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Fixing Parole for the Wrongfully Convicted

Countless innocents delay their chance at freedom by refusing to admit guilt. Second of two.

By Sam Eifling 24 Oct 2013 | TheTyee.ca

Sam Eifling is an independent American journalist based in Toronto. Reach him by email sameifling@gmail.com or via Twitter @sameifling.

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Professing innocence to a parole board can work to delay or altogether quash a prisoner's chance at supervised release. Wire photo via Shutterstock.

[Editor's note: Ivan Henry spent more than 26 years in a British Columbian prison for a crime he didn't commit. Yesterday, reporter Sam Eifling chronicles how Henry's refusal to admit guilt led him to believe that parole was a non-starter; the parole board would want him to show contrition, and for Henry to manufacture it would have been, in his eyes, a crime itself. Today, Eifling tells the story of more innocent men and women affected by this kink in the parole system -- and what might be done to amend it. Find part one here.]

In the United States, as in Canada, prisoners become effectively invisible after their convictions. And as in Canada, looking back at exonerees' encounters with parole boards makes for haunting hindsight. Anecdotal as these instances are, they suggest a pattern among those known to have been wrongfully convicted -- namely, that professing innocence to the parole board can work to delay or altogether quash their chance at supervised release.

- In New York, Dewey Bozella (26 years in prison, released in 2009) refused a plea bargain at trial and steadfastly clung to his innocence claim through four parole hearings in which a show of remorse could've swayed the board to release him. When he got out, he boxed a single professional bout, at age 52.

- Two years before Nancy Smith was exonerated on what turned out to be trumped-up child molestation charges in 2009, she was declined for parole because a parole board member "felt she was in denial," according to an Ohio state spokeswoman.

- Charles Chatman, a Texan, was denied parole three times during his 27-year prison term for rape. Upon his 2008 exoneration he told the press: "Every time I'd go to parole, they'd want a description of the crime or my version of the crime. I don't have a version of the crime. I never committed the crime. I never will admit to doing this crime that I know I didn't do." According to a USA Today story about his exoneration, his first celebratory meal out of prison was steak. It had been so long since Chatman had been given a knife he began by tearing the meat by hand.

- In 2011 Texas acknowledged the innocence of Cornelius Dupree Jr., who spent 30 years in prison for a 1979 rape and robbery before DNA evidence freed him. His earlier refusal to participate in a sex offender rehabilitation program torpedoed his previous chances at parole.

- In Hawaii in 2011, a judge threw out convictions for rape, kidnapping and burglary for which Alvin Jardine III had served almost 20 years. He likewise refused to enter a sex-abuse treatment program that would have required him to admit guilt. Again, DNA was his saviour.

- Thomas A. Doswell spent 19 years in Pennsylvania state prisons for a rape he didn't commit after police marked his mugshot with a letter "R," to indicate a previous rape charge, when they presented the photo lineup to the victim. DNA evidence freed him in 2005, but as the Associated Press noted, the parole board had its chance to do the same, as Doswell "was denied parole four times because he refused to accept responsibility for the crime."

- In Virginia in 1984, Thomas Haynesworth was arrested and charged with five rapes. Bad witness identification sent him away on three of those charges. In 2011, once DNA evidence pointed to another culprit in two of his crimes, Haynesworth earned parole after several tries. A Washington Post story following his exoneration noted that Haynesworth "never gave up trying to prove his innocence" and in parole hearings "he didn't apologize -- despite advice from fellow inmates that it might earn him an early release, he said."

- A Buffalo, New York, man named Anthony Capozzi was acting strangely around a park where a woman had been raped, and he was arrested and convicted for the crime on bad eyewitness identification. His parole applications were rejected five times as he refused to partake in rehabilitation programs that would require him to own up to a crime he didn't commit. DNA evidence and the arrest of a rapist whose crimes greatly resembled the one Capozzi supposedly committed led a judge to throw out his conviction more than 22 years after Capozzi entered prison.

Legal observers believe some innocent prisoners falsely confess, thinking a show of repentance is the only way to get out, though proven instances are rare. Among the exceptions is the case of Chris Ochoa, now an attorney in Wisconsin. In order to avoid the death penalty when he was wrongly arrested for a 1988 rape and murder at a Pizza Hut in Texas, he confessed to the crime. Even after another prisoner confessed to it, Ochoa maintained his guilt, fearing that claiming innocence would hurt his chances at parole.

Three years later, DNA testing ordered through the University of Wisconsin's Innocence Project helped exonerate him, and he left prison after 12 years. Afraid he would spend the rest of his life in prison as an innocent man, Ochoa actually stuck to his false guilt in hopes of winning release.

In a way, Ochoa was the inverse of Ivan Henry, though both their cases suggest a troubling fact about parole systems in North America: Even if parole boards do grant release to people who change their stories, the impression that they don't pervades prisons.

The necessity of penitence

Understanding the original intent of parole makes it easier to see how this came to be.

Momentum for parole in America derived largely from the need to stop overstuffing prisons once states began outlawing conscripted prison labour that financed prison upkeep. Parole was in use nationwide by the 1940s, and by the 1970s it was how 70 per cent of prisoners were ultimately released. The financial and moral costs of indeterminate sentences make parole a humane, sound option in cases of long imprisonment.

