After nearly 40 years in prison, Kevin Brinkley is the closest he’s ever been to freedom.
When he was 15, police arrested him for the 1977 murder of an egg-delivery driver in Strawberry Mansion.
Brinkley has always insisted he didn’t do it, that authorities got the wrong brother, a claim his family – including that brother, Ronnie Brinkley – back up.
Still, Brinkley’s chance for freedom has nothing to do with his claim of innocence. Instead, the U.S. Supreme Court in 2012 declared mandatory life without parole sentences cruel and unconstitutional for minors, and in January, the justices applied their decision retroactively to cases that preceded the 2012 ruling. The dual decisions have given about 2,500 “juvenile lifers” across the country – including more than 500 in Pennsylvania – hope that they might someday again live outside prison walls.
Yet the circumstances of a convict’s crime, and whether he or she has taken responsibility for it, are two factors the parole board weighs when considering an inmate for release. So what happens when an inmate has always denied his crime?
That prickly question has plagued the Brinkley family since juvenile lifers became eligible for resentencing and parole.
“He doesn’t even want to talk about this,” Brinkley’s mother Loretta Davis said. “He’s been let down almost 40 years. He don’t have no faith that he’s coming home.”
The repentance issue is just one of many thorny questions authorities face when mulling new sentences for juvenile lifers: How fair is it for the parole board to weigh an inmate’s “progress” behind bars when lifers historically have been denied access to prisons’ limited rehabilitative and educational programs? How do authorities ensure inmates – many of whom have spent more time in prison than out – successfully transition into their home communities? What if juvenile lifers have spent so many decades behind bars they no longer have supportive families or friends to take them in now?
And is it fair to free juvenile lifers, only to put them on restrictive parole conditions for the rest of their lives where even a minor infraction could send them back to prison?
“It’s a complex mess,” defense attorney Bradley Bridge said simply.
Denial of responsibility?
Leo Dunn insists there’s really just one overriding question that determines whether an inmate is likely to go free.
“Is this person safe to go out into society?” said Dunn, who chairs the Pennsylvania Board of Probation and Parole. “We have to look at everything, but that’s really the bottom line.”
To answer that question, the nine-member parole board considers the crime, recommendations from the sentencing judge, prosecuting attorney, and prison warden where the inmate is incarcerated, victim impact statements, and the inmate’s mental health, educational, behavioral, and work record in prison, according to Dunn and parole spokeswoman Maria Finn.
For those who claim innocence, the parole board offers this advice in its handbook: “The Board must accept your conviction as fact and base its decision on what you have done to rehabilitate yourself so that you will not re-offend in the future. Any claim of innocence could be viewed as a denial of responsibility and a lack of remorse.”
That rankles some.
“Certainly, a person who is not guilty should not be forced to claim that they are, in order to be granted parole,” said Bridge, a leading advocate for juvenile lifers. “Having examined hundreds and hundreds of these cases involving juveniles sentenced to life without parole, I’ve come away with an overwhelming sense that many of these juvenile lifers were found guilty, or pled guilty, decades ago where the evidence did not establish their guilt. Many pled guilty to avoid the death penalty. Others pled guilty based upon bad advice. In any event, the conclusion that they are guilty, simply because of that verdict is questionable.”
But Dunn insists a declaration of innocence won’t necessarily doom a juvenile lifer to die behind bars.
He pointed to the case of Tyrone Jones, 59, who was 16 when police arrested him for shooting gang member Henry Harrison, 17, to death in North Philly in 1973. Although Jones confessed and gave police a .25-caliber gun he said he fired at Harrison, he later said the confession was coerced, and ballistics tests excluded him as the killer. Further, none of the more than 30 witnesses identified Jones as the killer. The Pennsylvania Innocence Project has championed his case.
Jones was one of four juvenile lifers the board granted parole to last week.
