California wastes tens of millions of dollars a year keeping people in prison long after they’ve been rehabilitated – denying parole for arbitrary reasons and destroying lives in the process.
by Sam Levin, East Bay Express
Part One: Cruel and Indefinite Punishment
Demian Johnson knows he has to be extremely cautious when he’s around his fiancée. He can briefly hug her when she arrives and maybe give a short kiss before she leaves. Sometimes, he can hold her hand, but they can’t have any other physical contact.
Johnson is 51 years old and is currently incarcerated at Mule Creek State Prison, a men’s correctional facility in Ione, a small city in Amador County, two hours east of Oakland. His fiancée, Hilda Wade, a retired home health aide, tries to visit him every Saturday and occasionally stays overnight in a nearby hotel when she doesn’t want to do the ninety-minute drive to and from her Oakley home twice in one day.
Wade told me in a phone interview that they are careful not to break any rules when they talk in the waiting room of the overcrowded prison, which currently houses roughly 2,800 prisoners in a facility designed for 1,700. “We’re very respectful in there,” she said. “We don’t want him to get no write-ups.”
Wade and Johnson started dating in the summer of 2014. One of Wade’s friends, who is engaged to a fellow prisoner of Johnson, suggested the two meet at Mule Creek. When Wade’s friend originally asked Wade to come with her to prison to meet Johnson, Wade scoffed. “I don’t want to be with no guy in jail!” she recalled, with a laugh.
But her friend spoke very highly of Johnson, and eventually Wade decided she would tag along. The connection between the two was strong from the beginning, Wade said. “When I first met him, it was like I’ve been knowing him for years. It was like this instant attraction.”
After regular visits, it became clear to Wade that she wanted to marry him – once he is finally released. “He is the best man I’ve ever met in my lifetime,” she said. “I love him to death.”
Johnson told me in a recent phone interview from prison that their time together means the world to him. “Whenever I get a visit,” he said, “it’s the closest I get to feeling free.”
After she got to know Johnson, Wade figured he would be released soon enough given his extensive progress and long list of accomplishments during the 33 years he has spent behind bars. Johnson has worked as a program office clerk, a chapel clerk, a law library clerk and a tutor. He has received his GED and certificates in electrical work, paralegal studies, vocational screen-printing and office services. Johnson also co-founded and ran a diversion and education group for convicts and has counseled at-risk youth inside prison as part of a program that was featured on an MTV show. He has completed a victim awareness class, Alcoholics Anonymous, Narcotics Anonymous, anger management and stress management courses, criminal behavior therapy groups and many other self-help classes.
Additionally, Johnson has solid plans for his life after incarceration, including a standing job offer at a cleaning company in the East Bay and an acceptance letter from an Oakland-based program called Men of Valor, which provides transitional housing and other support services for people reentering society. He has several backup housing options and official letters of support from relatives and community members who have praised him extensively and written about the ways in which they would help him during the transition.
In short, Johnson’s prison case file shows that he has come a long way from the reckless eighteen-year-old boy who was arrested for murder on a rainy night in October 1982. Johnson, along with two teenage friends, who were drunk at the time, hopped in a cab in downtown Oakland to get back to his home in East Oakland, not far from the Coliseum. Their plan was to jump out of the cab before paying, according to Johnson’s later testimony. But just as they were getting ready to ditch the car, his friend, also eighteen, pulled out a .357 Magnum revolver – allegedly to intimidate the driver so he wouldn’t chase after them.
In an instant, Johnson saw a flash next to his face: The friend had fired a bullet, killing the driver. Hours later, Johnson was arrested, and eventually he agreed to a plea deal of second-degree murder, even though, according to official court records, he was not the one who had fired the weapon. A judge sentenced him to fifteen years to life in prison and he became eligible for parole – meaning a release back into society – on May 28, 1995 when he was thirty years old.
Twenty years after that eligibility date passed, and many unsuccessful parole hearings later, Johnson is still locked up – with little hope of finding freedom anytime soon. He is one of roughly 34,000 prisoners in California currently serving life sentences with the possibility of parole. Known as “lifers,” these prisoners represent about 25 percent of the entire prison population in the state. Many lifers are men serving time for first- or second-degree murder convictions. Some have committed heinous acts of violence. Others were caught up in gang- and drug-related crimes that resulted in a homicide that they did not directly commit. And others were convicted under the state’s three-strikes law, which, for some offenders, mandates life sentences after three felony convictions. Lifers typically face sentences of a minimum of 7, 15 or 25 years, and many who serve those full sentences end up incarcerated for much longer.
According to UnCommon Law, an Oakland-based nonprofit that supports California lifers and is representing Johnson, there are currently about 10,000 lifers in the state who have served their minimum sentences and are eligible for parole. But they remain confined to prison, trapped in a system that critics say is unnecessarily cruel.
Under state law, a parole board, made up of commissioners appointed by the governor, decides whether an individual is “suitable” for release. The law requires the parole board to release eligible prisoners when they are no longer a danger to society. Commissioners are also supposed to remain unbiased and must not deny parole to a prisoner merely because of the severity of the original crime.
But interviews with currently incarcerated lifers, recently released lifers, family members of prisoners and criminal defense attorneys – along with an extensive review of parole data and hearing transcripts and in-person observations of parole proceedings behind bars – paint a picture of a process plagued by harsh and arbitrary decisions that force people to stay locked up for many years after they have been rehabilitated. And prisoners are regularly denied freedom due to petty disciplinary marks and questionable and biased conclusions of board commissioners.
For the majority of lifers who can’t afford counsel, their fate rests in the hands of state-appointed attorneys, who receive low pay and are usually burdened with heavy caseloads. These lawyers often do very minimal prep work before a hearing, making it easy for veteran prosecutors and tough board members to exploit the obscure vulnerabilities of a prisoner seeking parole. The most marginalized prisoners – including those with mental illnesses and people who have previously suffered abuse and trauma – face particularly challenging parole battles (see Part Two of this article, below).
From a policy and economic standpoint, experts have increasingly scrutinized this sector of the state prison system with the recognition that the continued imprisonment of lifers plays a major role in overcrowding and is incredibly costly to taxpayers. And from a personal and emotional standpoint, the cruel legal twists of the parole process can excessively punish reformed men and women while also inflicting immense pain on the lives of loved ones on the outside. People who committed crimes decades ago, when they were kids, are regularly denied second chances even when it seems they’ve done everything right in prison.
Just ask Johnson. In July 2015, he was denied parole for the ninth time – in part due to an alleged rule violation that was so surprising and arbitrary, he could barely process it when his parole commissioners raised it during his hearing. He had, they said, put his arm around his fiancée while she was visiting him on Valentine’s Day – an infraction that showed he is clearly unable to follow rules and is still a danger to society.
For decades, it was nearly impossible for California lifers to get released. In the 1980s and ‘90s, “life with the possibility of parole was the functional equivalent of a sentence to life without parole,” said Kathryne Young, a postdoctoral fellow at Stanford University who has closely studied the parole process in California.
According to 2013 statistics (the most recent data available) from the California Department of Corrections and Rehabilitation (CDCR), roughly 70 percent of prisoners are serving out “determinate sentences,” meaning cases in which the courts sentence people to a finite amount of time, after which they are released. About 4 percent of prisoners (those convicted of the most serious crimes) are sentenced to life without the possibility of parole or are on death row.
The rest are like Johnson – lifers with “indeterminate sentences” who eventually become eligible for parole and are entitled to hearings to determine their suitability for release. From 1980 to 2008, fewer than 10 percent of the cases before the Board of Parole Hearings resulted in grants of release, according to a 2011 analysis by the Stanford Criminal Justice Center. And for the small group that the board deemed suitable to go home, very few were actually released. That’s because in 1988, California voters passed Proposition 89, which gave the governor the authority to overturn the board’s parole decisions in murder cases.
