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A Thief and Murderer Afraid to Care, I Learned to Truly Understand What Life Is About

Just as lightning flashes and dances across the sky, so too, does this life I live. In a world away, a jungle so thick that everything touches you, a war not of my making, took my father and sister in a cloud of thundering smoke.

BOOM — POOF, gone forever. I was ducking and dodging bullets and bombs in a body not mine, my mother’s.

She cried to heaven above and unseen spirits all around: not for what death just took but for what was not taken. My mother gave birth to a baby before its time, knowing it would not survive.

True to her fears, I came roaring into this world to the drowning sound of silence. A stillborn baby, dead, cold and blue like the river that caressed me. My mother, seeing her plight, gave me up to this river. Took, not taken. As I was being carried away by its current.

My first act as a human being was theft. It was then I took life from Death. I opened my eyes to a billion falling tears of angels, demons and spirits alike, the pouring rain. My first breath, a sound of thunder, my mother swam after me. Took not taken.

Now safe in her arms, she whispered, “You are a constant pain and worry to me. I will call you Pheej,” a name meaning constantly in a language soon to be lost like its people.

Fated to be a thief in this life, so I chose to believe. Took not taken. Three years old, living in a camp of dirt, surrounded by barbed wires and machine gun towers. My home a house made of bamboo trees tied together. Near dying, from hunger and thirst, death came for what I stole.

“No,” I said. “This life I took cannot be taken.” Saved through a miracle and grace, away to America we went. At 7 years old, I grew bold from the loss of my innocence, torturous beatings. Took, not taken.

By 12 years old, I took a lot of pain, joined a criminal street gang. Tired of shame and in pain. Hunger for revenge, I grew cold. With no guidance nor values, not wanting to understand, I became a wicked being.

Sixteen years old, in and out of juvenile hall and the Youth Authority (youth prison), I embraced my destiny and pain. I gave life to a criminal street gang, and the streets is where I found myself drowning again, this time in a pool of my own blood. Five bullets to my body, death, my old friend, came calling again. Deja vu, it said. My vision static like an old TV, out of picture and focus, then silence. I awoke to the sounds of machines beeping, to the face of a crying angel, my mother.

Took, not taken. I’ve done things I’m too shamed to mention. A thief I truly was, not even my family was safe from me. How right she was, though I never listened. Those friends she warned me about led me straight to prison. By 17, I took two lives. Now, I was walking with a limp from the shackles and chains made of iron. “Guilty of murders,” said the jury. “Life in prison!” cried the judge.

Took not taken. To hell here I come, your newborn son. Twenty-three years later, still nothing’s changed for the better, only worse. Thirty-nine years old, a flash of blood pouring out from six holes in my chest, my body torn to shreds. Drowning yet again in a pool of my own blood. Finally, death and I are together at last, I said.

Took, not taken. Darkness, then light. A new voice echoed inside my mind. Rise, my son, and open your newborn eyes. I did. Once afraid to care, live and love. Thought it was cool being a thug. How foolish I was to ever believe my fate a THIEF! My destiny PAIN!

Truly I must have been insane. How could this be, I exclaimed! Suddenly, so simple, the answer came to me. After destroying and ruining countless lives, I have come to truly realize and understand. This life is a gift given to me, not theft.

Took, not taken. Now with meanings and purpose, a new flame ignited deep within me. Burning every ounce of my soul with a thirst and desire to raise people higher than even they can see or believe possible to achieve.

We all possess a beautiful mind, a heart filled with courage, a soul strengthened by compassion. Greatness awaits us all, accept it. Don’t follow your anger. Don’t give in to hate. Take your gift of life with the knowledge learned and build a life for the family that awaits your arrival.

The third time is a charm, so they say. I am here alive today to tell you it’s never too late. Took, not taken.

Pheng Ly was sentenced as an adult to 50 years to life at age 17 for two counts of gang-related first degree murder. Now 40, he is incarcerated at the Kern Valley State Prison in Delano, California.

The Beat Within, a publication of writing and art from incarcerated youth, was founded by David Inocencio in San Francisco in 1996. Weekly writing and conversation workshops are held in California, six other states and Washington, D.C. Submissions and new partners are welcomed. Write to him at dinocencio@thebeatwithin.org.

