Life Without Parole: A Five Part Series

May 2, 2016

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It’s been more than 20 years since Virginia abolished parole, and over that time the prison population has grown to more than 30,000 people.  

Just over 10% of them committed crimes before the law changed, so they’re still eligible for parole, but few of them are getting out, and the state now spends more than a billion dollars a year on prisons and correctional programs.

Part One: Virginia Has Lowest Parole Rate in the Nation

If you saw the film Shawshank Redemption, you probably remember the powerful speech Ellis Boyd Redding gave to the parole board after 40 years behind bars.

“Am I sorry for what I did?  There’s not a day goes by I don’t feel regret.  I look back on the way I was then – a young, stupid kid who committed that terrible crime.  I want to try and talk some sense to him, but I can’t.  That kid’s long gone, and this old man is all that’s left.”

Redding, played by Morgan Freeman, isn’t nice to the parole board.  He calls the chairman Sonny, and calls the proceedings bull, but the audience loves him, and when he was released, some people probably felt like cheering.  

In real life, it doesn’t work that way.  Take a guy like Charles Zellers, who grew up in a small town two hours south of Charlottesville.  He turned 48 in prison this month after spending nearly half of his life locked up for forcible sodomy and killing a young child.  He claims he is innocent, but his public defender talked him into a plea:

“My attorney told me that if I come in here, and I did everything I was supposed to do, I’d be out in seven years.  He just said they had overwhelming evidence against me.  I said, ‘Well there ain’t no evidence. It’s just my word against their word.’  You know we never had any dealings with the legal system.”

Now, he’s something of an expert on the law, and he’s afraid he’ll never get out, although he claims to be a model prisoner.

“I’ve changed a whole lot.  I’ve gotten my GED since I’ve been in here.  I work every day.  I’ve got two vocational trades.  I’ve learned how to operate a computer.”

But parole board chairman Karen Brown continues to judge him based on the crime he committed, describing him as a “most unsympathetic offender.”

Zellers figures many other people will die in prison – not because they’re a threat anymore, but because the board doesn’t believe in second chances.

“Ms. Hausman they’ve got guys in here who are almost 90 years old.  Like my cellie, he’s legally blind.  There’s another guy, he’s nearly blind.  They say he’s too old to work.  What can he do at his age? They say they want to let people out that’s not a threat to society, but on the other hand it don’t look like they’re really trying to let us out.”

In fact, Virginia has the lowest rate in the nation when it comes to parole. Each year, about three percent of those who are eligible are released.  The board explains that since parole has been abolished, the pool of those who qualify keeps shrinking, and now only the most violent offenders are left, but criminal defense attorney Steve Rosenfield believes that with supervision, it’d be safe to free many of them too.  He argues very long sentences are not necessary or productive.

“We have a different culture in this country than exists in Canada and Europe where people who have committed very bad crimes serve 20 years or so, and that is thought to be a pretty significant punishment.  Supporting that are our own studies in this country that show that once people reach their 30’s and start aging into their 50’s and 60’s, the rate and incidence of crimes that are committed by them when they are released is exceedingly small.”

Zellers parole hearing is Tuesday. If he gets out, he plans to get a job, take care of his widowed mother and work for prison reform, but he’s been up for parole eight times before, and the board always cites the serious nature of his crime in refusing to free him. 

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Part Two: Secret Proceedings Offer Little Hope of Parole

Virginia abolished parole in 1995, but people who committed crimes before then – more than 3,300 of them -- are still eligible, and a board of five people decides who gets out.  

The mission of Virginia’s parole board is simple – stated in bold on its website: to grant parole to those offenders whose release is compatible with public safety.  In fact, it’s a lot more complicated than that.

“The parole board considers, among other things, the offender’s history, physical and mental condition, character and conduct, employment and attitude while in prison.”

That’s actress Cady Garey.  She agreed to read written answers to our questions, after parole board chairman Karen Brown declined to be recorded. Brown wrote that board members meet to discuss some cases but decide many others independently.  Criminal defense attorney Steve Rosenfield thinks that’s a shame.

“You would think that a collaborative process would help.  Somebody might change somebody else’s mind – either for or against the prisoner, but to hear somebody’s argument about why we should or should not release somebody seems to make the most sense.”

A prisoner must get three of the five votes to be released – or four out of five if the conviction was for murder and the sentence life.  While inmates may speak with a single member of the board, they never get a chance to address the whole panel in person. 