“Will we take into consideration whether they say they didn’t commit the offense?” Dunn said. “Yes, we do. But is it some hard-line rule that we will deny him because of that? No.”
Attorney Hayes Hunt, who represented Jones pro bono for the firm Cozen O’Connor, said Jones decided to stand firm on his innocence claim, despite worries that it might cost him his freedom.
“That was a huge concern in this case – how the board would interpret Tyrone Jones’ innocence claims, and whether or not the board would penalize him or refuse to release him,” Hunt said.
Jones’ exemplary record in prison helped persuade the needed majority of parole board members that he was ready for release, Dunn added.
Jones and three other juveniles lifers were the first in the state to win parole since the Supreme Court decision. The others are Henry Smolarski, 53, of Philadelphia, who stabbed a Temple University student to death in 1979; Earl Rice, 60, of Delaware County, whose victim died after she hit her head in a 1973 purse snatching; and Chris Edward Jordan, 52, an accomplice in the 1980 shooting of a potential witness to a Chester County burglary. It could take weeks for them to walk free, as authorities and attorneys work to ensure a smooth reentry.
The shooter in Jordan’s case, Brian Hooper, was denied in his bid for parole.
Brinkley will go before a Philadelphia Common Pleas Court judge for resentencing consideration on Sept. 16.
Kevin Brinkley won’t buckle on his innocence claim either, his family says.
“Even when he gets out, the fight for his innocence won’t stop, because even though he’ll be out, he’ll be under a cloud,” his uncle Greg Brinkley said.
The family’s battle to clear Kevin’s name became a decades-long marathon of fundraisers, letter-writing campaigns, and appeals to prosecutors, politicians, judges and journalists. Younger relatives, like James Cade, 25, who has never met his imprisoned uncle, have joined the crusade as well. (Cade runs a “Justice 4 Kevin Brinkley” Facebook page.)
If and when he comes home, his family plans to keep him busy, worried even a slight transgression like jaywalking could be enough to bounce him back behind bars.
Meanwhile, the two brothers at the center of it all remain broken men.
Ronnie Brinkley, the younger brother who has insisted he shot egg man Charles Haag, 35, to death in a botched robbery, never really recovered from that dark day, his family said. He had a string of factory and other jobs until January 2015, when a drive-by shooter riddled him with bullets in Strawberry Mansion. He’s still recovering from that unsolved crime, his relatives said.
And at 54, Kevin Brinkley struggles with depression in prison, his mother said.
A teenager when he went away, he’s now is a stranger to his own family. They mostly correspond with him through phone calls, letters and infrequent visits to the prison 300 miles away in Albion, Erie County, where he now lives.
When his mother talks about the bedroom she’s setting up for him in her Ogontz home, where he’ll stay if he comes home, she erupts into sobs.
“What do we do with him when he comes out? What will I cook for him? What does he eat? I don’t know my own son, no I don’t,” she cried.
Greg Brinkley worked for years as a correctional officer at the state prison in Graterford. He knows well how incarceration can suspend a person in time.
“When you go into jail, your life stops,” Greg Brinkley said. “When I worked at Graterford, you’d see hairstyles that they wear in jail that nobody’s wearing anymore (outside jail). But they don’t know, because their life stopped, when they went to jail.”
Davis added: “I’m scared, I really am. Can he make it in society?”
Beyond hairstyles, life has moved on in other ways.
When he went to jail, Kevin Brinkley was a new father. His daughter, Latoya Berry, is now 39 and works for the Pennsylvania Department of Public Welfare. Brinkley also became a grandfather while he was away. Berry’s daughter, 24, studied criminal justice in college, while her 19-year-old son is pursuing a biology degree in hopes of becoming a cardiologist.
Berry said she does all the talking on their periodic phone calls. Her father prefers to hear what his family is doing out in the world, rather than share the everyday horrors of life imprisonment, she said.
Berry doesn’t think that will change, even if he walks free: “Prison took a lot out of him.”