‘D.C. Sniper’ Argues to Supreme Court His Sentence Unconstitutional

Convicted “D.C. sniper” Lee Boyd Malvo’s appeal of his sentence to life in prison without parole was argued before the U.S. Supreme Court this week.

For three weeks in 2002, Malvo, then 17, and John Allen Muhammed, then 42, terrified the Washington, D.C. metropolitan area shooting 12 people and injuring six more, until their arrest at a Maryland rest stop. In 2003, a jury convicted Malvo on multiple charges, including the murder of an FBI analyst “in the commission of an act of terrorism,” and he was sentenced to life without possibility of parole. Three years later, in 2006, Malvo plead guilty to committing six additional murders and was sentenced to six consecutive life sentences without possibility of parole. The records of those proceedings do not reflect any consideration of Malvo’s youth to determine his sentences.

In 2017, a federal district court judge in Virginia overturned Malvo’s sentences on grounds that it was unconstitutional per Miller v. Alabama, a 2012 U.S. Supreme Court decision holding a life-without-parole sentence for a defendant under the age of 18 violated the Eighth Amendment’s prohibition of cruel and unusual punishment. The U.S. Court of Appeals for the Fourth Circuit upheld the district court decision, and the Commonwealth of Virginia petitioned the Supreme Court for certiorari. The Supreme Court granted Virginia’s petition and on October 16, 2019, heard oral argument on the case.

During oral argument, the parties and the justices debated whether Miller’s rule applies to Malvo’s case, or whether it is limited to mandatory life-without-parole sentences. Virginia and the U.S. Office of the Solicitor General, as amicus, argued Miller applies only to mandatory sentences. But during their arguments, Justice Elena Kagan disagreed, saying the entire reasoning of Miller was that courts need to consider a defendant’s youth.

Malvo’s attorney agreed with Kagan, arguing that Miller holds that the Eighth Amendment prohibits life sentences without the possibility of parole for juveniles. Justice Samuel Alito disagreed with that interpretation, asserting the plain language of Miller barred only mandatory life-without-parole sentences for juveniles.

The argument, at Justice Ruth Bader Ginsburg’s prompting, then addressed that no one in Malvo’s sentencing believed they had any discretion to impose any sentence other than death or life without the possibility of parole.

Justice Brett Kavanaugh asked, if Miller and other precedent require a sentence to consider a defendant’s youth to decide whether a life sentence should afford the opportunity of parole, would that requirement be satisfied by a discretionary regime that includes the defendant’s youth among the factors that the sentence must consider? Justices Kagan and Sonia Sotomayor, and Chief Justice each subsequently made comments that apparently supported Justice Kavanuagh’s proposal.

Near the conclusion of the hour-long argument, Justice Sotomayor expressed concern that the Court was uncertain what Malvo’s attorneys could have done to raise the issue of Malvo’s youth at his sentencing. Justice Stephen Breyer later noted, the “odds are greater than 50/50 that no one ever thought about whether” Malvo was “immature,” thus warranting a sentence with the opportunity of parole.

The oral argument ended without clear indication of where a majority of the justices agreed and what path they may take in deciding Malvo’s case. FedAgent will post an update on Malvo v. Athena when the Supreme Court decides the case.

The transcript of the Malvo v. Athena oral argument before the Supreme Court may be read here.


This case law update was written by James P. Garay Heelan, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

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