James Morgan woke up shortly before 4 on the morning of April 19, 2018, and sat on the edge of his bunk, trying to force himself to eat a doughnut. A wiry man with a shaved head, a neat mustache and an eager smile, Morgan was an inmate in a medium-security wing of Solano State Prison in Vacaville, Calif., and he had been preparing for this morning for almost five years, setting aside sports and recreation to make time for work, prayer, study and introspection. Now, sitting in the half-light of his prison dormitory room, he found he could barely swallow. Back when he was 25 and facing a life sentence for attempted murder, he had been too frightened to speak at his trial. But he was 47 now and hoping he would finally find his voice.
There was nothing extraordinary about the case that sent Morgan to prison: He was a low-ranking gang member who had been the gunman in an unsuccessful drive-by shooting in 1996. California’s prisons are bursting with black men like him, men whose crimes barely merited a headline. His life story could be rendered in any number of ways — with thug-life bravado, as a wages-of-sin morality tale, as a study in the mechanics of mass incarceration. But in four and a half hours, Morgan would tell his story to the state’s Board of Parole Hearings for the first time, and much would depend on his doing so with insight, self-awareness and candor.
“I had never really been honest with authority figures, and I had always feared doing so,” he told me on the phone four days after his hearing. “But deep down inside I knew I should tell the truth, because I had done 22 years, and so I was telling myself, ‘What do I have to fear?’ ”
Nearly 40,000 inmates, a third of California’s total prison population, are serving life sentences, a figure greater than the combined total of the next three states with the highest proportions: Florida, New York and Texas. Unless the sentence explicitly bans the possibility of parole, a “lifer” in any state can theoretically be paroled after serving some minimum number of years. But most of the nation’s 162,000 inmates serving life sentences have little hope of ever achieving freedom; that possibility of parole exists almost entirely on paper.
For years, this was true in California as well. But over the past decade, the state has begun to inch the gates open. According to the state’s Board of Parole Hearings, more than 5,000 California lifers were eligible to go before a two- or three-person parole panel in 2019 to make the case that they are suitable candidates for release. In the first 11 months of the year, 1,074 of them, or 19 percent, were granted parole. While that number is still dwarfed by the tens of thousands left inside, it’s a striking shift from previous decades, when fewer than 1 percent of those who went before the board ever returned to society.
Life sentences usually stem from convictions for violent crimes such as murder, rape and kidnapping, although by the end of 2016 almost 11,000 of the nation’s lifers had been given those sentences for nonviolent crimes. Violent criminals are generally the people the public feels least ambivalent about locking up; life sentences have historically been seen as a humane alternative to the death penalty. As a result, the number of people serving such sentences — including “virtual life sentences” that exceed an offender’s expected life span — is growing steadily, even as the rate of violent crime sinks to its lowest levels in decades. A 2017 report by the Sentencing Project, a criminal-justice research-and-advocacy group, found that the number of people serving life sentences nationwide grew by 21,000 from 2008 to 2016, driven both by a growth in the imposition of life sentences and by the reluctance of most states to grant parole to those who are eligible. Even as politicians from both parties have begun embracing alternatives to mass incarceration, criminal-justice reform has yet to touch those deemed the worst of the worst. “It’s hard to get that people who committed a serious crime are not always potentially on the verge of committing another one,” says Ashley Nellis, a senior research analyst for the Sentencing Project.
Yet lifers are highly unlikely to reoffend once released. A 2011 study by the Stanford Criminal Justice Center followed 860 California murderers paroled after 1995 and found that only five — less than 1 percent — went on to commit another felony. None committed another murder. This can be explained partly by age: People become less likely to commit crimes as they get older. But many of those who work with lifers will attest to another factor, something that the American punitive, retributive criminal-justice system scarcely seems to believe is possible: lasting change. Deep in the heart of the largest correctional systems in the country, men and women who have been locked up for decades have improvised a path to rehabilitation using whatever methods they can muster: self-help groups, 12-step programs, books, journal-writing, Bible study, peer mentoring — all of them leading up to the hearing where they must try to win their freedom.
California’s parole hearings are something like an ordeal of the soul, an investigation of every stage of an inmate’s life from birth onward. Held on prison grounds, they can take one hour or last as long as nine hours. While a lifer will have a lawyer present — one who is appointed by the state, usually — it is the inmate who will do almost all of the talking, responding to detailed questioning by the commissioner and deputy commissioner who conduct the hearing. “I’m not sure that there are really any other places in life where somebody is scrutinized so much in such a public way by people they don’t know,” says Jennifer Shaffer, the executive officer for the California Board of Parole Hearings.
Inmates are expected to show that they understand how they became the person who could commit a terrible crime. As Shaffer puts it: “If you don’t understand the factors that led you to do what you did before, how would anybody know that you’re not going to do it again?” The result is a moral interrogation before interlocutors who can alternate between sympathy and condemnation as they ask inmates to dig deep into the most traumatic episodes of their lives. “That boardroom,” says Lawrence Strauss, the state-appointed lawyer who represented Morgan at his hearing, “is a house of pain.”
The modern idea of basing a prisoner’s release on evidence of his or her rehabilitated character can be traced to 1870, when the inaugural meeting of the newly formed American Prison Association took place in Cincinnati. There, representatives from 25 states, Washington, D.C., and Canada adopted a declaration of principles, among them that prisoners should be rewarded for good conduct and that a “prisoner’s destiny should be placed, measurably, in his own hands.” To achieve this, they argued, “sentences limited only by satisfactory proof of reformation should be substituted for those measured by mere lapse of time.”