Charles Zellers is serving a life sentence plus forty years for murder.

“We don’t see the parole board.  We see just the interviewer.  He types it in, and then he takes it back to the board members.”

Regardless of what they say, inmates are often told they will not be paroled because of the seriousness of their crime – a factor they cannot change.  Earlier this year, more than 40 prisoners staged a protest at the Augusta Correctional Center, refusing to speak with the interviewer, and explaining their frustration to counselor and clergyman Harvey Yoder.

“We’re not going to go through what is basically a farce to be told the same thing over and over again.”

On the other hand, people who want inmates released can address the board, and so can victims of a crime.  That fact may bias the outcome of a hearing according to Kevin Reitz, a professor of law at the University of Minnesota and a national expert on parole.

“In speaking with individual parole board members around the country, some of them are very candid.  I remember there was one parole board member who said, ‘Look, I just have to be frank with you. If the victim is sitting right there in the room, it’s very hard afterwards to say to that person, ‘No, we’re not going to give you what you want.  We’re going to release the person.’”

The prisoner is not allowed to hear the victim’s statement, to correct any misinformation or explain circumstances. What’s more, Karen Brown writes that she and other members of the board don’t have to make sure claims are true.

“The hearsay rules do not apply to board considerations.  We often take into consideration recommendations, comments and concerns made by third parties.”  

Parole board meetings are not open to the public, and documents pertaining to parole are not subject to the Freedom of Information Act. Professor Reitz thinks that, too, is a big problem.

“It’s just a travesty that the proceedings are not more transparent.  A lot of parole boards use risk assessment instruments, but they won’t show you how that instrument was scored in a particular case. The prisoner never sees it.  The prisoner can’t challenge it, but the public can’t see it either, and this is how the length of a prison sentence is being decided.”

The bottom line, he adds, is that parole board members are only answerable to the man who appointed them, and some sizable salaries are at stake.  

Credit AP Photo/Steve Helber

 Part Three: Why the Parole Board Rarely Paroles

In a survey of 1,000 Virginians, 75% said the prison population is costing too much – nearly $28,000 per inmate per year.  Two-thirds thought the correctional system should reinstate parole, allowing early release for those inmates who are unlikely to commit new crimes.  Even people who considered themselves conservative supported that idea by a margin of two to one.  Still, Republicans in the legislature oppose parole, and the board empowered to release people who were convicted before parole was abolished frees only a few inmates each year. 

There are five people on Virginia’s parole board – all of them appointed by the governor.  The chairman, Karen Brown, has a law degree from George Mason and was a prosecutor for 16 years. The other four members are a former public defender, a city councilman and corrections department veteran, a high school teacher and former state legislator, and a Baptist minister. Kevin Reitz thinks we could do better.

“The original model of the parole board is that this would be a group of experts who really knew something about human behavior and changing human behavior.”

Reitz is a professor of law at the University of Minnesota and a national expert on parole.  He thinks board members – who make up to $125,000 a year -- should have very specific credentials, and once appointed, should be empowered to do their jobs without fear.  Instead, they can be fired by the governor for any reason.

“There is a feeling that if I let this person out today and, God forbid, he or she goes on to do something terrible, then that’s on me.  On the other hand, if I make the cautious decision and keep the person in, then there’s no risk to me.  They have a reasonably nice job, but if they make a mistake and let the wrong person out, that job could be gone tomorrow.”

The board uses a system for scoring people who are up for parole, and Reitz says one such tool has proven very effective here in Virginia.

“The sentencing commission has a risk assessment instrument that it gives to judges, and it has distilled the important risk factors for non-violent crimes down to a list of about seven or eight.  It’s a one-page form, and primarily it’s some information about the current offense, a lot of information about prior criminal history, age and gender.  It’s not a long list of factors that can at least sort people into rough categories.”

Those in the low risk category are diverted from prison to treatment programs or community service, and over a ten year period Reitz says not one has gotten into serious trouble again.  Age alone is a good predictor of how likely a person is to commit another crime, according to mental health professionals like Harvey Yoder, a counselor and clergyman  from Harrisonburg.

“I’m just about to do a blog with photos of 22 men from a Virginia prison who were incarcerated as teens from ages 13 to 19.  The difference even in just brain development of someone who is in his 50’s or 60’s and a teenager is vast.  The behavior that they exhibit at one stage in life doesn’t necessarily carry over into the rest of their life.”

