No parole for you!
He’s done his time, and then some. For inmates like Fred Nesbit, indeterminate sentencing in California means forever.
“A penalty that had no end would be contradictory: all the constraints that it imposes on the convict and of which, having become virtuous once more, he would never be able to take advantage, would be little better than torture; and the effort made to reform him would be so much trouble and expense lost to society.”
—Michel Foucault, Discipline and Punish: The Birth of the Prison
In Fred Nesbit’s mind, Donny Hallock always fires the first shot.
It goes like this: Fred breaks down the door to his estranged wife’s apartment in Citrus Heights and catches movement from out of the corner of his eye, followed by muzzle flashes coming from the darkened kitchen. Fred rips his .38 out of his jacket pocket and returns fire as the impact of three .45 slugs spins him around sideways. One slug shatters his right forearm. He drops the .38 and flees, leaving Donny Hallock bleeding on the kitchen floor.
It happened in a matter of seconds on a cold spring night in March 1985. Hallock, shot through the liver, died the next morning in the hospital. Besides getting hit in the arm, Fred also had both of his lungs pierced by bullets. He nearly died, too. After he regained consciousness, police charged him with Hallock’s murder. With his dying breath, Hallock claimed Fred fired first. It was the first and only time Fred had been arrested.
At the trial, Fred admitted to shooting and killing Hallock, but stuck to his story. He had gone to his estranged wife’s apartment to recover disputed property she had taken, Hallock opened fire when he broke the door down, so he returned fire in self-defense. Becky Nesbit, Fred’s estranged wife, was calling 9-1-1 during the shootout, and the incident had been recorded. The prosecution, seeking a first-degree murder conviction, brought in an audio expert who said the tape proved Fred fired first. The defense countered with its own expert. The jury split the difference, rejecting premeditation and convicting Fred of second-degree murder. He was sentenced to 15 years to life, plus two years for using a firearm.
Sixteen years later, 61-year-old Fred Nesbit still tells the same story. Clad in loose-fitting prison dungarees, he sits quietly in a holding cell at Folsom Prison, waiting for his parole hearing to begin, thinking once again about the dark night that ended Hallock’s life and irrevocably altered his own. In a few moments, a prison guard will swing open the holding cell’s door and escort Fred to the hearing, where he will tell a panel of commissioners from the Board of Prison Terms (BPT) the same story again. Then, if his fourth hearing is anything like the first three, the commissioners will tear his story apart, looking for anything they can use to find him unsuitable for parole.
It’s a biennial ritual that Fred has been going through for the past eight years. Convicted in 1985, he first became eligible for parole and a release date in 1995. A model inmate with no previous convictions and a spotless prison record, Fred, according to the BPT’s own sentencing formulas, could conceivably have been released years ago. But like thousands of other California convicts serving so-called indeterminate or “term-to-life” sentences, he knows he has about a snowball’s chance in hell of getting out of prison now. The board only grants parole to about one percent of the inmates it reviews annually.
That’s one percent too many, according to Governor Gray Davis, particularly when it comes to inmates convicted of first- and second-degree murder. Davis vowed during his campaign that no convicted murderer would be paroled on his watch, and for the most part, he has stuck to his word. He has been the first California governor to make extensive use of Proposition 89, the 1988 initiative that gave the governor power to review and deny paroles granted by the BPT. Since Davis took office in 1998, the BPT has held approximately 1,500 parole hearings for inmates serving indeterminate life sentences for violent crimes. It has granted parole to just 143 inmates, and Davis has revoked or rescinded the parole of all but two of those. For inmates serving indeterminate sentences in California, parole has become all but impossible.
But all that may be about to change, thanks to a number of cases currently winding their way through the court system. The most prominent involves Robert Rosenkrantz, 36, convicted of second-degree murder in Southern California and sentenced in 1986 to 15 years to life plus two years for using a firearm. The previous year, after a friend of his brother’s had exposed him as a homosexual, an enraged Rosenkrantz tracked the friend down and shot him 10 times with an Uzi submachine gun.
Like Fred Nesbit, Rosenkrantz had no previous criminal record and has been a model prisoner since his conviction. At his second parole hearing in 1996, he was found suitable for parole, a decision that was later inexplicably reversed by the BPT review board. After being found unsuitable for parole at his third hearing in 1997, Rosenkrantz, claiming the board was running a de-facto no-parole policy, filed a writ of habeas corpus with the Superior Court in Los Angeles, asking the court to review what factors the BPT had used to determine his unsuitability.
The court found that the board, lacking any new evidence that might find Rosenkrantz unsuitable, had simply manufactured some out of the inmate’s trial record, citing the fact that Rosenkrantz had sought out his victim as evidence that the crime had been carried out in a premeditated, “calculated” manner.