From 1999 to 2003, Governor Gray Davis reversed virtually all of the parole board’s grants of release. And from 2003 to 2011, Governor Arnold Schwarzenegger reversed 60 percent of grants and sent 20 percent back to the parole board for additional review. As a result of the low rate of parole grants by the board and the high rate of rejections by governors, the size of the lifer population as a percentage of the overall prison population has increased dramatically – from 8 percent in 1990 to 25 percent today, according to UnCommon Law. California has the highest rate of lifers of any state in the country, the Stanford report found.
Among the small group of lifers who have successfully reentered society in recent decades, many were incarcerated long after they had served their minimum sentences and had become eligible for release. For example, from 1999 to 2010, 701 lifers who were convicted of second-degree murder – an offense that typically carries a sentence of fifteen years to life – were granted parole and released after spending an average of twenty years behind bars, Stanford found. And for those convicted of crimes that typically bring sentences of seven years to life, 227 lifers were released during that same time period. They spent, on average, significantly more than seven years in prison – fourteen years for attempted murder and seventeen years for kidnapping for robbery or rape.
Unlike the rest of the prison population, lifers are statistically unlikely to reoffend – another reason why advocates say California has a moral and financial obligation to send more of these prisoners home. Overall, according to the state’s 2014 recidivism report, roughly 54 percent of California prisoners return to prison within three years of their release. The recidivism rate for certain classes of lifers, however, is close to zero. From 1995 to 2011, of the 860 lifers who had been convicted of murder and were later released, only five people returned to jail or prison for new felonies – and none for crimes that carry life sentences, according to the Stanford report. Of 278 lifers released during the 2009-10 fiscal year, only 26 people – 9 percent – returned to prison, according to CDCR. And 25 of them returned because of parole violations. Meanwhile, 54 percent of prisoners released during that fiscal year after serving determinate sentences returned to prison within three years.
Advocates of long prison sentences argue that the lifer recidivism rate is extremely low because California’s parole process is so rigorous. But critics say the data clearly shows that many lifers who present an incredibly low risk of reoffending remain locked up for unjustifiable reasons. Studies have further shown that people age out of crime and that people over age forty, and especially those older than fifty, pose a very low risk of committing new crimes on the outside. The state’s own risk assessment tool has concluded that 90 percent of lifers have a low or moderate risk of reoffending – compared to 56 percent of the general prison population, according to the Stanford report.
Reform advocates also have increasingly highlighted how much money the state could save if it regularly granted parole to prisoners who have been rehabilitated. California currently spends an average of nearly $64,000 per state prisoner each year, meaning incarcerating this population costs taxpayers more than $2 billion annually. If even just 10 percent of the lifers currently eligible for parole were released, the state would save nearly $64 million annually.
Continued overcrowding makes the need for increased lifer parole grants all the more urgent, advocates argue. California prisons are currently at 136 percent capacity, which equates to nearly 30,000 more prisoners than the total capacity of its institutions and, prison activists say, can lead to inhumane conditions and inadequate services for prisoners.
Still, eligible prisoners with extensive evidence of their successful rehabilitation, personal transformation and suitability for reentry are routinely denied a second chance at the parole board. For many, that harsh reality is rooted in the fact that they are forced to enter their high-stakes parole hearings without a strong advocate by their side.
On the morning of August 6, 2015, Larry Johnson, a prisoner at the California Institution for Men in Chino, an hour east of Los Angeles, woke up feeling prepared and eager for his parole hearing. The board had denied him parole in his first hearing in 2014, and he felt he had accomplished a lot since then and could make a strong case to the commissioners that he was ready to come home. But he was nervous about his attorney, John Ibrahim.
For starters, he hadn’t yet met Ibrahim, the lawyer appointed by the parole board to represent him. Earlier in the year, Ibrahim had called the prison and, according to Johnson, did very short back-to-back phone calls with a number of lifers whom Ibrahim would be representing at upcoming hearings. (Larry is not related to Demian Johnson, the Mule Creek prisoner). This was Ibrahim’s official “client interview,” which lifer advocates said should always happen face-to-face. “The phone call lasted five minutes,” the 44-year-old Johnson said in a recent phone interview from prison. “He told me ... this is the ‘getting to know me’ process.” Johnson said they went over the very basics of his case file – what self-help classes he had successfully completed and whether he had any serious rule violations during his incarceration (he did not). It felt like the conversation was over before it began. “I was kind of shocked, actually,” Johnson said.
When Johnson finally met Ibrahim in person, the attorney did not inspire confidence. According to Johnson, Ibrahim showed up at the last minute, said little to him, chatted briefly with the commissioners, and worked on his closing statement on his laptop minutes before the proceeding began. Ibrahim was still writing it when the commissioners officially started the hearing, Johnson said. “It was awful from start to finish. There was no connection between myself and the attorney,” said Johnson, who is serving a fifteen-years-to-life sentence for second-degree murder and recently became eligible for parole.
According to Johnson, Ibrahim said little on his behalf during the hearing, and it seemed doomed from the start. The commissioners denied him parole again. Due to a technical error, the board apparently did not properly record the audio, which means the state later had to dismiss the decision and grant him a new hearing, scheduled for April, CDCR records show. (There was thus no transcript of the hearing for me to review.) UnCommon Law is now representing Johnson.
Reached by phone, Ibrahim said he could not recall the specific case, but said it was likely he conducted a phone interview. “It’s just a common practice,” he said, noting that the state doesn’t pay for mileage driving to and from prisons. But he said all his interviews are at least twenty minutes and much more in-depth than how Johnson described it to me. “I can have the same quality of interview over the phone.”
Regardless, Johnson’s frustration with his attorney is common among lifers. Prisoners who can’t afford private counsel are entitled to state-appointed lawyers, who are approved by the Board of Parole Hearings and are essentially independent contractors for the prisons. The attorneys get paid a maximum of $400 per client, and that amount is supposed to cover the costs of meeting with the client, reviewing hundreds of pages of case files, preparing for the hearing, travel time to and from prisons, and sitting through the hearing itself, which is often three or four hours long. With such low pay, even the most dedicated attorneys are limited in the time and effort they can devote to clients.
“It is a very underserved population,” said Kate Brosgart, a state-appointed attorney who is based in Berkeley, referring to prisoners up for parole. Brosgart, who does lifer parole hearings full-time, said that with $400 per client, she is able to meet with each client once for about an hour usually two months or so before the hearing date and spends about four hours on her own prepping for the date. If hearings go long – sometimes five or even as long as eight hours, depending on the circumstances – she doesn’t receive extra compensation.
In a busy month, Brosgart can have more than 25 hearings – an incredibly intensive caseload that further limits her ability to meaningfully serve her clients. Even with the poor pay and busy schedule, Brosgart said she strives to vigorously defend each client and at least help them get one step closer to release. After I observed her during one of her hearings in November and had an extensive follow-up interview with her about lifers, it was clear to me that she is passionate about her responsibilities and has persisted in the job because she knows how desperately these prisoners – whose families often can’t afford attorneys – need competent lawyers. “There’s a real beauty to working with people who have really rehabilitated themselves,” she said. “There are so many lifers who have just spent many, many years at this point becoming educated, becoming certified in different trade areas, who have very important responsibilities in the institution.... There’s nothing that makes that person still dangerous.”
Many lifers with state-appointed attorneys aren’t so lucky to get matched with a caring advocate like Brosgart. She and other attorneys shared with me horror stories that they said are all too common. Brosgart said she has heard of cases in which attorneys essentially give up on their clients – deciding early on that the case is hopeless. They may decline to make a closing statement on their client’s behalf or fail to counter questionable claims by district attorneys, who also participate in hearings and often argue against a parole grant.
