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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 inmates 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 inmates 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 an inmate'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."
- Bert Johnson
- Attorney Kate Brosgart said she has witnessed parole commissioners chastise prisoners who have been victims behind bars.
Advocates, however, said a number of reforms could help vulnerable inmates 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 inmates, 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 inmates 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 inmates and lack in-depth knowledge of their progress or ongoing mental health treatment. Additionally, psychiatrists may determine an inmate 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, inmates 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 inmates from parole denials based on shoddy assessments. For starters, the state will implement an appeals process so that inmates 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 last fall, extended the age of youth offender hearings to those who had committed crimes when they were under 23 years old.