By 1922, nearly every state in the union had adopted indeterminate sentencing, in which judges hand out sentences that are formulated as a range of years — a minimum and a maximum amount of time to be served. The responsibility for deciding exactly when in this range an inmate had been rehabilitated enough to be released was vested in state parole boards. (The federal penal system has its own early-release process.)
Over the next half century, it became clear that there was an intrinsic tension between the high-minded notion that inmates should be in control of their own destinies, by deciding whether or not to reform, and the practical difficulty of determining whether they had actually done so. By the 1970s, the discretionary parole system was under attack. Liberals argued that a parole board’s broad leeway allowed racial and class biases to rule unchecked. Conservatives argued that parole boards were releasing dangerous felons who then went on to commit more crimes. A rising national crime rate made the public increasingly dubious of the paternalistic promises of a rehabilitative system.
Over time, some states got rid of parole entirely, while others drastically increased the minimum amount of time an inmate would need to serve before becoming eligible to go before a board. In Georgia, for example, inmates who received a life sentence for a serious crime committed before January 1995 became eligible for parole after seven years. Those who have received a life sentence for a crime committed after June 2006 don’t become eligible for parole until they’ve served 30 years.
But discretionary parole continues to exist in most states, even if it’s often limited to a small pool of longtime inmates whose lengthy periods of incarceration have consigned them to near-oblivion. Conducted by panels of political appointees with varying levels of professional expertise, little accountability and almost unlimited discretion, parole hearings rarely garner attention except when a high-profile inmate comes up for parole.
The United States Supreme Court ruled in 1987 that inmates who have been sent to prison for life have no due-process right to be released unless the wording of their state’s parole statute created one. In the absence of such rights, parole decisions can be remarkably arbitrary. A 2017 survey of paroling authorities by the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota Law School found that 41 percent of parole boards never make public the logic behind a parole denial, and at least seven states don’t require their parole boards to provide a written explanation for their denial to the parole-seeking inmate. Prisoners are often unable to see the file that the parole board bases its decisions on — in Alabama and North Carolina, inmates are not even allowed to be present for the hearing. While every state except Kentucky and New Mexico allows inmates to have a lawyer at their hearing, very few states will pay for one, which means only a tiny minority of inmates have a lawyer with them at their hearings. “You have about 3 percent of the procedural rights before a parole board as you would in a courtroom,” says Kevin Reitz, the Robina Institute’s former co-director.
All of this makes discretionary parole a far cry from the equation proposed in 1870, in which demonstrated behaviors would result in predictable outcomes. Instead, Reitz has found that parole commissioners are dominated by fears of releasing an inmate who goes on to commit a terrible crime. That’s exactly what happened on March 19, 2013, when a parolee, Evan Ebel, murdered Tom Clements, the executive director of Colorado’s Department of Corrections. When he interviewed parole board members in Colorado, Reitz says, he found the specter of that murder loomed over every decision they made: “Board members told me, ‘If I let someone out and he does something horrible, that’s on me.’ ”
So parole-board members have little motivation to release inmates, no matter how deserving they seem. “The parole board has more power over a state’s prison population than all the judges in that state,” Reitz says. “But they have no job security. So they’re extremely vulnerable politically, but they have extreme power over incarceration policy. To me that’s a terrible combination — they live in an atmosphere of fear and risk-aversion.” He favors a system that would significantly diminish parole-board discretion: Prisoners who fulfill certain requirements would be guaranteed early release. “I want to put prisoners in control to some degree of their release date, but I want it to be a true incentive system,” he says. “ ‘Here’s what it’s going to take to get out on your first day of release eligibility.’ But there’s nothing like this.”
In this landscape, California is an outlier, both because the sheer number of parole-eligible lifers dwarfs those in other states and because a series of lawsuits by California inmates forced the parole board to reform its practices starting in 2008. “California is definitely on the cutting edge when it comes to due process and legal protections built in through the system, because we’ve had to,” Shaffer says. “And that’s not a bad thing.” California’s parole process follows a clearly outlined set of procedures that culminate in parole commissioners stating the logic behind their decision at the close of the hearing. Inmates have access to the central file that the parole board will be basing its decision on as well as to a state-appointed lawyer like Lawrence Strauss to help navigate the hearing process. Hearing transcripts can be emailed to those who request them, and members of the media and the public can apply for permission to attend a hearing. “Nobody,” Shaffer says, “does parole-suitability hearings like we do.”
James Morgan is a slight man who pulses with hummingbird energy. He speaks in a rapid patter, often looping back to correct or expand what he has said, adding bits of reflection and analysis gleaned from his years of participating in, and eventually leading, prison self-help groups. But his restless and voluble nature was barely visible as his parole hearing came to order at 8:35 a.m. on that April day. He sat beside Strauss on one side of a bank of tables in the prison hearing room, an informal chamber with linoleum floors, blond-wood-paneled walls and an acoustic tile ceiling. He was completely still, his prison-issue jeans neatly pressed, a white thermal undershirt covering the gang tattoos scrawled across his arms and torso. His smile made him seem at ease, until you noticed the way he kept clearing his throat and blinking behind his glasses.
Across the table from him was the presiding commissioner, Robert Barton, a former deputy district attorney who later served as inspector general of the California Department of Corrections and Rehabilitation. A balding white man with short gray hair, deep set eyes and an athletic build, he was appointed by Jerry Brown in 2017. Like the board’s 16 other full-time commissioners, he spends his days traveling from one prison to another to preside over hearings like this one, two per day, 49 weeks a year. For each hearing, Barton and Deputy Commissioner James Martin, an administrative-law judge, read hundreds of pages of materials: the probation report, written narratives submitted by the inmate, letters of support from friends and family, the complete prison file, information about the original crime, any appeals and a forensic psychologist’s risk assessment. While victims and their families are able to attend parole hearings, a victim is present at only about 10 percent of them. The victim in Morgan’s case did not attend.
