Their mandatory sentences deemed unconstitutional

By: Eric Chan Ding, Chicago Tribune: June 6th, 2016

Darnell Foxx was just 15 and his cousin Javell Ivory was 17 when the two took part in a drive-by shooting on Chicago’s West Side that killed a man and a pregnant woman and injured two others.

Now in their 30s, Foxx and Ivory don’t dispute their involvement. What their lawyers have disputed is whether the men, given their ages at the time, should have received mandatory life sentences for the crimes.

On Monday, almost 19 years after the shooting, a Cook County judge is expected to resentence Foxx and Ivory. They are among dozens of Illinois prisoners who have been granted the chance to be resentenced after the U.S. Supreme Court ruled that mandatory life sentences without parole for juvenile offenders are unconstitutional.

At a hearing last month, lawyers for the men asked Judge James Michael Obbish to consider factors such as their early initiation into street gangs, testimony indicating juvenile brains are not fully developed and the fact that the mothers of both people killed said they have accepted the men’s apologies. The lawyers also have said both men have matured and earned high school equivalency diplomas.

“Usually the difficulty in a situation like that is, how would you know whether this 17-year-old kid is going to be able to reform in the future?” asked Ivory’s attorney David Owens, of the University of Chicago School of Law’s Exoneration Project. “Here you have … 19 years of data about what Javell (Ivory) is like, what Darnell Foxx is like now, and how they’ve responded to being incarcerated.”

If their advocates are to be believed, Ivory and Foxx are a long way from the teenagers they were on June 22, 1997.

At just past midnight that Sunday, according to court documents, Ivory and Foxx were in a van that pulled up to a group of people near the intersection of Cicero Avenue and Adams Street in the West Garfield Park neighborhood. The van’s side door opened and Foxx, who had a semi-automatic pistol, opened fire. Another passenger in the van, a 21-year-old man, also fired on the group. Ivory was in the back seat and had a handgun but did not shoot. They were said to have been targeting a member of a rival gang they had seen at a gas station at the intersection.

But officials have said that the two people who were killed — Joshua Thomas, 21, and 24-year-old Salada Smith, who had a 6-year-old daughter and was six months’ pregnant — had no known gang ties.

Foxx and Ivory, who admitted their involvement in the crime in police statements, were both found guilty by juries of first-degree murder and aggravated battery with a firearm. They were each sentenced to mandatory life in prison without parole, plus 60 more years in prison for the firearms charges.

The 21-year-old, along with a 20-year-old man who was also in the van, were also eventually sentenced to life in prison. Because they were not juveniles at the time, they are not eligible to be resentenced. The 17-year-old driver of the van pleaded guilty to murder and received a 42-year sentence.

Salada Smith’s mother, Obrellia, raised the daughter Salada left behind. She said her oldest daughter Jamillah’s struggles to cope with the loss of her sister contributed to Jamillah’s drug addiction and her fatal overdose in 2007.

“I had strong feelings, wanting (my daughter’s killers) to pay for what they did,” Obrellia Smith told the Tribune. “I did not want them to ever see daylight again.”

She also tried, unsuccessfully, to sue the manufacturer of the gun that killed her daughter.

But, perhaps ironically, given Ivory’s and Foxx’s second chance at a lighter sentence, the passage of time has allowed Smith to find the forgiveness that was elusive for many years.

In a statement read in court last month in front of the men, Smith wrote that she “will never comprehend why you did what you did.” But she told both men that she forgave them.

“I never wanted to hate them or feel bitterness because I knew that would eat me like a cancer,” she later said.

Others who testified on behalf of Foxx and Ivory included James Garbarino, a developmental psychology professor at Loyola University Chicago, who described how the men grew up in an “urban war zone.”

The gang culture, he said, provided them with the structure and security they may not have found at home but also exploited them, with the presence and leadership of older men making them more likely to commit criminal acts. The process of juvenile development, he added, continues until about age 25.

Assistant Public Defender Preston Jones, Foxx’s attorney, said his client never knew his father and grew up with a mother who was often absent because of her own struggles.

“As horrible as this act was, this kid did not have a chance,” Jones said.

Richard Bard, a former chief of operations for the Illinois Department of Corrections, testified that Foxx and Ivory had relatively few disciplinary problems or infractions in prison, particularly in the last decade, as they matured.

Owens, the attorney for Ivory, suggested a 38-year sentence for his client.

“I mean, let’s get it straight, these are heinous crimes,” Owens said. “But the shift is in thinking about how to maintain respect for the seriousness of the offense but also square that with, what are our society’s goals, in terms of addressing crime and how to treat people? … If they both have the ability to get out, can give back to the community and have the opportunity to try to prevent other kids from making the decisions they made by being in those positions, that is a powerful thing.”

At the sentencing hearing in May, both men apologized and shed tears. Foxx vowed, if he were ever freed, to share his story to young people in hopes of stopping them from making similar mistakes.

Ivory said the crime he committed has defined his whole life.

“Lord,” he sobbed in his prison uniform, “I pray for mercy.”