In the Wake of High Court Ruling, A Reprieve for Juvenile Lifers?

The U.S. Supreme Court’s recent decision banning mandatory life without parole for juvenile criminals gave inmates like Christine Lockheart a glimmer of hope.

In response to the Court’s ruling, the Iowa Court of Appeals earlier this month overturned Lockheart’s mandatory life sentence for a murder committed when she was 17 and ordered a judge to hold a new sentencing hearing.

But less than a week later, Iowa Gov. Terry Branstad commuted the sentences of all state prisoners serving mandatory life terms for crimes committed as juveniles, and instead gave them life with the possibility of parole after 60 years.

Lockheart’s lawyer says he plans to challenge Branstad’s order in court, arguing that it violates the Supreme Court’s decision in Miller v. Alabama. That ruling said that sentencing judges should consider the individual circumstances of crimes committed by juveniles, including “how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”

Lockheart’s case is among the first of what criminal justice experts say will be numerous and lengthy legal battles as courts and state legislatures across the country determine how to comply with the Supreme Court’s ruling — and what to do with the estimated more than 2,000 prisoners currently serving mandatory life sentences for crimes committed when they were under the age of 18.

“This is very clean at the wholesale level and very messy at the retail level,” said Mark Osler, a professor at the University of  St.Thomas Law School, in Saint Paul, Minn. “It’s very clear from 10,000 feet that children are different.”

Osler, who specializes in sentencing law, added:  “But with these 2,000 cases, it’s going to be pretty messy with a lot of different outcomes.”

Left Unanswered

Though the Court barred mandatory life sentences for juveniles, experts said it left unanswered a host of legal issues that could impact who is eligible for a new sentence and what rights they have.

It remains unclear whether the Court’s ruling is retroactive, whether prisoners who petition for a new sentence are entitled to a lawyer, and what standards should be used in handing down sentences for juveniles.

“I expect this will be bounced back up to the Supreme Court multiple times because all those questions have to be answered,” said Frank Bowman, a professor at the University of Missouri and a former federal prosecutor and special counsel to the U.S. Sentencing Commission.  “We will be litigating this for years.”

Alabama Solicitor General John Neiman: PHOTO: PBS

Twenty-eight states and the federal government mandate life without parole for some juveniles convicted of murder, according to briefs filed before the Supreme Court. At least one state, Alabama, asserts that the ruling is not retroactive and does not apply to most of the state’s current inmates, said John Neiman, Alabama’s Solicitor General, who presented his state’s arguments in Miller v Alabama before the Court, in an interview with The Crime Report.

Other state prosecutor’s offices are still considering the issue, which is sure to be contested in court.

Public interest attorneys in several states, including Arkansas and Florida, are just beginning an effort to find all the inmates who may be eligible for a new sentence and assign them lawyers.

Petitions for Resentencing

Prisoners in several states, including Iowa and Pennsylvania, have already filed petitions for resentencing. The two cases heard by the Supreme Court— Kuntrell Jackson in Arkansas, and Evan Miller in Alabama — also were sent back to the state courts for resentencing.

Evan Miller. PHOTO: Equal Justice initiative

But, in some states, there may be little courts can do until the legislature acts.

Many state statutes do not provide judges with a clear alternative sentence if mandatory life without parole is no longer available, making it unclear what sentences judges are legally able to impose,  according to Marsha Levick, a co-founder of the Juvenile Law Center in Philadelphia.

Other states that have done away with parole also may have to revise their laws, Osler said.

Scott Burns, the executive director of the National District Attorneys Association, which is advising states on how to comply with the decision, said legislators in all 28 states will consider alternative sentencing laws.

Resentencing could also involve lengthy reinvestigations of crimes, some of which are decades old, and the psychological and family histories of criminals.

Tyrone Jones, who was 16 in 1973 when he was arrested for the murder of Henry Harrison in Philadelphia, is among the first prisoners to petition for a new sentencing hearing.  Jones, who also claims he is innocent, was given a mandatory life sentence in 1975; he has been in prison for 37 years, his entire adult life.

