WASHINGTON (CN) – Operating out of a blue 1990 Chevy Caprice with a hole drilled in the trunk to accommodate a rifle’s barrel, the infamous Beltway Snipers terrorized the nation’s capital for three weeks in the fall of 2002 with a string of shootings that left 10 people dead and three others injured.
Virginia executed the older of the two snipers, John Allen Muhammad, in 2009, while Lee Boyd Malvo is serving four life sentences without the possibility of parole.
On Wednesday, with his spree nearly 20 years in the past, the Jamaican-born Malvo urged the Supreme Court for a chance at freedom.
Malvo had been 15, abandoned by his mother and not in contact with his father for years, when he met Muhammad, then 39. The shootings erupted two years later, targeting public places like gas stations and parking lots, and causing school lockdowns and widespread fear.
Years after Malvo and Muhammad’s convictions, however, the Supreme Court decided Miller v. Alabama, which held mandatory life sentences without the possibility of parole for juvenile offenders violate the Eighth Amendment, and Montgomery v. Louisiana, which gave Miller retroactive effect to cases on collateral review.
Virginia seeks a reversal now after the Fourth Circuit upheld a decision granting Malvo’s request for a new sentence in light of Miller and Montgomery.
Arguing before the justices this morning, Virginia Solicitor General Toby Heytens said Malvo was reading into the precedent a principle the court never endorsed, mainly that the prohibition on life without parole sentences applies to those handed down in discretionary as well as mandatory sentencing schemes.
After all, the defendants in both of those cases received mandatory sentences, while Malvo’s was not mandatory under Virginia law. That gave the sentencing judge the chance to consider Malvo’s youth when crafting the appropriate sentence and put the state on the right side of the court’s precedents.
“The court said that the sentencer was deprived of ‘the opportunity to consider youth and its mitigating factors’ and instead that the states at issue in that case had required that all children receive life without parole sentences,” Heytens said. “As a matter of Virginia state law, that was not true here.”
Danielle Spinelli, an attorney for Malvo at Wilmer Hale, argued the two precedents require more work than Heytens was letting on. She said they require trial court judges to consider the particular circumstances of the young person they are sentencing and only allows them to hand down sentences of life without parole to those who are “permanently incorrigible.”
She also noted the only other sentence Malvo could have received was the death penalty and that there is no evidence the judge ever considered giving Malvo anything less than life without parole.
“The notion that somehow Miller was satisfied by the theoretical opportunity to consider youth, when it wasn’t actually considered, simply can’t be squared with the language of Miller itself or the language and reasoning of Montgomery,” Spinelli said.
Justice Brett Kavanaugh was the most active questioner among the justices on Wednesday, appearing as a possible swing vote in the case.
Kavanaugh wondered if simply giving judges discretion not to impose mandatory life sentences without the possibility of parole is enough to satisfy the principles found in Miller and Montgomery.
“Why is something more procedurally not required?” Kavanaugh asked. “We know a finding of fact is explicitly ruled out by Montgomery and that’s very important. But why isn’t something more than just a discretionary sentencing regime necessary?”
He also pressed Spinelli on what exactly her proposal would require of judges, as most do not explicitly state all the factors they consider when making their sentencing decisions. He wondered if it would be enough to presume that the issue of a defendant’s youth was considered so long as the defense counsel raised it during sentencing.
“There are lots of state cases and federal cases that say, so long as the issue has been raised, we assume the judge ‘considered it,'” Kavanaugh said. “Now if that’s true, and you can disagree with that, but if that’s true, doesn’t a discretionary regime where the argument can be raised necessarily satisfy Miller and Montgomery’s requirement of consideration.”
Malvo confessed to being the triggerman on 10 shootings when police tracked down the men and their Caprice, but later walked that back when testifying against Muhammad in his trial in Maryland.
A U.S. citizen more than twice Malvo’s age, Muhammad had met Malvo after he lost custody of his three children but opted instead to flee with them to Antigua. He brought Malvo with him upon returning to the United States in 2001 and started “training” the boy for the shooting rampage after his children were returned to his ex-wife.
Muhammad strictly controlled Malvo’s diet, taught him how to shoot a gun, trained him in military tactics and educated him about his beliefs — a mix of the teachings of the Nation of Islam and his own “violent” ideology, according to court briefs.
In 2002, Muhammad and Malvo trekked to Washington, D.C., on a “mission” to get Muhammad’s kids back from his ex-wife. Muhammad’s plan was to commit a series of random shootings with the goal of getting $10 million from the government, which he would use to establish a “utopian society” for black children.
Evidence later tied Malvo and Muhammad to a string of earlier shootings and crimes in other states. In addition to his life sentences in Virginia, Malvo separately received six life sentences in Maryland.