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Resentencing for D.C. Sniper Jr.?

When the U.S. Supreme Court struck down capital punishment for 17-year-old murderers, it assured the country that the penalty of life in prison without possibility of parole would remain available.  It did not take too long for the high court to default on that promise, casting doubt on existing sentences of LWOP and making it much too difficult to impose new LWOP sentences for crimes that really warrant death.

To say that a life sentence is constantly subject to reexamination is effectively sentencing the victims' families to life of opposing the reduction, constantly having to reopen the old wounds.  It is cruel in the extreme.

If there is one murderer in the whole country who was 17 at the time of crime and who definitely does not deserve reconsideration, it is Lee Boyd Malvo, the triggerman in the horrible D.C. Sniper shootings that terrorized the capital region in 2002.  Incredibly, a federal court has ruled that he is entitled to resentencing.
Denise Lavoie reports for AP:

RICHMOND, Va. -- Bob Meyers doesn't want partial justice for his brother. He wants full justice. And to him, that means leaving D.C. sniper Lee Boyd Malvo's sentence just the way it is: life in prison, with no chance of ever getting out.

A federal judge has given a glimmer of hope to Malvo, who was 17 when he was arrested in the random shootings that killed 10 people and wounded three in and around the nation's capital.

The judge ruled that Malvo is entitled to new sentencing hearings, now that the U.S. Supreme Court has made its ban on mandatory life-without-parole for juvenile offenders retroactive, extending it to people who were already sentenced before it ruled that such punishments are unconstitutional.

Virginia Attorney General Mark Herring's appeal is scheduled for Tuesday before the 4th U.S. Circuit Court of Appeals in Richmond.

The possibility of something less than a life sentence does not sit well with Meyers.

His brother, Dean, was fatally gunned down as he put gas in his car at a service station in northern Virginia.

"Nothing's changed," Meyers said. "The crime hasn't become diminished ... and if the sentence was appropriate initially and that was viewed as justice for Dean, is it three-quarters justice for Dean if they modify it?"

The Fourth Circuit isn't what it used to be, and it is quite possible that this travesty will be affirmed and need to be taken to the Supreme Court.  That would be a good occasion for the high court to reconsider the whole can of worms it has opened up since Roper v. Simmons.  Not that there is any going back on Roper itself, but a good, hard look at the juvenile cases since then is in order.


State judges should do all within their power to blunt the effect of this decision, and Roper should be reconsidered.

The Supreme Court has shown itself to be appallingly lawless when it comes to capital punishment and random nonsense like the JLWOP decision.

Trump, for all his faults, has shown an admirable commitment to appointing good judges.

We may not be able to overrule Roper with the current court, but in a year or two once Kennedy is replaced with an actual conservative...


I think you're dreaming, but then, as Yogi Berra said, I shouldn't make predictions, especially about the future. I've been quite wrong before.

I'd be interested thoughts on how to get a case properly before SCOTUS to reverse Roper. Even if a state prosecutor sought to bring a capital case against, say, the Kentucky school shooter, would a state judge functionally be able to conduct a full capital trial all the way to secure a death sentence to create a test case?

I mean this as a sincere question, in part because I could readily imagine a court with Kennedy and Ginsburg and Breyer replaced prepared to reconsider Roper. But I really wonder how such a case could be teed up.

The real issue in Roper is whether minors are truly different in the criminal justice context - while you won't likely see any capital cases, there are plenty of other chances for the justices to weigh in on the underlying issue (e.g. over mandatory LWOP, etc). If the court were to explicitly reject the idea that certain punishments are categorically inapplicable to minors and/or throw in dicta about Roper, that would probably do it.


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