Jeremy Valverde, another Berkeley-based state-appointed attorney who represents lifers, said he is forced to depend on his private work and his wife’s salary to subsidize his parole practice. “I really believe in the right for everyone to have fair and adequate representation at their hearing,” he said, noting that when he meets lifers, many of whom have already been denied parole before, they are typically shocked by his enthusiasm and efforts. “They’re used to a certain amount of lethargy,” he said. “[The attorney] may just sit there and say nothing the whole hearing. That’s been the expectation.”
Valverde recently met a lifer with a very troubling story about his appointed lawyer. According to the prisoner, the state-appointed attorney had pressured him to “stipulate” that he is unsuitable for parole, which means at the start of the hearing, he would tell the board he is not ready to go home – thus delaying any parole consideration for years. While a delay can be a smart move for someone who is truly unprepared – because the commissioners can deny parole for up to fifteen years – the prisoner felt he was ready to make his case, Valverde said. It appeared that the lawyer simply hadn’t done the necessary prep work before the hearing. “You’re essentially trying to deprive this client of his rights to his trial, because you’re not prepared to go forward,” he said.
As some state-appointed attorneys struggle to make a difference within the confines of a process that seems to fundamentally devalue their roles, a small group of private attorneys and advocates are pushing for systemic changes – reforms that would help incarcerated people access the second chances to which they are legally and ethically entitled.
Lifers convicted of gruesome and unimaginable crimes must eventually be released – unless they continue to pose a clear threat to public safety. That is, at least, the directive written into California penal code, which states that the board “shall normally grant parole” the first time any lifer appears for a hearing. What that means is the state essentially has an obligation to release a lifer who is eligible for parole, as long as he or she is not a danger. And the board cannot determine that a lifer is a current risk simply because the original offense was horrible.
Keith Wattley, founder and director of UnCommon Law, the Oakland nonprofit that represents lifers, skillfully reminds commissioners of these kinds of obligations when he appears before the board. It’s hard to imagine someone who knows the ins and outs of lifers’ rights in California better than Wattley. He has been representing lifers in parole hearings since 2000 and has pushed for a wide range of policy changes through advocacy efforts and ongoing litigation. Wattley urges commissioners to grant parole to his clients based on hard facts and the particulars of relevant statutes – instead of letting the officials’ subjective assumptions and personal biases influence these life-altering decisions.
Wattley’s clients run the gamut in terms of offenses and progress behind bars, but he tends to work with people who are ready to do the hard work necessary to turn their lives around and confront the demons of their past that led them to prison. He doesn’t shy away from those convicted of heinous or unbelievable crimes – the ones who often most need his services. These are people who murdered loved ones, had particularly vulnerable victims, engaged in disturbing cover-ups or committed frightening acts of violence. Most of the twelve commissioners in California who oversee parole hearings – a prisoner goes before one commissioner and one deputy commissioner – have extensive law enforcement backgrounds and are reluctant to release these prisoners, Wattley explained. “They’ve spent their lives locking these people up and finding them to be dangerous,” he said. “It takes a lot to retrain them to look at people differently.”
Wattley represents roughly half of his clients pro bono or for reduced fees based on income and often spends months or years getting to know the prisoners. He schedules regular in-person visits – having in-depth conversations about a prisoner’s upbringing, the circumstances surrounding the crime, and what he or she has done to change and grow behind bars and prepare for a successful reentry. Wattley closely reviews case files and transcripts of previous failed parole hearings and helps clients chart a path to a successful hearing – advising them on the kind of programming, educational degrees and counseling they should work on behind bars, both to improve their lives and to increase their chances of getting released. He works with his clients to help them uncover the root causes of why they committed the crime and often guides them to a place of deep and genuine remorse. In practice, he is more of a social worker, case manager and therapist than he is an attorney and legal advisor for his clients.
Bernard Toller, a lifer whom I met at his parole hearing in November, told me that his sessions with Wattley helped him come to terms with some dark truths about his past and his offense. “To let all that out is actually a relief,” he said in an interview inside Deuel Vocational Institution, a prison in Tracy, as he waited for the commissioners to finish deliberations. “I told him things I never told anyone. Being honest and open was very difficult, but necessary for my growth.... It allowed me to see myself in the mirror.” Minutes later, Toller learned that the board was finally granting him parole – after he had endured several previous denials. Before guards escorted him away from the hearing room, he told me he felt exuberant. “I still have more life to live!”
Since UnCommon Law was formally incorporated as a nonprofit in 2012, 131 of Wattley’s clients have successfully left prison. None have committed crimes after their release, he said.
In recent years, Wattley has pushed to ensure that the state and individual commissioners follow through with various policy reforms, big and small, designed to make the process fairer for prisoners. Most notably, in 2008, the California Supreme Court ruled that the state must base its determination of “current dangerousness” on a variety of facts in the record, not just the details of the offense – a game-changer for longtime prisoners doing time for serious crimes.
Due to this reform and a number of other changes, today nearly 20 percent of annual parole hearings result in grants of release. Further, Governor Jerry Brown’s veto rate has overall been significantly lower than that of his predecessors. From 2011 to 2014, Brown has, on average, reversed fewer than 20 percent of grants each year.
But when commissioners are biased against prisoners, they find ways to circumvent reforms and issue denials, Wattley said. For example, if they want to deny someone due to the disturbing nature of the crime or because they don’t like a prisoner’s attitude or comments, commissioners will find a way to argue there is a “nexus” between the offense and a prisoner’s ongoing behavior or lack of “insight” or “remorse” – even when there’s little evidence to back those claims.
In other words, even when the laws and facts are on the prisoner’s side, commissioners often are not – and the consequences can be costly.
Parole hearings can feel claustrophobic and tend to be emotionally and mentally exhausting for everyone in the room. The first hearing I observed started at 8:44 a.m. on a Tuesday in November 2015 inside the California Health Care Facility, a relatively new prison in Stockton. Up for parole was 47-year-old Antoine Jenkins, who was convicted in 1991 in a murder, robbery and burglary case tied to a major drug operation that he apparently helped run when he was in his twenties. As is sometimes common in these cases, he did not pull the trigger in the murder, though he was clearly caught up in significant criminal activity for years and was involved in a major drug sale that turned deadly. He was sentenced to 29 years to life and was first eligible for release in 2010 (prisoners generally become eligible for parole before finishing the full term of their sentence, usually because of good behavior).
The room that morning was freezing and looked like a small classroom. Jenkins, in a blue prison uniform, sat next to Wattley, his attorney, on one side of a table directly across from Commissioner Michele Minor and Deputy Commissioner Stewart Gardner, who each had desktop computers in front of them. A deputy district attorney from Los Angeles conferenced in by video. Two correctional officers stood guard throughout the hearing. And Express photographer Bert Johnson and I sat in a corner of the room, ten feet or so away from Jenkins.
This hearing, technically Jenkins’ second, was particularly high-pressure for him given the debacle of his first encounter with the board. In 2008, two years before he was eligible for release, Jenkins’ state-appointed attorney told him that he should delay his first parole hearing by one year because ongoing litigation would yield a change in the law that would benefit lifers. But, as he and Wattley explained during the recent hearing, Jenkins unknowingly signed a seven-year “stipulation” – an unnecessarily long delay for someone who was ready to be considered for parole. That meant that 2015, more than two decades after his arrest, was his first legitimate shot at freedom.
At parole hearings, commissioners conduct lengthy interrogations about the prisoners’ childhoods and circumstances prior to the crime, the crime itself, accomplishments and discipline behind bars, and post-parole plans. District attorneys then question the prisoner, the prisoner’s attorney can question him or her as well, and all three of them can make closing statements. The commissioners deliberate on the spot and offer an immediate decision.