Premeditation is one of the factors the board can use to deny parole, the court said, but not when the jury had already ruled it out with a second-degree murder conviction. In essence, the BPT had retried Rosenkrantz and convicted him of first-degree murder. In 2000, the court ordered the board to set a new parole date for the prisoner.
Davis intervened, arguing that Prop. 89 gave him the power to override the Superior Court’s decision. Rosenkrantz’s attorney added Davis to the writ, claiming that the governor had established a “no-parole policy” since assuming office. An appellate court agreed. Davis appealed to the state Supreme Court, which also decided in favor of Rosenkrantz earlier this year and is presently considering its final decision on the governor’s appeal, which is expected sometime in the next six months. If it goes against the governor and the BPT, hundreds of parole cases might be subject to review.
For Fred Nesbit and other inmates serving indeterminate life sentences, the Rosenkrantz case has shown them something they thought no longer existed: a light at the end of the tunnel.
Certainly Fred didn’t sense the light at all during his first parole hearing in 1994. Sitting before a panel of three BPT commissioners, Fred stuck to his story. On the day of the murder his estranged wife Becky had called him at Kaiser Morse hospital, where Fred worked as an operating engineer, monitoring the boilers and electrical equipment that keep the hospital running.
Becky had moved out of Fred’s house in Citrus Heights a month before, and now she informed him that she was going over to the house to retrieve two horses that belonged to her. One of the horses was pregnant, and its unborn foal belonged to Fred. He asked Becky not to move the horse until it had foaled. When he got home from work, Fred found the front door to his house broken in. Both horses were gone from the stables, along with a truck, two tons of hay and two saddles.
Becky and Fred had operated a horse tack business out of their home and hadn’t yet agreed on how to divide up all the property. The security chain swung limply off the front door. Fred became angry. He needed the saddles for a client who was coming the next day, and he was concerned about the foal. Getting more enraged by the minute, he popped open a beer to cool down. Instead, he became incensed.
He figured someone had to have helped Becky move all that hay, and that someone had probably been Donny Hallock, a mutual friend who had once told Fred he always carried a gun. Fred had a couple of more beers, tucked his .38 in his jacket pocket, and had a friend drive him over to Becky’s apartment. He knocked on the door; no one answered. Inside, Becky and Don were hiding in the dark, hoping Fred would go away. Fred went across the street to a pay phone and called the apartment. No one answered. He returned to the apartment, put his shoulder against the door, broke it down, and all hell broke loose.
“It sounded like a battlefield in there,” Fred told the commissioners.
Becky hid in a bedroom closet after the firefight erupted, not daring to come out until she saw revolving red police lights shining through the slats in the closet door.
Sacramento County Assistant District Attorney Tino Folley, on hand to testify against Fred’s parole, told the commissioners he worried what might happen to Becky if Fred was released.
“Becky Nesbit is still out there,” the assistant DA said. “I haven’t seen or heard from her in years, but I believe she’s probably still a resident of Sacramento County. I fear what Mr. Nesbit might do to her upon parole.”
Unbeknownst to Folley, Becky, who by then had remarried but was still living in Sacramento, had been maintaining a correspondence with Fred for years. After he’d written to her in 1990 telling her he had finally let go of his anger, she visited him in prison to see for herself. She was shaking when they first met, but she left that day believing Fred was a changed man.
That they had actually re-established a relationship wasn’t the only contradictory evidence presented at his first hearing. Fred had been working as an engineer ever since he’d been sent to prison; his services—reimbursed at a maximum of 95 cents an hour, far less than the $25 an hour it would have cost the prison to hire an actual employee—were considered valuable, and he had been transferred to various prisons during his 10 years to work on different engineering projects. Working on those helped keep Fred’s skills sharp. But the commissioners weren’t even aware of what an operating engineer was or did, and downgraded Fred for not upgrading his vocational skills.
The same thing happened during the review of Fred’s behavioral progress. Two elements that should have weighed substantially in favor of Fred’s suitability—his lack of a prior criminal record and his spotless prison record—made his future behavior even more “unpredictable,” according to one psychiatrist, who oddly enough still found that Fred posed a less-than-average threat to society. Because Fred refused to change his story about what happened that night, one counselor accused him of having a lack of insight into the crime, even though he seemed to show remorse. He was criticized for not “programming enough,” even though he had participated in AA and in a victim of violent crimes workshop.
Fred’s parole was denied. The main reason the commissioners gave was that “the offense was carried out in an especially atrocious and cruel manner.” They advised Fred to stay out of trouble in prison, increase his vocational training, and attend more AA meetings. Fred, who doesn’t consider himself an alcoholic and has no record of drug or alcohol abuse, just sat in bewildered silence.
He fared even worse in the second hearing in 1996. Fred was telling the story about who had fired first, explaining why his account differed from what his ex-wife had testified to in court, when one of the commissioners went off on him.
