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'The Time is Ripe'

Lee Boyd Malvo's attorneys call the juvenile death penalty unconstitutional.

Powers in Washington, DC brought Lee Boyd Malvo to Virginia for prosecution. Will Virginia eventually send Malvo's case to Washington?

"The time is ripe for the Supreme Court to look at this," said Joanmarie I. Davoli, professor of law at the George Mason University School of Law in Arlington, referring to the juvenile death penalty.

Attorney General John Ashcroft decided Malvo should be tried in Virginia because it is the only local jurisdiction which allows for the execution of juvenile offenders. Malvo was 17 at the time sniper shootings killed 10 people and wounded three in the DC area.

Atkins v. Virginia, a U.S. Supreme Court decision in 2002 that declared the execution of offenders with mental retardation unconstitutional, is "certainly enticing people to think there is a shift in this at the Supreme Court," said Fairfax Circuit Court Judge Jane M. Roush, presiding over Malvo’s trial. In the meantime, Roush denied the motion to declare the juvenile death penalty unconstitutional.

MALVO'S ATTORNEYS, Michael Arif and Craig Cooley, set the stage for a future challenge to the juvenile death penalty in a higher court during a hearing on Monday, March 31 in the Fairfax County Circuit Court.

"Facts and figures regarding the execution of juvenile offenders are directly analogous to those facts regarding the execution of mentally retarded offenders on which the Court based its holding in Atkins," Arif and Cooley wrote, in their motion to declare the juvenile death penalty unconstitutional.

"As with executions of the mentally retarded, the juvenile death penalty contradicts evolving standards of decency, does not effectuate the punitive purposes of capital punishment, and presents a grave risk of executing individuals innocent of capital crimes,” according to Arif and Cooley.

EVOLVING STANDARDS of decency, something articulated by Supreme Court Justice Earl Warren in 1958, takes into account current law especially on the state level, and how it has changed, Davoli said.

Currently, 16 states have no death penalty and 16 prohibit the execution of those whose crime took place before the age of 18. Indiana raised the minimum age of its death penalty to 18 in 2002.

Judge Roush called Arif's argument "excellent," but denied the motion.

Until a shift in the Supreme Court happens, "I'm forced to follow the law of the land," she said.

The death penalty for 16 and 17 year olds is permitted in 22 states.

Arif and Cooley will appeal the decision directly to the Virginia Supreme Court, if their client is convicted and sentenced for the capital murder of Arlington resident Linda Franklin, who was killed by sniper attacks on Oct. 14, 2002.

COMPARING DEFENDANTS who have mental retardation to juveniles is "somewhat of a stretch," prosecutor Robert F. Horan said on Monday.

"There is a tendency to look at juveniles as a monolith, one size fits all," said Horan.

"There are prodigies among juveniles. There are prodigies of music, of art, of academics, of athletics. And there are those that far exceed their peers, sometimes, in crime."

"The suggestion that the Supreme Court will deal with the juvenile in the same way as they dealt with the retarded is speculative to say the least," wrote Horan, in his response to Arif's motion. "There are certainly fundamental differences between the retarded and a juvenile of average intelligence."

"Atkins was considered speculation before June 2002, now it is law," countered Arif.

BUT ROUSH tempered speculation, referring to two cases involving the juvenile death penalty that the Supreme Court refused to review after its decision in Atkins v. Virginia.

The Court chose not to hear Hain v. Mullin this past January or Stanford v. Kentucky in October 2002, despite strong dissent from Justice Stevens. “The practice of executing such offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society. We should put an end to this shameful practice,” Stevens wrote, in dissent.

The Supreme Court hears approximately two percent of the appeals filed.

ANOTHER CRITICAL QUESTION, Arif said, is whether the culpability of a juvenile should be measured by the same standards as an adult.

Arif asked Roush to examine what youth under 18 cannot do, such as vote, sit on a jury, get married without parental consent, or buy alcohol or cigarettes.

"Why? Because society legitimately believes that a child is not prepared to face the full responsibilities of an adult," Arif said.

"Juvenile offenders are less culpable than adult offenders and therefore do not deserve a punishment that is reserved for only the most morally blameworthy murderers," Arif said.

Just as juveniles possess a wide range of abilities, juveniles possess a wide range of culpability for crimes. A jury is reserved the right to decide whether Malvo should face capital punishment, Horan said.

MALVO'S CASE, according to Davoli, is likely to involve issues of juveniles’ vulnerability to domination and duress. Malvo was under the care of sniper suspect John Lee Muhammed, 42, who faces trial in Prince William County in October.

Domination issues reveal a lot about culpability, according to Davoli, offering the example of Elizabeth Smart, the kidnapped teenager in Utah.

"She was so dominated she lied to police when they tried to save her. We are dealing with someone [in Malvo] who by no means had her advantages and education," Davoli said.

"This is the fullest opportunity to put evidence before the court. This is the record that everyone will look at from now one," said Davoli, a McLean resident.

"We are changing, this society is changing," Arif said.

The juvenile death penalty is "the law of the land as we stand here," Horan argued.

Roush agreed.