The hearing itself would proceed in set stages: Barton, the commissioner, would focus on Morgan’s life before he went to prison — the “pre-commitment factors.” Martin, the deputy commissioner, would ask questions about Morgan’s conduct in prison — the “post-commitment factors.” After that, a deputy district attorney from Los Angeles County, where Morgan’s crime took place, would be able to ask clarifying questions, as would Strauss. Finally, both lawyers and Morgan would have a chance to make a closing statement before the commissioners rendered their judgment.
“What we’re trying to determine here,” Barton told Morgan, “is if you know who you were at the time of the crime, what caused you to commit those crimes, who you are today and whether you’ve changed and, if you have, how did you change, when did you change, why did you change?”
Morgan nodded, blinking rapidly. “Yes, sir.”
“I show you were born in Ohio,” Barton said. And with that the hearing was underway.
Because the commissioners have read so much material in advance, they tend to grill inmates about some topics and skip over things they feel they understand already. Barton moved pretty quickly through Morgan’s early life. His father, a Vietnam vet, was abusive and suffered from violent flashbacks. When Morgan was 3, his mother bundled him and his two siblings into a car in the middle of the night and fled Ohio for California. Morgan and his older sister, DeAqua, both have vivid memories of the night of their escape — hunkering down in the back seat as their father, shouting that he was going to kill them all, bashed in a rear window of the car with a wooden plank, cutting their baby brother’s face.
The family landed in Carson, just outside Los Angeles. They moved frequently. Morgan was a sensitive kid, teased by other family members for being a crybaby, but he was a good student, who had ambitions of being a lawyer. Still, local gangs worked hard to recruit him, and at 15 he joined a gang based in his neighborhood that was affiliated with a much larger one. (For his safety, Morgan requested that The Times not identify his former gang by name.) He wasn’t planning on it being a long-term association. In 11th grade, he joined the Army on a delayed-entry program, figuring that would be his ticket to college.
Barton slowed the pace of his inquiry. He wanted to know about a robbery that happened in 1989, two weeks before Morgan left for the Army. “It was a going-away party for me, for the going away to the military,” Morgan explained. “So, we went into the store before 2 o’clock so we can buy some more beer to go back and drink. And I was at the counter, prepared to pay for the beer. And everybody began to run out. And, me being the follower that I was, and growing up in the neighborhood, when one person runs, everybody follows suit. And so, I definitely ran out of the store with them, sir.”
“O.K.,” Barton said. “So, it was a beer run.” It was hard to judge his tone. He seemed almost unimpressed by an incident that for Morgan was one of the key moments in his life.
“And this is basically where,” Morgan continued, his words coming faster now, “my mind and everything changed about me.” After he served as a combat engineer with a tanker battalion in Kuwait, after he returned to a base in Germany, after he met and married a student at the University of Munich who was the daughter of two Army officers, “I was called in and told that I had lied on my enlistment form.”
He had been arrested the night of the beer run and charged with misdemeanor theft of the beer. He went to court on his 18th birthday, where his mother pleaded with the judge to be lenient, given that he had never been arrested before and was about to serve his country in Operation Desert Storm. After praising Morgan for enlisting, the judge let Morgan go. Morgan never mentioned the arrest to his recruiter. Now it was 1992, the war was over and the United States military was rapidly downsizing. Morgan says he was given a choice: go to military trial and risk a dishonorable discharge or sign the form put in front of him and be discharged honorably. He signed.
“So, did you go right back to the gang?” Barton asked. His expression was neutral.
Morgan nodded. “Yes, I did.”
“Why?”
“At the time, I had a belief that I was a failure, and I was, basically, scared to go out and try again,” Morgan said, talking rapidly. “I took a victim’s stance about life,” he continued. “My life wasn’t going to go anywhere because I ruined an absolutely great chance that I had to live a good lifestyle — you know, the things that I had experienced in Germany and Kuwait were just my dream. And I had destroyed it on my own. And I just couldn’t deal with the way I felt about it.”
When Morgan returned to California, he and his wife moved in with an old friend of his from the neighborhood. Soon it was as if he’d never left. He was out on the corners, selling crack, just like everybody else. Barton wanted to know how Morgan, who had spent three years in the military without breaking the law, could return to a life of crime as soon as he got back. This, he said, was “problematic.” “Did you just not care about the difference between right and wrong?” he pressed.
“No,” Morgan said. “That wasn’t it. What it was was just the effect of coming home and seeing where my life was at, as a result of my own decisions.”
Morgan remembers his wife, a white woman from Minnesota, hating the lifestyle they returned to. Ultimately she decided she herself would enlist; that way, they could return to Germany together. But once his wife left for basic training, the life she and Morgan had envisioned seemed like a mirage. “The type of life I’m living, it just seems like that’s like a fantasy,” Morgan recalls. The exigencies of gang life felt far more real. Within 90 days, he had been arrested for discharging a firearm after shooting at the ground during an altercation between a friend of his and a group of rival gang members. After that, he figures he was free for maybe 16 months in four years. Although still married, he started a relationship with another woman, who quickly became pregnant.
“O.K.,” Barton said. “So the military didn’t change you. Prison sentences didn’t change you, right? I mean, I’m looking at the opportunities you had to be deterred from all the crime.” He was pushing now, almost goading. He seemed determined to portray Morgan as a man who had lots of choices and opted for the worst ones time after time.
Morgan didn’t push back. “I had many opportunities,” he agreed. “Yes, sir.” He had been told by other inmates that if he gave a good answer, his interlocutors would move on; if he didn’t, they would dig in. Barton moved on. “I was keeping a little tally in my head,” Morgan said later. “It’s amazing how the mind works when you’re fighting for your life.”
