Life After Murder

Even before my initial news story on the cost of California’s prison system aired, I had already pitched another: how a group of San Quentin prisoners were trying to become the first inmates in the nation certified as addiction counselors. My editor at National Public Radio was interested, but on the condition that at least one of the inmates passed the exam. Otherwise I wouldn’t have a story.

Three weeks after my first trip inside “Q” (as they sometimes call San Quentin), I’m back inside the prison’s Protestant chapel, watching as nine of the eleven inmates who took the exam receive the paperwork certifying their status as addiction counselors, a rare skill marketable outside of prison, should they ever get parole—a subject that is clearly on at least one prisoner’s mind.

The process of imprisonment and parole is fairly simple . . . right? A person is sent to prison for committing a crime. When the prisoner has reformed and is ready to get out, he appears before officials on a parole board authorized to determine whether he is rehabilitated, reformed, no longer a threat to public safety, and ready to be released back into society.

Looking at his face, up close, I notice he doesn’t really look happy. He looks miserable. And in that split second, the anxiety and strain tugging at his mouth and eyes all makes sense. Of course. After years in prison, Bryan doesn’t know if he’s nearly out, or not out at all. I wonder: How and why does the governor take parole dates away from prisoners? Does he know something the parole board doesn’t?

The other men gather around as Bryan himself fills me in on the details. People convicted of murder who are serving a sentence of life with the possibility of parole automatically go before the parole board after they’ve served about 75 percent to 80 percent of their sentence. If the parole board finds them suitable for parole and no longer a threat to public safety, the lifer has to wait five more months or 150 days for the governor to decide whether to let him out of prison on parole. This is Bryan’s situation: “I was found suitable on March 15, so I’ll find out on August 12th, my 150th day. If the governor says okay, then I’m going home.”

Lieutenant Eric Messick, the prison’s press officer, is standing halfway down the aisle, hands on hips. It’s time for me to leave. Realizing their photo opportunity is passing, the other men in the group who have not had their Kodak moment quickly form a half circle, encouraging me to click: “Take the photo! Please.”

In prison movies, the plot often turns on a last-minute phone call from the governor staying the execution of a murderer sentenced to die. But there are no movies made about governors withdrawing parole. Back at my office, I dig into why Bryan Smith’s parole hangs on word from the governor.

The fact is, it’s no simple matter to get parole. First, a prisoner sentenced to life with the possibility of parole has to serve at least 80 percent of his sentence: twelve years of the standard fifteen-to-life sentence for second-degree murder, or twenty of the twenty-five-to-life for first-degree. When the prisoner reaches his minimum eligible parole date, he automatically sits before a panel of two or three of the twelve commissioners on the state’s Adult Board of Parole Hearings, many of whom are former corrections officers, police officers, or district attorneys. If the commissioners decide the inmate is suitable for parole, the prisoner is told right there and then he is suitable. Then his official file is sent to Sacramento. That’s when the 150-day countdown begins.

The California Department of Corrections and Rehabilitation then has four months or 120 days to review the prisoner’s file. For a lifer to get past the CDCR’s review, he must have a job and a safe home waiting for him on the outside. To verify what the inmate has promised, the CDCR sends parole officers to check references, to be sure there aren’t any inconsistencies. If things don’t add up, the CDCR can rescind the inmate’s parole. If the inmate makes it past the CDCR’s review, only then is his file sent to the governor, who has thirty more days to decide whether to honor the parole board’s decision or to reverse it. Proposition 89 was the referendum voters passed back in 1988 that gave the governor this power.

That’s why Bryan Smith is waiting for the governor’s word: it usually comes on the 150th day. If the governor reverses the parole, the lifer has to wait until his next scheduled parole hearing—in seven more months—to try again. And there is no guarantee that if a lifer has been found suitable once he’ll ever be found suitable again.

The more I learn, the more I realize I don’t know. Do all prisoners have to go before commissioners on the Board of Parole Hearings to be found suitable for freedom before getting out of prison? Do all prisoners need the governor’s final approval?

