By HORUS ALAS
The Supreme Court heard oral arguments Wednesday over whether “D.C. sniper” Lee Boyd Malvo’s juvenile life sentences without parole in Virginia violated the constitutional prohibition against cruel and unusual punishment and thus should not stand.
Malvo and his partner, John Allen Muhammad, killed 10 and wounded three others during a 22-day spree of sniper attacks in Washington, Maryland and Virginia that began Oct. 2, 2002.
Then-17-year-old Malvo was convicted on two capital murder charges before pleading guilty to five separate charges in Virginia. He was given four life sentences without parole there in 2004.
But in 2012, the Supreme Court ruled that life sentences without parole for minors violated their Eighth Amendment protections against cruel and unusual punishment, unless their crimes indicated “permanent incorrigibility.”
A federal court in Virginia subsequently ruled Malvo should be resentenced. Randall Mathena, chief warden at the prison holding Malvo, appealed that decision. When the U.S. Court of Appeals Fourth Circuit in Richmond also sided with Malvo, Mathena appealed to the Supreme Court.
Danielle Spinelli, an attorney representing Malvo, argued that her client deserved new sentencing because courts could not have duly considered his youth as a mitigating factor prior to the Supreme Court’s 2012 decision.
“Juveniles are entitled to at least one opportunity to show that they are not permanently incorrigible,” she said. But Malvo had no way of knowing he should raise that issue, and courts were not obligated to apply the incorrigibility standards to minors at the time, according to Spinelli.
Virginia Solicitor General Toby Heytens, representing Mathena, told the justices that the 2012 court decision only prohibited “mandatory” life sentences without parole for minors. Therefore, Heytens said, that ruling “does not cover Malvo’s case.”
The Virginia courts had already differentiated between “mandatory” and “discretionary” sentencing structure for youths, Heytens said. He added that “Malvo’s victims were already required to endure one full trial,” and should not have to go through another.
Liberal members of the court did not appear to be readily convinced by Virginia’s arguments.
Justice Ruth Bader Ginsburg questioned whether Malvo’s sentences were not mandatory. She said Virginia courts at the time only allowed him to be sentenced to death or life in prison without parole.
And Justice Elena Kagan doubted whether a discretionary sentencing structure afforded minors due protections. “A judge could say, ‘You know what? I just don’t feel like thinking about a defendant’s youth,’” she said. She summed up the court’s 2012 ruling as “youth matters.”
Meanwhile, Justice Brett Kavanaugh pressed both counsels aggressively.
He questioned Heytens on how the justices could know the judge who sentenced Malvo had differentiated “immature” from “incorrigible” when assigning him life sentences without parole.
Kavanaugh then questioned Spinelli on why it couldn’t be inferred from a discretionary sentencing structure that a judge had in fact considered all relevant factors in a defendant’s sentencing.
Chief Justice John Roberts noted the court’s 2012 decision did not require a “formal finding” with regard to a juvenile criminal’s incorrigibility. The ambiguity compounded whether life in prison without parole was “proportionate” in the Malvo case and the 2,000 other resentencings underway that followed the ruling, he said.
At another point, Ginsburg asked Heytens whether a Virginia defendant had ever had a sentence lessened from life in prison without parole to life in prison with parole. Heytens said that to his knowledge, no defendant had secured such a change.
Justice Samuel Alito pressed Spinelli on the ultimate goal of Malvo’s resentencing. “If he can demonstrate, as a result of good behavior in prison, for example, that he has been rehabilitated, then he must be released?” he asked.
“No, absolutely not,” Spinelli responded. She said Malvo’s youth amounted to just one factor in the case, and “the sentencer then can decide what the sentence is going to be.” Spinelli also pointed to cases where juvenile offenders were resentenced to life in prison without parole.
The appearance of Malvo’s case in the high court followed a years-long saga of petitions and appeals on multiple fronts.
In Virginia, Malvo’s requests for resentencing worked their way up to the Virginia Supreme Court and were ultimately denied. In Montgomery County, where Malvo faced six life sentences without parole, a judge denied his request for resentencing in 2017. Malvo’s attorneys filed an appeal thereafter.
Even if justices decide Malvo should be granted resentencing in Virginia, his life sentences without parole in Maryland stand until appealed successfully.
Malvo is being held at Red Onion State Prison, a super-maximum security facility, near Pound, Virginia.
Muhammad — an ex-soldier and expert marksman who brought Malvo into the United States from Antigua and trained him in military tactics for nearly a year before the attacks — was sentenced to death in Virginia in 2004. He was executed there in 2009.
The United States is the only country in the world that currently allows juveniles to be sentenced to life without parole, according to court documents.