But the U.S. Supreme Court ruled in 2012 that juvenile defendants may not receive mandatory life sentences, and that courts must consider whether a teen’s crime reflected “irreparable corruption” or simply “the transient immaturity of youth.” Even though those criteria did not exist when Malvo was sentenced in 2004, U.S. District Judge Raymond A. Jackson ruled last month that they must be considered and vacated all four of Malvo’s Virginia life sentences.
The ruling did not affect any of Malvo’s convictions, and had no impact on his Maryland appeals, which are pending in the state and federal courts there. It simply called for resentencing of his Fairfax and Spotsylvania cases, which could end in the same result if the judges believe Malvo’s crimes and personal history still qualified for life sentences or could lead to reduced sentences in Virginia.
On Friday, Virginia Attorney General Mark R. Herring filed his notice that he would be appealing Jackson’s ruling to the U.S. Court of Appeals for the Fourth Circuit. That process will likely delay any potential resentencing by about a year. Malvo is being held in the maximum security Red Onion State Prison in southwestern Virginia.
If the appeals court rules against Virginia, Malvo’s resentencing on the Franklin case would be heard in Chesapeake, Va., rather than Fairfax, because the case was transferred there after a change of venue motion was granted by Fairfax Circuit Court Judge Jane Marum Roush. Roush was then assigned to hear the case in Chesapeake, and listened to lengthy testimony about Malvo’s difficult life growing up in Jamaica and then Antigua. But she has since retired.
There is also the question of whether a jury would have to be empanelled to hear and decide Malvo’s sentencing again. In Virginia, if a jury convicts a defendant, a second phase of the trial is held for the jury to determine the sentence. Once the jury has done that, the judge may either impose or reduce the sentence, but not increase it. Virginia judges rarely alter a jury’s sentence. After a jury in Fairfax convicted and sentenced serial killer Alfredo Prieto to death in 2008, the Virginia Supreme Court ruled that Prieto had to be resentenced because of an error in the jury instructions. A new jury was empanelled just for the sentencing phase of the case, and also imposed a death sentence in 2010. Prieto was executed in 2015.
Malvo’s mother, Una James, recently told The Washington Post that she would be willing to come to the United States to testify on her son’s behalf.
James arranged for herself and her son to enter the country illegally in 2000 through false paperwork created by a man Malvo had met in Antigua, John Allen Muhammad. Malvo eventually ran away from James in Florida and rejoined Muhammad in Washington state in October 2001.
The two began their killing rampage in Tacoma, Wash., four months later, and weren’t stopped until they were arrested in Frederick County, Md., in October 2002. Muhammad was convicted of murder in Virginia in 2003 and executed in 2009.