Green Bay, Wisconsin saw one of the most brutal examples of a deliberate murder by a teen killer in a case tinged with hate crime and racially charged complexities.
Young Zong Vang was only 13, and much smaller than his attackers who chased him up a parking ramp, only to push him off the parking ramp while he was begging for his life.
Offender Omer Ninham appealed to the state Supreme Court to determine if his life sentence for pushing Zong Vang off a Green Bay parking ramp in 1998 was constitutional. Ninham was 14-years-old when the crime was committed. When he was 16, Ninham was sentenced to life in prison without the possibility of parole (LWOP) for chasing Vang, 13, to the top of the St. Vincent Hospital parking ramp and pushing him to his death.
No one should downplay the horrific nature of Ninham’s crime.
The victim’s family has declined to talk to the media during the case appeals. But the Hmong community, which has seen too much violence against it, has been very supportive because of the horrible nature of this crime. Zong’s family supported the LWOP sentence.
Ninham was convicted of first-degree intentional homicide and physical abuse of a child and sentenced to life without parole. He was represented by the Equal Justice Initiative and appealed to the Supreme Court of Wisconsin, arguing that his sentence was cruel and unusual and violated the Eighth Amendment. In 2011 the Supreme Court of Wisconsin upheld his sentence saying that, while Ninham’s sentence was severe, it was not disproportionate to the crime. Excerpts from the ruling can be read below. After Miller, Ninham requested a new sentence. But his LWOP sentence was upheld in 2016.
From Is Life Without Parole For Juveniles Cruel And Unusual?
At around dusk on September 24, 1998, Zong, 13, was bicycling home from the grocery store in Green Bay, Wisconsin. He was approached by five juveniles: 14-year-old Omer Ninham, 13-year-old Richard Crapeau, 13-year-old Jeffrey P., 14-year-old Amanda G., and 14-year-old Christin J. Though Zong did nothing to provoke the group, Crapeau was upset with his mother and “wanted to fight or see a fight.” He suggested the group “mess with the kid” to which Ninham agreed, saying “I got your back.” Ninham and Crapeau began to verbally taunt Zong, and were egged on by the others in the group. Crapeau yanked away Zong’s bicycle. When Zong asked for it back, Ninham punched him and knocked him down. Zong got up and tried to get away, running towards a nearby parking ramp at St. Vincent’s Hospital. The gang chased after him, catching up at the fifth floor.
When the pack caught Zong, Crapeau punched him in the face. Zong repeatedly pleaded for the attackers to leave him alone and asked why they were trying to hurt him. Ninham and Crapeau began pushing Zong back and forth between them, with Ninham punching him in the chest. Ninham pinned Zong by his wrists against the ramp’s concrete wall. As Zong tried to free himself from the attacker’s grasp, Crapeau punched him in the face. The terrified boy cried and begged for them to “let me go.” But the gang showed no mercy. With Ninham still holding Zong’s wrists, Crapeau grabbed his ankles. The two began to swing Zong back and forth over the ramp’s concrete wall, 45 feet above the ground. Zong cried, screamed, and begged the assailants not to drop him. But they again showed no mercy. Crapeau let go of Zong’s feet and told Ninham to “drop him.” Ninham did so, and let go of Zong’s wrists. In the words of killer Crapeau, Zong “just sailed out over the wall.” The boy died from craniocerebral trauma due to the long fall.
Should kids be sentenced to life in prison?
On Sept. 23, 1998, 13-year-old Zong Vang was running an errand for his family. Ninham and 13-year-old Richard Crapeau, both of Green Bay, and three other juveniles were near the St. Vincent Hospital parking ramp when they spotted Vang, who they did not know, riding his bike.
“Let’s mess with this kid,” Crapeau said, according to news accounts of the case.
Crapeau pulled Vang from his bike and Ninham punched him. Vang fled to the top floor of the parking ramp, where Crapeau and Ninham caught up with him and punched him in the face and body. Ninham grabbed the boy’s wrists and Crapeau held his ankles and they swung Vang over the side of the ramp wall. Vang pleaded for his life as the others egged Crapeau and Ninham on, urging them to let go. They did, letting the screaming boy plummet to his death.
Ninham and Crapeau were later convicted of first-degree intentional homicide and physical abuse of a child. Crapeau was sentenced to life in prison with no chance of parole until he has served 50 years, and Ninham was sentenced to life with no chance of parole, ever.