Eventually, Barton steered the conversation to what is called “the life crime” — the crime that led to Morgan’s life sentence. On Oct. 19, 1996, Morgan accompanied his pregnant girlfriend to her ultrasound appointment. Afterward, the couple stopped at the home of one of Morgan’s friends. Dozens of men were milling around the street. The mood was tense. It turned out that a rival gang had shot two of Morgan’s fellow gang members, killing one. One of the leaders of Morgan’s gang asked Morgan to go with him to get gas for his new car, a Cadillac, so he could drive back to San Diego. But instead of going to the gas station in their own territory, the leader drove to one that was claimed by the rival gang.
“Do you have a gun?” the leader asked Morgan as they approached.
Morgan did. From 15 or 20 feet away he fired three rounds into the hood of a car driven by someone he assumed was a member of the rival gang. (He wasn’t.) The bullets didn’t hit anyone. After that, Morgan told the parole board, the gun jammed. He and his leader took off, pursued by the police. Morgan tossed the gun out the window during the chase, but they went only about a mile before pulling over and trying — unsuccessfully — to flee on foot. The crime was originally charged as an assault with a deadly weapon, then bumped up to attempted first-degree murder.
On the day Morgan’s son was born, Morgan says the Los Angeles County prosecutor offered him a 20-year plea deal. Morgan, 25 years old at the time, asked if it could be reduced to 15 so he could get out in time for his son’s teenage years. The district attorney held firm. Morgan went to trial. “What I wanted to do was get up there and talk and try to figure out a way to show them that what I did was an assault instead of attempted murder,” he told me. “But I didn’t have the courage to take the stand. I stepped back and watched the whole three-day process just go right before my eyes without making a sound.”
The jury found him guilty. In July 1997, he was given an indeterminate sentence of 17 years to life, which included 10 years for having used a gun. His co-defendant, also given a life sentence, broke down sobbing in the holding cell, but Morgan refused to react, certain that if he allowed himself to cry, he might never stop. “My mom always used to say, ‘It’s too late for you to cry now,’ ” he told me. “ ‘Now you have to pay the punishment.’ ”
[The ex-convict who became an attorney.]
“Punishment” is an old-fashioned word, but everyone knows what it means. “Rehabilitation,” on the other hand, is considerably harder to define. A 1981 article by Louis R. Lopez in Golden Gate University Law Review argued that failing to release a prisoner until he had been “rehabilitated” was itself “reprehensible” and “cruel,” because the therapies available in prison ranged from ineffective (psychoanalysis) to sadistic (medication, lobotomies and solitary confinement). “If human knowledge were developed to the point where all but the most incorrigible offenders could be rehabilitated in due time, such a system would work marvelously and would surely meet with the approval of all,” Lopez wrote. Absent such knowledge, prisoners were caught inside a paradox: They couldn’t leave until rehabilitated, but the system had no reliable method for rehabilitating them.
In 1976, Gov. Jerry Brown signed a sweeping sentencing bill that expressly eliminated reform and rehabilitation as the goal of California prisons. The purpose of incarceration was punishment, the law said, full stop. For every offense, there was a menu of three predetermined sentences: low, medium and high. The only exceptions were for violent crimes like murder, rape and kidnapping. These remained subject to indeterminate ranges of years that started with a number and ended with the phrase “to life.”
In the ensuing years, California voters and legislators would pass hundreds of tough-on-crime laws that expanded the state’s prison population to 163,000 in 2006 from around 20,000 in 1980. The state’s 1994 three-strikes law doubled the sentence of an offender convicted of a second felony and gave anyone convicted of a third felony, even a nonviolent one, a mandatory sentence of 25 years to life. (In 2012, the law was changed to apply only to serious or violent felonies.) Over time, lawmakers created a menu of more than 100 sentencing add-ons that allowed prosecutors to increase the number of years served for a single crime — using a gun, having prior convictions, gang affiliation.
A system that no longer even tried to rehabilitate inmates helped fuel the belief that rehabilitation was impossible. After a paroled felon kidnapped and murdered a 12-year-old girl named Polly Klaas in Petaluma, Calif., in 1993, parole all but disappeared. On the rare occasion that the board awarded parole, its decision was almost always reversed by the governor. (In 1988, voters gave the governor authority to “affirm, modify or reverse” parole decisions for inmates convicted of homicide.) By 1999, a lifer’s chance of receiving parole was well below 1 percent.
The effect on prisons was stark. Researchers at the University of California, Irvine, found that in the decade between 1991 and 2001, inmate-on-inmate violence increased nearly fivefold, largely because of the increased power and prevalence of prison gangs. Many facilities went on almost permanent lockdown, with inmates confined to their cells 23 hours a day. With no hope of ever getting out, inmates threw themselves into smuggling operations, petty rivalries and retaliatory violence.
This was the world in which Morgan found himself in 1997 when he arrived at Salinas Valley State Prison, a maximum-security facility. “There was this fatalistic outlook on things,” he recalls. “Everybody was just stabbing each other and fighting the staff and rioting on the yard — hundreds of guys all fighting and stabbing each other.” But Morgan kept his optimism, despite the fact that there was little basis for it. “I was in the wrong life,” he says. “I was there because my plan for the next step had backfired. So I always told myself, ‘I’m going to get out.’ ”
At the same time, he couldn’t imagine surviving prison without the gang relationships that had put him there. “I threw myself in with both feet,” he says. “People in there prey on the weak, the timid, the undecided, so I put on the mask and marched forward.” That meant doing whatever the gang demanded. In 1998, he stabbed another inmate multiple times at his gang’s behest. (The victim survived, despite multiple cuts and a puncture wound to the chest.) In 2001, he was caught carrying a shank and had 36 months added to his sentence. In 2011, when an old friend got into a chow-hall fight over a payment for drugs, Morgan started to walk away, then made a U-turn and joined in the riot. That action got him sent into solitary for seven months.
