FRANKFORT, Ky. (AP) -- In 1996, the parents of three children in south-central Kentucky were herded into their bathroom and shot in the head. They were found dead hours later along with their 12-year-old daughter, who was also shot in the head yet survived.
The carnage was the work of the “Asian Boyz” gang. The one who pulled the trigger, 17-year-old Sophal Phon, eventually was sentenced to life without the possibility of parole.
Since then, the U.S. Supreme Court has ruled life without parole sentences for juveniles are unconstitutional. Research shows their brains are still developing, giving them poor judgment at the time plus a greater capacity for change as they mature. The ruling applied retroactively to some 2,000 inmates across the country already serving such sentences. But it’s unclear if it applies to Phon, who Wednesday took his case before the state Supreme Court in his latest effort to win a chance at freedom.
“Does it make any sense to go back and decide what he was like?” Kentucky Supreme Court Justice Daniel Venters asked Phon’s attorney on Wednesday. “How do you do that? Are you looking at what he is now or are you looking at what we think he was, or might have been, 20 years ago?”
Kentucky has banned life without parole sentences for juveniles since 1968. But Phon was facing the death penalty during his 1998 trial, which at the time was allowed for juveniles. Hoping to avoid execution, Phon’s lawyer asked the judge to let the jury consider a sentence of life without parole. The judge allowed it, and that’s the sentence the jury chose.
In 2012, the U.S. Supreme Court ruled mandatory sentences of life without parole for juveniles could only be imposed on people whose crime reflects “permanent incorrigibility,” meaning juveniles had the right to be re-sentenced based on the new standard.
But Attorney General Andy Beshear’s office argues the ruling does not apply to Phon because his sentence was not mandatory. Jurors had four sentences to choose from, two of which would have included a chance at parole.
At his sentencing trial, Phon’s lawyers presented evidence that he was born in Cambodia during the genocidal regime of the Khmer Rouge. His family fled to Thailand, where three of his brothers died of starvation. A local church sponsored the Phon family to move to the United States. But Phon’s lawyers said he had trouble adjusting to American culture.
He became withdrawn after his little brother accidentally drowned while swimming in a river. On the day of the murders, Phon’s lawyers say he killed Khamphao Phromratsamy and Manyavanh Boonprasert because the gang’s 24-year-old leader ordered him to do it. Phon feared disobeying would have meant death for him and his family.
The jury still opted for a sentence of life without parole.
“You can impose life without parole as a sentence, you just can’t mandatorily do it,” Assistant Attorney General Jason Moore said. “They still condone (the sentence) under certain circumstances. In my opinion, those circumstances were met in this case.”
But Justice Lisabeth Hughes said she struggled with just assuming those circumstances were met. Plus, she noted the court “has a clear statement from our General Assembly ... that this has not been an appropriate sentence for a juvenile.”
Phon’s attorney, Renee VandenWallBake, said life without parole could only be applied to the “worst of the worst,” and the jury’s decision to not give Phon the death penalty was evidence they did not believe he was.
“It would be inconsistent with that jury’s position to now say that he is suddenly the worst of the worst and receive the maximum punishment available under the law,” she said.
The court is expected to rule on the case in the coming months.