Yoder says you can also predict who will go straight, in part, by looking at a person’s conduct behind bars.

“If any environment ever would test someone as to whether they’re going to go in a responsible direction or become ever more criminal, it would be a prison.  It’s the kind of environment that is far worse than the worst neighborhood that any of these men come from.”

But the board may not be giving much weight to any of these things.  There are about 1,000 inmates eligible for parole because they’re over the age of 55 and have served a certain amount of time.  Some have been model prisoners, but last year only three percent were freed.   

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 Part Four: Paring Virginia's Prison Population

Last year, Governor McAuliffe set up a commission to explore the possibility of reinstating parole – a system of early release for prisoners who follow the rules and are unlikely to commit new crimes.  After months of hard work, the group decided not to make a recommendation. Republicans in the legislature had already made it clear they would not support parole.  Instead, the commission issued a 50-page report on other ways to reduce its prison population.  

Joaquin Rodriguez came to this country from El Salvador when he was fifteen.  He was excited to be in a place that offered freedom and opportunity, but three years later his American dream turned into a nightmare, when he was arrested and charged with three counts of armed robbery in Fairfax and Arlington, possession of a firearm and malicious wounding. 

“They didn’t have no evidence, no witness, no fingerprints, no videos, so I thought they would never convict me of anything.”

What they did have was witnesses who identified him in a line-up.  The Innocence Project reports witness error is the single biggest cause of wrongful conviction.

“They took me to a line up, and I was the only person that fitted the descriptions that the victim gave to police and investigators.  I was the only 18-year-old kid, Hispanic, my height and everything.  Everybody else -- they were older men, they were police officers.”

The prosecutor tried to make a deal – one that would mean as little as ten years behind bars, but Rodriguez insisted he was innocent, and he had two lawyers to help him in court.

“Both of them had just finished law school.  They were committing lots of mistakes. Even the judge would tell them, ‘You can’t do this, you can’t do that.’  Already told you about this. They were very inexperienced, and you can’t expect much from them.”

Joaquin Rodriguez sentenced to 108 years behind bars for armed robbery.

In the end, he got a sentence of 108 years – in part because Virginia imposes longer terms each time someone is convicted of a violent crime.  Here’s former U.S. attorney Tim Heaphy:

“A residential burglary was classified by the general assembly as a violent crime.  If you had a burglary conviction, then that triggers these enhancement of sentences for subsequent offenses.”

Virginia also has a “three strikes” law – intended to discourage criminals from committing new crimes once released from prison.  Under that law, someone who’s convicted of three felonies is ineligible for parole.  Experts say “three strikes” laws have not prevented people from committing new crimes, but they have increased prison populations and costs dramatically, and they’re unevenly applied.  Rodriguez, for example, had never served time in prison before being locked up for all three felonies, and he was actually considered for parole several times before being told he was not eligible. Now, he has little hope of release.

“I’m pretty much growing old. I send clemency petitions to the governor every year, but I’m still here.”

The commission set up to consider reinstating parole was concerned about people like Rodriguez and has called on the state to review all cases involving inmates convicted of three felonies.  The panel also recommended getting rid of mandatory minimum sentences, so judges have more flexibility in assessing each case.  It called for sentence reductions for drug offenders who take part in treatment programs and an expansion of special drug courts which sentence addicts not to prison but to rehab.  Again, former federal prosecutor Tim Heaphy.

“To get a drug court it needs general assembly or supreme court approval, and believe it or not, even in 2016, there are legislators who don’t think drug courts work.  That, to me, is crazy.  Drug courts definitely work. They help each other.  There’s a peer dynamic that sets in, and the benefit is that if they’re serious about curing their addiction, then the case goes away.”

Such programs are expensive, but Heaphy and others argue that Virginia could save a lot of money by taking people out of costly prisons and putting them in community-based programs. 

Credit Stock Photo/pow420

Conclusion: Five Years in Prison for Pot

Lawmakers who oppose liberalizing Virginia’s marijuana laws claim no one goes to jail for possessing small amounts of the drug, but a second offense or selling pot does put people in prison.  With four states now allowing businesses to profit from the sale of marijuana – and taxing those transactions, some Virginians now question the wisdom of spending nearly $28,000 a year to lock people up for using or even selling marijuana. 

