Trapped Part Two: The Vicious Cycle of Trauma 

California prisons fail to help abuse victims and the mentally ill rehabilitate behind bars — and refuse to grant them parole so they can turn their lives around with loved ones on the outside.

Keith Wattley (right), founder of UnCommon Law, said young lifers often enter prison with the assumption that they'll never go home again.

Bert Johnson

Keith Wattley (right), founder of UnCommon Law, said young lifers often enter prison with the assumption that they'll never go home again.

Michael Flemming fears he will be forgotten. During a phone interview last month from San Quentin State Prison, he said one of the hardest parts of serving an indefinite prison sentence is coming to terms with the reality that he might not live to experience freedom again. "When you are in prison as long as I am, being remembered for something good in my life becomes very important," said the soft-spoken, 53-year-old inmate, his voice shaking. "I have an intense fear of dying while still in prison."

Not long after of our conversation began, Flemming admitted he had anxiety about talking to me. "Right now, I'm incredibly nervous," he said. He told me he was learning how to speak up for himself more and had recently become a lot better at talking about dark memories or sharing his feelings in various prison support groups. "I speak in front of large crowds," he said. "I'm practicing and getting more confident."

Flemming knows that if he can't talk openly about himself and articulate what happened to him when he was young, he could end up dying behind bars. That's because in order to make it out of prison, he will have to survive an hours-long interrogation that seems designed to break him down.

Flemming has spent 32 years behind bars for killing a police officer in a drunken-driving crash on October 19, 1983 in Mojave, a small town in Kern County, two hours north of Los Angeles. According to his records, Flemming, then 21 years old and a severe alcoholic, robbed a supermarket while armed and extremely intoxicated. As he fled the scene in a stolen truck, he crashed head-on into an officer responding to the robbery. Kern County Sheriff's Office Deputy Michael Bentley, 33, did not survive.

Prosecutors subsequently charged Flemming with first-degree murder and a judge sentenced him to 25 years to life — meaning a life sentence with the possibility of parole. He officially became eligible for parole in 1999 (prisoners with good behavior generally become eligible for early release), but he has not been able to convince the California Board of Parole Hearings that he is ready to come home. The parole board is made up of commissioners who are appointed by the governor; most have extensive backgrounds in law enforcement. In order to receive a parole grant, Flemming has to demonstrate that he is no longer a danger to society, is genuinely remorseful, and has a deep understanding of why he committed the offense.

But every time he tries to explain how he ended up crashing his car so many years ago, his answers never come close to satisfying the commissioners or the Kern County District Attorney's Office, which has vigorously argued for his continued incarceration. He told me that he became particularly incapable of addressing the parole board when, early into his hearing on September 3, 2014, Commissioner Marisela Montes confronted him about one of the worst traumas of his life.

Flemming, Montes noted, had reported during a prison psychological evaluation that two men had raped him when he was fifteen years old. According to the board's official transcript of the hearing, Montes' first question about the abuse was: "Why'd you wait twenty years to tell anybody about that?"

Flemming stumbled, trying to explain why he finally decided to tell his wife. "I just happened to blurt it out over the phone," he said. "I had not even told my mother and father."

"So what were the names of the people who molested you?" Montes continued.

"I would rather not say," he replied. "One — one's dead and the other one has a significant family back home."

"Are these people real?" Montes further questioned.

"Yes, ma'am," Flemming replied.

After Flemming explained that the men, who were friends of his family, had become physically violent and sexually assaulted him, Montes asked him once again why he didn't report it.

"I, I never told anybody until it just became so, an unbearing [sic] mass of, of, of pain. I guess the best way I could describe it is just a mass of blackness inside me," he said.

A third time, she asked him how he managed to keep the rape a secret from his parents considering the anxiety, depression, and nightmares it caused him.

"I mean, I was a kid. I had, I assumed that it was my, in some way, my fault," he replied.

click to enlarge Brett (left) and Michael Flemming. - COURTESY OF BRETT FLEMMING
  • Courtesy of Brett Flemming
  • Brett (left) and Michael Flemming.

Flemming then repeatedly emphasized that he takes full responsibility for the fatal crash, saying, "I committed a reckless and horrible act. ... There is no legitimate excuse for the taking of a human life. ... I was a despicable, reckless human being." But he also tried to explain that the childhood sexual assault contributed to his alcohol abuse as a teenager, which was clearly a central factor in the crash that day.