In 2008, the California Supreme Court ruled that neither the governor nor the parole board could use a crime’s heinousness as the sole justification for denying parole to someone serving a life sentence. Instead, the central question was whether an inmate continued to pose a risk to public safety. Three years later, the United States Supreme Court ruled that California’s overcrowded prisons were in violation of the Eighth Amendment’s ban on cruel and unusual punishment and ordered the inmate population be reduced to 137.5 percent of the system’s capacity.
That was the year Jerry Brown became governor for the second time, returning to the office he left in 1983. During his first two terms, Brown presided over the switch from a rehabilitation-oriented prison system to one focused on punishment. Now he would preside over the reversal of his reversal. In 2013, Brown signed SB260, which created a special parole process for inmates who committed their crimes before age 18 but were charged as adults. Over subsequent years, the Legislature raised the cutoff age to 23 and finally 26, reflecting research that has found that the prefrontal cortex, which governs the executive functions of impulse control, decision-making and the understanding of consequences, isn’t fully developed until around the age of 25. (Morgan, who committed the crime that led to his life sentence when he was 25, therefore came to be reclassified as a youth offender.)
“It’s called hope,” Brown told The Los Angeles Times shortly before leaving office in December 2018. “One hundred fifty thousand young men with zero hope bolsters the gangs, leads to despair, leads to violence and makes the prisons very dangerous. Many of them, the majority, will get out anyway. And they’ll get out as very wounded human beings.”
In October 2012, Morgan was transferred to Solano State Prison. The facility has a wealth of self-improvement programs and a culture that supports taking advantage of them. Almost immediately, other lifers approached him to talk about what they called “recovery.” They told him about Criminals and Gang Members Anonymous, an inmate-led group that approached gang membership like an addiction. “Just come and sit, and if you don’t like it, you can leave,” he remembers them saying. So he went, largely because he wanted the “chronos” — the chronological entries in an inmate’s central file documenting participation in self-help programs. Parole commissioners typically ask about chronos in hearings.
“And then of course you go to that first group and you feel like every question is aimed at you,” Morgan told me. “It was like going to the doctor and finally finding out what you have.” At one of the early meetings he attended, another inmate challenged him about the love Morgan professed for his son, whom he wrote weekly letters to but had never met. (He and the son’s mother stayed together for a few years, but Morgan stopped calling her after she married another man.) As he tried to explain why his son wasn’t in his life, Morgan found himself weeping. “That’s how badly I felt about the truth he was telling me, which is that I really didn’t love my son until I was ready to be a man and take a step back from these activities,” he says.
But the old impulses were hard to overcome, even as Morgan got a job in the prison’s optical-lens shop and became more deeply committed to his Christian faith. In 2014 he once again jumped into a fight, this time during a nighttime melee in his dorm. “That was a relapse,” he told the parole board. Instead of using the skills he’d learned in his groups, he explained, “I acted completely on an old belief.” That belief, he said, was based in fear: He had known that a conflict was brewing and had gone to bed with his boots on, worried that he would be attacked while he slept.
Barton showed little sympathy for this explanation. “You could have backed up instead of going forward,” he noted.
“I didn’t,” Morgan agreed. Then he made one more attempt to explain himself: “I definitely acted in fear and acted under that belief.”
That riot would be Morgan’s last. After 35 days in solitary, he went to his gang’s shot-caller and told him he wanted out. “I have to change my life,” he remembers thinking. “I can’t keep doing this to myself.” His wasn’t an unusual request, particularly in a lower-security prison like Solano, which has fewer active gang members. “You kind of age out,” Morgan explains. “My peers in our 40s, we don’t walk around with our chests stuck out no more — that’s for younger guys.” The shot-caller told Morgan he’d seen him going to groups, doing what inmates call “programming,” and had no problem with him leaving the gang as long as he “minded his business” by staying on the straight-and-narrow path.
Morgan joined another self-help group called Gang Affiliates Transitioning to Excellence. Its participants, all former gang members, pushed him to peel away his defenses. One day they told him how they saw him: arrogant, standoffish, still cloaked in gangster swagger. “I didn’t show the real James to many people at all because that would be opening myself up to abuse,” he says. “The person I really am is someone who’d share, talk about feelings, who’s just nice. The reason I put on the mask in the first place is because the streets felt too dangerous for James, too scary.”
But eventually he trusted the others with his deepest shame — the fact that he was a bed wetter as a child and frequently beaten for it. He had imagined how the label could be used, how humiliated he would be, but at the same time he felt that this childhood trauma explained so much about his later need for validation and acceptance. When he went before the board, he was disappointed that Barton never provided him with an opportunity to talk about the bed-wetting; the thing he feared talking about was also the thing he yearned to discuss. “It’s healing,” he told me. “It’s healing to tell your story.”
That’s the underlying premise of California’s parole process, which is intensely narrative. It rewards those who can make sense out of senselessness, connecting the dots between childhood troubles and adult crimes. Incarcerated people have often lived their lives in broken sequences — their sense of cause and effect dislocated by chaos and discord, trauma, addiction, mental illness and long stretches of incarceration. Yet the parole board demands explanations: why you were selling drugs, why you were using drugs, why you got in that car, why you were carrying a gun, why you thought those things were O.K. Those explanations are seen as a kind of inoculation against future misdeeds: If you understand it, you can prevent it from happening again.
