Child-Abuse: A Miller Factor of Redeemability

By: Rebecca Shultz, Senior Staff

What does society make of a young sniper?

Lee Boyd Malvo was seventeen years-old when he and his father figure drove around Washington, D.C., shooting innocent victims from the back of a van.[1] In 2002, Malvo and an older man killed ten people and injured three, seemingly at random, terrorizing the Washington, D.C. area.[2] The older man, John Muhammad, now notoriously known as the “Washington D.C. sniper” was regularly and severely beaten as a child by several relatives, including by an uncle who beat another child to death.[3] Ten years after the shootings, and three years after Muhammad was put to death by lethal injection, Malvo spoke up about being sexually abused by Muhammad.[4] The response to Malvo’s actions thus far has been complete removal, not redemption. We know the rhetoric of abusive cycles well, but not until recently did we begin to grasp both the malleability and the redeemability of young persons’ brains.

Adolescent brain development has only started to take shape as a science in the past thirty years, but the Supreme Court and state courts are acknowledging the impact that trauma plays in a child’s life and the differences in children’s brains that makes them less capable of reasoning well.[5] Often, we used the term “adolescent” to describe youth, generally. But “adolescence” is actually a scientifically discovered moment in time, typically between the ages of ten and twenty-five in which one’s prefrontal cortex is still developing.[6] The prefrontal cortex is a part of the brain that controls reflexive behaviors that are used in short-sighted planning, decision-making, problem-solving, and self-control; it is largely what separates humans from most animals.[7]

The demographics of any incarceration facility tell a sad tale about adolescent development. A common theme of the early lives of many incarcerated persons is of abandonment, neglect, or abuse. A report done using data from the National Longitudinal Study of Adolescent Health in 2006 found that maltreatment approximately doubled the probability of engaging in many types of crime. It also showed that children from low socio-economic status have a higher risk of maltreatment and suffer more negative effects.[8] The Sentencing Project found that of people sentenced to life in prison as youth, 79% witnessed violence in their homes regularly, 47% were physically abused, and fewer than half were attending school at the time of their offense.[9] Significant scientific research has uncovered that adverse experiences dramatically change a child’s brain.[10]

In supportive environments that include both stressful situations and neutral baselines, children learn to cope with everyday challenges.[11] This is positive stress. There are tolerable stresses, which occur when something more serious takes place, such as breaking a leg while playing a sport or losing a loved one. But many incarcerated youth endure toxic stress, when “strong, frequent, or prolonged adverse experiences such as extreme poverty or repeated abuse are experienced without adult support.”[12] When this happens, excessive cortisol disrupts developing brain circuits, making it harder for that child to appropriately cope with unfamiliar environments or threatening situations.[13]

After conviction, conditions of youth confinement also play a role in shaping brain power. Under Virginia law, incarcerated youth have a statutory right to a sentencing review within two years of their commitment.[14] The reason for this review is to consider the young person’s propensity towards rehabilitation.[15] Because adolescence is a period of high neuroplasticity, young persons are highly susceptible to rehabilitative treatment.[16] In 2016, this scientific discovery was acknowledged by the Supreme Court in Montgomery v. Louisiana.[17]

Some Juvenile Detention Centers provide detention reentry programs in the facilities, themselves.[18] However, time spent in facilities still model adult imprisonment, not normal childhood circumstances. While these programs provide great opportunities for youth to spend more time with their families under close supervision of parole officers, they still take place in a facility with locked doors and bars, during that youth’s adolescence.[19] Rather than engaging in one’s community and taking on educational and other responsibilities, the young person is spending time aware of this atypical upbringing.