Montes didn't buy it. At the end of the hearing, she announced that the board would once again deny Flemming parole — for the sixth time — because he is still unable to articulate the underlying reasons why he killed Deputy Bentley. Referencing his testimony about the rape, she added: "A lot of these factors that you point to don't really get to the heart of the issue. They're external factors. They're things that other people did to you — almost describing yourself as a victim."

Flemming, speaking to me by phone more than a year later, said he did his best during the hearing to maintain his composure, but fell apart when Montes continued to badger him about being molested. "For her to even imply I'm not telling the truth sent me spiraling out of control into a downward depression right there in [front of] the board," he said.

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.

click to enlarge Keith Wattley, founder of UnCommon Law. - BERT JOHNSON
  • 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.

"There are thousands [of inmates] who need more than what they are getting now in terms of ... therapy," said Steve Fama, staff attorney with the Berkeley-based Prison Law Office, which has represented mentally ill prisoners in numerous legal cases. Fama said many inmates struggle with a range of mental health problems that may not be considered serious enough to get them consistent counseling. "They aren't substantially impaired ... but they still need help," he said.

In many ways, the prisons don't prioritize helping inmates overcome their struggles — whether it's mental illness or trauma, abuse, or violence they experienced prior to their incarceration. On the contrary, lifers face a system that, advocates say, seems largely dedicated to their continued incarceration, despite numerous laws and policies that have the opposite intent. It's a model of punishment that sets some lifers on a path of never-ending imprisonment that begins on Day One of their sentence.


click to enlarge Troy Williams said he only found peace in prison during the few hours he slept each night. - BERT JOHNSON
  • Bert Johnson
  • Troy Williams said he only found peace in prison during the few hours he slept each night.

For years, Troy Williams only found peace in prison during the few hours he slept each night. Growing up immersed in gang violence in Los Angeles County, Williams, who is Black, encountered the same kinds of threats, violent conflicts, and racial politics behind bars that he had experienced on the outside during his youth and early twenties. In 1994, at age 27, Williams was the driver in a computer store robbery that turned violent, landing him a sentence of seven years to life for a "kidnap for robbery" conviction, according to his records. He said that from the start of his incarceration, it felt nearly impossible to avoid disputes and gang-related activities within the close confines of prison.

For people who have little firsthand knowledge of prison life, it can be difficult to understand how uniquely challenging it is to simply stay safe and out of trouble behind bars. "Imagine a bunch of peer pressure on steroids," said Williams, who is now 49, in a recent interview. "You're in a place where, when something happens on the yard, you don't get to say, 'I'm not involved.'"

Williams said that at some points during his imprisonment, the violence was so bad that he dreaded leaving his cell every morning and only found solace when prisoners slept at night. "You're in the middle of hell trying to be an angel."

For many lifers like Williams — who was released in October 2014, eleven years after he became eligible for parole and twenty years after he was first incarcerated — the idea of any sort of "rehabilitation" seems entirely out of reach at the start of a life sentence.

Wattley, director of UnCommon Law, explained how lifers in their late teens or twenties often enter prison with the assumption that they'll never go home again. Behind bars, they quickly encounter gang-related violence and extreme pressure to be involved in more criminal activity. Some are forced to act tough to avoid being victimized. "They are expected to engage in violence, drug sales, manufacturing alcohol, making and holding weapons, participating in riots," Wattley said. "They're caught up in that lifestyle. And there's not much time or opportunity or incentive to participate in positive programs." Some inmates, he said, are shunned and ostracized by fellow prisoners if they spend too much time in the library or seek mental health counseling, for example.

Judy Bell, a former lifer and client of UnCommon Law, who spent 26 years in prison, said in an interview that when she was first incarcerated at 22, she "didn't know how to cope and deal with things." She explained how she was surrounded by chaos — drugs, violence, correctional officers having sex with inmates. "There was just so much corruptness," she said, adding, "if someone tried to hurt me ... I would get in a fight."

In the early years of their sentences, many young lifers caught up in prison violence get disciplinary marks, are victimized, or both — and some may end up in solitary confinement as a result. Those situations are worse for mentally ill inmates, who are significantly more likely to be injured in prison fights and rack up rule violations, according to a Stanford Law School analysis of national data.

At the same time, prisoners convicted of serious crimes, especially those who are disciplined further behind bars, often wind up confined to the highest levels of security — in prisons and housing units that have the most restrictive environments and stringent rules — and thus tend to have the fewest opportunities to access programming, services, and employment. This makes it even harder for these inmates to get the help they need to change and to complete various programs that would eventually make them promising candidates for parole.