The first thing I piece together is something I’m pretty sure I already knew: not everyone convicted of a crime goes to prison. If a person is found guilty of a misdemeanor, the maximum sentence is a fine and up to one year in the county jail. But if a person is convicted of a felony, he is sentenced to a state prison to do time. That’s where things get a little confusing.

Before 1977 all people convicted of felonies in California faced three kinds of sentence: the “death sentence,” “life in prison without the possibility of parole,” and for everyone else, an “indeterminate life sentence—or life with the possibility of parole.” That’s right: prior to 1977 everyone who committed a felony in California—whether robbery, larceny, assault, rape, or murder—got some kind of life sentence, whether it was six months to life, twenty-five years to life, or the rest of his life. Every prisoner who got life with the possibility of parole had to go before a parole board where he had to prove he was rehabilitated and was ready to reenter society. If the board found the prisoner suitable for parole, he was back out in society in two or three days. If parole was denied, the prisoner had to wait and try again at his next annual hearing.

No matter how many years the inmate had served—say, ten years on a five-to-life sentence—if the board found the prisoner unreformed and still a danger to society, the prisoner would go back to his cell and wait.

In some respects, it was a troubling system—I can imagine many circumstances in which an indefinite sentence might violate the Constitution’s provision against cruel and unusual punishment—but one that assured that all prisoners released back into society had made some kind of effort to rehabilitate themselves and that all prisons had given them some sort of chance to do so through programs and counseling. Then, in 1977, the purpose of imprisonment and the process of releasing inmates from state prisons was fundamentally altered.

In that year Jerry Brown was serving the first of his nonconsecutive terms. In what he has since referred to as an “abysmal failure,” Brown attempted to get tough on crime by abolishing indeterminate sentencing for all crimes but murder and replacing it with “determinate sentencing.”

Determinate sentencing policy left it up to judges to impose exact or “determined” prison sentences from a selection of “low-term,” “mid-term,” and “high-term” choices. Beginning in 1977 prisoners given determinate sentences—for all felonies other than murder, including rape, robbery, child molestation, and drug dealing—would no longer have to appear before a parole board to prove rehabilitation as a condition for getting out of prison. After an inmate had served his determinate sentence, such as three years for a rape and sixteen months for incest, he would be taken outside the prison gate, handed $200 in “gate money,” and released, no questions asked. No longer would there exist the slightest expectation that he had reformed while he was in prison. It was the beginning of the popular do-the-crime, do-the-time philosophy of incarceration.

The ripple effect of Governor Brown’s determinate sentencing reform was almost immediate. Following the governor’s lead and looking for ways to cut the growing cost of prison reform, state lawmakers enacted legislation clarifying that the purpose of incarceration in California was punishment, not rehabilitation, and that it was not society’s obligation to reform a criminal. This eliminated the need to continue funding the rehabilitation and counseling programs that had been haphazardly offered behind prison walls. By 1980 the state legislature had all but eliminated the words “rehabilitation” and “treatment” from the state penal code.

But in 1977, when the determinate sentencing law was enacted, some 2,600 prisoners were still serving indeterminate life sentences in state prisons for murder. Now that education and counseling programs were being cut from the state’s prisons, how would these prisoners get access to the classes and programs they needed to document their rehabilitation efforts and achievements when they appeared before the parole board?

Society’s attitudes toward prisoners made parole even harder to achieve. By the mid-’80s, Californians began seeing and feeling the effect of the determinate sentencing law. The recidivism rate nearly doubled from a forty-year average of about 40 percent, to a new high of nearly 75 percent. Increasingly, bold newspaper headlines reported the arrest of yet another parolee for a violent crime. Politicians responded to the headlines with renewed cries to get tough on crime and tougher on prisoners, ignoring the statistics indicating that growing recidivism had been caused by “tough on crime” laws in the first place. Meanwhile, a political and cultural shift was about to change the system anew.