Victor L. Shammas, a Norwegian sociologist who has written about California’s parole process, is skeptical of this emphasis on what he describes as the capacity to “produce linguistic utterances in a socially legitimate form,” an ability that he notes is highly correlated to class, education and mental health. And indeed, the board’s emphasis on insight as a predictor of future dangerousness isn’t grounded in science. “I’m not aware of any studies that show that insight and remorse are correlated to recidivism,” says Heidi Rummel, the director of the Post-Conviction Justice Project at the University of Southern California Gould School of Law, a clinical program in which law students advocate for the rights of prisoners. “I think it just makes everyone in the room feel better.”
The parole board and the various prison self-help programs prize personal responsibility above nearly all other virtues. Past traumas are simply shaping forces that lead to, in the idiom of self-help, “defects of character” that cause criminality. Making excuses or playing down the impact of your crimes is seen as a sign that an inmate is still thinking like a criminal, still under the sway of those same character defects. As part of a restorative-justice program in Oakland, Calif., that brings together formerly incarcerated people with never-incarcerated ones for weekly conversations, I once told a group of former lifers a story from my own childhood in which I described following the lead of an elementary-school friend in bullying one of our classmates. When I finished, a man who had done 40 years before being paroled spoke up. “I noticed you said you were following your friend,” he said. “You’re not taking responsibility for what you did. You’re still making excuses.”
Taking responsibility for your past is a way of asserting that you have the power to write a better story in the future, that you can control the destructive impulses that led to your incarceration in the first place. But when looking at your past through a lens of personal responsibility, what do you do with the social forces you had no control over: a military that was quick to dispose of you when you were no longer useful; a district attorney’s office with a reputation for overzealous prosecution; a nation with a history of discrimination and inequality; a prison system filled with men of color? Psychological insight had changed Morgan’s life, and he rarely told a story without shading in the emotional details, elucidating how his inner wounds had led him to harm others. But sometimes, when he looked back on the crime that sent him to prison with a life sentence, he couldn’t help pointing out that when he fired into the car at the gas station in 1996, he hadn’t actually hit anyone.
“I mean, of course I’m guilty,” he told me. “I did wrong. I used a handgun in a careless manner. But at the same time, I don’t believe I was trying to kill anybody. My thought was to be seen in the eyes of my homeboys as somebody who’s down for this type of lifestyle. But at 15 feet away, all three bullets went into the hood of the car. I was in the military. I know how to shoot a firearm.” Then he stopped himself. “I don’t want to be seen as rationalizing and justifying. Just sometimes, sometimes it’s hard to let go of everything, to swallow it down and just be mature about it.”
[From The 1619 Project: Why American Prisons Owe Their Cruelty to Slavery.]
Most state-appointed lawyers, like Lawrence Strauss, meet with their clients just once before their hearings; Strauss told me he typically does eight consultations in a single day. He was paid a total of $400 for representing Morgan, a fee that covered the initial consultation, the hearing itself and the time spent reviewing Morgan’s central prison file, which ran to several hundred pages.
Private lawyers can help clients prepare for their hearings, but very few inmates can afford one. So lifers typically turn to other inmates for help; most long-term inmates have been before the board multiple times. They tend to speak of commissioners the way athletes speak of rivals whose game tapes they’ve studied. Former lifers told me that the commissioners watch your body language; that they analyze your sentence structure, alert to passive constructions like “I caught my case” instead of “I committed my crime”; that they push you to see if they can get you to “show your canines.” Those who have experience going before the board share information and anecdotes, coaching one another on how to handle difficult questions and reading over transcripts of past hearings.
There are also a few law clinics, like Rummel’s, or nonprofits that offer pro bono assistance with the parole process. Uncommon Law, run by Keith Wattley, a lawyer in Oakland, has helped secure the release of about 240 inmates, 60 percent of the total they’ve represented. The firm’s lawyers and law students spend months, and sometimes years, helping their clients prepare for their hearings, even bringing in their own counselors to help deal with emotional issues that can’t be addressed through the available self-help groups. They spend hours talking with clients about their lives, assign them reading and writing homework and even conduct mock hearings. But, Wattley says, parole-board hearings are too unpredictable for any rote recitation to be effective — the insights have to be genuine and personal to work.
“We help our clients understand and articulate their own arc of transformation,” he says. “When they can do that, it doesn’t matter what the question is that the board is asking. They can handle it.” Wattley’s point was one I heard from many. Winning a parole date is usually the reason inmates start the process of self-discovery, but once the process of self-analysis begins, it stops being about the board. “Nobody ever says, ‘I wish I hadn’t done all that work on myself because I didn’t get a date,’ ” Rummel says.
But what about those who are never able to articulate their “arc of transformation”? Is lifelong incarceration the appropriate remedy? In May 2018, I sat in on the parole hearing of a 51-year-old man named Johnny Smith, who had done 31 years on a 15-years-to-life sentence for second-degree murder. The case, like Morgan’s, revolved around a shooting, this one between two neighborhood gangs in Oakland in 1987. In Smith’s case, someone was killed — a 68-year-old good Samaritan named Terry Brown, who came out of his house to help a wounded gang member and was shot in the neck. Smith didn’t fire that fatal shot — his gun had jammed and he was running away through a vacant lot — but under the legal doctrine known as the felony-murder rule, his participation in the shootout made him just as responsible for the murder as the person who did fire.