In court papers filed in Philadelphia earlier this month, Jones’s lawyer asked for a new sentencing hearing and for access to prosecution records regarding Jones’s level of culpability and participation in the murder.

Jones’s behavior when he was 16 and his subsequent prison record could impact his sentence, said his attorney, Hayes Hunt. Jones initially confessed to shooting an unidentified boy while with a friend, Michael Long.  But Jones was arrested with a gun that did not match the murder weapon, according to court documents filed by his lawyers.

Kuntrell Jackson, PHOTO: Arkansas Department of Corrections

The charges against Long were dropped; and Long has since said Jones was not involved in the murder, according to the documents.

‘Forgotten Soul’

“We have this forgotten soul who’s been in prison for decades,” Hunt said. “I have to reconstruct this man’s history and try to figure out who he was the day he was arrested in 1973 as a 16 year old.”

A spokeswoman for the Philadelphia District Attorney’s Office declined to comment on Jones’s case, but said that resentencing should be available only for cases where the issue was raised on direct appeal, meaning it would not apply to the majority of the state’s inmates.

The Supreme Court did not bar all life without parole sentences for juveniles. Rather, it said that judges must take into account the individual circumstances of each case, and consider that children are less responsible for their actions and more capable of reform.

Justice Elena Kagan, writing for the Court, said life without parole should be “uncommon.”

“We say very glibly that kids are different, but the Court has gotten that message, and conveyed that message, loud and clear,” said Levick of the Juvenile Law Center.   “I hope courts will take that language the way it’s meant: kids should not be treated as if they were adults, because they’re not.”

Still, prosecutors and defense lawyers said they expect many current inmates will still receive a life sentence even if they get a new sentencing hearing.  Many judges, lawyers said, may not want to reduce the sentence of anyone convicted of a brutal murder.

In both of the cases heard by the Supreme Court, the defendants were 14 years old when they were arrested.  Kuntrell Jackson was convicted of murder for participating in a robbery of a video store in Arkansas during which an accomplice shot and killed the store clerk, Laurie Troup.

Evan Miller of Alabama and a friend robbed and killed Miller’s neighbor, 52-year-old Cole Cannon. Miller repeatedly hit Cannon with a baseball bat, according to court records, at one point placing a sheet over Cannon’s head and saying, "`I am God, I've come to take your life.'"

He and a friend later set fire to Cannon’s trailer.

‘He Should Never Get Out’

“He should never get out,” Candy Cheatham, Cannon’s daughter, told The Crime Report. “The rest of the world should worry if someone like Evan Miller ever has a chance to get out.  It would be a great injustice for him not to receive the same sentence.”

But the Supreme Court suggested that Miller’s background may warrant a lighter sentence.

“If ever a pathological background might have contributed to a 14-year-old’s commission of a crime, it is here,” the Court wrote. “Miller’s stepfather abused him; his alcoholic and drug-addicted mother neglected him; he had been in and out of foster care as a result; and he had tried to kill himself four times, the first when he should have been in kindergarten.”

Though the Court’s decision was limited, it reflects a broader change in how the legal system deals with underage criminals.

In a series of cases beginning in 2005, the Supreme Court has barred the death penalty for juveniles, banned life in prison for juveniles convicted of crimes other than homicide, and now banned mandatory life without parole sentences for juveniles.

“It is beginning to emerge that children have a constitutional right to be treated differently,” said Stephen Harper, a public defender in Miami.

The decision also opens up the possibility that the Court may consider cases challenging other types of mandatory minimum sentences and non-mandatory life without parole sentences for juveniles, lawyers said.

“We’re just at the beginning of where this is going to go,” said Levick.

Scott Michels is a New York City-based lawyer and a freelance writer for The Crime Report, the nation’s most comprehensive source of criminal justice news and resources.  This story was jointly commissioned by The Crime Report and the Juvenile Justice Information Exchange. Michels welcomes comments from readers.

