Lee Boyd Malvo, shown here in 2003 at age 18, is currently serving life in prison without parole for his part in the 2002 "Beltway Sniper" attacks. This month, the U.S. Supreme Court will hear arguments that his punishment is unconstitutional because nobody discussed his youth at sentencing. (Getty)
In 2002, at age 17, Lee Boyd Malvo helped his father figure John Allen Muhammad murder 10 random people mowing yards, pumping gas and reading on a bench in a series of drive-by "Beltway Sniper" attacks that terrorized the nation's capital.
Due to multiple life terms, Malvo, now 34, has little at stake in his own high court case. But it could affect a dozen other Virginia lifers.
Now a legal battle over the constitutionality of the notorious teen killer's sentence has reached the nation's highest court. Nine justices, six of whom worked in the D.C. metro area during Malvo's shooting spree, will hear oral arguments on Oct. 16.
Even though the upcoming hearing matters little to Malvo — whose disputed life sentence is just one of several issued by two state courts — the case could determine whether Derek Ray Jackson Jr., another teen convicted of murder, ever gets a chance at resentencing as mandated by two landmark Supreme Court rulings that came down in 2012 and 2016.
Like Malvo, Jackson also received life without parole from the state of Virginia. His sentence resulted from a guilty plea entered after psychologists found him incompetent to stand trial.
He'd been accused of killing a man during a 2001 convenience store robbery at age 17, in cooperation with a 26-year-old accomplice. Now his chances of ever getting out of prison, as well as those of 11 other Virginians sentenced to life as juveniles, rest on Malvo's case.
"It serves no purpose to condemn him to die in prison for his actions as a child," Jackson's attorney Kathleen Wach told Law360. "He is not the adolescent boy he was."
Beyond its relevance to juvenile lifers in Virginia and several other states, Malvo's case highlights a national divide over implementing the high court's 2012 decision in Miller v. Alabama
, which said mandatory juvenile life sentences were unconstitutional, and its 2016 Montgomery v. Louisiana decision, which made Miller retroactive.Those rulings held that youth offenders can only rarely be sentenced to what reformers call "death by prison." To determine which juvenile offenders are so depraved, Miller requires judges to first consider "Miller factors" like life circumstances — Were they abused? coerced? — and their still-developing, especially susceptible brains.
Montgomery ordered states to resentence an estimated 2,800 teen lifers who hadn't previously received such consideration. But while some have responded by holding scores of hearings and even eliminating juvenile life sentences as an option, Virginia and several other states have resisted resentencing juvenile lifers and still have the sentence on the books.
Campaign for Fair Sentencing of Youth Executive Director Jody Kent Lavy said whether the court continues the line of rulings championed by the recently retired Justice Anthony Kennedy will have ripple effects throughout the juvenile justice reform world, particularly for Jackson and the others.
"If they lived just about anywhere else in the country, they would've been resentenced by now," Lavy said. "But the state of Virginia has interpreted Miller and Montgomery in a very overly narrow way such that these individuals — because of where they live, not because of their crimes — are sitting, waiting to know their fate."
Implementing Miller and Montgomery
In Washington, D.C., and 22 other states, lawmakers and courts have abolished juvenile life without parole sentences, while six more technically allow them but don't currently apply the sentence to anyone.
Despite bipartisan reforms, however, 22 states still use the sentence. And across the country, implementing Montgomery and Miller has been fraught from the start.
Missouri, for example, offered parole hearings to juvenile lifers but then denied a release date to 85% of petitioners. Subsequent litigation forced the state to start considering more evidence of a juvenile lifer's rehabilitation, not just the crime at issue, when weighing release.
Other states held hearings only to see prosecutors routinely seek to reimpose the original life sentence.
In Michigan, prosecutors recommended life sentences in over 60% of Montgomery-mandated cases, making them a low priority for new hearings. As of August, over three and a half years after that ruling came down, approximately 200 had yet to see a judge.
Louisiana prosecutors have done the same thing in 32% of such cases, and Jill Pasquarella of the Louisiana Center for Children's Rights said over half of the juveniles convicted of murder since the Miller ruling have been sentenced to life without parole.
"We tend to see judges and prosecutors who are very focused on the crime itself, which is problematic," she said, noting the high court's requirement that the sentence should be "rare." "Decision-makers must examine the whole child and context of what's going on in their lives."
In the cases of Malvo and Jackson's sentences, judges did not discuss all of the required "Miller factors" — both were issued as an alternative to the death penalty, which was still legal for juveniles at the time, and therefore did not involve much talk of the offenders' brain development, vulnerability or potential for rehabilitation.
According to Virginia, they didn't have to. Because the judges technically could have suspended the sentences, the state says they were "discretionary," not mandatory, and thus beyond the reach of Miller or Montgomery's holdings.
Texas and Georgia state courts have used similar logic in refusing some resentencings, but in Malvo's case, the Fourth Circuit said Miller and Montgomery applied to discretionary sentences, too.
Indiana and 14 other states have also backed Virginia, urging the court against any expansion of "its already doubtful juvenile sentencing cases."
