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The Supreme Court Must Not Turn Back From Juvenile Sentencing Reform

The case of “beltway sniper” Lee Boyd Malvo is poised to have a legal legacy far beyond his own.

October 15, 2019
Supreme Court
Russ Rohde/Getty

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.