Ninham’s Attorney, Bryan Stevenson calls the crime “terrible,” and he says he understands how people might want to throw away the key. “You could certainly see how a crime like this is provocative and raging and painful,” he says.
Wisconsin Attorney General J.B. Van Hollen, who has assigned an attorney from his department to argue against giving Ninham a chance at parole, would not comment on the Supreme Court’s acceptance of the case. But after the appeals court decision last year he issued a statement saying, “For some juvenile offenders, a life sentence without parole is fair and just punishment. Ninham was properly punished for a horrible crime.”
Life sentence for 14-year-old killer confirmed by court
MINNEAPOLIS (Reuters) – The Wisconsin Supreme Court on Friday rejected challenges to a life-without-parole sentence for a man who at age 14 chased down, beat and then tossed a teenager to his death off a hospital parking ramp.
Omer Ninham argued his sentence for killing Zong Vang, 13, in 1998 violated U.S. and Wisconsin constitutional prohibitions on cruel and unusual punishment. He called the sentence “unduly harsh and excessive” and sought the possibility of parole.
“There is no question that Ninham’s punishment is severe, but it is not disproportionately so,” Justice Annette Kingsland Ziegler wrote for the court. “The manner in which Ninham took Vang’s life was horrific and senseless.”
Ninham and four other teens accosted Vang near dusk in September 1998 while he toted a bag of tomatoes home from a grocery store in Green Bay, the opinion states. They taunted Vang, snatching his bicycle and threw the bag to the ground.
Ninham punched Vang and the group chased him to the top of a five-story hospital parking ramp nearby where he was punched, pinned to a wall and then Ninham and another teen, Richard Crapeau, swung Vang back-and-forth over the ramp’s wall before letting go.
Vang landed on his head and trunk on the paved exit lane below and could not be revived.
Crapeau, who was 13 at the time of Vang’s murder, was also convicted of murder and sentenced to life with the possibility of parole after 50 years.
Pre-sentence reports found Ninham’s family to be extremely dysfunctional with substance abuse and domestic violence and that the teen himself was a “serious substance abuser.”
“The terror experienced by the victim and the hurt suffered by his family and friends is, in a word, unimaginable,” Ziegler wrote.
The ruling is very long so these are only some excerpts that Justice Annette Ziegler wrote.
¶2 A jury convicted the defendant Omer Ninham (Ninham) of
first-degree intentional homicide and physical abuse of a child for the death of 13-year-old Zong Vang (Vang). Ninham was 14 years old at the time of the offense. The circuit court
sentenced Ninham to life imprisonment without the possibility of
parole.
¶3 Ninham mounts a categorical constitutional challenge,
arguing that sentencing a 14-year-old to life imprisonment
without parole is cruel and unusual in violation of the Eighth
Amendment of the United States Constitution and Article I,
Section 6 of the Wisconsin Constitution. In the alternative,
Ninham seeks sentence modification on the grounds that (1) his
sentence is unduly harsh and excessive; (2) new scientific
research regarding adolescent brain development constitutes a
new factor that frustrates the purpose of the sentence; and (3)
the circuit court relied on an improper factor when imposing the
sentence. We disagree with Ninham on all four grounds, and
accordingly, we affirm the decision of the court of appeals.
¶4 First, we hold that sentencing a 14-year-old to life
imprisonment without the possibility of parole for committing
intentional homicide is not categorically unconstitutional. We
arrive at our holding by applying the two-step approach employed
by the United States Supreme Court, most recently in Graham v.Florida, 130 S. Ct. 2011 (2010). First, we conclude that Ninham
has failed to demonstrate that there is a national consensus
against sentencing a 14-year-old to life imprisonment without
parole when the crime is intentional homicide. Second, we
conclude in the exercise of our own independent judgment that
the punishment is not categorically unconstitutional.
¶5 In regard to Ninham’s second argument, we conclude
that his sentence of life imprisonment without the possibility
of parole is not unduly harsh and excessive. Under the
circumstances of this case, Ninham’s punishment is severe, but
it is not disproportionately so.
¶6 Third, we conclude that Ninham has not demonstrated by
clear and convincing evidence that the scientific research on
adolescent brain development to which he refers constitutes a
“new factor.” While the studies themselves may not have been in
existence at the time of Ninham’s sentencing, the conclusions
they reached were widely reported.