Not long after the hearing began, Jenkins broke down in sobs while discussing his late grandparents who had raised him and, as he described it, had given him a good childhood. “I let them down so much,” he said. “It hurts just to think about it.”
He broke down again when recalling a time that he thought his cousin had been shot. Jenkins repeatedly described to the commissioners how his greed and selfishness led him to commit the criminal and violent acts that landed him in prison.
When Commissioner Minor delivered her decision, at 11:45 a.m., three hours after the hearing began and after 36 minutes of deliberations, she offered a lot of praise for Jenkins: He has clearly accepted responsibility for the crime, he presents a reduced risk of recidivism at age 47, he has marketable skills and realistic parole plans, and he has not had a violent rule violation behind bars since 2000. She also noted that, according to the California Supreme Court, the board cannot consider the offense, prior criminality or unstable social history as indications that he currently presents a risk of danger. But, she argued, various nonviolent rule infractions in recent years show he poses a continued threat to society. He was caught with tobacco in 2008. He was caught with a cell phone in 2012. And in July 2015, he was caught inappropriately grabbing his fiancée in the visiting hall, apparently briefly rubbing up against her. “That was a very selfish thing to do – same thing you were doing at the time of the crime,” Minor scolded, as Jenkins sat stoic, staring forward. “It is disrespectful to your visitor.”
At 11:59 a.m., the hearing was over: Minor and Gardner had refused to grant Jenkins parole and issued a five-year denial. He can petition the board to get an earlier hearing, but if that fails, his next chance at freedom won’t come until 2020.
“When is this nightmare going to end?” Jenkins asked me by phone a few weeks later. “I’m ready – now. You know what I mean? ... I know for a fact that I would never come back to prison.... There is no way in hell I would commit another crime.”
His fiancée, Jennifer Chacon, said she was devastated by the denial – especially knowing that her alleged horseplay with Jenkins played a part in it. The idea that he had mistreated her in any way that day was absurd, she said, after I had mentioned to her that officials in the hearing characterized the touching as a sexual violation of her. “It is so ridiculous. If that were the case, why would I stay there? If I felt disrespected, I would’ve left.”
More broadly, she said it’s obvious that Jenkins is a completely different man today than he was decades earlier. “He was 22 when all this happened.... Now, Antoine is almost fifty years old, and you don’t think he’s changed?” she said. “I really want him to be home with me.”
The parole denial echoed the rejection of Demian Johnson, the other UnCommon Law client who failed to get parole in 2015 after he was accused of putting his arm around his fiancée on Valentine’s Day. According to the transcript of the July 2015 hearing, the commissioner in that case, Terri Turner, said of the incident, “It just, to me, demonstrates a pattern of behavior, where you have yet to recognize the boundary lines.”
Turner added: “If you can’t follow the rules and regulations in prison, then it’s difficult to believe that you’d get out of prison and follow the rules of society.” She further criticized Johnson for not taking full responsibility for the incident and seemingly trying to minimize the seriousness of the offense when questioned during the hearing.
But when I recently met Demian Johnson’s mother, Ann Johnson, of Oakland, she provided me with documents showing that her son had every reason to be defensive. Months after his denial, Demian had successfully appealed the Valentine’s Day write-up and had it removed from his file; a sergeant admitted the alleged conduct merited only a verbal warning. The sergeant further wrote: “Mr. Johnson has displayed exemplary behavior and conducted himself respectably and with decency, never disregarding boundaries or the sanctity of the visiting room.”
Hilda Wade, his fiancée, told me she had absolutely no memory of him even putting his arm around her that day.
“It’s like a kick in the gut when you get denied,” Demian told me by phone. “You’re kind of just like, ‘Wow. I can’t win.’ But I realize I can’t think like that. I can’t be depressed.... I feel like I’m fighting the good fight ... and in the process I’m also growing and developing. Whatever time I have left, I’m using.”
Jennifer Shaffer, executive officer of the parole board, said she couldn’t discuss specific cases, and CDCR officials also declined to comment on the individual prisoners in this story. In a lengthy phone interview, however, Shaffer defended the commissioners, arguing that they make very deliberate, careful decisions that are always based on a wide variety of factors and their obligations under the law. Shaffer, who became executive officer in 2011 and has made increased transparency a priority during her tenure, noted that the state has dramatically expanded training for commissioners in recent years.
“These are very, very difficult decisions made by human beings,” said Shaffer. “These decisions can be very emotional. It’s an extremely meaningful decision. You have somebody’s liberty at stake, and you have victims who have been significantly traumatized, and they’re very afraid.... If you really focus on the law, it gives you a clearer path to a decision.... It’s the only way to really have fair and unbiased hearings.”
Shaffer also said the board has specific guidelines for state-appointed attorneys, which outline the basic expectations for the tasks they should complete when representing lifers at hearings. But, she said, the board is fairly limited in its communication with and oversight of lawyers. “These people are all certified, licensed professionals, and they know what their ethical duties are to their clients,” she said, noting that prisoners can file complaints if they believe their representation was inadequate.
But advocates said that better pay and stricter requirements for state-appointed parole attorneys – mandatory in-person meetings, for example – could go a long way toward helping prisoners defend themselves against denials over petty rule violations. Brosgart, one of the state-appointed attorneys, told me that when she privately represents lifers, she typically charges $4,000 – ten times the state’s rate. “You can have a very different relationship,” she said. “You can work together, give homework assignments, establish excellent parole plans.”
When attorneys have time to closely review case files and discuss with prisoners potential flaws in their record, the lawyer and prisoner are both in a much better position to respond to various charges of commissioners and prosecutors, said Wattley.
More broadly, if California had parole commissioners from more diverse backgrounds – with expertise and experience beyond prison and law enforcement careers – prisoners would be less likely to face denials for frivolous reasons, Wattley said. And if commissioners were to receive better training about the fact that many types of minor rule infractions have minimal connections to current dangerousness, then the board likely would send more prisoners home.
Wattley and Brosgart also said that if lifers received long-term case management from dedicated, in-house social workers, prisoners would be much more prepared to face the board – and better equipped to ultimately return to society. Instead of relying on lawyers like Wattley to help them coordinate their programming behind bars and their post-parole reentry plans, prisoners could move toward true rehabilitation in a more holistic way. Upfront investments in prisoners’ recovery could translate to major savings when they get earlier parole dates. And prisoners could have more years to reconnect with loved ones on the other side.
Ann Johnson, Demian’s 72-year-old mother, told me that the arbitrariness and cruelty of the parole process has deeply affected her. “It’s taken a toll on me physically and emotionally. It’s heartbreaking. You try not to cry everyday.”
Driving to prison regularly is exhausting for her, and she spends hundreds of dollars a month talking to him on the phone. “It doesn’t get any easier,” she said.
The July parole denial took his family by shock. “I expected him to get a date,” Ann said. “It seems extremely unfair.... He’s a danger to society because he doesn’t follow the rules? I can’t make sense of it.”
Lifers’ loved ones told me that they try not to let the prisoners know how much pain the denials cause. “It hurt me. I cried so bad,” said Hilda, Demian’s fiancée. “But I didn’t let him know. I didn’t want to burden him. But it hurt me to the heart.”
Antoine Jenkins and Jennifer Chacon’s weekly visits mean everything. “He’s there for me emotionally, and we counsel each other on the situations we’re dealing with,” said Chacon, who lives in Sacramento and is a medical office coordinator. She said they’ve supported each other through various struggles they’ve faced in recent years – Jenkins preparing for the parole board and coping with the death of his mother; Chacon dealing with the hardships of taking care of sick relatives while working full-time.