“The more you talk, the bigger hole you dig, Mr. Nesbit,” said the commissioner, who had started the line of inquiry in the first place. When the same commissioner asked Fred at the end of the hearing if he thought he deserved to be paroled, the inmate honestly wasn’t sure.
“I don’t really know if I can say that I am suitable or not,” he said. “I really didn’t come here with the idea of trying to argue whether I’m suitable or not. I’ve been in prison so long that it’s not really a punishment anymore, because I really don’t have that much on the outside.”
But sometime between the second hearing in 1996 and the third hearing in 1999, he found a certain someone on the outside. He had regularly corresponded with a horse-riding buddy at Kaiser, and he asked her if Nancy McGill was still around. Nancy was an operating room nurse whom he had worked with at the hospital; they had been attracted to each other, but married to different people at the time. She was still around, and they began corresponding. She was divorced, but living with another man. She began writing to Fred, and soon visited him on weekends at Folsom Prison. Not long after that, she kicked her boyfriend out, because in Fred, she said she had found a better man. Nancy vowed to do anything that would help bring them together.
“I’ll help you on one condition,” she told him. “You have to remain positive.”
He agreed, but the problem, of course, was that he was in prison, perhaps for life. They began working together, poring over Fred’s hearing transcripts, making sure he was following the recommendations the commissioners had given him. They created a detailed parole plan for Fred. Nancy gathered 22 letters from people on the outside who supported Fred’s release, including most of the engineers he had worked with at Kaiser. Perhaps the most important letter, at least to Fred, came from his ex-wife Becky.
“Most of the time we spent together was nothing short of wonderful,” she wrote. “Relationships in America these days have a way of falling apart after so many years, and ours was no different. I do admit that after we had decided to part, there were misunderstandings over the division of property. I took and sequestered some valuable livestock without his knowledge or permission. The way it was done, it would have made any man furious. So, I humbly accept at least half the responsibility for what happened that fateful evening.”
She heartily endorsed her ex-husband’s parole.
“I have been in contact with Fred, both by mail and by visiting. We have worked out our differences to my full satisfaction. I would not object in the slightest to his being released into my neighborhood at any time. Even next door would be perfectly acceptable to me.”
But at Fred’s third parole hearing in 1999, the panel of three commissioners was more interested in something Becky had said in the original probation officer’s report that had been issued by Sacramento County in 1985.
“Reading the probation officer’s report in here,” the commissioner said, “and your ex-wife Becky says you threatened to kill her several times prior to this incident.”
“She lied,” Fred said.
“Why would she lie? Is she lying now about supporting you to get out?”
Following that exchange there was a sense of urgency in Fred’s final remarks, as if the floor was caving out from underneath him. He had a place to stay, Nancy McGill’s, and two other offers if that one fell through, he explained. Once he rejoined his former union, he’d been assured he’d have no trouble getting work as an engineer. His prison record was exemplary; his psychological reviews had repeatedly found that he posed a minimal threat to society if released. “I think I should be given a chance to be on the streets again and parole,” Fred pleaded.
It only took 15 minutes for the board to reach its decision. Based on the “cold and calculated” nature of the crime, Fred was denied a parole date for the third time. He was granted a fourth hearing in 2001.
For Nancy, the denial was both devastating and an eye-opener. Thinking positive, she had assumed that securing Fred’s parole was simply a matter of helping him jump through the right hoops. She’d spent a considerable part of her spare time for the past year and a half lining all those hoops up; tracking down Fred’s former supervisors, co-workers and ex-wife; gathering the 22 letters of support and making sure they were presented to the board before the hearing; pitching potential questions the board might ask to Fred during weekend visits.
It had all been for naught.
It was mind-boggling. She realized that getting Fred out of prison was going to be much harder than she had first imagined. The news reports she’d been gathering, the whispered rumors exchanged between the friends and loved ones of other lifers on visiting days, seemed to be true. The entire parole system was broken, perhaps even corrupt, due to political pressure. The tough-on-crime initiatives of the 1980s and 1990s had turned California’s lifer population into political prisoners. In order to get Fred out of prison, she was going to have to take on Davis, the Board of Prison Terms, and, in essence, the people of the state of California.
Never underestimate the willpower of an operating room nurse, particularly one with as much experience as Nancy McGill. Assisting doctors who cut and sew patients together for 30 years or so sharpens both the drive and the intellect, and Nancy emerged from the defeat of Fred’s third parole hearing with a renewed sense of purpose. She helped organize a volunteer nonprofit organization, Californians for Prison Reform, and began lobbying the Legislature. She testified before the Senate Rules Committee and participated in demonstrations for life prisoners at the Capitol building. One morning not long after she’d stepped up her efforts, a sun-bleached cow skull with five bullet holes in it showed up on her doorstep. She’d gotten someone’s attention.