After being uprooted from his home in Jamaica and being sexually abused and neglected by John Muhammad, Lee Malvo was tried and convicted of murder as an adult.[20] He has been incarcerated in prison without the possibility of parole since 2006.[21] During an interview in 2002, Malvo expressed the ways in which his conditions of confinement had no intention of rehabilitating him. He said, “Rehabilitation is just a word. In solitary confinement, in a cell by yourself, I am priest, doctor, therapist.”[22] Nevertheless, Malvo has matured substantially since his initial encounters with law enforcement. Now, some of his victims believe Malvo is redeemable and are asking the Supreme Court to consider his maturation when it considers re-sentencing him under Miller v. Alabama.[23]

Sentencing judges must “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”[24] Child abuse is an incredible factor on youth behavior and should certainly be considered when deciding whether to sentence someone to life in prison. When a person has been abused in his upbringing and deprived of autonomy in criminal facilities, have we enough evidence to call them irrevocable?

[1]Josh White, Lee Boyd Malvo, 10 Years After D.C. Area Sniper Shooting: ‘I Was a Monster’, Wash. Post (Sep. 29, 2012)

[2]Rachel Philofsky, Beltway Sniper Attacks, Encyclopedia Britannica (last visited Oct. 24, 2019)

[3]Sniper’s Siblings Describe Violent Upbringing, CNN, (Feb. 10, 2004)

[4]Ian Sager & Scott Stump, D.C. Sniper Lee Boyd Malvo: I Was Sexually Abused by My Accomplice, Today(Oct. 24, 2012)

[5]See generallyRoper v. Simmons, 543 U.S. 551 (2005); Graham v. Florida, 130 S. Ct. 2011 (2010); J.D.B. v. North Carolina, 564 U.S. 261 (2011); and Miller v. Alabama, 132 S. Ct. 2455 (2012).

[6]Laurence Steinberg, Should the Science of Adolescent Brain Development Inform Public Policy?, 28 Issues in Sci. & Tech. (2012)

[7]Know Your Brain: Prefrontal Cortex, Neuroscientifically Challenged, Blog (May 17, 2014)

[8]Janet Currie & Erdal Tekin, Does Child Abuse Cause Crime?, Nat’l Bureau Econ. Res. at 3 (2006)

[9]The Sentencing Project, Juvenile Life Without Parole: An Overview, Policy Brief (2019)

[10]See generallyJanet Currie & Erdal Tekin, Does Child Abuse Cause Crime?, Nat’l Bureau Econ. Res. at 3 (2006)

[11]Center on the Developing Child, The Impact of Early Adversity on Children’s Development, Harvard University (last visited Oct. 13, 2019)


[13]National Scientific Council on the Developing Child, Excessive Stress Disrupts the Architecture of the Developing Brain: Working Paper 3, Harvard University at 2 (2014)

[14]Va. Code§ 16.1-266 (2019).

[15]Va. Code§ 16.1-285.1 (2019).

[16]Models for Change, Practitioner Brief: Applying a Developmental Framework to Juvenile Sentencing: What Forensic Experts and Attorneys Should Know,at 2 (2015)

[17]Montgomery v. Louisiana, 577 U.S. __, 136 S. Ct. at 733-35 (2016).

[18]Detention Reentry, Va. Dept. Juvenile Justice (last accessed Oct. 13, 2019)


[20]Andrea F. Siegel, Malvo to be Tried As Adult, The Baltimore Sun (Jan. 16, 2003); see alsoLee Boyd Malvo Fast Facts, CNN(updated Jul. 3, 2019) (showing the timeline of Malvo’s sentencing)

[21]Lee Boyd Malvo Fast Facts, CNN(updated Jul. 3, 2019)

[22]Ian Sager & Scott Stump, D.C. Sniper Lee Boyd Malvo: I Was Sexually Abused by My Accomplice, Today(Oct. 24, 2012)

[23]Miller v. Alabama, 567 U.S. 460, 479-480 (2012) (holding that sentencing courts must distinguish between “the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.”) (citing Roper v. Simmons, 543 U.S. at 573, prohibiting death sentences for minors).

[24]Justice Elena Kagan, Miller v. Alabama, 567 U.S. 460, 480 (2012).