“It’s like a vacation,” Jenkins said of Chacon’s visits. “You’re up here with all this chaos and you go there and have peace of mind.” He said they talk about sports, politics, church, family and their life goals.
But the allegedly inappropriate waiting-room conduct in July 2015 cost Jenkins more than just a sizable delay in obtaining freedom. The prison also banned Chacon from visiting him again for several months. Chacon and Jenkins told me they’ve been fighting to get her visitation rights re-approved, but have run into difficulties. When they are finally approved, they will likely only be able to talk through a glass wall at first, Jenkins said. (A CDCR spokesperson declined to comment on Jenkins’ visiting privileges.)
Chacon said it was painful for both of them that she wasn’t able to visit him before his November hearing and help him prepare and stay calm. “We could’ve talked about it face-to-face, maybe rehearsed.... Now all we get are these fifteen-minute phone calls. Try fitting your whole day into fifteen minutes.”
She wants to meet with him as soon as possible so they can also start diligently planning how he can get another hearing date – and figuring out what he needs to do to make sure his next board appearance results in a grant.
Jenkins told me he initially feared that the termination of her visitation rights would create such a strain on them that it might ruin their relationship. But, they both said, they are simply trying to stay positive and strong – and they’re looking forward to when they can see each other again.
Part Two: The Vicious Cycle of Trauma
Michael Flemming fears he will be forgotten. During a phone interview last month from San Quentin State Prison, he said one of the hardest parts of serving an indefinite prison sentence is coming to terms with the reality that he might not live to experience freedom again. “When you are in prison as long as I am, being remembered for something good in my life becomes very important,” said the soft-spoken, 53-year-old prisoner, his voice shaking. “I have an intense fear of dying while still in prison.”
Not long after our conversation began, Flemming admitted he had anxiety about talking to me. “Right now, I’m incredibly nervous,” he said. He told me he was learning how to speak up for himself more and had recently become a lot better at talking about dark memories or sharing his feelings in various prison support groups. “I speak in front of large crowds,” he said. “I’m practicing and getting more confident.”
Flemming knows that if he can’t talk openly about himself and articulate what happened to him when he was young, he could end up dying behind bars. That’s because in order to make it out of prison, he will have to survive an hours-long interrogation that seems designed to break him down.
Flemming has spent 32 years behind bars for killing a police officer in a drunken-driving crash on October 19, 1983 in Mojave, a small town in Kern County, two hours north of Los Angeles. According to his records, Flemming, then 21 years old and a severe alcoholic, robbed a supermarket while armed and extremely intoxicated. As he fled the scene in a stolen truck, he crashed head-on into an officer responding to the robbery. Kern County Sheriff’s Office Deputy Michael Bentley, 33, did not survive.
Prosecutors subsequently charged Flemming with first-degree murder and a judge sentenced him to 25 years to life – meaning a life sentence with the possibility of parole. He officially became eligible for parole in 1999, but he has not been able to convince the California Board of Parole Hearings that he is ready to come home. The parole board is made up of commissioners who are appointed by the governor; most have extensive backgrounds in law enforcement. In order to receive a parole grant, Flemming has to demonstrate that he is no longer a danger to society, is genuinely remorseful and has a deep understanding of why he committed the offense.
But every time he tries to explain how he ended up crashing his car so many years ago, his answers never come close to satisfying the commissioners or the Kern County District Attorney’s Office, which has vigorously argued for his continued incarceration. He told me that he became particularly incapable of addressing the parole board when, early into his hearing on September 3, 2014, Commissioner Marisela Montes confronted him about one of the worst traumas of his life.
Flemming, Montes noted, had reported during a prison psychological evaluation that two men had raped him when he was fifteen years old. According to the board’s official transcript of the hearing, Montes’ first question about the abuse was: “Why’d you wait twenty years to tell anybody about that?”
Flemming stumbled, trying to explain why he finally decided to tell his wife. “I just happened to blurt it out over the phone,” he said. “I had not even told my mother and father.”
“So what were the names of the people who molested you?” Montes continued.
“I would rather not say,” he replied. “One – one’s dead and the other one has a significant family back home.”
“Are these people real?” Montes further questioned.
“Yes, ma’am,” Flemming replied.
After Flemming explained that the men, who were friends of his family, had become physically violent and sexually assaulted him, Montes asked him once again why he didn’t report it.
“I, I never told anybody until it just became so, an unbearing [sic] mass of, of, of pain. I guess the best way I could describe it is just a mass of blackness inside me,” he said.
A third time, she asked him how he managed to keep the rape a secret from his parents considering the anxiety, depression and nightmares it caused him.
“I mean, I was a kid. I had, I assumed that it was my, in some way, my fault,” he replied.
Flemming then repeatedly emphasized that he takes full responsibility for the fatal crash, saying, “I committed a reckless and horrible act.... There is no legitimate excuse for the taking of a human life.... I was a despicable, reckless human being.” But he also tried to explain that the childhood sexual assault contributed to his alcohol abuse as a teenager, which was clearly a central factor in the crash that day.
Montes didn’t buy it. At the end of the hearing, she announced that the board would once again deny Flemming parole – for the sixth time – because he is still unable to articulate the underlying reasons why he killed Deputy Bentley. Referencing his testimony about the rape, she added: “A lot of these factors that you point to don’t really get to the heart of the issue. They’re external factors. They’re things that other people did to you – almost describing yourself as a victim.”
Flemming, speaking to me by phone more than a year later, said he did his best during the hearing to maintain his composure, but fell apart when Montes continued to badger him about being molested. “For her to even imply I’m not telling the truth sent me spiraling out of control into a downward depression right there in [front of] the board,” he said.
Criminal defense attorneys say that Flemming’s experience is far from unique. “Lifers” – the roughly 34,000 California prisoners convicted of serious crimes, typically murder, serving indefinite sentences with the possibility of parole – are routinely denied opportunities at second chances because they fail to impress the commissioners who grill them in their hearings. As I wrote in Part One, prisoners who have spent decades behind bars – and have proven records of rehabilitation – often don’t get parole due to subjective and arbitrary reasons, such as minor rule violations. That’s despite the fact that the law requires the parole board to release lifers who no longer pose a threat to public safety.
The fight for parole can be especially challenging for more vulnerable prisoners. Those struggling with mental illness, psychological trauma, past abuse and other significant disadvantages fail to get adequate treatment and care behind bars, according to activists and experts who have studied prison conditions in California. The parole board and district attorneys subsequently reprimand prisoners for not doing enough “self-help” work – sometimes directly scolding them for failing to complete programming that is simply not available in the overcrowded prisons. At the same time, many of the most marginalized prisoners – such as those with developmental disabilities, histories of violence to overcome or memory problems in their old age – are often incapable of verbalizing their remorse and personal growth.
Even if an abundance of evidence in their case files strongly suggests they would not be a danger if released, prisoners who don’t perform well during high-stakes hearings and psychological evaluations often have little hope of freedom. That means for some, life with the possibility of parole is, in effect, a sentence to death behind bars.
Not long ago, California’s prisons were so overcrowded that prisoners lacked access to basic, adequate medical and mental health care – in violation of the Eighth Amendment of the U.S. Constitution, which prohibits cruel and unusual punishment. That was the conclusion of the U.S. Supreme Court in 2011’s landmark Brown v. Plata decision, which affirmed a previous federal court order requiring the CDCR to reduce its prison population to 137.5 percent of design capacity – at the time equating to a reduction of roughly 33,000 prisoners.
