Legal Sidebari

Mathena v. Malvo—A Challenge to Life
Without Parole for the Juvenile D.C. Sniper
October 7, 2019
On October 16, 2019, the Supreme Court is scheduled to hear oral argument in Mathena v. Malvo.
Mathena may be of general interest in the D.C. area because it involves a challenge to the criminal
sentence of Lee Boyd Malvo, one of the Beltway snipers. But the case also raises a novel legal question
concerning the scope of Miller v. Alabama and Montgomery v. Louisiana, in which the Supreme Court
held that the Eighth Amendment’s ban on cruel and unusual punishment limits the circumstances where
juvenile offenders may be sentenced to life in prison without the possibility of parole. This Sidebar first
surveys key Eighth Amendment jurisprudence relevant to Mathena, before providing background on the
case and outlining the parties’ arguments before the Supreme Court. The Sidebar concludes by discussing
possible outcomes in the case and their implications for Congress.
The Eighth Amendment
The Eighth Amendment, which applies to both the states and the federal government, provides:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” The Supreme Court has interpreted the Eighth Amendment’s ban on cruel and unusual
punishments to categorically prohibit the use of certain forms of punishment that “superadd” terror, pain,
or disgrace, such as drawing and quartering, “hard and painful labor,” and revocation of the citizenship of
a natural-born citizen. In addition, the Court has held that certain punishments that are permissible in
some circumstances are nonetheless unconstitutional as applied to particular classes of defendants. For
example, the Supreme Court has held that the Eighth Amendment prohibits imposing the death penalty on
cognitively disabled defendants or on any defendant who has not committed homicide.
One class of offenders that has been the subject of considerable Eighth Amendment litigation is juvenile
offenders—a category that includes any criminal defendant who was under eighteen years old at the time
of the offense, regardless of whether the defendant was tried as an adult. In the past decade and a half, the
Supreme Court has issued several opinions limiting the criminal punishments that may be imposed on
juvenile offenders. First, in Roper v. Simmons, the Court held that juvenile offenders may not
constitutionally be sentenced to death. Five years later, in Graham v. Florida, the Supreme Court held that
juveniles may not be sentenced to life without parole for non-homicide offenses.
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Two subsequent decisions, Miller v. Alabama and Montgomery v. Louisiana, are most relevant to
Mathena. In Miller, the Supreme Court struck down state laws that imposed mandatory sentences of life
without parole for juveniles convicted of certain homicide offenses. Justice Kagan, writing for a five-
Justice majority, drew on “two strands of precedent reflecting [the Court’s] concern with proportionate
punishment.” The first line of cases, embodied in decisions including Roper and Graham, “adopted
categorical bans on sentencing practices based on mismatches between the culpability of a class of
offenders and the severity of a penalty.” For instance, with respect to juvenile offenders, those cases held
that the harshest punishments were rarely or never warranted because of juveniles’ “lesser culpability.”
The second line of cases that Justice Kagan invoked required individualized consideration of “the
characteristics of a defendant and the details of his offense before sentencing him to death.” Justice Kagan
cited two cases from the 1970s, Woodson v. North Carolina and Lockett v. Ohio, in which the Court
construed the Eighth Amendment to forbid the mandatory imposition of capital punishment and require
courts to consider mitigating factors before issuing a death sentence. Building on the two foregoing lines
of cases, the Court held that “the Eighth Amendment forbids a sentencing scheme that mandates life in
prison without the possibility of parole for juvenile offenders.” The Miller majority further opined that
“appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”
While not foreclosing a sentencer’s ability to make that judgment in homicide cases, the Court required
that the sentencer consider “how children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison.”
Chief Justice Roberts and Justices Thomas and Alito each filed a dissent in Miller. Chief Justice Roberts
criticized what he characterized as the majority’s invocation of the Eighth Amendment “to ban a
punishment that the Court does not itself characterize as unusual, and that could not plausibly be
described as such.” Justice Thomas asserted that the precedent on which the majority relied was not
“consistent with the original understanding of the Cruel and Unusual Punishments Clause.” Justice Alito
objected to the majority opinion as an expansion of prior Eighth Amendment precedent amounting to an
“arrogation of legislative authority” by the Court.
In Montgomery, the Supreme Court’s most recent case addressing the Eighth Amendment’s application to
juvenile offenders, the Court held that Miller’s prohibition on mandatory sentences of life without parole
for juvenile offenders applied retroactively to convictions that were final before Miller was decided. The
question whether Miller applied retroactively hinged on whether that case’s holding was substantive or
procedural, as the Court has long held that new substantive rules of constitutional law must have
retroactive effect, while new procedural rules generally need not. Justice Kennedy, joined by five other
Justices, held that Miller announced a new substantive rule. The Court acknowledged that “Miller’s
holding has a procedural component”: requiring a sentencer “to consider a juvenile offender’s youth and
attendant characteristics before determining that life without parole is a proportionate sentence.”
However, viewing the “[p]rotection against disproportionate punishment” to be “the central substantive
guarantee of the Eighth Amendment” and one that went “beyond the manner of determining a defendant’s
sentence,” the majority opinion held that Miller “did more than require a sentencer to consider a juvenile
offender’s youth before imposing life without parole; it established that the penological justifications for
life without parole collapse in light of ‘the distinctive attributes of youth.’” Thus, the Montgomery Court
concluded, “[e]ven if a court considers a child’s age before sentencing him or her to a lifetime in prison,
that sentence still violates the Eighth Amendment for a child whose crime reflects ‘unfortunate yet
transient immaturity.’”
After dissenting in Miller, Chief Justice Roberts joined the majority in Montgomery. Justice Scalia filed a
dissent in which he accused the majority of “rewrit[ing] Miller” as “a devious way of eliminating life
without parole for juvenile offenders.” Justice Thomas also dissented on jurisdictional grounds.