But the fallout when a parolee reoffends looms over the entire process, and for all the increased medicalization of prison in the U.S. and Canada over the past half-century -- the rise of "correctional institutions" with "rehabilitation programs" -- a parole board's decision is far from a scientific determination. Parole's tension harkens to the founding principles of the penal system, where in America a stay in a penitentiary, often with the company of only a Bible, was expected to produce a penitent man.

"It's very much this Victorian self-improvement idea," says University of Utah law professor Daniel Medwed. "You have to look in the mirror and admit our shortcomings in order to grow. You have to admit guilt as a precondition."

In the United Kingdom, there's a catch-22 known as a "parole deal," a term that prison researcher Michael Naughton says entered the lexicon in 2002 after a convicted murderer named Stephen Downing won an appeal after serving 27 years. Had he been guilty and participated in rehabilitation programs, it was reported, he likely would have been paroled 15 years earlier.

Instead, Naughton wrote in his book Claims of Innocence, the parole board could not even engage Downing's innocence claims, and he carried the tag IDOM -- in denial of murder -- through his interminable sentence.

Suspicious innocence

In 2002, a group of researchers in Britain looked at the recidivism rates of sex offenders who were released on parole, and compared those arrests after four and six years against the estimates made by the parole board. Among the high- and low-risk offenders was a category of men who could not participate in treatment programs (which were still under development) because they claimed to be not guilty. Labeled "deniers" by the board, several were nonetheless released. In the study sample, they were dubbed "high-risk" by at least one panel member more often than the men who owned up to their guilt, and overall they constituted a third of parolees.

After four years, only one of the seven men who were paroled and later convicted for another sexual offense was in the denier group -- a rate less than half of what could be expected if denial and recidivism were unconnected. The results, published in the British Journal of Criminology, suggest that "‘being in denial' was given much more weight as a risk factor by parole board panel members than turned out to be justified by the criterion of subsequent reconviction for sexual or serious violent crime." With caveats, the researchers ventured a possible explanation, that "a few of the ‘deniers' may have been truly innocent," while others may simply disassociate their past behaviour from their "true" selves.

"An admission of guilt can trail you, in that there's a public record out there of you saying that you did this heinous act," law professor Medwed says. "It's not like employers are going to find it necessarily, but for litigation purposes, if you try to clear your name prosecutors could use it against you."

None of this is to say that admitting guilt is the only way a prisoner can earn parole. In Canada, one of the most famous wrongful conviction cases was that of Steven Truscott, who became the country's youngest death-row inmate when he was sentenced at age 14 to be hanged for a schoolmate's murder. He maintained his innocence for 10 years, was released on parole and after 48 years saw his conviction unanimously overturned by an Ontario Court of Appeal.

It happens routinely, too, among far lower-profile cases, that inmates can pass parole's gauntlet without admitting guilt. But if there's a trend that British Columbia prison law counsel John Conroy has observed in his 40 years of practice, it's a resurgence in the role of contrition at parole hearings. For years, he advised clients to enroll in rehabilitative programming even if they claimed to be innocent, and fought to have his clients allowed into those programs even if they weren't admitting to a crime. The calculation was purely practical. When a client appeared before the parole board, Conroy wanted him to be able to state that he understood the roots of such a grave crime, even if the inmate himself was quietly defying the guilty verdict.

"The members of the board, they're big on that," Conroy says from his office in Abbotsford, B.C. "Redemption. A typical line I use a lot with my clients -- they have to let the board know they've developed insight, that they've understood the various factors as to what made them do it. It's all about not rationalizing, not minimizing and getting past the board's probing, which is often like re-trying the case."

For a time, Canadian parole hearings seemed increasingly to accommodate, if still not to formally acknowledge, cases in which inmates maintained innocence. The rise of conditional sentencing after the 1987 Report of the Canadian Sentencing Commission, and the subsequent passage of the 1992 Corrections and Conditional Release Act, led to generally more humane and reasonable treatment of prisoners in parole hearings, in Conroy's view.

But that tone has changed -- "gone backwards," the lawyer says -- since Stephen Harper became prime minister in 2006. The Conservative Party's tough-on-crime stance has spilled down to parole board appointees, who Conroy says have become ever more skeptical of inmates who contradict the court.

"It's a problem for people when they say they're innocent," Conroy says. "They're screwed in front of a parole board when they minimize their offence. ...It's the human factor that you're dealing with, of people who are supposed to be professionals working in the prison system. When you deny or don't admit guilt, they immediately treat you as suspect instead of, say, looking into it."

New ways to do parole

So what might be done to fix the parole system, both in Canada and the U.S.? Medwed proposes a few possible ideas.

A separate track, with different weighted requirements, could be offered to parole applicants wishing to maintain their innocence. Alternately, rather than encourage prisoners to fake a show of remorse in order to increase their chances of winning parole, parole boards and treatment programs could consider an "empathetic understanding" of the crime and the harm inflicted.