Due to severe overcrowding and scarce “mental health treatment beds,” mentally ill prisoners faced lengthy delays in receiving treatment, and there were backlogs of hundreds of prisoners waiting to see doctors for physical care, the court stated. These “unsafe and unsanitary living conditions” promoted unrest and violence while also exacerbating prisoners’ latent mental illnesses. In 2006, the suicide rate in California prisons was nearly 80 percent higher than that of the national average for prisons. That year, the state averaged nearly one prisoner suicide per week. The Supreme Court case revealed that some suicidal prisoners were held for long periods in phone booth-size, toiletless cages.
California has since reached the court-mandated reduction in its prisoner population, and as of December 2015, the state’s prisons were at 136 percent capacity. The state has accomplished this by, in large part, moving certain classes of lower-level offenders from state prisons to county jails and by reforming outdated, tough-on-crime practices that resulted in many prisoners serving lengthy sentences for nonviolent, victimless offenses, often drug-related.
Criminal justice advocates have welcomed reforms that reduce the incarceration time for those with “determinate sentences,” meaning people serving a finite amount of time before release. “But the lifers are being left behind in these policies,” said UnCommon Law director Keith Wattley. Experts say that if California wants to get serious about decreasing mass incarceration, prioritizing rehabilitation and making its facilities more humane, it must closely examine its treatment of the lifers who committed violent offenses and now represent roughly 25 percent of the prison population.
Fewer than 1 percent of lifers are granted parole in their first hearing after they become eligible for release, according to UnCommon Law. In total, only about 20 percent of lifer hearings result in grants of release, and from 2011 to 2014, Governor Jerry Brown reversed nearly 20 percent of parole grants, using his authority to veto the release of people serving life sentences for murder. In short, many lifers simply aren’t coming home. Between 2000 and 2010, 775 lifers convicted of murder died in custody, unable to get release dates, according to UnCommon Law.
Although conditions have improved as the state has continued to reduce its prison population, activists argue that lifers currently eligible for release have suffered through years of severe overcrowding – and still lack access to quality healthcare and rehabilitative services. That’s partly because the needs are so great. The population of mentally ill prisoners in California prisons has nearly doubled since 2000, according to a recent analysis by Stanford Law School. In 2014, more than 37,000 prisoners relied on mental health services, according to CDCR data. In this way, prisons have become de facto mental healthcare facilities despite the fundamentally anti-therapeutic nature of their design.
“There are thousands [of prisoners] who need more than what they are getting now in terms of ... therapy,” said Steve Fama, staff attorney with the Berkeley-based Prison Law Office, which has represented mentally ill prisoners in numerous legal cases. Fama said many prisoners struggle with a range of mental health problems that may not be considered serious enough to get them consistent counseling. “They aren’t substantially impaired ... but they still need help,” he said.
In many ways, the prisons don’t prioritize helping prisoners overcome their struggles – whether it’s mental illness or trauma, abuse or violence they experienced prior to their incarceration. On the contrary, lifers face a system that, advocates say, seems largely dedicated to their continued incarceration, despite numerous laws and policies that have the opposite intent. It’s a model of punishment that sets some lifers on a path of never-ending imprisonment that begins on Day One of their sentence.
For years, Troy Williams only found peace in prison during the few hours he slept each night. Growing up immersed in gang violence in Los Angeles County, Williams, who is black, encountered the same kinds of threats, violent conflicts and racial politics behind bars that he had experienced on the outside during his youth and early twenties. In 1994, at age 27, Williams was the driver in a computer store robbery that turned violent, landing him a sentence of seven years to life for a “kidnap for robbery” conviction, according to his records. He said that from the start of his incarceration, it felt nearly impossible to avoid disputes and gang-related activities within the close confines of prison.
For people who have little firsthand knowledge of prison life, it can be difficult to understand how uniquely challenging it is to simply stay safe and out of trouble behind bars. “Imagine a bunch of peer pressure on steroids,” said Williams, who is now 49, in a recent interview. “You’re in a place where, when something happens on the yard, you don’t get to say, ‘I’m not involved.’”
Williams said that at some points during his imprisonment, the violence was so bad that he dreaded leaving his cell every morning and only found solace when prisoners slept at night. “You’re in the middle of hell trying to be an angel.”
For many lifers like Williams – who was released in October 2014, eleven years after he became eligible for parole and twenty years after he was first incarcerated – the idea of any sort of “rehabilitation” seems entirely out of reach at the start of a life sentence.
Wattley explained how lifers in their late teens or twenties often enter prison with the assumption that they’ll never go home again. Behind bars, they quickly encounter gang-related violence and extreme pressure to be involved in more criminal activity. Some are forced to act tough to avoid being victimized. “They are expected to engage in violence, drug sales, manufacturing alcohol, making and holding weapons, participating in riots,” Wattley said. “They’re caught up in that lifestyle. And there’s not much time or opportunity or incentive to participate in positive programs.” Some prisoners, he said, are shunned and ostracized by fellow prisoners if they spend too much time in the library or seek mental health counseling, for example.
Judy Bell, a former lifer and client of UnCommon Law, who spent 26 years in prison, said in an interview that when she was first incarcerated at 22, she “didn’t know how to cope and deal with things.” She explained how she was surrounded by chaos – drugs, violence, correctional officers having sex with prisoners. “There was just so much corruptness,” she said, adding, “if someone tried to hurt me ... I would get in a fight.”
In the early years of their sentences, many young lifers caught up in prison violence get disciplinary marks, are victimized, or both – and some may end up in solitary confinement as a result. Those situations are worse for mentally ill prisoners, who are significantly more likely to be injured in prison fights and rack up rule violations, according to a Stanford Law School analysis of national data.
At the same time, prisoners convicted of serious crimes, especially those who are disciplined further behind bars, often wind up confined to the highest levels of security – in prisons and housing units that have the most restrictive environments and stringent rules – and thus tend to have the fewest opportunities to access programming, services and employment. This makes it even harder for these prisoners to get the help they need to change and to complete various programs that would eventually make them promising candidates for parole.
Paradoxically, prisoners who need the most help sometimes receive the least support. The disparity in programs can leave particularly vulnerable prisoners at a serious disadvantage in preparing for parole, said Kate Brosgart, a state-appointed attorney who represents lifers at their parole hearings. “If the state is really interested in rehabilitation, the state should be making programs available,” she said.
Bill Sessa, CDCR spokesperson, noted that California shifted the criteria for security classification in 2008 in an effort to reward prisoners who have demonstrated good behavior and move them to lower-security facilities with more programs. That change enabled the corrections department to begin transitioning roughly 17,000 prisoners to less restrictive housing, where there are more rehab programs, according to a report provided by Sessa.
But there are ongoing challenges with access. For example, a 2014 report from a special master assigned to review the adequacy of CDCR’s mental health care found that in one institution, patients on “maximum custody status” received minimal programming – even when there was no individual clinical reason to justify this treatment.
The lack of programs can hurt lifers in direct and indirect ways. In the 2014 parole hearing involving Flemming, the prisoner convicted in the drunken-driving crash, Commissioner Montes criticized him for failing to consistently participate in Alcoholics Anonymous. But as he explained during the hearing and later to me in an interview, when Flemming was incarcerated at Chuckawalla Valley State Prison in Southern California, he was stuck for years on a waiting list for AA, because there were no open spots for the classes.
Even if prisoners eventually get access to high-quality programs, the reality for some lifers is that there’s just not enough individualized support to undo the psychological damage from spending years isolated in restrictive environments with total uncertainty about the future. Bell, the former UnCommon Law client, told me that the parole process itself took a major toll on her mental health. She endured both repeated denials and governor reversals before she was finally released in 2013 – and is still dealing with the emotional impacts of those rejections today. “Talk about PTSD,” said Bell, who is now 51. “The mental anguish of it was a lot for me.... I thought I was going to lose my mind.”