Paradoxically, prisoners who need the most help sometimes receive the least support. The disparity in programs can leave particularly vulnerable inmates at a serious disadvantage in preparing for parole, said Kate Brosgart, a state-appointed attorney who represents lifers at their parole hearings. "If the state is really interested in rehabilitation, the state should be making programs available," she said.

Bill Sessa, CDCR spokesperson, noted that California shifted the criteria for security classification in 2008 in an effort to reward inmates who have demonstrated good behavior and move them to lower-security facilities with more programs. That change enabled the corrections department to begin transitioning roughly 17,000 inmates to less restrictive housing, where there are more rehab programs, according to a report provided by Sessa.

But there are ongoing challenges with access. For example, a 2014 report from a special master assigned to review the adequacy of CDCR's mental health care found that in one institution, patients on "maximum custody status" received minimal programming — even when there was no individual clinical reason to justify this treatment.

The lack of programs can hurt lifers in direct and indirect ways. In the 2014 parole hearing involving Flemming, the inmate convicted in the drunken-driving crash, Commissioner Montes criticized him for failing to consistently participate in Alcoholics Anonymous. But as he explained during the hearing and later to me in an interview, when Flemming was incarcerated at Chuckawalla Valley State Prison in Southern California, he was stuck for years on a waiting list for AA, because there were no open spots for the classes.

Even if inmates eventually get access to high-quality programs, the reality for some lifers is that there's just not enough individualized support to undo the psychological damage from spending years isolated in restrictive environments with total uncertainty about the future. Bell, the former UnCommon Law client, told me that the parole process itself took a major toll on her mental health. She endured both repeated denials and governor reversals before she was finally released in 2013 — and is still dealing with the emotional impacts of those rejections today. "Talk about PTSD," said Bell, who is now 51. "The mental anguish of it was a lot for me. ... I thought I was going to lose my mind."

In an interview at an Oakland coffee shop, Williams began to cry when recalling the extreme isolation he faced during periods of his imprisonment. It was particularly bad when he cut off contact with the people behind bars who might get him into trouble. "You break away from everybody and you walk alone," he said. "It is a lonely road, because you don't have friends. ... I remember in a ten-year period, there was maybe five people I could have a real conversation with."

Having few meaningful connections with people made Williams feel less human as the years went by, he said. And as his incarceration continued, it became clear to him that prison was not helping prepare him for life on the outside — and that if he wanted to get a parole grant, he would have to do the work on his own.


Despite the many factors that make prisons fundamentally poor settings for rehabilitation, lifers find ways to turn themselves around. As they get older, they may find religion, spirituality, art, work trades, leadership positions, hobbies, productive relationships, and other positive forces that help them become solid candidates for release. Convincing parole commissioners that they're ready, however, is a different battle — one that can seem divorced from their actual rehabilitation. This is especially true when it comes to an inmate's ability to articulate his or her progress and stay strong in the face of painful questions.

click to enlarge Michael Tyler said it was clear that his presentation and word choice at the parole board were critical to him being released. - BERT JOHNSON
  • Bert Johnson
  • Michael Tyler said it was clear that his presentation and word choice at the parole board were critical to him being released.

Michael Tyler, a recently released lifer and former client of UnCommon Law, said it seemed clear that his presentation and word choice at the board were critical. "It's a friggin' stressful event," he said of the hearings. "You've got all this time you just did, and you've got this opportunity to face so much more time. ... I don't think anywhere in life do you feel that type of stress. It was really difficult to be calm and say the things that you need to say."

Tyler, now 36, is articulate and thoughtful — a fact that became obvious to me when I first saw him give a speech about parole at an UnCommon Law event at UC Berkeley. Other lifers, however, simply don't have the cognitive abilities, public-speaking skills, or vocabulary necessary to properly advocate for themselves. "The guys could be ready as anybody, but they might have a bad delivery, and then they don't get found suitable," Tyler explained.

Attorneys and advocates who have supported lifers in hearings shared with me a range of stories in which they felt commissioners were cruel in their questioning of vulnerable prisoners and then unfairly harsh in their subsequent denials. I also reviewed case transcripts for this story that included offensive interrogations by parole board commissioners about sexual trauma, insensitive remarks about the deaths of an inmate's loved ones, baseless determinations about a prisoner's psychological state, and unjust criticisms of a lifer's inability to describe remorse.