Smith, a baldheaded black man with a short, graying beard and a nose that looks as if it had been broken more than once, worked as a cook in San Quentin prison. He hadn’t had a serious disciplinary violation in two decades but was denied parole in each of his eight hearings since becoming eligible in 1996, receiving three-year denials each time. (Every parole denial comes with a prescribed length of time — three, five, seven, 10 or 15 years — before the inmate is allowed to try again.) Inmates can petition to have their hearing dates moved up; his most recent hearing was just a year and a half earlier. Since then, he had studied the transcript carefully, highlighting the parts that told him what he needed to do to increase his chances of parole. He had to participate in self-help groups that focused especially on three things: gangs, overcoming criminal thinking and the suffering of crime victims. The commissioners, he felt, were trying to help him. “I know exactly what she was trying to tell me,” he said, referring to the commissioner who presided over his last hearing. “She’s trying to make sure that I don’t go out there and fall into the hands of the same people that I dealt with when I came here, which is understandable.”
Smith had gone to some of the recommended groups, but he hadn’t taken to them the way Morgan had. He wasn’t particularly introspective by nature, and he had trouble presenting a board-friendly narrative of his life or remembering the definition of jargony self-help words like “prosocial.” In conversation, he tended to skitter away from the traumatic events that might have explained how he wound up committing crimes — the best friend who was killed by a speeding car right in front of him when he was 5, his father’s absence, his stepfather’s emotional abuse of his mother, the varsity football career that ended when he got hit by a car in high school. “The way I was brought up, some things you just don’t speak on,” he told me.
He preferred to talk about other matters: his plans for the future with his grown daughter and 9-year-old granddaughter and goddaughter; his ignorance of the basics of the modern world after so long in prison (he didn’t know, he confessed, how to use a microwave oven); the old friends who were law-abiding citizens now. The story he had to tell was straightforward: He’d been a hardheaded young man once, but he had been a model inmate for more than two decades. Now he hoped to return to his old neighborhoods and talk to youngsters who were as hardheaded as he used to be. “I want to go back out there,” he said. “I want to help bring my community back up.”
Neither his good intentions nor his clean prison record were enough to get him a parole date, however. “I’m getting denied for what we consider as being little things — you know, insight, you’re not showing remorse,” he told me over the phone shortly before his ninth parole hearing. Those “little things,” of course, were the very things the parole board considered paramount, but a lot of the board’s preoccupations seemed illogical to Smith. It had taken him a long time to understand why the authorities considered his group of associates to be a gang — a word he associated with large criminal organizations — or why he would be guilty of murder when the victim was shot by someone else. He said he thought about Terry Brown’s murder every day, but it was hard to access his feelings sometimes, particularly in the hearing room. Each time he went before the board, Smith ended up tongue-tied and inarticulate. But was that indicative of the future danger he posed to the public?
“The parole process is like threading a needle — the people who have come out through the parole board are extraordinary people,” says Rummel, who has represented hundreds of lifers in their parole hearings. “We could swing the door a little wider. They don’t have to be A-plus human beings. They could be B-plus human beings.”
Smith’s ninth parole hearing was on May 9, 2018. He sat at a table with his state-appointed lawyer, Marc Gardner, his back to a window whose vertical blinds, wavering in the breeze, offered tantalizing glimpses of the sparkling San Francisco Bay. His feet tapped nervously beneath the table. The presiding commissioner, Patricia Cassady, pressed him for explanations, just as previous commissioners had: Why had he been a bully in school? Why had he liked fighting? Why did he join a gang?
Smith’s answers were short and uninformative. He spoke with his forehead furrowed, his expression pained and puzzled, as the commissioners guided him through various episodes of childhood delinquency — stealing bikes, cutting school — until they arrived at the crime he was incarcerated for, the botched attempt at a revenge killing of a rival gang member. Smith’s crew had been trying to sneak up on the apartment where the man was hiding out, but Smith, who said he didn’t know much about firearms, had accidentally fired his weapon into the ground, triggering the shootout. Brown was hospitalized for 15 months before he died.
Two of the men who were in the gun battle ended up testifying for the prosecution, but Smith refused to testify against his friends. If he had, Patrick Reardon, the deputy commissioner, noted, “You do a year,” maybe less. Instead, he had done 31 so far. Yet he insisted he would make the same decision today. “I didn’t want to be a snitch,” he said.
“So, if you saw or you knew about a plot inside prison to hurt a correctional officer, you wouldn’t tell the authorities?” Cassady asked.
“No,” Smith said. “I mean, I have to be honest with myself, no.”
“So, are you the same guy today that you were when you came to prison in 1989?” Reardon asked.
“No. No, sir, I’m not.”
“It sounds like you are.”
“I believe not.”
Smith’s final statement was simple and heartfelt. “Mr. Brown did not have to lose his life on my stupidity, but he did, and I can’t say anything other than I’m sorry for what happened to him. And I can’t take back what happened to him, but what I can do is make myself better by better understanding my actions — and this is what I’m trying to do. I know I still have a little work in myself, and I understand that,” he said. “And if this is what it takes for me to gain my freedom, this is what I have to do. And that’s what I’m going to work on.”
The decision was unsurprising — a three-year denial. His mother, Sonya Caldwell Smith, told me that her son was tearful when he called to tell her the news, but when he called me, a few days after the decision, he insisted he was fine. “To be honest, I messed that up,” he said. “I get nervous for some apparent reason because I’m so caught up in trying to get up out of here. I’m not taking my time to actually say what it is that needs to be said, and that’s what I need to start doing. See how calm I am talking to you? I need to be like that when I’m talking to them,” he added, “because that’s what’s going to free me.”
He was still mulling over the hypothetical situation Cassady posed that had tripped him up. “What she said is true,” he said. “She said, ‘You still have the same criminal way of thinking.’ It’s true, I do. I can’t blame nobody for that.” Smith has since been transferred to a minimum-security prison. His next parole hearing is scheduled for May 2021.