 

PHOTO: Richard Ross

Georgia Supreme Court Hears Oral Arguments in Appeal of 14-Year-Old Given Life Sentence

Jonas Brinkley

Georgia’s high court will hear oral arguments Monday in the appeal of  a 27-year-old Tift County man who was sentenced to life plus 20 years for rape when he was a 14-year-old boy.

Jonas Brinkley  is appealing on the grounds that his sentence violated the U.S. Constitution's prohibition against cruel and unusual punishment and that greater-than-life sentences should not be imposed on cases not involving homicide.

According to prosecutors, Brinkley committed the rape while a 19-year-old friend, Lakendrick Carter, detained the victim's boyfriend in another room.  Brinkley and Carter also stole $180 from the couple before leaving their apartment.

Carter was given 15 years in prison plus another five years of probation in exchange for his testimony against Brinkley.

Five days after his sentencing, Brinkley, through his attorney, filed a motion for a new trial. Ten years, later in 2010, Brinkley’s new attorney filed another motion for a new trial. That motion was rejected in February 2011. Attorneys from The Barton Juvenile Defender Clinic of Emory University’s School of Law now represent Brinkley.

The U.S. Supreme Court has ruled in the past that “children are not merely miniature adults.”  Brinkley’s attorney’s, in briefs filed with the Georgia Supreme Court, contended “kids are different.”

Attorney’s for the state argue that Brinkley’s age in no way diminished the danger to the victim.

Photo by Georgia Department of Corrections

McNeill Stokes On Sentencing Juveniles as Adults and Cruel and Unusual Punishment

In 1997, a 14-year-old boy named Christopher Middleton pled guilty in a Georgia Superior Court to armed robbery, two counts of aggravated assault and kidnapping arising out of theft of the victim’s vehicle for joyriding by his juvenile friends. (His mother Jajuana Calloway wrote about him in this space last week.)

He was sentenced as an adult without the possibly of parole pursuant to a measure that was enacted by the Georgia Legislature (H.R. 440 and 441) in 1995 to get tough on juvenile crime and often called seven deadly sins legislation. The prosecution had agreed to a recommended 20-year sentence. However, at the sentencing hearing the victim who had not received any physical injuries, said she would not feel safe with the 14-year old being released before he would be 45 years of age. The trial judge then sentenced him to 30 years without the possibility of parole.

I have filed a post-conviction remedy currently pending before the  Court of Appeals of Georgia  contesting that Christopher’s sentence is void and unconstitutional under the recent United States Supreme Court case of Graham v. Florida. This case, decided earlier this year, prohibited the imposition of a life sentence without parole of a juvenile offender who had been convicted of a non-homicide crime.

The High Court constitutionally mandated that while a juvenile defendant need not be guaranteed eventual release from a life sentence, that the juvenile must have some realistic opportunity to obtain release before the end of the life term. The 30-year sentence without the possibility of parole to which Christopher Middleton was sentenced is more than double the life sentence for consideration of release on parole in Georgia in effect at the time of his sentencing.

The U.S. Supreme Court in Graham v. Florida established the constitutional precedent that it is cruel and unusual punishment under current moral standards to sentence non-homicide juvenile offenders to a life sentence without being eligible for parole during the life term. The Court further instructed that juveniles could not, by legislation, be classified with the adult worst offenders and that judicial exercise of independent judgment is required in sentencing of juveniles.

The Court, in Graham v. Florida, emphasized the reasons that juveniles should be treated differently from adults, stating that because juveniles have lessened culpability they are less deserving of the most severe punishments. As compared to adults, juveniles have a lack of maturity and an underdeveloped sense of responsibility. They are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure and their characters are not as well formed.

These salient characteristics mean it is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.

Accordingly, juvenile offenders cannot with reliability be classified among the worst offenders. While a juvenile is not absolved of responsibility for their actions, but their transgressions are not as morally reprehensible as that of an adult.

The courts should reconsider and rectify such sentences that have resulted in manifest injustice to juveniles having to serve sentences without parole that mandate longer incarceration than had they been sentenced to life imprisonment which is now declared to be cruel and unusual punishment by the United States Supreme Court in Graham v. Florida.

McNeill Stokes, is an Atlanta attorney representing Christopher Middleton.

 

mcstokes@bellsouth.net