One female lifer in California — who was convicted of murder in the death of her husband — faced difficult questions about the prolonged abuse she said she experienced in her marriage. In a 2012 hearing, parole commissioner Cynthia Fritz asked the woman, then seventy years old, why she was assaulted by her husband. "Why did your husband rape and sodomize you?" Fritz asked at one point. The inmate responded: "Because that's what he wanted."

The commissioner also questioned the honesty of the inmate's statements about her feelings for her husband after the inmate explained that she resented him for the abuse, but also loved him at the time. In announcing the denial of parole, Fritz expressed doubt about the woman's recollections: "With so many horrific things going on in your life, throughout your life, it's hard to believe that you would get angry and then forget about it." (The Express has chosen not to name the female lifer in this case because we have been unable to reach her or her attorney.)

In another murder case involving a transgender lifer incarcerated at a California women's prison, a prosecutor used the individual's gender identity to advocate for a parole denial. According to an official transcript of the 2015 hearing, Los Angeles County Deputy District Attorney Joseph Shidler conceded that the inmate, Victoria Smith, posed a "low risk of violence," based on an in-prison psychiatric evaluation. But Shidler argued that Smith, who was receiving hormone treatments at the time, was still a danger because of the "stressor" of being transgender. "Going through this transgender process leaves me with some questions as just how the inmate is going to be affording the remainder of [the hormone] treatment if released," Shidler said. "And I want to emphasize, which the psychologist also mentioned, that ... one of the stressors of [the inmate's] life on the outside will be a transgender [sic]. The inmate is not ready for parole at this time."

Brosgart, the state-appointed attorney, told me she has witnessed commissioners chastise prisoners who have been victims of violence behind bars, questioning them about whether they are prepared to deal with similar conflicts in society. Paraphrasing comments that she said she has heard from the parole board, Brosgart said: "'What are you going to do if you get targeted on the outside? You don't have the tools to deal with it in a safe way.'"

Brosgart added that when commissioners ask those kinds of questions, they are "essentially blaming the victim."

Brosgart said that in one case, her client had been sexually assaulted by fellow inmates and then refused to return to a specific prison work assignment for fear of being isolated with the same perpetrators. Brosgart said that inmate was issued a rule violation for the work refusal — a disciplinary mark that contributed to a subsequent denial of parole.

click to enlarge Stephen Whitfield. - BERT JOHNSON
  • Bert Johnson
  • Stephen Whitfield.

I also observed one of Brosgart's recent parole hearings in which she represented a lifer convicted of second-degree murder in a drunken-driving crash. The 58-year-old prisoner, Stephen Whitfield, showed up to his hearing in a wheelchair and was wearing a helmet, because, as he told the commissioners, "I keep falling down." The inmate has numerous serious physical ailments, and doctors believe he also suffers from some kind of brain damage, according to testimony from Brosgart and the commissioners during the hearing. Whitfield appeared to have a lot of difficulty understanding and responding to fairly basic questions — stumbling often with rambling answers. He talked about hearing voices, coping with depression, and at times feeling suicidal. He had few cogent expressions of remorse, but he and Brosgart tried to argue that he is no longer a risk to society because he is not physically capable of driving a car or engaging in physical violence.

The commissioners ultimately denied Whitfield parole, stating that it was clear he lacked remorse and was mentally unprepared for reentry. "He still is not as stable as he should be," said Commissioner Michele Minor, when announcing the decision. She later added, "Certainly, his mental health does lend itself to dangerousness."

In his hearings, Flemming, the prisoner convicted in the Kern County drunken-driving case, has faced additional obstacles due to his mental struggles. According to his testimony, he has been unable to remember the basic details of the crash. But when he has offered insight into what little memory he has, or explained what he knows based on the facts in his record, commissioners and prosecutors have aggressively accused him of offering contradictory or false statements. "It has been a curse for me," he said in one of our phone interviews. "Imagine being in prison 32 years and you do not remember what it was you did? You know you did it. You know you're guilty of killing a man. That is a stone-cold fact."

At various times during his incarceration, Flemming has referred to the crash as "an accident" and has also speculated that it was possibly a suicide attempt — given his self-destructiveness at the time and the fact that he had tried to kill himself before. But the parole board and prosecutors have argued that these differing statements prove that he is lying and that he refuses to accept full responsibility, even though prison clinicians have reported that he likely suffered from memory loss. Records also show that he has repeatedly said he has little memory of the events, was clearly at fault, and is deeply remorseful.