Everyone who was paying any attention to politics or the television set in the late ’80s remembers the name Willie Horton. A convicted murderer sentenced to life without the possibility of parole, Horton was released from prison under Massachusetts’s weekend furlough program for prisoners. Outside the walls of the Concord Correctional Facility, Horton fled to Maryland, where nearly a year later he raped a woman and viciously assaulted her fiancé. I know what Horton did is what most people expect from paroled prisoners. But Horton wasn’t supposed to get out. He was serving a life sentence without the possibility of parole.

The fault couldn’t be laid entirely at Governor Michael Dukakis’s feet. The state’s furlough program was signed into law in 1972 by Republican governor Francis Sargent. However, under the law as it was first written, people convicted of first-degree murder were excluded from the program. Four years later, in 1976, the state supreme court ruled that the right to the furlough program extended to first-degree murderers as well. When the legislature tried to get a bill passed that would have limited the program, Governor Dukakis vetoed the bill, allowing the supreme court’s ruling to stand—unwittingly setting the stage for Horton’s crime.

Oddly enough, governors all over America in those years were engaged in very similar programs. So I learned from Jonathan Simon, Adrian A. Kragen professor of law and a criminologist at the University of California at Berkeley. As governor of California, Ronald Reagan had overseen just such a furlough program. As Simon told me, “The permanent parole of prisoners was a normal course of business for state criminal justice systems all over America.” Yet Dukakis was the one who paid the price along with every governor thereafter.

The elder George Bush’s astute 1988 presidential campaign staff was charged with beefing up the reputation of the slightly effete vice president in his race against Dukakis. Thanks to an infamous commercial they produced, Horton became a household name.

This phenomenon collided with a series of social and economic trends in a perfect storm of sorts. According to Simon, “I believe, and other people who have studied the history of mass incarceration believe, that the emergence of seemingly strikingly high homicide rates in the 1960s and ’70s at the height of American affluence, and at a time when Americans were being encouraged to view sort of privatized personal security as the top goal, the American Dream as it were, created a very peculiar commitment to a War on Crime.”

In other words, the twentieth-century rise of private property ownership and the middle class made America a more prosperous nation, but also a more paranoid one. More of us than ever had possessions and dignified livelihoods, and therefore, more of us had something to lose from crime. We also had less compassion for Americans who committed crimes.

With the advent of the Horton ad campaign, the calculus of parole was forever changed. “After the Willie Horton controversy of’88, every parole decision made by a state about its murderers became a potential political liability with a governor,” maintains Simon. Wanting to appear tough on crime, then–California governor George Deukmejian and a group of allied politicians supported Proposition 89, which brought the fate of prisoners closer to the political whims and vulnerabilities of the governorship and thus the control of the electorate.

The citizens of California voted their fear in 1988. By a 55 percent majority they passed Prop 89. The legislative constitutional amendment gave the governor the authority to affirm, modify, or reverse any decision made by the Board of Parole Hearings (then known as the Board of Prison Terms) regarding the parole of a person sentenced to an indeterminate life sentence for murder. Governors in Oklahoma and Maryland began implementing similar laws.

The original authors of the proposition intended it as a final check or veto to be used sparingly—evident in the wording of the referendum, which stated that the governor would assess prisoners’ eligibility for parole “on the basis of the same factors which the parole authority is required to consider.” But that’s not the way governors have used the proposition.

Parole suddenly became a rarity. Governor Deukmejian paroled only about 5 percent of the eligible lifers—and that’s a high number compared to today. Deukmejian’s successor, Pete Wilson, allowed the parole board’s decision to stand for far fewer inmates—closer to 1 percent—and despite the widely noted decline in homicide that occurred in California and across America in the mid- to late 1990s, the next governor, Gray Davis, paroled virtually no one. (Compare this with the number paroled during Jerry Brown’s first term in the 1970s: nearly 20 percent.)

Parole decisions have always been under the governor’s power, since the governor is the one who appoints the seventeen commissioners who ultimately sit on the state’s Board of Parole Hearings. But once governors felt the political spotlight of the board’s decision, most prisoners incarcerated with the hope of parole lost their chance of ever seeing the light of a free day again.

