Free at Last. Free at Last.
Last year I represented Oshay Johnson — a 46-year-old man, convicted of attempted murder and serving a sentence of 15-years-to-life — in a parole suitability hearing at Folsom State Prison. He’s been in the California prison system for 26 years and this was his fourth trip to the parole board. It was my first. I used to represent people convicted of crimes appeal their convictions but I haven’t in years because I couldn’t bear to contribute to a system I found unfair and filled with racism. As Mr. Johnson and I were escorted into the cramped room at Folsom State Prison, I realized he had about the same chance as a slave, walking into the plantation owner’s office and asking for his freedom.
As you can see, Mr. Johnson is Black. The Commissioner and his Deputy were White, the DA was White, the two young guards outside the room — nice kids with large beer bellies held up by leather holsters of guns, pepper spray and batons — were White, too. The Commissioner was a former police officer and a prosecutor. Their livelihoods all depended on keeping black and brown people in prisons. To free one inmate would mean to recognize his fallibility, his redemption, and ultimately, his humanity. But it wouldn’t stop there. Suddenly, they’d see everyone’s humanity and they’d have to free thousands, if not hundreds of thousands of men and women[2]. But then rapists and murderers and gang members would flood our streets, neighborhoods would return to chaos and violence and everything we know and love would be gone. That is what the slave owners might have thought and as I sat down next to Mr. Johnson, I was certain these Commissioners felt the same.
The two parole board Commissioners hunkered behind large computer monitors and barely looked up as we walked in. I had expected more from the hearing room. Maybe an overbearing wooden structure like those in the federal courts or other symbols of country and power. Instead, we barely had room to slide into the molded linoleum chairs opposite the cracked linoleum table from the Commissioners. A faded picture of Folsom when it opened in the 1880s was the only adornment on the walls. And it was sagging off to the right. As he took his seat, I looked left at Mr. Johnson, dressed in standard issue blue pants and a chambray shirt. He is a dark man, short and compact. He is mostly bald with a small braided ponytail at the back of his head. He looks younger than his age with long eyelashes and many times, a bright smile.
The district attorney sat off to the right. Pale and sweaty, his hair dyed a yellow-blond and a few weeks past the need for a cut, he huddled over mounds of paper, stacks of transcripts from Mr. Johnson’s 1992 trial, police reports, psychological assessments and 26-years worth of prison records. He was a man paid to find the worst in people and convince others to fear them. And he planned to do a damn good job that day.
The board began by asking Mr. Johnson about his family and growing up in the Central Valley. I listened as Oshay described life in the valley only about an hour from my hometown of Modesto. We were both born in 1972. His father was in the military and his mother worked for the US Postal Service. They divorced and young Oshay was close with his grandmother, his uncles and his cousins. I grew up with a single mom who worked for the local community college, my grandparents provided invaluable support. I took my first drink of alcohol at 13 or 14. About the same age, Oshay began drinking and smoking marijuana. Oshay finished high school in 1990, the same year I graduated. From there, our paths diverged. Oshay began selling marijuana to make money. His job doing manual labor was boring with little potential. Marijuana became cocaine and crack. Soon he carried a gun to protect his money and himself. Around that time, Oshay’s girlfriend got pregnant and eventually gave birth to Oshay’s only child, a son. I went to Berkeley and then law school.
The Commissioner asked Mr. Johnson who in his family would support him if he were to be paroled. His mother was still alive, he said, and he had recently married a woman he knew from his teenage years, not the mother of his child.
“And what about your son?” the Commissioner asked.
I saw Mr. Johnson lower his gaze to his small stack of papers in front of him. He glanced at me quickly and I gave an almost imperceptible nod. When Mr. Johnson looked up, tears filled his eyes. I knew he didn’t want to talk about his son’s shooting death which had happened only months before. It complicated things and Mr. Johnson worried the board would assume vengeful rage. But he couldn’t lie either.
“He died.” Mr. Johnson said softly.
Ask to explain what happened and his feelings about it, Mr. Johnson opened up and as big drops fell down his face, he told about the guilt of not being there for his son, the responsibility for contributing to the violent drug culture in his home town, and the consuming sadness of losing his own child.
“He left me three grandchildren,” Mr. Johnson added. “I want to be there for them. Coach my 10-year-old grandson in baseball.”
From there, the Commissioners asked about the shooting. With every question, Mr. Johnson answered with total honesty.
You were dealing drugs? Yes.
You previously beat up the victim with a baseball bat? Yes.
And the victim retaliated by shooting at your mother's house? Yes.
And you sought revenge? Yes.
And you encouraged all your friends to back you up and find him? Yes.
And kill him? Yes.
Did you shoot the victim? No, my guys found him and shot him.
But you would have if you have found him? Yes, absolutely.
They questioned Mr. Johnson about rumors of gang involvement on the streets and at different prisons throughout the system. They spent thirty minutes asking about the 2007 incident where Mr. Johnson was found with a cell phone. Most remarkably to me, they gave serious attention to a police report made by the father of a teenage girlfriend of Mr. Johnson. They were both 15, they had sex, and Mr. Johnson did not walk her or drive her home. Her dad was pissed and called the police. Nothing had happened from it. Until now. We’re they in a committed relationship? No. How many times did they have sex? Twice. Did he regret how he treated her? “Of course. It was very disrespectful to her,” Mr. Johnson replied.
