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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 of "Trapped" (see last week's feature, "Cruel and Indefinite Punishment"), inmates 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. Inmates 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 inmates 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, inmates 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.
- Bert Johnson
- Keith Wattley, founder of UnCommon Law.
Not long ago, California's prisons were so overcrowded that inmates lacked access to basic, adequate medical and mental health care — in violation of the Eighth Amendment of the US Constitution, which prohibits cruel and unusual punishment. That was the conclusion of the US Supreme Court in 2011's landmark Brown v. Plata decision, which affirmed a previous federal court order requiring the California Department of Corrections and Rehabilitation (CDCR) to reduce its prison population to 137.5 percent of design capacity — at the time equating to a reduction of roughly 33,000 inmates.
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 inmates were held for long periods in phone booth-size, toiletless cages.
California has since reached the court-mandated reduction in its inmate population, and as of December 2015, the state's prisons were at 136 percent capacity. (The facilities have about 30,000 more inmates than they were built to hold.) 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 Keith Wattley, founder and director of UnCommon Law, an Oakland-based nonprofit that represents lifers in parole hearings. 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 has reversed nearly 20 percent of 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 inmates in California prisons has nearly doubled since 2000, according to a recent analysis by Stanford Law School. In 2014, more than 37,000 inmates 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.