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Beltway Sniper Attacks and Aftermath
In September and October 2002, 17-year-old Malvo and 41-year-old John Allen Muhammad shot and
killed twelve people and injured six others during a multistate crime spree. The shootings, many of which
occurred in and around the District of Columbia, came to be known as the Beltway sniper attacks or the
D.C. sniper attacks. Following their arrest in October 2002, Muhammad and Malvo were each convicted
of multiple counts of murder in Virginia and Maryland. Muhammad was sentenced to death in Virginia
and received six sentences of life without the possibility of parole in Maryland. He was executed in
Virginia in 2009.
Malvo was tried as an adult, and in December 2003 a Virginia jury convicted him of two counts of capital
murder. In 2004, in a second Virginia trial involving separate shootings, Malvo pled guilty to an
additional count of capital murder and one count of attempted capital murder. The applicable Virginia
sentencing statute expressly authorized only two possible punishments for a person over the age of
sixteen who committed capital murder: death or life without parole. Malvo was sentenced in both Virginia
cases in 2004—about a year before the Supreme Court’s decision in Roper barred death sentences for
juvenile offenders, and eight years before Miller prohibited mandatory sentencing of juveniles to life
without parole. Thus, both of the potential punishments were lawful at the time of Malvo’s trials.
In Maryland, Malvo pleaded guilty to six counts of first-degree murder and received an additional six
terms of life without parole. Malvo did not appeal his convictions, but has since brought post-conviction
challenges to his Virginia and Maryland sentences. The current case, Mathena v. Malvo, involves Malvo’s
claim that his Virginia sentences of life without parole for crimes he committed as a juvenile violate the
Eighth Amendment’s ban on cruel and unusual punishments. Malvo’s challenges to his Maryland
sentences remain pending in the lower courts.
Mathena v. Malvo
In 2013, Malvo filed in federal court two petitions for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, arguing that his Virginia sentences violate the Eighth Amendment. He asserted the sentences were
invalid under Miller because he received sentences of life without parole without consideration of his
youth. The U.S. District Court for the Eastern District of Virginia initially denied habeas relief, and Malvo
appealed. While that appeal was pending, the Supreme Court decided Montgomery, and the U.S. Court of
Appeals for the Fourth Circuit (Fourth Circuit) remanded Malvo’s case for further consideration in light
of that decision.
The Commonwealth of Virginia moved to dismiss the habeas petitions, arguing in relevant part that Miller
and Montgomery do not apply to Malvo because Virginia’s sentencing scheme is not mandatory. Virginia
asserted that, although the statute under which Malvo was sentenced does not expressly authorize any
punishment less severe than life without parole, Virginia law generally permits a court to suspend a life
sentence in whole or in part on a discretionary basis. The Supreme Court of Virginia has therefore held
that the commonwealth’s sentencing scheme is not mandatory. However, the Virginia Supreme Court’s
decision postdates Malvo’s sentencing by a decade, and it is not clear whether any of the participants in
Malvo’s sentencing were aware at the time that such a suspension might be available. In any event,
Malvo’s counsel did not request a suspension, and it does not appear that the sentencer in either of
Malvo’s trials actually considered whether a sentence of less than life without parole was warranted in
light of his youth. As a result, Malvo argued, at the time he was sentenced his sentences of life without
parole were effectively mandatory.
On remand, the district court granted Malvo’s habeas petition, and the Fourth Circuit affirmed on appeal.
The Fourth Circuit held that it “need not . . . resolve whether any of Malvo’s sentences were mandatory
because Montgomery has now made clear that Miller’s rule has applicability beyond those situations in