For six hours we sat in that airless room. We had breaks for the bathroom and a quick sip of water from the drinking fountain down the hall. I frantically took notes for my turn at questioning. I was exhausted and hungry. Mr. Johnson had been in prison 26 years, he knew patience and resilience. He just kept answering the questions with insight and honesty. I thought Mr. Johnson would have been a good lawyer. With the academic skills of a ninth-grader, Mr. Johnson had taught himself how to read and digest the California Penal Code and legal opinions, craft legal arguments and write legal briefs and petitions for writs of habeas corpus, including winning ones.
In fact, I met Oshay Johnson about seven years ago when he sued the California Department of Corrections and Rehabilitation in a civil rights lawsuit in federal court. The magistrate judge thought Mr. Johnson had written a good pleading and asked the court to find him a pro bono attorney. I volunteered. Mr. Johnson’s claims had some merit. The first claim was for sexual harassment. A guard had asked Mr. Johnson to repeat the “spread and cough” part of the strip search procedure used after every prison visit. And after several humiliating times of spreading his ass and coughing, Mr. Johnson saw that the guard had an erection. In the same lawsuit, Mr. Johnson described an incident where, after moving prisons, he attempted to use his vegetarian meal card issued at another prison to get a meal that would conform to his Muslim beliefs. Another guard told him, “I know you Muslims are faking it. You all eat pork” as he confiscated Mr. Johnson’s card. The sexual harassment claim was eventually dismissed by the court but Mr. Johnson received a small settlement for being deprived of religiously-appropriate meals for over a year. In his 26 years in prison, Mr. Johnson faced countless other acts of degradation, humiliation and violence.
This parole hearing was no different. Mr. Johnson is a middle aged man with three grandkids. He earned his GED, his paralegal certificate and substance abuse counseling certificate. He’s won multiple legal cases. In ten years he has been infraction-free, never late to work, never a harsh word to the prison guards. And still, he had to explain acts of disrespect from when he was 15 while he could not comment on 26 years of humiliation. He bore his soul about fears for his mother’s safety and the violent death of his only child. Mr. Jones told strangers about his darkest fears, his most humiliating moments of weakness, his self-reflection and shame, and his small hopes for a future with his new wife, Stacy. I thought the Commissioner probably didn’t open himself up like that to his own wife.
While we waited for the Board to make a decision, Mr. Johnson and I talked through the bars of his holding cell. I felt exhausted — mentally and physically. I just had that raw feeling fed by nerves and fear and hunger.
“Whatever happens,” I told Mr. Johnson, “I think I’ll cry.”
The selfish irony of my complaint was not lost on Mr. Johnson. He smiled. “Me too” he said.
So we returned to the small room and the Commissioner began his statement. It was recorded so the full Board and the Governor could review the reasons for the decision. The Commissioner practically re-iterated all that had been said during the last six hours. And then without pause or any sign of momentousness, the Commissioner said, “And for those reasons we find you suitable for parole.”
As predicted, my eyes flooded and when I turned to Mr. Johnson, I saw the same in his eyes. We held each other’s gaze for a moment, both trying to reconcile the impossible with reality. They found him suitable for parole. He will leave prison. He will be free. I wanted to jump and scream “Yes! Yes! Yes!” Do some crazy end-zone celebration dance. Instead, I reached over and gave Mr. Johnson’s arm a small squeeze.
Before we knew it, the young rotund guards had put Mr. Johnson back in the holding cell.
“I wish I could give you a hug,” he said.
I wished the same. I felt pure happiness for Mr. Johnson. For myself, I felt like a bit of a spectator and I was convinced my legal brief, my questioning and my closing statement contributed close to nothing toward the Board’s decision. But I also recognized that my mere presence — the optics of a white professional woman in a black suit sitting beside Mr. Johnson, asking for mercy and compassion — may have contributed something. If I could see his humanity and make a stand for it, perhaps they could too. An “agent” or “shepherd” of the new Underground Railroad? No, I know that’s dramatic. But there are 150,000 or so men and women serving life sentences in this country. Most of them made impulsive mistakes as young people. Most have served years beyond their minimum sentences. Most pose a very low risk for recidivism. They are middle-aged — like Mr. Johnson and me — and they are tired. They just want the small freedoms of life like choosing what to eat for dinner, watching a movie with your spouse, going to your grandkid’s baseball game. If I helped Mr. Johnson get that, it was one of my proudest accomplishments.
“See you on the outside!” we promised each other as we grabbed hands through the bars one final time and then waved goodbye.
[1] In 2016, there were 1,608 black prisoners for every 100,000 black adults — more than five times the imprisonment rate for whites (274 per 100,000) and nearly double the rate for Hispanics (856 per 100,000).
[2] At the end of 2016, federal and state prisons in the United States held about 486,900 inmates who were black out of a total of 1,458,173 sentenced prisoners in the U.S.
