Lee Malvo's Rights

The Eighth Amendment and Lee Malvo’s Rights

Administering lethal injections to black youngsters

in the United States

Execution of Minors - Cruel and Unusual

In August of 2002, the U.S. Supreme Court refused to stay the execution of a young black male in Texas – Toronto M. Patterson. He was put to death in Huntsville, Texas by lethal injection on August 30, 2002 when Patterson was 24 years of age.

The crime for which Patterson was executed, was committed when he was 17 years of age and still a juvenile. At that time, the U.S. Supreme Court applied its earlier ruling in Stanford vs. Kentucky 492 U.S. 361 1989 where Justice Scalia concluded that there was neither "a historical nor a modern societal consensus forbidding the imposition of Capital Punishment of any person who murders at 16 or 17 years of age".

Justice Scalia further found that such Capital Punishment "does not offend The Eighth Amendment’s prohibition against cruel and unusual punishment".

In an important about face, the U.S. Supreme Court in Roper vs. Simmons, Case No. 03 –633 argued October 13, 2004 and decided March 1, 2005 that a "very immature", "very impulsive", Simmons ought not to face the death penalty after he murdered a burglary victim who had seen his face during the course of the burglary.

Although the murder was ghastly, the Court decided to spare Simmons’ life because of the "national consensus against the death penalty for Juveniles". The Court found that because the death penalty is the most severe penalty, The Eighth Amendment applies to it with "special force". The Court also concluded that Juvenile offenders "cannot with reliability be classified amongst the worst offenders".

The Court demonstrated sensitivity to the rights of very young people when it referred to the fact that "it is difficult even (for) expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity" and the juvenile offender of the worst type.

The Court was concerned about the "stark reality" that the United States is the only country in the world that "continues to give official sanction to the juvenile death penalty". This was refreshing concession to international standards by a U.S. institution."

The United States has signed the International Covenant for Civil and Political Rights (ICCPR) in 1977. The United States ratified the Treaty in 1992. Article 6, Sub-Section 5 of the ICCPR prohibits the use of the death penalty against people who were under eighteen at the time of the crime.

The United States is also signatory to the Convention on the Rights of the Child. Pakistan and the Democratic Republic of Congo have commuted the death sentences of child offenders after signing and ratifying the ICCPR.

Judge Scalia, in a spirited dissent, continued to embrace the Stanford vs. Kentucky decision and, opposed any tampering of a State’s rights to put its own young residents to death.

Scalia in a 24-page dissent was not interested in international standards and thought that the majority had proclaimed itself the "sole" Arbiter of the Nation’s moral standards.

Of course, the Roper decision is correct. No society which calls itself advanced, and a protector of the constitutional rights of minors, can seriously engage in State-sponsored killing of the same minors. Additionally, if killing children is not cruel and unusual, then what is?

It is submitted that The Eighth Amendment must mean something. Justice Kennedy in delivering his opinion after reviewing the facts of the case, may very well have rescued American jurisprudence in the eyes of the international legal community.

The American Psychological Association filed an amicus curiae brief to support Simmons.

The Malvo Connection

Lee Malvo is a famous Jamaican individual. Sadly, as a convicted individual, he is recognized by more people internationally than any other individual born in Jamaica currently alive. Born in Jamaica in February 1985, his parents are Leslie Malvo (a Mason) and Una James (a Seamstress). Somehow, Lee Malvo came under the influence of a John Allen Mohammed, an ex-U.S. Serviceman, who somehow began to dominate Malvo’s life.

He was intimidated and brainwashed by Mohammed and was eventually accused of engaging in sniper attacks on U.S. Nationals. A plea bargain ensued yet attempts were made to try Mr. Malvo in a State where he could be executed. The decision in Roper relieves Malvo of the jeopardy of the death penalty.

Malvo, being a Jamaican National in custody, should have received Consular support from the Jamaican Government. Instead, the Government facilitated his mother’s expedited Removal from the United States.

Black Inmates

Most death penalty inmates in the United States are black; and condemned blacks, in most of the States which retain the death penalty, are nine or ten times more likely to be executed than condemned whites. The Government of Jamaica, knowing this fact, ought to have been concerned about the quality of justice that Lee Malvo would receive, after the massive pre-trial publicity associated with the sniper case.

Despite the fact that Malvo had a Court appointed attorney and many other advisors, the Government of Jamaica did not attempt to intervene to protect his rights, neither did they seek to put pressure on the United States to repatriate Mr. Malvo.

Justice Kennedy’s reasoning in Simmons suggests that such an intervention might have been appropriate and effective if made by a courageous Government at the right time.

Intervention in the Malvo’s case would have proved that Jamaica’s very expensive diplomatic service does have an interest in assisting Jamaicans in trouble abroad.

We know that Jamaican Diplomats admirably dominate the ‘cocktail party’ circuits but it would be useful if they would seek to support the constitutional rights of Jamaicans in difficulty in the United States.

Conclusion

It is too late for Toronto Patterson, a young man, who argued in vain that he shouldn’t be executed for something that he did when he was a child. He had received his lethal injection and cannot be brought back to continue to try to exonerate himself. It is not too late for the Government of Jamaica to intervene on Lee Malvo’s behalf.

Children, particularly black children, have constitutional rights too.

By: Professor David P. Rowe

University of Miami School of Law

Coral Gables, Florida

Spring 2005

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