- The Washington Times - Wednesday, October 16, 2019

The Supreme Court appeared split down ideological lines Wednesday about whether D.C. sniper Lee Boyd Malvo deserves a new hearing to fight for his right to someday walk out of prison.

An attorney for Malvo relied on cases the high court decided involving juvenile defendants in the years since Malvo’s sentencing in 2003, saying her client’s sentence of life without parole now appears too harsh and he should get a second chance at a different punishment.

Malvo was 17 at the time of the shootings, when he and his adult partner, John Allen Muhammad, terrorized the Washington area for six months in fall 2002.

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The Democratic-appointed justices were united in their quizzing of Virginia and federal government lawyers, stressing that rulings from the past decade mandate a juvenile defendant’s age must be considered during their sentencing.

“Youth matters,” Justice Elena Kagan said.

“The jury had only two choices: death or life without parole,” Justice Ruth Bader Ginsburg said.

On the conservative wing of the court, it was Justice Brett M. Kavanaugh who most pointedly probed both sides, appearing to suggest that the high court must clarify how the cases affecting the punishment of youth should be applied by the lower courts.

“We may have to indicate what is the substantive rule and what is the procedure,” Justice Kavanaugh said.

Danielle Spinelli, Malvo’s attorney, urged the justices to grant her client a new sentencing hearing, pointing to a 2012 decision in which the high court ruled that sentencing a juvenile homicide offender to life in prison without parole violated the Eighth Amendment’s prohibition against cruel and unusual punishment. In 2016, the justices applied their 2012 ruling to another case involving a man who was sentenced to life without parole in Louisiana for a crime committed when he was 17.

In that ruling, the court said only “the rare juvenile offender whose crime reflects irreparable corruption” may be sentenced to mandatory life in prison without parole.

Since Malvo was sentenced before those cases were decided, he wants the justices to apply the 2012 and 2016 cases retroactively, giving him a chance at a new punishment.

“He had no way of anticipating this new constitutional rule would be announced,” Ms. Spinelli said.

The government, though, says the court shouldn’t apply the 2012 and 2016 holdings retroactively since it would upset the finality of state convictions decided years prior.

Toby J. Heytens, Virginia’s solicitor general, said the judge — not the jury — was the one to decide Malvo’s fate, and the judge had the option to consider mitigating circumstances such as age.

Malvo’s victims were already required to endure one full trial and sentencing hearing more than a decade ago, and the court should not lightly ask them to go through another, particularly given that the original sentencing fully complied with then controlling constitutional restrictions,” he said.

Malvo and Muhammad, who was in his 40s, committed random shootings at locations including schools, gas stations and grocery stores in the Washington area.

They killed 12 people and wounded six, all while taunting police. They had drilled a hole in the trunk of their car just above the license plate so they could fire from undercover, then drive off, eluding authorities and prolonging the terror for weeks.

Some residents avoided going out except when absolutely necessary, and some gas stations took to hanging tarps around the pumps to keep customers from becoming targets. Schools were placed on lockdown and on one occasion, Interstate 95 was closed.

Muhammad had brought Malvo from Jamaica to the U.S. illegally and became a father figure to the teen.

Malvo was convicted by a jury of murdering one woman, and he pleaded guilty to the murder and attempted murder of two other individuals in Virginia. He also pleaded guilty to six murders in Maryland.

He has been serving his life sentence at Red Onion State Prison in Wise County, Virginia.

Muhammad was executed for the crimes in 2009.

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