¶7 Fourth, we conclude that Ninham has not demonstrated
by clear and convincing evidence that the circuit court actually
relied upon the religious beliefs of Vang’s family when imposing
Ninham’s sentence.
¶26 In addition, the PSI described the Vang family as
devastated by the loss of their son and brother. Vang’s parents
indicated that they fled Laos and Thailand because they believed
that the United States would be a safer and more prosperous country to raise their children; however, according to the
Vangs, they fled evil only to discover it in a different place.
Vang’s parents further expressed that they had lost faith in the
basic goodness of people and that their remaining children are
fearful of leaving the safety of their home.
¶27 Relevant to this case, at the sentencing hearing,
Vang’s brother, Seng Say Vang (Seng Say), gave a statement on
behalf of Vang’s family and friends. Seng Say asked the circuit
court to impose on Ninham the maximum sentence of life
imprisonment without parole, “the same brutal and merciless
ultimatum as [Ninham] had given to Zong on September 24th,
1998.” Seng Say then articulated to the circuit court a belief
held by his family’s Hmong culture:
In our Hmong culture we believe that the spirit
of a murdered person cannot be set free to go in peace
until the perpetrators be brought to justice.
Therefore, we ask the Court, who is the only one to
have the power to set free the spirit of our beloved
son, brother, and friend, Zong, to go in peace by
bringing Omer Ninham and his accomplices to justice.
¶28 Ninham also spoke at sentencing. He told the circuit
court that he was sorry about Vang’s death, but “[t]here wasn’t
nothing I could do. I wasn’t there. I’m going to keep saying
that until the day I die. I was not there, and that’s the
honest truth.”
¶29 As to the count of first-degree intentional homicide,
the circuit court sentenced Ninham to life imprisonment without
the possibility of parole. For the count of physical abuse of a child, the circuit court sentenced Ninham to five years
imprisonment, consecutive to the life sentence.
¶30 In imposing Ninham’s sentence, the circuit court
considered three primary factors: the gravity of the offense,
the character of the offender, and the need to protect the
public. First, the circuit court regarded the gravity of the
offense as “beyond description” and indisputably “horrific.”
The circuit court noted that the offense has had an
indescribable impact on Vang’s family and friends and on the
Green Bay community. Second, concerning the character of the
offender, the circuit court “concede[d] for the sake of
discussion that Omer Ninham is a child” but nevertheless
described Ninham as “a frightening young man.” The circuit court
acknowledged that Ninham derives from a dysfunctional family but
refused to let that excuse Ninham’s conduct, explaining that
Ninham is “a child of the street who knew what he was
doing . . . .” Third, the circuit court reasoned that the
community needs to be protected from Ninham: “Society needs to
know, and especially this community needs to know, that you can
send your child to the grocery store and expect to see him
again.”
¶31 In addition, the circuit court expressed amazement at
the fact that Ninham continued to deny even being there on the
evening of Vang’s death. The circuit court recognized that
alcohol was nearly a daily part of Ninham’s existence but
declined to view that as an excuse for his behavior, finding that Ninham chose not to take advantage of the opportunities he
had to turn away from negative influences.
III. ANALYSIS
¶41 Ninham seeks sentence modification to allow for the
possibility of parole. Ninham argues that sentencing a 14-year-old to life imprisonment without parole is categorically violative of the Eighth Amendment of the United States
Constitution and Article I, Section 6 of the Wisconsin
Constitution. Alternatively, Ninham argues that his sentence
should be modified because (1) his sentence is unduly harsh and
excessive; (2) new scientific research regarding adolescent brain development constitutes a new factor that frustrates the
purpose of the sentence; and (3) the circuit court relied on an
improper factor when imposing the sentence. We first address
Ninham’s categorical challenge, followed by his three
alternative arguments.
A. Whether Sentencing a 14-Year-Old to Life Imprisonment
Without Parole for Committing Intentional Homicide
is Categorically Unconstitutional
¶57 We appreciate the fact that 14-year-olds are rarely
sentenced to life imprisonment without parole. However, we
disagree with Ninham that the rarity with which the sentence is
imposed is necessarily demonstrative of a national consensus
against the sentence. Rather, it is equally likely that 14-
year-olds are rarely sentenced to life without parole because
they rarely commit homicide and, more to the point, rarely
commit homicide in the same horrific and senseless fashion as Ninham. Ninham does not point to any data which would lead us
to believe otherwise. In short, Ninham has failed to
demonstrate that there is a national consensus against
sentencing a 14-year-old to life imprisonment without parole for
committing intentional homicide.
i. The culpability of 14-year-olds who commit intentional
homicide and the severity of life imprisonment without
parole.
