By Lisa Soronen

Lee Boyd Malvo, a partner in the notorious “D.C. Sniper” case that involved 10 murders over the course of seven weeks in 2002, wants to have his sentence of life without parole reconsidered in a complicated Supreme Court case.

In Miller v. Alabama (2014) the Supreme Court held that juvenile offenders convicted of homicide can’t receive a mandatory sentence of life imprisonment without parole. Instead, the sentencing court must consider how children are different from adults and only sentence the “rare juvenile offender whose crime reflects irreparable corruption” to such a punishment.

In Montgomery v. Louisiana (2016) the Supreme Court held that Miller’s rule applies retroactively to juveniles convicted and sentenced before Miller was decided.

The question in Malvo v. Mathena is whether Lee Boyd Malvo may have his sentences of life imprisonment without the possibility of parole, which were issued before Miller, reconsidered under Miller, even though they weren’t mandatory.

In 2002, Malvo was 17 years old when he and John Muhammad shot their victims from the trunk of a car. Malvo was convicted in 2013 of two counts of capital murder for his crimes in Fairfax County, Va. The jury choose life imprisonment without parole instead of the death penalty. Subsequently, Malvo pled guilty to capital murder in another Virginia jurisdiction and received two additional terms of life imprisonment without parole.

Malvo seeks his sentences remanded for a determination of whether he is “one of the rare juvenile offenders who may, consistent with the Eighth Amendment, be sentenced to life without the possibility of parole because his ‘crimes reflect permanent incorrigibility.’”

Randy Mathena, the chief warden of Virginia’s high-security Red Onion State Prison, where Malvo is jailed, objects to resentencing, arguing that Malvo’s sentences weren’t mandatory and that “Miller’s new rule explicitly applies to mandatory life-withouBy t parole sentences.”

Mathena claims Malvo’s sentences weren’t mandatory because Virginia judges have the discretion to suspend capital sentences. Malvo responds that judges weren’t aware of their power to do so at the time.

The Fourth Circuit agreed with Malvo that regardless of whether his sentence was mandatory, broad language in Montgomery indicates that Miller “is not limited to mandatory life-without-parole sentences but also applies . . . to all life-without-parole sentences where the sentencing court did not resolve whether the juvenile offender was ‘irretrievably corrupt’ or whether his crimes reflected his ‘transient immaturity.’”

Specifically, Montgomery states that Miller “rendered life without parole an unconstitutional penalty for a class of defendants because of their status—that is, juvenile offenders whose crimes reflect the transient immaturity of youth.”

The Fourth Circuit continued: “To be sure, all the penalty schemes before the Supreme Court in both Miller and Montgomery were mandatory. Yet the Montgomery Court confirmed that, even though imposing a life-without-parole sentence on a juvenile homicide offender pursuant to a mandatory penalty scheme necessarily violates the Eighth Amendment as construed in Miller, a sentencing judge also violates Miller’s rule any time it imposes a discretionary life-without-parole sentence on a juvenile homicide offender without first concluding that the offender’s ‘crimes reflect permanent incorrigibility,’ as distinct from ‘the transient immaturity of youth.’”