A recent appeals court decision ordering the resentencing of Beltway Sniper Lee Boyd Malvo may further open the door to new sentencing hearings for other juvenile offenders in Virginia.
“The issue of how to handle these resentencings is being very hotly debated around the country,” said Julie E. McConnell, a professor at the University of Richmond School of Law and director of the school’s Children’s Defense Clinic.
Malvo is serving four life-without-parole terms, the only punishment short of execution for capital murder in Virginia. Advocates believe the ruling by the 4th U.S. Circuit Court of Appeals last month also applies to juveniles given life-without-parole sentences for other crimes.
A unanimous, if reluctant, three-judge panel of the appeals court ruled June 21 that while Malvo’s sentences were legal when imposed in 2004, subsequent decisions by the U.S. Supreme Court set new requirements for imposing such sentences — requirements not met when Malvo was sentenced.
The U.S. Supreme Court decided in 2012 and 2016 that in a homicide case, a court cannot impose life without parole on a juvenile unless it determines that he or she is “so permanently corrupt and incorrigible” that the person could never be rehabilitated.
Claire Guthrie Gastañaga, executive director of the ACLU of Virginia, said, “I think this opens up the opportunity for a pretty broad inquiry to any juvenile who has been tried as an adult and sentenced to life without parole in Virginia.”
“There are defense attorneys out there who really need to know that there is the potential for raising the question whether their [client] was sentenced legally or not,” she added.
On Friday, the Virginia attorney general’s office, which has been fighting to preserve Malvo’s sentences, asked the appeals court to stay its ruling while it requests the U.S. Supreme Court to consider a challenge.
In its request for a stay, the attorney general argues that the Virginia Supreme Court found that state law already complies with U.S. Supreme Court precedent because it imposes a discretionary life sentence, unlike the mandatory life sentence some other states impose.
“So without Supreme Court review, Virginia would find itself stuck between conflicting decisions from the Virginia Supreme Court and the Fourth Circuit,” contends a release from the attorney general’s office.
As of June 14, the Virginia Department of Corrections had 42 offenders sentenced to life without the possibility of parole solely for offenses committed prior to the age of 18. Thirty of the 42 will be eligible to be considered for conditional geriatric release, said a department spokeswoman. The remaining 12 were convicted of capital murder and are, therefore, not eligible for geriatric release.
Offenders who are at least 60 years old and who have served 10 years or more of their sentences, or those 65 and older who have served at least five years, can petition the parole board for conditional geriatric release, which is not automatic and not often granted.
In a 2010 case, Graham v. Florida, the U.S. Supreme Court struck down life-without-parole sentences for youth who commit non-homicide crimes and said that such offenders must be given a “meaningful opportunity for release based on demonstrated maturity and rehabilitation.”
In a 2011 Virginia case, the Virginia Supreme Court held that the possibility of geriatric release provides a meaningful opportunity for release that is akin to parole. McConnell and the ACLU of Virginia, disagrees that geriatric release is a meaningful opportunity for release since it is so rarely granted.
Malvo, a capital murderer, is not eligible for geriatric release. Now 33 years old, he is being held at Red Onion State Prison, in Wise County, stemming from a string of shootings in 2002 that claimed 10 lives in Virginia, Maryland and Washington. His adult co-sniper, father-figure and mentor, John Allen Muhammad, was executed in 2009.
Malvo was convicted by a Chesapeake jury of two counts of capital murder in 2004 and his punishment set at life without parole. He was then convicted of capital murder and attempted capital murder in a plea deal before a Spotsylvania County judge and received two additional life-without-parole sentences.
In 2012, in Miller v. Alabama, the U.S. Supreme Court held that individuals under the age of 18 cannot be sentenced to life without parole unless found to be permanently incorrigible. Then in 2016, in Montgomery v. Louisiana, the justices held that the rulings are to be applied retroactively.
In its June 21 ruling, the three-judge appeals court panel, citing the U.S. Supreme Court decisions, wrote that Malvo’s jury was not asked to find that his crimes showed, “irreparable corruption or permanent incorrigibility, a determination that is now a prerequisite to imposing a life-without-parole sentence on a juvenile homicide offender.”
“Nor were Malvo’s ‘youth and attendant circumstances’ considered by either the jury or the judge to determine whether to sentence him to life without parole or some lesser sentence,” found the three-judge appeals court panel.
The opinion, written by Judge Paul V. Niemeyer, showed no sympathy for Malvo.
“The crimes committed by Malvo and John Muhammad were the most heinous, random acts of premeditated violence conceivable, destroying lives and families and terrorizing the entire Washington, D.C., metropolitan area for over six weeks, instilling mortal fear daily in the citizens of that community,” he wrote.
But, Niemeyer explained, the court is bound to apply the new rules and affirm the lower court decision ordering resentencing. “We make this ruling not with any satisfaction but to sustain the law. As for Malvo, who knows but God how he will bear the future,” he concluded.
Last year, U.S. District Judge Raymond A. Jackson, in light of the 2012 and 2016 Supreme Court rulings, ordered Malvo to be resentenced, triggering an appeal by the attorney general’s office to the 4th U.S. Circuit Court of Appeals.
McConnell said there have been three resentencings in Virginia following the U.S. Supreme Court’s 2012 decision, but before the Malvo decision in the appeals court. Two of the resentencings were in state court and one was in federal court.
Two of those new sentences, 99 years and 65 years, amount to new life sentences, McConnell contends. And, she argues, those new sentences were not imposed in accord with the requirements set in the Miller and Montgomery cases.
Those two resentencing cases are now back on appeal, the offenders arguing among other things that the new sentences were imposed without the predicate incorrigibility findings and that the sentences were essentially life sentences.
McConnell said about a dozen more cases were waiting in the pipeline for the Malvo ruling.
The Virginia attorney general’s office opposed new sentencing hearings for Malvo, and argued among other things that because a Virginia judge has the power to suspend a sentence, the sentences imposed on Malvo were not mandatory.
Malvo’s lawyers argued that not only were the sentences mandatory under Virginia law, but that the Miller decision applies to all life-without-parole sentences — mandatory or not — where it was not determined the juvenile was “irretrievably corrupt,” or whether the crimes reflected “transient immaturity.”
The appeals court panel agreed with Jackson that the so-called Miller rule, which stemmed from a mandatory sentence, can be applicable to nonmandatory life-without-parole sentences.
The appeals court concluded that Miller “potentially applies to any case where a juvenile homicide offender was sentenced to life imprisonment without the possibility of parole.”