Oct. 21, 2019
WASHINGTON—A languid rain fell outside the U.S. Supreme Court Oct. 16 as Virginia Solicitor General Toby Heytens rose from the petitioner’s bench. The courtroom’s stillness echoed beneath a frieze high on the south wall depicting ancient lawgivers like Hammurabi and Augustus.
Heytens—a plump man with a bald crown and graying brown hair—argued Virginia’s position for upholding a convicted sniper’s four juvenile life sentences without parole before the highest court in the land.
“Fifteen years ago, Lee Malvo was tried, convicted and sentenced for his role in the D.C. sniper attacks,” Heytens said. “Almost a decade later, Malvo sought [resentencing], relying exclusively on the new rule announced by this court in Miller v. Alabama.”
The court’s 2012 ruling in Miller determined that juvenile life sentences without parole violated minors’ Eighth Amendment protections against cruel and unusual punishment—unless they exhibited “permanent incorrigiblity.” That ruling would have retroactive effect.
“But Miller’s rule does not cover Malvo’s case,” he continued. Heytens explained the ruling only prohibited “mandatory” rather than “discretionary” life sentences for minors, like Virginia’s.
In addition, “Malvo’s victims were already required to endure one full trial,” he said. The court would cruelly force them to undergo another.
Denielle Spinelli, a thin woman with gray streaks running down her blonde hair, rose from the respondent’s side. She argued Virginia had not diligently administered justice to Malvo.
Spinelli said after Miller, courts “must consider how the characteristics of youth counsel against [life without parole].” The ruling found those sentences excessive in all instances where defendants weren’t “permanently incorrigible,” she said.
Justice Brett Kavanaugh asked why a discretionary sentencing structure like Virginia’s wouldn’t imply that a judge had already considered all relevant factors in sentencing, including youth.
Spinelli began to explain that a court needed to “consider” minors’ age and “make a determination as to whether that juvenile—”
Kavanaugh cut her off to ask whether a court’s “determination” would follow from something they only had to “consider.”
Arguments and rebuttals flew back and forth between the counsels and bench with muted intensity.
Over 400 miles away, west of the Appalachian Mountains, Lee Boyd Malvo was in custody at the super-maximum security Red Onion State Prison near Pound, Virginia. He was serving just one of his 10 life sentences without parole.
Now 34 years old, Malvo has spent half his life in jail.
He and his accomplice, John Allen Muhammad, killed 10 and wounded three others in October 2002 during a series of sniper attacks in Maryland, Washington and Virginia. The shootings began Oct. 2 that year; the pair were apprehended 22 days later near Myersville, Maryland.
Malvo was 17 at the time of the attacks and sentenced to four life sentences without parole in Virginia, and six life sentences without parole in Montgomery County, Maryland.
Muhammad, who was 41 at the time, was sentenced to death in Virginia in 2004. He was executed by lethal injection in 2009.
But a federal judge in Virginia ruled Malvo deserved new sentencing after the Miller decision. Randall Mathena, chief warden at Red Onion, appealed that ruling before the U.S. Court of Appeals’ Fourth Circuit in Richmond.
The appellate court also sided with Malvo. Mathena appealed again to bring this case before the Supreme Court.
Not all courts have ruled in Malvo’s favor—Heytens knew that. The Supreme Court of Virginia specifically designated age as one of the factors to be considered in sentencing, he told the justices.
After Malvo requested resentencing in Virginia and was denied by both district and appellate courts, Virginia’s Supreme Court denied the request.
In Maryland, Judge Robert Greenberg agreed.
When Malvo petitioned for resentencing there in 2017, Greenberg said the judge who originally sentenced Malvo in 2006 had “affirmatively considered all the relevant factors at play” and found him “irreparably corrupted.”
Spinelli argued, however, that Miller should provide retroactive resentencing for minors assigned life without parole regardless of the initial sentencing schema.
“Juveniles are entitled to at least one opportunity to show that they are not permanently incorrigible,” she said. Minors sentenced before the ruling were not guaranteed that opportunity because courts were not obligated to provide it.
The justices were not decisively swayed either way. In sparse moments of silence between counsels’ arguments and justices’ rebuttals, an air of uncertainty hung over the court.
Justice Elena Kagan asked Heytens how courts with discretionary sentencing would be sure to protect minors. “A judge could say, ‘You know what, I just don’t feel like thinking about a defendant’s youth,’” she posited.
And despite taking the opposite stance with Spinelli, Kavanaugh likewise asked Heytens, “Why isn’t something more than just a discretionary sentencing regime necessary?”
Heytens and Spinelli delivered their closing arguments after an hour of inconclusive back and forth assertions. The Supreme Court seemed to have said much, but decided little. Outside, rain continued to pierce the indifferent gray sky.
The counsels exited the courtroom.
Malvo remained far away, somewhere in Red Onion, likely to never again see the outside of a prison.