¶74 We do not disagree that, typically, juvenile offenders
are less culpable than adult offenders and are therefore generally less deserving of the most severe punishments. See
Graham, 130 S. Ct. at 2026 (citing Roper, 543 U.S. at 569-70).
Furthermore, we do not dispute Ninham’s argument that, on
average, the younger the juvenile offender, the more his or her
culpability diminishes. However, the constitutional question
before us does not concern only the typical 14-year-old
offender. Rather, the question before us concerns all 14-yearold offenders, typical or atypical, who commit intentional
homicide. Given these facts, we disagree with Ninham that Roper
and Graham lead to the conclusion that 14-year-olds who commit
intentional homicide are categorically less deserving of life
imprisonment without parole.
¶78 Furthermore, contrary to Ninham’s contention, we are
not convinced that juveniles 14 years old and younger are a
distinct group of juveniles such that a different constitutional
analysis applies. Ninham directs us to developments in
psychology and brain science tending to show that 14-year-olds,
in comparison to older teenagers, are generally less capable of responsible decision-making, generally possess a heightened
vulnerability to risk-taking and peer pressure, and generally
have a less mature sense of self and a decreased ability to
imagine their futures.
18 Even assuming that such psychological
and scientific research is constitutionally relevant, the
generalizations concluded therein are insufficient to support a
determination that 14-year-olds who commit homicide are never
culpable enough to deserve life imprisonment without parole.
Case in point, in other contexts, psychologists have promoted
scientific evidence that arrives at the precise opposite
conclusions about 14-year-olds, namely, that they understand
social rules and laws and possess the ability to take moral
responsibility for their actions.
In summary, Ninham has
failed to demonstrate that 14-year-olds who commit intentional
homicide cannot reliably be classified among those offenders
deserving of life imprisonment without parole.
ii. Whether sentencing a 14-year-old to life imprisonment
without parole for committing intentional homicide
serves legitimate penological goals.
¶83 In summary, in the exercise of our own independent
judgment, we conclude that sentencing a 14-year-old to life
imprisonment without the possibility of parole for committing
intentional homicide is not categorically unconstitutional. We
therefore confirm what objective evidence already informs us:
contemporary society views the punishment as proportionate to
the offense.
B. Whether Ninham’s Sentence is Unduly Harsh and Excessive
¶84 Ninham argues that even if we conclude that it is not
categorically unconstitutional to sentence a 14-year-old to life
imprisonment without parole for committing intentional homicide,
he is still entitled to sentence modification on the grounds
that his particular punishment is cruel and unusual in violation
of the Eighth Amendment and Article I, Section 6 of the
Wisconsin Constitution. Specifically, Ninham argues that his
sentence of life imprisonment without parole is unduly harsh and
excessive because his culpability was diminished, both by the
fact that he was just 14 years old at the time of the offense
and by the fact that extreme abuse and alcohol dependence
resulted in his underdevelopment.
¶85 The standard for determining whether a punishment is
cruel and unusual in a particular case is the same under both
federal and Wisconsin law. See State v. Pratt, 36 Wis. 2d 312,
321-23, 153 N.W.2d 18 (1967). “‘[W]hat constitutes adequate
punishment is ordinarily left to the discretion of the trial
judge. If the sentence is within the statutory limit, appellate
courts will not interfere unless clearly cruel and unusual.'”
Id. at 322 (quoting Hayes v. United States, 238 F.2d 318, 322
(10th Cir. 1956)); see also State v. Taylor, 2006 WI 22, ¶19,
289 Wis. 2d 34, 710 N.W.2d 466. A sentence is clearly cruel and
unusual only if the sentence is “so ‘excessive and unusual, and
so disproportionate to the offense committed, as to shock public
sentiment and violate the judgment of reasonable people
concerning what is right and proper under the circumstances.'”
