When seventeen-year-old Lee Malvo was convicted of capital murder and sentenced to life in prison without the possibility of parole in 2004, the United States Supreme Court had yet to consider the constitutionality of severe sentencing for juveniles. Since then, the court has ruled that, when applied to juveniles, capital punishment, life imprisonment without parole for non-homicide offenses, and mandated sentences of life imprisonment without the possibility of parole violate the Eigth Amendment’s prohibition on cruel and unusual punishment. Despite this ruling, however, Malvo’s sentence was not revisited.
The prohibition of mandatory juvenile life without parole sentences resulted from the case Miller v. Alabama. However, it was not clear whether those who had already been mandatorily sentenced to life without parole as juveniles could use Miller to contest their sentences, until a subsequent case, Montgomery v. Louisiana, ruled that the Miller verdict applies retroactively. The Montgomery ruling also interpreted Miller as prohibiting not only mandatory juvenile sentences of life without parole, but any juvenile sentences of life without parole except for those defendants found to be permanently incorrigible. Therefore, anyone condemned to life without parole as a juvenile and not found to be incorrigible may have legal standing to contest his sentence.
The Case of Lee Malvo
Among those potentially affected by this ruling is Malvo (known to the public as one of the “D.C. Snipers”), who is now thirty-four years old. Malvo has been incarcerated since he was convicted of several capital murders as well as attempted murder and firearm possession. He was convicted after he and his accomplice, John Allen Muhammed, shot and killed ten people in the Washington, DC area in 2004. Malvo, who was sentenced to life without the possibility of parole at age seventeen in both Maryland and Virginia, has challenged the constitutionality of his Virginia sentence. He claims that sinceVirginia law requires juries to reccommend either the death penalty or life imprisonment without parole for those convicted of capital murder, the jury had no chance to reccomend a more lenient sentence, rendering his sentence mandatory and therefore unconstitutional. Furthermore, Malvo alleges that the jury was not made to consider whether his crimes rendered him incorrigible.
The United States District Court for the Eastern District of Virginia ruled in Malvo’s favor. The chief warden of Malvo’s prison then appealed the ruling. In the Fourth Circuit Court of Appeals, the warden presented three arguments for the constitutionality of Malvo’s sentence. He first contested the fact that Malvo’s sentence was mandatory, noting that the judges have the authority to suspend the jury’s sentence even in capital murder cases if they so choose. The warden then argued that the Supreme Court’s decision in Montgomery rendered only the actual content of the Miller decision (the prohibition of mandatory sentences), and not the Montgomery court’s interpretation of Miller (which requires that juveniles be deemed permanently incorrigible if they are to be sentenced to life without parole) retroactive. Furthermore, he argued that, even if the requirement expressed in Montgomery were applicable to Malvo’s sentence, the jury did have the opportunity to consider Malvo’s youth—his defense presented the jury with evidence focused on Malvo’s immaturity during the trial.
The court of appeals, however, upheld the district court’s ruling for Malvo, rejecting each of the Warden’s arguments. The court first noted that the warden’s claim that the judge could have suspended the jury’s sentence is based on Virginia Supreme Court rulings on this question in 2014 and 2017, making it “far from clear that anyone involved in Malvo’s  prosecutions actually understood at the time that Virginia trial courts retained their ordinary suspension authority following a conviction for capital murder.”
Even had Malvo’s sentence not been mandatory, the court of appeals ruled that it would have nevertheless violated the Supreme Court’s Miller ruling. The Supreme Court’s decision in Montgomery did not, the court of appeals stated, consist of two claims, one of which found the unconstitutionality of mandatory juvenile life without parole sentences introduced by Miller to be retroactive, and the other rendering life without parole sentences for non-incorrigible juveniles unconstitutional moving forward. Instead, it specified that Miller itself “bars life-without-parole sentences for all but those rare juvenile offenders whose crimes reflect permanent incorrigibility.” This suggests that the prohibition on mandatory sentences is, in fact, secondary to the required consideration of incorrigibility—mandatory sentences are prohibited precisely because they do not allow for such consideration. This, the court of appeals held, renders sentences that were given without consideration of incorrigibility, whether mandatory or not, retroactively unconstitutional.
The appellate court then dismissed the warden’s argument that Malvo’s jury had been asked to consider the facts of the defendant’s youth as required by the Miller and Montgomery cases. Though Malvo’s defense presented the jury with evidence about his “youth, upbringing, and impressionability,” the court of appeals noted that the jury was not given the option of recommending a sentence more lenient than the one it recommended, as it was tasked with choosing between life without parole and the death penalty. Therefore, though the evidence presented about Malvo’s youth may well have influenced the jury’s opinion, that influence could not have been translated into a more lenient sentence. The court of appeals also wrote that, despite the fact that the jury was given evidence about Malvo’s youth, it was not asked to determine whether, based on that evidence, “Malvo’s crimes reflected irreparable corruption or permanent incorrigibility,” as is required by Miller and Montgomery before condemning a juvenile to life without parole.
It is likely that the Supreme Court will uphold the decisions of the district and appellate Courts. Even if the Supreme Court contests the retroactivity of the Montgomery ruling’s interpretation of Miller as barring not only mandatory life without parole sentences for juveniles, but any life without parole sentence for a juvenile not explicitly deemed incorrigible, it is clear that Malvo’s sentence was mandatory—the jury could not have given a lighter sentence and the judge was likely not aware of his authority to override the jury’s recommendation.
The ruling, whatever it is, will not practically impact Malvo—even if he were granted a resentencing that resulted in a modification of his Virginia life without parole sentence, he is currently serving a Maryland sentence of life without parole as well. The importance of this case lies in its potential to set precedent that would give others in similar situations grounds to contest their sentences.
Therefore, the Supreme Court’s decision to uphold or rule against the retroactivity of the requirements expressed in the Montgomery ruling will have major implications. If the Supreme Court simply rules in favor of Malvo because it deems his sentence mandatory, he will have won the case, but the precedent set will impact a smaller portion of the incarcerated population. However, if the Supreme Court agrees with the court of appeals, then anyone currently serving a life without parole sentence to which he was sentenced as a juvenile without being explicitly found incorrigible is eligible for resentencing.
Eleanor Wachtel is a Contributing Writer for The Gate. The image featured in this article is licensed under the Creative Commons Attribution 2.0 Generic License. The photographer was TexasGOPVote.com. The original image can be found here.