Mostly, Medwed would like to see the notion of claimed responsibility diminished. "You're going to get people who are going to lie," the professor says. "Because we're not very good at detecting sincerity, generally. So the best actor who's guilty as sin, they might get parole. And that's a problem."

Put another way, a just and effective system should not encourage the guilty and the innocent man alike to game it.

Graham Zellick, the former chairman of the United Kingdom's Criminal Cases Review Commission, has written of Canada's need for an extra-governmental agency -- in Britain, such an agency is known as a non-departmental public body, or NDPB -- to examine, with investigative authority, cases that by their nature conflict with judicial authority. The idea is to keep the courts from deciding whether they erred in suspected wrongful convictions cases.

A pair of criminology researchers at Simon Fraser University concluded after a 1999 examination of Canada's conviction review applications that reviews were slow, onerous for the inmate and generally open to criticism that they were aimed at protecting the judicial status quo. Perhaps not coincidentally, the Minister of Justice's office, firmly inside the judiciary, is charged with undertaking those reviews.

"If we are truly concerned about remedying wrongful convictions in an objective, timely and humane fashion," write Patricia Braiden and Joan Brockman, "serious consideration should be given to the creation of a similar independent review body [to that of the U.K.] in Canada." Their recommendations echoed those in the official inquiries that followed the overturned convictions of Donald Marshall Jr. and Guy Paul Morin.

Such a body could be linked to the authority of the parole board without grossly distorting its reach. If board members were empowered to consider the possibility of an innocent applicant, they could refer cases that contain the hallmarks of wrongful convictions. (Repeated protestations of innocence, proffered years after an inmate might have been expected to gain parole, would be one strong indicator.) Even the possibility of recognizing innocence as a viable claim in parole hearings would likely have a spillover effect to entice long-suffering inmates like Romeo Phillion, standing alone on principle, to apply.

There's a powerful secondary benefit of arming a parole system to consider and even to probe plausible wrongful convictions. Any system of review asserts pressure on the bodies it reviews. Police, prosecutors and judges who know their mistakes are more likely to be exhumed at parole hearings will have every incentive to prevent them at trial.

The errors and misconduct that put people like Ivan Henry behind bars for a quarter-century at a swoop arise because of humans doing human things. In Henry's case, the irregularities were so gross and numerous it's astonishing they went uncorrected for so long. Certainly if parole had offered a chance to publicly examine them, Henry might have applied.

The stigma of ‘something you're not'

Towards the end of our meeting, Henry and I grab a sandwich at Subway and then go for a walk as he heads to his lawyer's office for a meeting. Burrard Street, a main drag in downtown Vancouver, is bustling with midday energy. Spring is arriving in the city known for its wet, dark winters.

As we pass people on the sidewalk, Henry smiles and greets passersby. He says he doesn't get recognized, but he's constantly searching faces to see who will smile and acknowledge him. Those who want to share a greeting, who meet his eyes and nod, receive his warmth in return. Prison required that he size up people quickly. The impulse to greet and interact with strangers -- that comes from somewhere else.

At home these days, he likes to watch sports and little else, particularly not dramas. Henry's own life has exhausted his appetite for the manufactured stuff. He lost his mother while inside, the woman who bought him a new birth certificate before he got out, figuring he'd need it when he went looking for work. That was in the early '90s; he carries the document in his wallet even today. He lost so much.

As we pass St. Paul's Hospital, which sits on Burrard at the intersection where Helmcken dead-ends, the light goes red. At the three-way stop, crossing Helmcken is a cinch -- you only have to look right to see that no one's coming. The street's clear. I step in the direction of the do-not-walk hand. A few steps into the street, I hear Henry behind me, still on the sidewalk: "I don't do that. Not in this town."

Even jaywalking carries undue risk. He spent too long as Ivan Henry the convicted serial rapist. He paid someone else's debt -- everyone else's debt -- for 1,400 weeks, nearly 10,000 days.

In releasing Henry, the Court of Appeal found that the judge had given the jury bad instructions regarding a lineup photo that shows Henry being dragged into the lineup via a headlock. Further, the judge had erred in interpreting identification requirements to the jury, and erred in instructing the jury to consider all the counts in tandem.

Any of those mistakes would have been sufficient to order a new trial. But there was more. In 2002, Vancouver police attempted to apprehend a rapist who continued committing crimes very similar to those Henry was convicted for, well after Henry was convicted.

A Justice investigator concluded that the evidence was "relevant and potentially exculpatory." Henry was released on bail and allowed to walk free in 2010, accompanied by what he dubbed "the babysitter," a tracking monitor he wore on his ankle.

In April 2013, a judge cleared the way for Henry's civil suit against the province, the federal government and the city of Vancouver to proceed. It's slated for next September.

"Guilty or not, it doesn't matter, it's moot," he says about confessing guilt simply to gain parole. "You're out on the street now, enjoying your freedom. But it's not freedom you're enjoying. You still have that stigma of something you're not."

The only thing he kept was his word. He said he was innocent. Turns out he was telling the truth. A parole board should be willing to invite that hard truth from the next Ivan Henry, wherever he may be locked away right now.  [Tyee]

Read more: Rights + Justice

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