In an interview at an Oakland coffee shop, Williams began to cry when recalling the extreme isolation he faced during periods of his imprisonment. It was particularly bad when he cut off contact with the people behind bars who might get him into trouble. “You break away from everybody and you walk alone,” he said. “It is a lonely road, because you don’t have friends.... I remember in a ten-year period, there was maybe five people I could have a real conversation with.”
Having few meaningful connections with people made Williams feel less human as the years went by, he said. And as his incarceration continued, it became clear to him that prison was not helping prepare him for life on the outside – and that if he wanted to get a parole grant, he would have to do the work on his own.
Despite the many factors that make prisons fundamentally poor settings for rehabilitation, lifers find ways to turn themselves around. As they get older, they may find religion, spirituality, art, work trades, leadership positions, hobbies, productive relationships and other positive forces that help them become solid candidates for release. Convincing parole commissioners that they’re ready, however, is a different battle – one that can seem divorced from their actual rehabilitation. This is especially true when it comes to a prisoner’s ability to articulate his or her progress and stay strong in the face of painful questions.
Michael Tyler, a recently-released lifer and former client of UnCommon Law, said it seemed clear that his presentation and word choice at the board were critical. “It’s a friggin’ stressful event,” he said of the hearings. “You’ve got all this time you just did, and you’ve got this opportunity to face so much more time.... I don’t think anywhere in life do you feel that type of stress. It was really difficult to be calm and say the things that you need to say.”
Tyler, now 36, is articulate and thoughtful – a fact that became obvious to me when I first saw him give a speech about parole at an UnCommon Law event at UC Berkeley. Other lifers, however, simply don’t have the cognitive abilities, public-speaking skills or vocabulary necessary to properly advocate for themselves. “The guys could be ready as anybody, but they might have a bad delivery, and then they don’t get found suitable,” Tyler explained.
Attorneys and advocates who have supported lifers in hearings shared with me a range of stories in which they felt commissioners were cruel in their questioning of vulnerable prisoners and then unfairly harsh in their subsequent denials. I also reviewed case transcripts for this story that included offensive interrogations by parole board commissioners about sexual trauma, insensitive remarks about the deaths of a prisoner’s loved ones, baseless determinations about a prisoner’s psychological state and unjust criticisms of a lifer’s inability to describe remorse.
One female lifer in California – who was convicted of murder in the death of her husband – faced difficult questions about the prolonged abuse she said she experienced in her marriage. In a 2012 hearing, parole commissioner Cynthia Fritz asked the woman, then seventy years old, why she was assaulted by her husband. “Why did your husband rape and sodomize you?” Fritz asked at one point. The prisoner responded: “Because that’s what he wanted.”
The commissioner also questioned the honesty of the prisoner’s statements about her feelings for her husband after the prisoner explained that she resented him for the abuse, but also loved him at the time. In announcing the denial of parole, Fritz expressed doubt about the woman’s recollections: “With so many horrific things going on in your life, throughout your life, it’s hard to believe that you would get angry and then forget about it.” (The Express has chosen not to name the female lifer in this case because we have been unable to reach her or her attorney.)
In another murder case involving a transgender lifer incarcerated at a California women’s prison, a prosecutor used the individual’s gender identity to advocate for a parole denial. According to an official transcript of the 2015 hearing, Los Angeles County Deputy District Attorney Joseph Shidler conceded that the prisoner, Victoria Smith, posed a “low risk of violence,” based on an in-prison psychiatric evaluation. But Shidler argued that Smith, who was receiving hormone treatments at the time, was still a danger because of the “stressor” of being transgender. “Going through this transgender process leaves me with some questions as just how the prisoner is going to be affording the remainder of [the hormone] treatment if released,” Shidler said. “And I want to emphasize, which the psychologist also mentioned, that ... one of the stressors of [the prisoner’s] life on the outside will be a transgender [sic]. The inmate is not ready for parole at this time.”
Brosgart, the state-appointed attorney, told me she has witnessed commissioners chastise prisoners who have been victims of violence behind bars, questioning them about whether they are prepared to deal with similar conflicts in society. Paraphrasing comments that she said she has heard from the parole board, Brosgart said: “‘What are you going to do if you get targeted on the outside? You don’t have the tools to deal with it in a safe way.’“
Brosgart added that when commissioners ask those kinds of questions, they are “essentially blaming the victim.”
Brosgart said that in one case, her client had been sexually assaulted by fellow prisoners and then refused to return to a specific prison work assignment for fear of being isolated with the same perpetrators. Brosgart said that prisoner was issued a rule violation for the work refusal – a disciplinary mark that contributed to a subsequent denial of parole.
I also observed one of Brosgart’s recent parole hearings in which she represented a lifer convicted of second-degree murder in a drunken-driving crash. The 58-year-old prisoner, Stephen Whitfield, showed up to his hearing in a wheelchair and was wearing a helmet, because, as he told the commissioners, “I keep falling down.” The prisoner has numerous serious physical ailments, and doctors believe he also suffers from some kind of brain damage, according to testimony from Brosgart and the commissioners during the hearing. Whitfield appeared to have a lot of difficulty understanding and responding to fairly basic questions – stumbling often with rambling answers. He talked about hearing voices, coping with depression and at times feeling suicidal. He had few cogent expressions of remorse, but he and Brosgart tried to argue that he is no longer a risk to society because he is not physically capable of driving a car or engaging in physical violence.
The commissioners ultimately denied Whitfield parole, stating that it was clear he lacked remorse and was mentally unprepared for reentry. “He still is not as stable as he should be,” said Commissioner Michele Minor, when announcing the decision. She later added, “Certainly, his mental health does lend itself to dangerousness.”
In his hearings, Flemming, the prisoner convicted in the Kern County drunken-driving case, has faced additional obstacles due to his mental struggles. According to his testimony, he has been unable to remember the basic details of the crash. But when he has offered insight into what little memory he has, or explained what he knows based on the facts in his record, commissioners and prosecutors have aggressively accused him of offering contradictory or false statements. “It has been a curse for me,” he said in one of our phone interviews. “Imagine being in prison 32 years and you do not remember what it was you did? You know you did it. You know you’re guilty of killing a man. That is a stone-cold fact.”
At various times during his incarceration, Flemming has referred to the crash as “an accident” and has also speculated that it was possibly a suicide attempt – given his self-destructiveness at the time and the fact that he had tried to kill himself before. But the parole board and prosecutors have argued that these differing statements prove that he is lying and that he refuses to accept full responsibility, even though prison clinicians have reported that he likely suffered from memory loss. Records also show that he has repeatedly said he has little memory of the events, was clearly at fault and is deeply remorseful.
In an interview, Sara Danville, supervising deputy district attorney with the Kern County District Attorney’s Office, who argued against Flemming’s parole in his last hearing, said: “He has no memory whatsoever, because he keeps changing his story to fit his audience.... I absolutely believe he is lying.”
She argued that Flemming still has to uncover the true root causes of his crime, and until he is fully honest with himself and the board, he remains a threat to the public. “It’s hard work to dig into the depths of your soul,” she said. She later added, “There’s no magic formula. It’s when you’re in that room ... you can tell if somebody actually internalizes it, understands it. But he’s not that person. He’s still a danger.”
When I asked Danville if she thinks Flemming will ever be “that” person, she replied: “Only God knows the answer.”
In an extensive phone interview for this two-part series, Jennifer Shaffer, executive officer for the California Board of Parole Hearings, explained that the hearings are meant to be challenging, and that the board purposefully delves into difficult topics relevant to the deliberations. “These hearings are not easy,” she said. “We cover a lot of very sensitive issues.”