By law the governor is supposed to have 150 days to decide whether to reverse the board’s decision about Bryan’s parole. That decision is supposed to arrive in the prison by fax no later than five p.m. on that 150th day. But there’s no real oversight keeping the governor on schedule, and by day 155, a Friday in August, no fax has arrived and nobody at San Quentin has any idea whether Bryan will be released.

My editors at NPR can’t run the story until we know whether Bryan is getting out. Good thing I already recorded two endings: one reports that he is getting out of San Quentin; the other, that he is not. All the producers in Washington have to do is mix in the right one—and all I can do is wait.

A slight giggle escapes over the receiver. “Take my shoes off and then take my socks off and walk on the carpet. Then I want to go to the store and buy all different kinds of salsa. Here at the prison they have one kind of chips and one kind of salsa. I want to buy all kinds of salsa!”

“What happens now?” I ask him. It occurs to me that I have no idea when I’ll have another chance to speak with him. While he’s an inmate, he is a captive subject. After he gets out, he can choose whether to continue telling me his story.

“I’m not sure,” he says, struggling to stay focused amid the euphoria swirling around him. “I think I’m going home tomorrow or the next day, but you never know for sure.”

I call my producer in DC. “Go with the first ending. The governor has declined to review the board’s recommendation. After twenty-four years in prison, Bryan Smith is going home.”

Governor Arnold Schwarzenegger didn’t reverse Bryan’s parole. The system works! We don’t need to worry about Proposition 89. Apparently Schwarzenegger is willing to be a little more reasonable than his predecessors. Right?

I’m dying to follow Bryan, but I don’t get the opportunity. First of all, I’m not waiting at the gate when he gets released. Still a little new as a prison reporter, I haven’t quite realized just how much journalistic doggedness it takes to get access to the real-time release of a lifer. It’s hard to explain to free people how closed off from the outside world prisoners actually are. Prisons are a part of our open, democratic society, but just as prisoners lose many constitutional protections when they commit their crimes, prisons limit the ability of America’s citizens to really know what is happening behind those walls.

Additionally, Bryan doesn’t seem too eager to have a journalist around as he reunites with his family. That’s understandable. He’d have to be almost a martyr to let some reporter trumpet his status as a paroled murderer just as he’s about to rebuild his free life.

I understand Bryan’s hesitation, especially after I talk with criminal defense attorney Laurie Saunders, who represents some of San Quentin’s lifers at their parole hearings. “It would be really a lot to ask somebody in that position . . . to make themselves a guinea pig, to make themselves the first person who would come out and say, ‘This is who I am, this is what I’ve accomplished, let me start making the effort to change your mind.’ Because what it would mean is they would suffer,” she says. “Their ability to melt back into society and become normal or viewed as normal would be destroyed because nobody would let them. Who’s going to ask them to make that sacrifice?”

Not me. Not now, at least. But that’s when it hits me. The reason I’ve never met a murderer before is that from the moment they are arrested until, if ever, they are released from prison, they are locked-away invisible. And if, as Saunders says, the only safe thing a person paroled on a murder conviction can do is fade as seamlessly and anonymously as possible back into the fabric of American society, it begs the question: Why, after decades in jail, would he consent to having his life and crime made public?

I hold out hope that once Bryan has had a chance to settle into his new life, he’ll give me a call. I am terribly curious about his first hours and days of freedom. He hasn’t taken a casual free walk or private shower without an armed guard watching since 1983, back when Madonna released her first album and Flashdance was a new hit movie. Instead of witnessing twenty-four years of slow, seismic cultural spins and shifts, Bryan Smith is waking from a long, unplanned night of incarceration. I’ll simply have to wait. After all, he just got out of prison.

In the meantime, I’m going to hold out hope that someday a prisoner will make the sacrifice, to go public with his post-murder story so others can understand. I want to be around when and if that ever happens.