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Trapped Part One: Cruel and Indefinite Punishment

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.



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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 — an inmate 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."

Keith Wattley is the founder and director of UnCommon Law, an Oakland nonprofit that represents lifers. - BERT JOHNSON
  • Bert Johnson
  • Keith Wattley is the founder and director of UnCommon Law, an Oakland nonprofit that represents lifers.

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 inmates. 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 inmates. 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 inmates 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 inmates, 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 an inmate'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 inside 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 (inmates generally become eligible for parole before finishing the full term of their sentence, usually because of good behavior).

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