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which a juvenile homicide offender received a mandatory life-without-parole sentence.” Virginia
petitioned for a writ of certiorari, and the Supreme Court granted the petition.
Before the Supreme Court, Virginia argues that the Fourth Circuit erred in holding that it need not
determine whether Malvo’s sentence was mandatory, because Miller’s rule is limited to mandatory
sentences, and Montgomery is properly understood as holding only that Miller applies retroactively. The
commonwealth claims that the Fourth Circuit incorrectly read Montgomery to broaden the scope of the
right announced in Miller and thus improperly applied Miller and Montgomery to Malvo’s discretionary
life without parole sentences.
Malvo rejects Virginia’s narrow reading of Miller and Montgomery, instead arguing that the two cases
require actual consideration of youth and its attendant characteristics, not mere discretion to consider
those factors, before any juvenile can be sentenced to life without parole. He therefore argues that
“Miller’s requirements—which do not depend on whether Virginia’s [sentencing] scheme was
‘mandatory’—were not met” in his case because “the judge and jury who sentenced Malvo in 2004 never
undertook th[e] required consideration of his youth.”
Numerous outside parties, including the United States and a group of fifteen states, have filed amicus
curiae (“friend of the court”) briefs in this case. The United States argues that Miller is properly
understood to apply only to mandatory life without parole sentences, but Montgomery has created
confusion about the scope of Miller. The United States thus encourages the Court to “make clear that
Miller does not, in fact, require courts to revisit final life-without-parole sentences imposed as a matter of
discretion.” The United States also suggests that the Court remand the case for a determination of whether
Malvo’s sentences were mandatory. The fifteen states contend that the Supreme Court’s juvenile
sentencing precedent under the Eighth Amendment is in tension with the historical meaning of the
Amendment, and the Court should not expand that precedent and intrude further into state sentencing
procedures. They further assert that Miller and Montgomery merely require a sentencer to consider the
youth of a juvenile offender before imposing a life without parole sentence, and “sentencers imposing
discretionary life-without-parole sentences inevitably consider” youth and its attendant characteristics.
Possible Outcomes and Considerations for Congress
There are several possible outcomes in this case. The Supreme Court could hold, based on language in
Miller and Montgomery requiring a sentencer “to consider a juvenile offender’s youth and attendant
characteristics before determining that life without parole is a proportionate sentence,” that those cases
apply to any juvenile facing a sentence of life without parole, regardless of whether the sentence is
mandatory. If the Court came to that conclusion, it would likely hold that Malvo’s Virginia life without
parole sentences violate the Eighth Amendment because the sentencers did not actually consider whether
his youth warranted a lesser sentence. In the alternative, the Court could confine Miller and Montgomery
to their facts and hold that those cases do not apply to discretionary juvenile life without parole sentences.
If the Court so holds, it is likely that the legality of Malvo’s sentences would hinge on whether his
sentences were in fact mandatory or discretionary, which the parties dispute. The Court might elect to
resolve that dispute as a matter of law or remand the case to the lower courts to resolve it in the first
instance—to the extent the question hinges on the interpretation of Virginia law rather than the U.S.
Constitution, the federal courts must defer to the rulings of the Virginia Supreme Court. Another
possibility is that the Court could decline to reach the merits of the case at this time and simply remand to
the lower courts for a factual determination of whether Malvo’s sentences were mandatory.
Even if the Supreme Court determines that Malvo’s Virginia sentences violate the Eighth Amendment,
Malvo is unlikely to be released from prison in the foreseeable future for two reasons. First, prevailing on
his habeas petition would not secure Malvo’s release; it would simply mean that Virginia must bring his
sentences into compliance with the Eighth Amendment. The commonwealth could do that by granting

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Malvo a new sentencing hearing. But, under Miller and Montgomery, Malvo could potentially be
resentenced to life without parole as long as the court considered the appropriate factors and determined
that such a sentence was warranted. In the alternative, Virginia could allow Malvo to be considered for
parole; but even if Malvo became eligible for parole, the parole board could deny his applications (as has
happened with the petitioner in Montgomery). Second, Malvo is subject to six life without parole
sentences in Maryland. While he has also challenged those sentences on similar grounds in separate
proceedings, a ruling on his Virginia sentences would not automatically affect the validity of his Maryland
sentences.
Nonetheless, Mathena v. Malvo has broader national implications beyond Malvo’s individual situation
that may be of interest to Congress. The case has the potential to affect prisoners across the country
serving life without parole for offenses committed while they were juveniles—a group that one
commentator recently estimated numbers over a thousand. Moreover, federal law currently allows
juvenile offenders to be sentenced to life without parole and, in fact, a number of federal inmates are
currently serving juvenile life without parole sentences. Following Montgomery, some federal inmates
who had received mandatory life without parole sentences for crimes committed as juveniles sought
resentencing. A holding in Mathena that Miller and Montgomery also apply to discretionary sentences
could allow additional federal inmates to seek resentencing or consideration for parole.
Regardless of the outcome in Mathena, Congress could pass legislation to alter juvenile life without
parole sentencing under federal law. Such legislation could not alter the constitutional limits articulated in
Miller, Montgomery, and any other applicable cases, but could provide legislative guidance to federal
courts implementing those decisions or further limit the use of life without parole sentences for juvenile
offenders convicted in federal court. As an example, H.R. 6011, proposed during the 115th Congress,
would have allowed courts to reduce the sentence of a juvenile offender tried as an adult if the defendant
had served at least 20 years in prison and the court found that the defendant did not pose a safety risk and
the interests of justice warranted a sentence modification.
A decision in Mathena is expected sometime in the spring of 2020.

Author Information

Joanna R. Lampe

Legislative Attorney




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