It was 2012, just before Christmas, when Donna Mcgill got the call.  That’s not her real name. She’s trying to keep a low profile for the sake of her son.  After graduating with honors from college, he moved to Richmond to be near friends and to start a computer programming job.  Soon, he was offered a business opportunity.  By serving as the Virginia connection for marijuana dealers in California, he could make a staggering amount of money. 

“They would ship marijuana in big pods, like moving pods or storage pods.  It was quick money.  There was no violence, no guns, and apparently he thought there was very little risk, and he thought of marijuana as a small time crime,”

But in Virginia, selling marijuana is classified as a violent felony, and the state has mandatory minimum sentences.  When McGill’s son was caught, he was sent to prison for five years.

“Even though he had no previous record, it was a non-violent first time offense, he was put in a high security unit where there was screaming all the time, and he was locked up 23/7.  He had an hour to take a shower or try to make a phone call, but there was only visitation through glass, and he did not see the light of day for 3 months.  I think he shared a cell with two murderers and it was a very scary time.”

His mother begged for a phone call a day, but in Virginia prisons that’s not so easy.

“There are very few phones, and they don’t often work well, and there’s a lot of people trying to use those few phones.”

After three months, he was sent to another prison for evaluation – to figure out if he should be in a low or high security setting.  McGill says the conditions there were even worse.

“It was in the summer, and they had no air conditioning.  The temperatures were up to 115 at times.”

Her son reported men were passing out from the heat, so McGill called the warden.  He said nothing could be done – and then, her son got a warning.

“A couple of officers there called him out one day and pretty much told him, we don’t want to hear from anybody anymore. Once you’re inside the system, if you oppose it in any way, then there’s going to be retribution, and it always comes down to your word against theirs.”

McGill and her son’s dad tried to get him transferred back to their state, but even that proved difficult.

“It took us 15 months to get Virginia to do the paperwork.  It also cost $4,200 to transfer him.”

She flew to Virginia before the transfer, hoping to have a visit, but when she arrived at the rural prison where her son been locked up, officials said he was gone.

“They said he was not there, and I asked where he was, and they said they did not know.”

Eventually, the son called from another Virginia prison where he was held in solidary confinement for a week.

“He said he had nothing in there at all.  He said the only way he knew if it was day or night is they would bring him either breakfast, lunch or dinner, and he did not have a book or a pencil or a pen or a piece of paper or anything.”

She again phoned the department of corrections to see why her son was in solitary.

“I asked if something happened, and they said no, it’s the normal course of events to put him in solitary before he gets transferred for his own safety.”

McGill’s son is now in a correctional center in his home state, where he will serve out his sentence.

“He’s in a minimum security prison, and the conditions are a thousand times better, and I want to add one thing.  He almost was put in a medium security prison, because Virginia could not find the arrest information.”

In this new place, he’s had time to crunch the numbers – to figure out when he will actually be released.  The state offers 4.5 days of good time for each 30 in prison.  Donna’s son came up with a number that had him getting out a month before Virginia would allow his release.

So one more time, she got on the phone and talked with a mid-level official.

“I spoke to court and legal a couple of times and they said the system was very difficult, and I probably couldn’t understand it.

And no wonder.  The policy is 14 pages long!  She went higher in the system and found someone willing to look at the problem.

“And he made arrangements to call me back on January 6 at 9 a.m.  He never did call me back, and I’ve never been able to speak with him since, so it’s a system that answers to no one.”

Ironically, McGill’s son is now incarcerated in a state that may legalize marijuana later this year, but because Virginia dictates when he’ll be released, he may serve six months in prison for something that’s perfectly legal outside.

Former U.S. Attorney Tim Heaphy says Virginia could be spending a lot less on prisons if it put drug offenders in community based programs, stopped classifying every drug deal as a violent crime, and took another look at laws involving marijuana.

“We are still spending, in Virginia, a lot of time enforcing marijuana laws…I think what you’re seeing in Oregon and Colorado and Washington and Washington, D.C. are laboratories, and if the sky doesn’t fall in those communities, and we don’t see attendant crime that goes with increasing availability of marijuana, then I think there’s going to be real pressure on Congress to change the federal law.

And the federal law changes, he says, states like Virginia will likely follow suit.

The man who heads Virginia’s Department of Corrections declined to be interviewed for this series.  A spokesperson for the department was skeptical of McGill’s claims, explained that prisoners’ families are charged for transfers so taxpayers don’t pay that bill, noted a private company maintains the phones and said it was the prisoner’s responsibility to let family members know their whereabouts. 

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