Citing the importance of state sovereignty and the principle of finality, their amicus brief argues that, for one thing, any discretionary sentence necessarily includes consideration of an offender's age.
For another, Indiana Deputy Attorney General Tom Fisher told Law360 that Supreme Court doctrine never said anything about "what had to happen at a sentencing hearing where juvenile life was on the table as a discretionary sentence" — Miller only discussed mandatory life sentences, and Montgomery simply made that retroactive.
"This decision from the Fourth Circuit says you have to have some magic language about 'permanent incorrigibility,' which is news to us," Fisher said.
But Marsha Levick, co-founder of the Juvenile Law Center, says the "incorrigibility" standard shouldn't be news to anyone; she cited Montgomery's holding that "Miller did bar life without parole, ... for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility."
Aside from the fact that no Virginia judge has ever suspended a capital sentence, which Levick said undercuts the state's claim that Malvo's life term is "discretionary" in the first place, she argued that Virginia's failure to consider Miller factors at his sentencing means it must resentence him to determine if his crimes reflected "permanent incorrigibility."
What Fisher considers a semantic concern is, For Levick, actually paramount to protecting Malvo's constitutional rights — even if he's ultimately deemed irredeemable and sentenced, again, to life without parole.
"A ruling for Virginia would be entirely inconsistent with what Montgomery says on its face," she said.
Several state courts have agreed: In 2016, Oklahoma's top court ruled that Montgomery effectively "rendered [juvenile life] constitutionally impermissible, notwithstanding the sentencer's discretion ... unless the sentence 'takes into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.' "
What About the Victims?
Victims' rights groups play a key role in the case both for and against Malvo's bid for resentencing.
Some argue his sentence should stand due to the burden resentencing hearings could have on victims' families; an amicus brief by the Maryland Crime Victims' Resource Center states no "judge or parole board, no matter how diligent, can release these victims from ... deep psychological trauma at ever having to reopen and relive their wounds."
Another by the Criminal Justice Legal Foundation victims' rights group argues that "a murderer close to legal adulthood is not a 'child' and should be held responsible for his acts."
"Many victims would like to see Malvo in prison for the rest of his life," said Kymberlee C. Stapleton, the attorney on the brief.
The filing cites to research by volunteer-led National Organization of Victims of Juvenile Murderers. Its co-founder Jennifer Bishop-Jenkins — whose sister, brother-in-law and their unborn baby were murdered in 1990 by a teenager now serving three life sentences — describes herself as a progressive who's participated in the death penalty abolition movement.
And while she knows many victims' family members may oppose Miller in principle, she said she personally agrees that age should be accounted for in sentencing.
Still, she said Malvo's case could give David Biro, her sister's killer, a shot at undeserved redemption that would be traumatic for her and her family. Currently, Biro is already due resentencing for the two mandatory life sentences he received for killing Nancy Bishop Langert and her husband Richard in their basement when he was 16 years old.
But the third life sentence, issued for killing Nancy's unborn baby, was chosen by a judge. If the Malvo case ends up clarifying that Montgomery does apply to discretionary life sentences, it would open the door to Biro getting resentenced for that crime, too — and raise the prospect of freedom for a killer Bishop-Jenkins thought was locked up for life.
"There are some people who are damaged and completely unable to be safe among society," she said. "There are some for whom prison is the safest thing."
Yet other victims, including Bishop-Jenkins' surviving sister as well as victims of the D.C. Sniper team, support Malvo in an amicus brief arguing that children are products of their environments.
Cheryll Shaw, whose father Malvo has admitted to killing months before the Beltway shootings, noted physical, mental and sexual abuse he suffered at Muhammad's hands. The older man who groomed him, trained him to shoot, and orchestrated the attacks was ultimately executed in 2009.
"The resentencing would be traumatizing, but Lee was brainwashed, so it should happen anyway," Shaw said in the brief, calling Malvo by his first name.
Paul LaRuffa, a restaurant owner who survived a different Malvo shooting, also supports resentencing for the killer who's lived over half his life behind bars.
"Paul now believes a life without the possibility of parole sentence is excessive for children because, much like a death sentence, it condemns them to a life without hope." the brief states.
Their belief in redemption is backed by reports from Pennsylvania that released juvenile lifers there are rarely rearrested. According to Levick, only six of the more than 200 people who've been paroled in the state since Montgomery have re-offended, and none for violent offenses.
Though she acknowledged that the loss of Justice Kennedy, who authored Montgomery, could reverse the high court's direction on juvenile sentencing reform movement, Levick also pointed to state-level reforms as proof that the law of the land can change regardless.
"We recognize there's a little bit of an unknown, in terms of how and what influences Justices Neil Gorsuch and Brett Kavanaugh will have in this space," Levick said. "But we're not entirely a federal system ... there are many other opportunities to keep the momentum going."
--Editing by Breda Lund.
Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.
Correction: An earlier version of this article incorrectly characterized the rate of Virginia judges suspending capital sentences and misstated the author of the U.S. Supreme Court's Miller ruling. The errors have been corrected.