In an interview, Sara Danville, supervising deputy district attorney with the Kern County District Attorney's Office, who argued against Flemming's parole in his last hearing, said: "He has no memory whatsoever, because he keeps changing his story to fit his audience. ... I absolutely believe he is lying."

She argued that Flemming still has to uncover the true root causes of his crime, and until he is fully honest with himself and the board, he remains a threat to the public. "It's hard work to dig into the depths of your soul," she said. She later added, "There's no magic formula. It's when you're in that room ... you can tell if somebody actually internalizes it, understands it. But he's not that person. He's still a danger."

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."

click to enlarge Attorney Kate Brosgart said she has witnessed parole commissioners chastise prisoners who have been victims behind bars. - BERT JOHNSON
  • 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.

These legislative reforms are giving many lifers a fresh chance at freedom. But Wattley and other advocates said the prisons now need to provide meaningful programming and services for this population, so that when they get the opportunity to participate in specialized hearings, they are truly prepared for reentry.

More broadly, if prisons increasingly prioritize rehabilitation and release more inmates earlier in their sentences, lifers would be able to continue their recovery on the outside — with community-based programs and with the support of loved ones. The positive impacts of this shift would be widespread, advocates said. That's because a continued reduction in the prison population could enable the state to better invest in mental health treatment and other services for incarcerated people. That kind of reinvestment could create more humane prisons for the people who committed violent crimes and, regardless of ongoing criminal justice reforms, will be spending many years of their lives behind bars.


click to enlarge Michael Flemming said that when he was a youth, he was sexually assaulted — an incident that contributed to his alcoholism and the drunken-driving crash that killed a police officer. - COURTESY OF BRETT FLEMMING
  • Courtesy of Brett Flemming
  • Michael Flemming said that when he was a youth, he was sexually assaulted — an incident that contributed to his alcoholism and the drunken-driving crash that killed a police officer.

On some level, Michael Flemming believes he will never go home. For starters, his victim was a police officer. Larry Bentley, the brother of Deputy Michael Bentley, who Flemming killed in the crash, has repeatedly spoken at the inmate's hearings, arguing passionately against parole and offering a personal reflection on the person his family and community lost when Flemming drove drunk three decades ago. In an email sent to me through prosecutor Danville, Larry Bentley said that every time he learns that Flemming will have another hearing, it causes him the worst stress of his life. He plans to attend all future hearings.

Beyond the tragic nature of the crime and the hurt he caused Bentley's family — factors Flemming can never change — Flemming said he fears that he won't get a parole date due to the fact that he remains petrified of screwing up at his hearing. He told me that the pain and anxiety associated with hearings has been the hardest part of his incarceration — worse than witnessing violence and death behind bars. "Not once have I ever felt the fear that I felt or that I feel when I sit before the board," he said. But he tries to stay positive by thinking about the loved ones he will be able to hug on the other side, he said. "I never stop fighting. I always have hope."

Advocates and prison officials acknowledge that hope is not an insignificant force for lifers. As the parole process has become somewhat fairer over time, and as lifers have started to learn that they may actually go home one day, they've become more engaged in programming and self improvement, Wattley said. He argued that violence and other criminal activity in prisons decreases when lifers view their parole hearings as legitimate opportunities to get a second chance.

Shaffer, the board's executive officer, said that a number of reforms in recent years have clearly incentivized lifers to make positive changes and meaningfully prep for life on the outside. "We've been able to see how powerful hope can be," she said.

Even if Flemming has little faith in the process, his family motivates him to keep trying. His brother, Brett Flemming, 54, has arranged uniquely secure post-release plans for Michael. Brett runs a bicycle tool manufacturing business and told me he would train and hire his brother to work for him full-time. "I'm a businessman. I would invest in him immediately. He could be gainfully employed in California the day he is released," said Brett, who began to weep when describing how eager he is to see his brother get a second chance. "As far as I'm concerned, he's a financial stakeholder in this company. ... He won't have time to get into trouble."

Instead of costing California nearly $64,000 a year for his incarceration, Michael would be a wage earner and taxpayer, Brett said, noting that he would help his brother get started with rent and buy him a car, if needed.

Everything is in place. Michael Flemming just needs to convince the parole board he's ready.


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