In some cases, Shaffer said, it is useful to ask tough questions, because they allow commissioners to gauge how well prisoners handle stressors – of which there will be many when they reenter society. She further argued that if prisoners’ past abuse or trauma played a part in the crime they committed, then it’s critical that the prisoners demonstrate that they would not become violent or revert to bad habits in the face of similar pressures upon release. “I wouldn’t want to place ill intent on the [commissioners] for asking really difficult questions,” she said, adding, “sometimes, the [commissioners] are actually testing the inmate. You can see in front of you how they are controlling impulses.”
Shaffer also said the commissioners understand that, by law, they can only deny parole when evidence points to a prisoner’s ongoing dangerousness: “We have to find the inmate poses a current, unreasonable risk.” She further argued that the board does not deny parole solely due to mental illness or a prisoner’s inability to discuss the crime – but instead examines how those issues, in the context of a prisoner’s entire record, tie to the potential threat the individual poses. “We want to get to who you were then, who you are today, and what’s the difference,” she said. “It really is a one-on-one discussion.”
Shaffer and other CDCR representatives said the board and the department do not comment on individual parole decisions and declined to make specific commissioners available to discuss the cases featured in my series. However, when I asked Sessa, the CDCR spokesperson, about Commissioner Montes’ comments on Flemming’s childhood sexual abuse, he wrote in an email to me: “I’m a bit mystified why you would focus on one comment about his molestation when ultimately it is not a relevant factor in the decision.” He added: “To suggest that the [commissioners] simply didn’t have enough information because Mr. Flemming ‘broke down’ during the hearing because of the [commissioner’s] alleged insensitivity so that he couldn’t express himself seems disingenuous at best.”
Advocates, however, said a number of reforms could help vulnerable prisoners like Flemming get a fairer shot at release – without compromising public safety. Jeremy Valverde, Flemming’s state-appointed attorney, said if commissioners were better trained on how to sensitively discuss past sexual trauma with prisoners, there might be fewer cases of counterproductive grilling like the kind Flemming faced. “The board will sort of interrogate these guys about their molestation experience.... That’s a really harmful approach,” said Valverde, who is based in Berkeley. He said it was clear to him that Flemming “imploded” during his hearing and was unable to effectively communicate after the confrontation about his rape. “That’s not going to get someone to open up. That’s going to make them shut down even more.”
Advocates have also argued that in order to further eliminate biases against lifers who struggle to articulate themselves and suffer from severe anxiety during the parole process, the board should stop placing so much value on questionable determinations of whether prisoners have “remorse” and “insight” into their crime. For starters, there is little statistical data showing that the absence of remorse or insight correlates to an actual risk of reoffending, according to lifer attorneys. Further, critics say, the process by which the board evaluates these factors is deeply flawed.
In 2012, UnCommon Law filed a class-action lawsuit against the board challenging its Forensic Assessment Division’s psychological evaluations of lifers before their hearings. Those assessments frequently include findings of lack of insight or remorse even when there is significant contradictory evidence, according to the suit. Part of the problem is that the psychiatrists are hired by the board to do these assessments and thus have no relationship with the prisoners and lack in-depth knowledge of their progress or ongoing mental health treatment. Additionally, psychiatrists may determine a prisoner has “antisocial personality disorder” or “psychopathic” tendencies in part based on the nature of the original offense and prior criminal record – factors that lifers can never change. Opponents of these reports have further argued that there is little oversight of this process and that when the assessments contain factual inaccuracies, prisoners have no meaningful opportunity to contest the findings before their hearings.
UnCommon Law and the parole board have recently agreed to a proposed settlement in the class-action suit that Wattley hopes will protect prisoners from parole denials based on shoddy assessments. For starters, the state will implement an appeals process so that prisoners can formally object to the evaluations prior to hearings. The settlement also requires that the board provide commissioners with new training that would address the limitations of the risk assessments and remind them of the low recidivism rate of lifers (data shows that a very small percentage of released lifers return to prison).
Other reforms are also helping lifers convicted of crimes they committed when they were teens or young adults receive special consideration for parole. Senate Bill 260, passed in 2013, requires the state to conduct “youth offender parole hearings” for lifers whose offenses occurred when they were under eighteen years of age. These hearings essentially have stricter standards for denials with the recognition that juvenile offenders have “diminished culpability” and can grow out of the irresponsible or immature behavior that contributed to the crime. SB 261, approved in 2015, extended the age of youth offender hearings to those who had committed crimes when they were under 23 years old.
These legislative reforms are giving many lifers a fresh chance at freedom. But Wattley and other advocates said the prisons now need to provide meaningful programming and services for this population, so that when they get the opportunity to participate in specialized hearings, they are truly prepared for reentry.
More broadly, if prisons increasingly prioritize rehabilitation and release more prisoners earlier in their sentences, lifers would be able to continue their recovery on the outside – with community-based programs and with the support of loved ones. The positive impacts of this shift would be widespread, advocates said. That’s because a continued reduction in the prison population could enable the state to better invest in mental health treatment and other services for incarcerated people. That kind of reinvestment could create more humane prisons for the people who committed violent crimes and, regardless of ongoing criminal justice reforms, will be spending many years of their lives behind bars.
On some level, Michael Flemming believes he will never go home. For starters, his victim was a police officer. Larry Bentley, the brother of Deputy Michael Bentley, who Flemming killed in the crash, has repeatedly spoken at the prisoner’s hearings, arguing passionately against parole and offering a personal reflection on the person his family and community lost when Flemming drove drunk three decades ago. In an email sent to me through prosecutor Danville, Larry Bentley said that every time he learns that Flemming will have another hearing, it causes him the worst stress of his life. He plans to attend all future hearings.
Beyond the tragic nature of the crime and the hurt he caused Bentley’s family – factors Flemming can never change – Flemming said he fears that he won’t get a parole date due to the fact that he remains petrified of screwing up at his hearing. He told me that the pain and anxiety associated with hearings has been the hardest part of his incarceration – worse than witnessing violence and death behind bars. “Not once have I ever felt the fear that I felt or that I feel when I sit before the board,” he said. But he tries to stay positive by thinking about the loved ones he will be able to hug on the other side, he said. “I never stop fighting. I always have hope.”
Advocates and prison officials acknowledge that hope is not an insignificant force for lifers. As the parole process has become somewhat fairer over time, and as lifers have started to learn that they may actually go home one day, they’ve become more engaged in programming and self-improvement, Wattley said. He argued that violence and other criminal activity in prisons decrease when lifers view their parole hearings as legitimate opportunities to get a second chance.
Shaffer, the board’s executive officer, said that a number of reforms in recent years have clearly incentivized lifers to make positive changes and meaningfully prep for life on the outside. “We’ve been able to see how powerful hope can be,” she said.
Even if Flemming has little faith in the process, his family motivates him to keep trying. His brother, Brett Flemming, 54, has arranged uniquely secure post-release plans for Michael. Brett runs a bicycle tool manufacturing business and told me he would train and hire his brother to work for him full-time. “I’m a businessman. I would invest in him immediately. He could be gainfully employed in California the day he is released,” said Brett, who began to weep when describing how eager he is to see his brother get a second chance. “As far as I’m concerned, he’s a financial stakeholder in this company.... He won’t have time to get into trouble.”
Instead of costing California nearly $64,000 a year for his incarceration, Michael would be a wage earner and taxpayer, Brett said, noting that he would help his brother get started with rent and buy him a car, if needed.
Everything is in place. Michael Flemming just needs to convince the parole board he’s ready.
This article was originally published as a two-part series in January 2016 by the East Bay Express; it is reprinted with permission, with minor edits.
Note: California voters passed Prop. 57 in November 2016, which included changes to parole eligibility for CDCR prisoners; however, those changes only apply to non-violent offenses and thus are inapplicable to lifers in most cases. [See: PLN, Jan. 2017, p.12].
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