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The Case of Tony: Inside a Lifer Hearing

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I’ve put off writing about lifer hearings because I don’t like to relive painful experiences and I’ve been hung up on trying to find an angle. What would be a good, illustrative case? There are a variety of types: Perhaps the campesino from the highlands of Mexico, more Old World than New, going through the process via an interpreter, getting all of his instructive, lengthy documents in English and often finding his credibility fatally undermined through simple and obvious misunderstandings in translation.

Then there’s the one who receives a disciplinary write-up through a petty misunderstanding, or an officer having a bad day, or a new officer unaware of the tacit agreements in place -one typically has to go about 5 years without a write-up to have a chance at parole.

Or there’s the one who is several lifetimes removed from the teenage street gang and violence of his youth and you want to sweep aside all the hoops he has to jump through and all the boxes he has to check, and shout, LOOK AT HIM. HE’S FIFTY. HE WAS SEVENTEEN. HIS ENTIRE LIFE OF CRIME WAS TEENAGE BULLSHIT THAT PEOPLE GROW OUT OF! And, of course, there are the roughly 10% I meet who I do not think committed the crime that put them there.

I decided to write about the next hearing on my schedule:

Tony is in for first-degree murder. Some descriptions of a commitment offense can break your heart and make it clear that here was a menace-to-society who had to be locked up for a long time. That’s not the case with Tony, but he committed the act: A “tax-collector” gangster let it reach Tony’s ears that he was going to kill the heroin-dealing, heroin-addicted Tony and a couple of other Valley miscreants. They decided to get out in front of the threat and somehow got him to use enough smack to pass out. They drove to a quiet spot by an irrigation canal where their rookie hired hitman realized that he couldn’t do it. Believing that turning back now meant certain death in the very near future, Tony pulled the trigger and got twenty-five-to-life. It was his one documented act of violence before and after his arrest. It’s been thirty-seven years since he shot that man to death but at seventy, he seems like a nice enough guy.

Tony used and smuggled in prison until about ten years ago. For this he picked up two consecutive terms totaling six years, to commence when he is paroled for his commitment offense.

Tony is a terrible test-taker, especially at oral exams. His word is “brainlock” for what overwhelms his thought processes when talking to important people on important topics pertaining to his freedom. Because he is a terrible test-taker and, to get paroled, he has to nail the most difficult oral exam of all, his Parole Consideration Hearing, he is still awaiting a grant of parole so that he can at least see the finish line.

He’s fairly slow and deliberate in general, but when he senses that the line of questioning has reached a pivotal point, he freezes. His denial of parole a couple of years ago was narrowly based on the difficulty he had reciting and discussing the 12 steps to recovery. At his recent hearing, every time the topic got around to the 12 steps, his slow, thoughtful, sometimes grasping, answers ground to a clock-ticking… chair-squeaking… fluorescent-light-humming… throat-clearing.  Halt.

Once someone has reached his minimum eligibility date, a grant of parole “shall normally be given” per the penal code. The ‘fundamental consideration’ for the Board is whether or not Tony is still an unreasonable danger to the public. To find this in a seventy-year-old with minimal violence beyond his thirty-seven-year-old commitment offense, they must find a ‘rational nexus’ between past criminality and current dangerousness.

As it goes in the vast majority of these hearings, a ‘rational nexus’ was found. The Parole Board concluded that because he experiences his “brainlock” under stress, he will be unable to handle stress in the “free community” and is therefore dangerous. He was denied parole for the ninth time.

I can only imagine a situation remotely comparable to being grilled for a couple of hours by two flinty-eyed, hard-to-read, squares across a long table knowing that if you respond properly, you might get to walk out of prison before you die.

This case was interesting because the Board made an end-run around my analysis of his “brainlock” and my confident assertion that “this is not a performance test,” but the catch-22-laden, surreal, aspect is all too typical. Common sense slowly dissipates and the aura of hope fades from the room if the hearing doesn’t have the right feeling and flow, regardless of whether or not the person on the spot is remotely like the person who put himself there.

Luke Meyer is the pen name of a Bay Area lawyer.

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