Malvo's case stirs debate on death penalty

He is either a classic case study for why the death penalty should be abolished for juvenile killers or a prime example of why age should not be a determining factor in meting out a death sentence.

As the Nov. 10 capital murder trial of Lee Boyd Malvo approaches, opponents of executing criminals who were younger than 18 when they killed and advocates for allowing the death penalty for juvenile killers are renewing their debate.

Malvo was 17 when FBI analyst Linda Franklin was fatally shot Oct. 14, 2002, in a Home Depot parking lot in Fairfax County, Va. His trial as an adult, moved to Chesapeake to find jurors unaffected by last fall's Washington-area sniper siege, is being closely watched by both sides.

"I think this is a strong case for the difference between an adult and a juvenile," said Richard C. Dieter, executive director of the Washington-based Death Penalty Information Center.

"One of the things about juveniles is that they are often led by older other people who may influence them," Dieter said.

Older teen-agers may look like "full-sized people," he said, but they are not intellectually or emotionally mature and remain dependent on adults.

For months leading up to the trial, Malvo's defense team has depicted the Jamaican-born youth as "under the spell" of John Allen Muhammad, 42. The elder sniper suspect is on trial in Virginia Beach for capital murder in another of the 10 Washington-area sniper killings.

"The bond was father-son, but maybe it was jailer-inmate in a way. You do things to survive," Dieter said.

In African countries besieged by civil war, for example, youngsters have been indoctrinated to kill and rape by armies providing them with food, shelter and a gun, he said.

But those who argue that execution should be available for people who kill as juveniles say some crimes are so awful that prosecutors and juries should not be limited by a convicted killer's age. Age - emotional, intellectual and chronological - is among factors presented to a jury weighing life or death.

"This certainly is a crime that qualifies for it," said Michael Rushford, president of the pro-death penalty Criminal Justice Legal Foundation, based in California.

"I look at the crime more than I try to analyze the individual," Rushford said.

Maryland is among 28 states that do not allow execution of juvenile killers, making the death penalty impossible for Malvo in the state where most of the sniper killings occurred.

Instead, U.S. Attorney General John Ashcroft sent the cases to Virginia, saying it offered "the best law, the best facts and the best range of available penalties."

Second to Texas in overall executions, Virginia has executed three juvenile killers since the death penalty was reinstated in 1976. Another is on death row.

Legal experts say the jarring nature of the crime, often combined with past crimes and a lack of compelling reasons to spare the killer, typically leads a jury to choose the death penalty for a juvenile offender. Because of that, lawyers said, Malvo's attorneys have a tough job.

"Does it get any worse than premeditated, deliberate killings of innocent people who were doing nothing more than pumping gas or mowing a lawn?" said William C. Mulford II, a former prosecutor turned defense attorney in Annapolis.

"In looking at those circumstances in which juveniles have received the death penalty, they generally seem to involve particularly heinous crimes," said Michael O'Neill, a law professor at George Mason University in Virginia and a member of the U.S. Sentencing Commission.

The first person executed in Virginia since 1976 for a murder committed while a juvenile was Dwayne Allen Wright, in 1998. He was 17 when he went on a rampage in 1989 that claimed three lives.

In asking a jury to sentence Wright to death, Fairfax County Commonwealth's Attorney Robert F. Horan Jr. - who is also prosecuting Malvo - pointed to the random nature of the killing. Horan is expected to make a similar argument if a jury convicts Malvo of capital murder.

Two other men who were 17 when they committed murder were executed in 2000.

Malvo's jury will first consider a defense of not guilty due to insanity.

If the jury finds him guilty of capital murder and if Horan seeks a death sentence as expected, the jury will hear evidence for either a death sentence or life without parole.

Mark J. Yeager, who represented Wright, said Malvo's insanity and brainwashing claims will be tough - but maybe not impossible - to sell.

"The only problem is that that kind of stuff only happens in the mind of a novelist; it doesn't happen in real life all that often. A jury, I would think, is going to be somewhat skeptical of that argument," he said.

That's because evidence of a dozen earlier shootings will make a powerful prosecution argument that recent past behavior predicts future behavior, Yeager said.

Experts doubt Malvo's case will have an effect on the future of the death penalty for juvenile offenders, though they expect advocates and opponents to add it to their arsenals of arguments.

Victor L. Streib, a law professor at Ohio Northern University who studies the death penalty, believes that the execution of juvenile killers is heading for oblivion despite the sniper case - either state by state or by the Supreme Court halting the practice.

"It's kind of like when we have a cold day and somebody says global warming is over. Malvo is our cold day. But the ice cap is still melting," Streib said.

Four months after barring states from executing mentally retarded killers, a divided Supreme Court refused to decide if juvenile killers should be executed.

Writing for the four dissenters, Justice John Paul Stevens called the execution of juvenile killers "shameful." That ruling occurred days before Malvo and Muhammad were apprehended.

But again in January, the high court refused to hear a constitutional challenge to executing juvenile killers. In 1988, it ruled that no one younger than 16 when they kill can be executed.

Polls routinely show that most Americans support the death penalty. But a 2002 Gallup poll showed 26 percent favored the death penalty for juveniles.

Around the world, the practice is losing favor, foes say, but advocates counter that what other countries do is irrelevant.

Rushford, the Criminal Justice Legal Foundation official, said that particularly heinous crimes show why the death penalty remains viable.

"Just look at this crime," he said of Malvo's charges.

Anti-death penalty bills regularly fail in Virginia's legislature, and an expected proposal to eliminate execution of juvenile killers probably will meet the same fate.

"I am not detecting any sentiment change. We retain the death penalty for cases like the Malvo" case, said Virginia state Sen. Kenneth W. Stolle, chairman of the Senate Courts of Justice Committee. "At some time or another, there is a cutoff between when you should be responsible for your actions or you should not - regardless of who fits into that category.

"I think he is a prime example of Virginia's law being adequate for the crime."