¶86 Under these circumstances, we simply cannot say that
Ninham’s sentence of life imprisonment without parole is so
disproportionate to the crime he committed “‘as to shock public
sentiment and violate the judgment of reasonable people
concerning what is right and proper.'” Id. (quoting Pratt, 36
Wis. 2d at 322). There is no question that Ninham’s punishment
is severe, but it is not disproportionately so. The manner in
which Ninham took Vang’s life was horrific and senseless. The
severity of the homicide was only compounded by the fact that
Ninham refused to take any responsibility and in fact threatened
the lives of the other juveniles who did. That Ninham was just
14 years old at the time of the offense and suffered an
indisputably difficult childhood does not, as he contends,
automatically remove his punishment out of the realm of
proportionate. The circuit court was well within its statutory
authority to sentence Ninham to life imprisonment without
parole, and we will not interfere with its exercise of
discretion.
C. Whether a New Factor Warrants Sentence Modification
¶91 In this case, we conclude that Ninham has not
demonstrated by clear and convincing evidence that a new factor
exists. Assuming that the MRI studies themselves were not in
existence at the time Ninham was sentenced, we agree with the
circuit court that the studies still do not constitute “a fact
or set of facts highly relevant to the imposition of sentence,
but not known to the trial judge at the time of the original
sentencing,” Rosado, 70 Wis. 2d at 288, because the conclusions
reached by the studies were already in existence and well
reported by the time Ninham was sentenced in 2000.
¶93 Moreover, even assuming that the conclusions reached
by these MRI studies were not known to the circuit court at the
time of Ninham’s sentencing, Ninham still has not shown by clear
and convincing evidence that the conclusions reached by the
studies are “highly relevant to the imposition of [Ninham’s]
sentence,” see Rosado, 70 Wis. 2d at 288 (emphasis added), and
in particular, the circuit court’s findings regarding Ninham’s
culpability and recidivism. As previously explained, see Part
III.A.2.b.i. supra, the generalizations concluded within these
scientific studies are insufficient to support a determination
about the culpability of a particular 14-year-old who commits
intentional homicide, in this case, Ninham. Likewise, the
studies’ conclusion that adolescents “almost universally” grow
out of their impulsive and risky behavior tells us virtually
nothing about Ninham’s likelihood to relapse into criminal
behavior. This point is made clear by the fact that the studies
to which Ninham refers do not concern the development of
incarcerated juveniles in particular.
21 In short, Ninham has
failed to prove by clear and convincing evidence that this
scientific research regarding adolescent brain development
constitutes a new factor for purposes of modifying Ninham’s
particular sentence.
Judge upholds no-parole life sentence for parking ramp murder
GREEN BAY (WLUK) – A judge denied a sentence modification request by a man sentenced to life in prison without parole for a crime committed when he was 14.
Omer Ninham was convicted of intentional homicide for tossing Zong Vang, 13, off the St. Vincent Hospital parking ramp in 1998.
This past January, the U.S. Supreme Court ruled that people serving mandatory life terms with no parole for murders they committed as teenagers must have a chance to seek their freedom. Ninham, now 32, used that case as the basis for an appeal, and argued for a change in his sentence at a June hearing.
But Judge Kendell Kelley, who took over the case from the retired Judge J.D. McKay, rejected the motion in a two-part, 11-page decision, saying the Supreme Court decision doesn’t apply to Ninham.
“Based on the foregoing analysis, the Court is satisfied that Ninham is not entitled to resentencing under Miller because his life-without-parole sentence was discretionary, not mandatory. Nevertheless, the court will examine whether, at the time of sentencing, the Court sufficiently considered Ninham’s age and related circumstances when imposing a sentence of life in prison without the possibility of parole,” Kelley wrote.
The judge then reviewed McKay’s handling of the case, and deemed the sentence appropriate:
“The Court expressed, in various ways, the belief that Ninham was one of those rarest, irreparably corrupt juvenile offenders deserving of the harshest possible punishment,” Kelley said. “Upon examination of the entire record, the Court is therefore satisfied that the sentencing Court appropriately considered Ninham’s youth and related characteristics when imposing this sentence. Notably, even if the Court were compelled to resentence Ninham, the Court would be obligated to assess the same factors considered by the Court at Ninham’s sentencing in 2000 – and, although the Court may now use terminology more consistent with Miller and related decisions, the only conceivable conclusion is that sentencing Ninham to life in prison without parole for Vang’s murder is just (as) warranted in 2016 as it was in 2000.”
Richard Crapeau, then 13, was also sentenced to life in prison for Vang’s death, but he has parole eligibility after serving 50 years.