By the second hour of Morgan’s parole hearing, the questions came faster and faster. Barton wanted to know about the crimes Morgan had been caught for and the ones he hadn’t, both in and out of prison. Why did you do these things? Why didn’t you stop sooner? Why did you stop when you did? Was there an epiphany? Whom do you hang out with now that you’ve left your gang behind?
Then he posed a hypothetical similar to the one Cassady had posed to Smith. “Tomorrow you walk by a couple of guys. You overhear them talking. And they’re talking about putting somebody in check, maybe stabbing them.”
“Yes, sir.”
“What do you do?”
“I’m going to mind my business and keep walking,” Morgan said, with the confidence of a man who knows the right answer on a test.
“That’s all you’re going to do?” Barton asked incredulously. “You wouldn’t do anything to stop it or let people know?”
There was a brief pause. “To be honest, sir, considering my safety, I definitely would not take part in any of those activities,” Morgan replied.
Barton seemed dismayed. “Given the fact that you involved yourself in criminal activities that have harmed so many people, you don’t feel that there’s any moral obligation on your part to perhaps prevent someone else from getting hurt, if you could?”
“Yes, sir,” Morgan said.
“And you said you believe in God.”
“Yes, sir.”
“But you wouldn’t do it?”
Morgan took a deep breath. “I believe I have to develop the strength to be able to do that, sir. I lived my life in prison 22 years with obeying the way things go and living in fear of standing against these people. One day I may be strong enough to do that, but I’m going to be honest with you. Today I gave you my honest answer.”
Later he couldn’t believe what he said. He believed in being honest, but at the same time, the object was to get out of prison. “If I would have had some time to think about it, maybe I might have lied,” he admitted. “But that’s what came out.”
By the time he gave his closing statement, Morgan looked as if he’d aged 10 years. His face was drawn and sad; his hands shook. “Today I sit before you repentant and ashamed of the sick shell of a person I was back then,” he told the board, reading from a handwritten piece of binder paper. “Today I can see everything with compassion. This has allowed me to understand why I became a person who embraced lawlessness and disregard of human life.” Tears ran down his cheeks. “I am sorry that my foul behavior required each of you to have to spend time and resources to deal with me.” He wiped his eyes as he quoted Psalm 25: Remember not the sins of my youth and my rebellious ways, according to your love remember me for you are good, O Lord.
Waiting for the verdict, Strauss predicted a three-year denial. Parole grants are rare at a first hearing, Strauss says, and Morgan’s last disciplinary violations were only a few years behind him — mere minutes in lifer time. Morgan was taken back to the holding cell while the commissioners deliberated. There, he discussed his hearing with another inmate who had a few parole denials under his belt. The inmate made the same prediction as Strauss: You’ll probably get a three. Unwilling to accept this, Morgan slid over to the far side of the bench and began to pray: Lord, you can trust me with this date. I’m not going to do anything bad that could get me in this position again.
When the hearing reconvened, he was back at the table, his eyes red. When Barton said the words “eligible for parole,” Morgan wasn’t sure he had heard correctly. It was only when Strauss grabbed his hand and shook it that he understood he was going home.
Paroled inmates are not released right away. There’s a 120-day period in which parole grants are reviewed administratively, and then another 30-day period in which they’re reviewed by the governor. So it wasn’t until that August that correctional officers drove Morgan through the prison gates.
He had looked like an old man the last time I’d seen him, but when I met him in downtown San Francisco a few days later, he was dressed like a teenager, wearing long shorts and skate shoes, a Vans baseball cap, a baseball-style sweatshirt and a large cross. His stride was loping, his head swiveling as he took in the crowded intersection with wonder, commenting on the styles (“Why does everybody wear their clothes so tight?”) and the way people stared at their phones while waiting to cross the street (“All these people, they really don’t interact”). He was already thinking about what jobs he might get — he’d heard you could make $22 an hour washing dishes. In prison, he earned $100 a month. “I could make that in five hours? I will jump on that!” he said as he walked to the V.A. so he could register for benefits. He had so much to do: identification to get, relationships to repair, a grown son to meet. Standing on the corner of 16th and Mission Streets, he did a slow-motion 360. “It’s just like a dream,” he said. “There’s so much to look at.”
Over the next year, Morgan tried his hand at construction, dishwashing, catering and bus driving, socking away savings as he tried to figure out what line of work was sustainable for a man his age. He reconnected with the mother of his son, who was now divorced. After several long phone calls, she drove from Los Angeles to San Francisco to see him. Despite the years of separation and the anger she felt about being left on her own with a newborn baby, the pair still had chemistry. After so many years of being around men who hid their feelings, Morgan was sometimes overwhelmed by his girlfriend’s emotions, but he knew this was part of the process of putting his family back together. “This is what women go through when we make these decisions as young men and we abandon these people,” he said. “There’s going to be some blowback.”
This August, his parole officer gave him permission to move back to Los Angeles, where he’d lined up a job doing leak detection and repair at an oil refinery. Morgan took the mother of his son to a Zales jewelry store and put down a deposit on two wedding rings.
Getting to know his 22-year-old son has been a slower process. Morgan says he can feel the young man’s wariness. They work out together, do boxing drills, bond through sports. In those moments, Morgan stifles his urge to pour out his heart, to offer advice about how to be a man without a mask.
“I can’t push and shove because he’s a man, so I have to figure out how to be useful to him,” he said. For now, he saves his advice for the young men he meets at work or on the basketball court, men whose romance with tough talk and guns remind him of his younger self. His prison history is a source of curiosity to them, and so he paints himself as a cautionary tale. “I tell them I didn’t kill anybody but I shot at somebody,” he says. “I tell them I still got punished because society is sick of people getting hurt and they have to make an example.” The explanation doesn’t quite contain the complexity of his feelings about his life sentence. But it’s the only one he has.
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