people, wounded at least 3 more, and become one of the most infamous criminal duos in the nation’s history.
Mohammad is long gone. He was executed in Virginia a decade ago, after choosing to expedite his capital appeals. But Malvo, who boasted of his crimes when he finally was captured, and who now has spent more than half his life in prison, is still making news. On Wednesday, the Supreme Court will hear oral argument in the case his lawyers brought years ago to force Virginia to grant him a resentencing hearing.
The case, Marthena v. Malvo, is interesting on many legal levels. But the question at the heart of the dispute is whether states can continue to evade the constitutional mandate the Supreme Court required in two recent rulings. In cases — Miller v. Alabama and Montgomery v. Louisiana — the court struck down mandatory life sentences for juvenile offenders and then made the command retroactive to affect thousands of cases, including Malvo’s.
The seminal rulings, coming four years apart, may represent a high-water mark for the court’s Eighth Amendment jurisprudence for a while. Their aim was to give many violent young offenders a second chance at sentencing, and thus a chance of leaving prison during their lifetimes, by forcing judges to conduct new sentencing hearings in light of evolving medical and scientific evidence about the pace of the intellectual development of the juvenile brain.
Taken together, Miller and Montgomery are among the most significant legacies Supreme Court Justice Anthony Kennedy left to the nation. Kennedy was in the majority in Miller and authored the majority opinion in Montgomery, signaling to his law-and-order critics that he really did mean to rule that the teenager is not fully formed and that teenage offenders, by their very nature, may be less culpable than their adult counterparts.
It’s clearly been a persuasive and politically viable argument. Since Miller was decided seven years ago, 17 states and the District of Columbia have banned life-without-parole sentences for juvenile offenders. In most instances, the reform came through legislation, not court action, and conservative states led by Republican governors and legislators have been just as likely to embrace the change as progressive states led by Democrats.
Despite those rulings, and the wave of resentencing hearings across the country that have flowed from them, Virginia’s attorney general now argues that Malvo is not entitled to a new sentencing hearing because the state does not impose mandatory life sentences, only discretionary ones. The state’s noble trial judges, the argument goes, are already taking into account all the mitigating factors about teenage offenders that Kennedy and company were particularly concerned with.
It’s a terrible argument on its face. The court’s majorities in Miller and Montgomery clearly intended for their new interpretation of the Eighth Amendment’s bar against “cruel and unusual punishments” to apply to juvenile offenders like Malvo. In fact, he is precisely the sort of juvenile offender, a young man with a childhood history of abuse and neglect, that the court had in mind when it twice extended constitutional protections against mandatory life sentences for violent teenagers.
And were the court’s lineup the same as it was when Montgomery was decided in January 2016, Malvo might already have been resentenced, because that lineup of judges would never even have accepted Virginia’s petition for review. But now two new justices, Neil Gorsuch and Brett Kavanaugh, will get their say.
And maybe that’s why Virginia appealed a series of rulings that state attorneys general easily could have embraced as a reasonable response to Supreme Court precedent. Watch Justices Gorsuch and Kavanaugh, especially, during Wednesday’s argument. Will either, or both, side with Virginia and undermine the court’s juvenile sentencing precedent? Watch the chief justice as well. Will Chief Justice John Roberts, in the end, protect what Miller and Montgomery represent?
In a perfect world, the court took Malvo’s case to reaffirm its commitment to Miller and Montgomery and to say to recalcitrant prosecutors and judges around the country that they need to work more quickly to ensure that there are meaningful remedies — i.e., resentencing hearings — to match the constitutional protections afforded juvenile offenders. In too many states, officials have slow-walked or outright refused to hold these required hearings.
Meanwhile, an entire generation has come and gone since Malvo and Mohammad’s killing spree. I covered that extraordinary story from start to finish for CBS News, and it is hard to adequately describe the atmosphere of fear experienced by the people who lived and worked around the Beltway. Malvo and Mohammad terrorized people in the literal sense of the world. Maybe that’s also why Virginia is pressing on with its appeal.
But a the circumstances of Malvo’s life up until the moment he met Mohammad are familiar to anyone who closely follows criminal justice. Malvo’s childhood was a mess. He was abandoned and abused and particularly vulnerable when he had the misfortune of running into Mohammad. The boy was desperately searching for a father figure who would take care of him. The “father figure” was desperately searching for an instrument of destruction.
It was a fateful match. But remember that there always has been a part of Malvo’s story that labeled him a victim, too. The jury that convicted the young man in 2003 had the option of recommending the death penalty but chose instead to recommend a sentence of life in prison without parole. Jurors reached this conclusion knowing only part of the story of Malvo’s brutal childhood and of the way in which Mohammad manipulated his young partner.
It won’t be a jury that will ultimately resentence Malvo if the Supreme Court sides with him. It will be a judge. And he’s unlikely to ever leave prison since he’s sitting on 10 life sentences. But his case and cause mean the world to about a dozen other juvenile offenders in Virginia now serving mandatory life sentences without parole. Their crimes likely didn’t make international news or paralyze a whole region of the country. But their cases are also what the justices had in mind when they turned away, twice, from mandatory life sentences for children.
The views expressed are the author’s own and not necessarily those of the Brennan Center.