But not apparently the attention of many legislators, who with few exceptions have treated the issue of paroling any convicted violent offender the same way they might deal with a potential shipment of nuclear waste through their home districts. It’s been more than two decades since the commercial ran in the presidential election, but the terror of being the next person to release a Willie Horton remains. Few legislators have had the courage to openly discuss the downsides of tough-on-crime policies put in place during the intervening years, let alone challenge them. The result, according to a 1994 report by the nonpartisan Little Hoover Commission, “Putting Violence Behind Bars: Redefining the Roles of California’s Prisons,” has been that “all too often, emotion, rather than carefully considered, outcome-based goals, guide decisions about fighting crime.”
The Little Hoover Commission traces the beginning of the current wave of tough-on-crime measures back to 1977, when the Legislature passed the Determinate Sentencing Act. Since 1918, California courts had been sentencing felons to a term range, such as 15 years to life; the actual length of each individual sentence was determined on a case-by-case basis by a state body called the Adult Authority, which weighed factors such as the seriousness of the crime, the criminal’s previous record and his behavior while incarcerated to determine the length of time served. The act introduced fixed sentences for felonies such as rape and burglary but still reserved indeterminate sentences for those charged with violent crimes such as kidnapping for ransom or murder. It also helped set the Kafkaesque tone the parole process has taken on by “explicitly abandoning the longstanding purpose of prison as rehabilitation and instead establishing punishment as the stated goal.”
Inmates serving term-to-life sentences now had to face the Board of Prison Terms, composed of nine commissioners appointed by the governor and approved by the Legislature. By law, the board is supposed to represent a cross-section of society. In reality, most of the commissioners and the deputies who have served over the years have come from law-enforcement backgrounds. A formula called a matrix, based on factors such as the severity of the crime—i.e., first- or second-degree murder—is used to establish each inmate’s minimum and maximum prison term. The minimum date is used to set the first parole hearing, where, in a face-to-face meeting with a panel of three commissioners, the inmate’s suitability for parole is determined.
Like the Adult Authority that preceded it, the BPT weighs factors such as the nature of the crime, past criminal record, and behavior while incarcerated to determine suitability for parole. Good behavior and work are rewarded by taking time off the prisoner’s matrix score, shortening the length of the sentence. But there’s a Catch-22 involved in actually receiving the reduced sentence. No one qualifies for it unless they are first found suitable for parole, and with the prison system’s focus now on punishment rather than rehabilitation, factors of unsuitability such as the nature of the crime have taken on greater weight than the inmate’s good behavior or his attempts at self-improvement. The result is that since the 1990s, the BPT has found 99 percent of the indeterminate murder cases it has reviewed unsuitable for parole.
By far the reason commissioners cite most for denying parole is the nature of the crime, which, even in the case of second-degree murder convictions, is almost always found to have been committed in a “cold,” “calculated” or “callous” manner, regardless of the actual circumstances. In other cases, term-to-life prisoners have been declared unsuitable for parole based on their non-participation in vocational and rehabilitation programs the CDC no longer supports, financially or philosophically.
In effect, the 20,000 inmates serving indeterminate sentences in California have been summarily re-sentenced to life in prison without much of a chance at parole.
The Little Hoover Commission predicted that there would eventually be challenges from the courts such as the Rosenkrantz case, and for Nancy McGill, the timing couldn’t have been better. As she helped Fred prepare for his fourth parole hearing in 2001, Rosenkrantz was her Rosetta Stone, helping decode the endless chains of legalese that have imprisoned Fred Nesbit for the past few years. Davis, by challenging the Superior Court’s ruling on Rosenkrantz, had brought the kind of public attention advocates for lifers and the lifers themselves have been seeking for years. Rosenkrantz has given them hope, and if Fred Nesbit’s stooped figure seemed taller on the day he entered his fourth parole hearing in October 2001, it was only because he’d never been better prepared for a hearing.
At Nancy’s insistence, Fred was accompanied by an attorney for the first time. They sat down facing the three commissioners, the only five people in the room besides the guard and an observer. No one from the Sacramento District Attorney’s Office, no member of the victim’s family, no one recommending that Fred Nesbit’s parole be denied was in attendance. It was an auspicious beginning.
After stating Fred’s rights for the record, the presiding commissioner began asking questions about that dark night. Once again, Fred stuck to his story. Don Hallock had fired the first shot. Instead of going to Becky’s apartment with a gun, why hadn’t Fred just called the police, the commissioner asked?
“Because at the time I was so angry and I was so upset that I just didn’t think rationally,” Fred said. “I just didn’t think.”
It may have been the most honest answer Fred Nesbit has ever given to the question, and perhaps that’s why the commissioner, after picking away at Fred’s story the same way as those before him had, suddenly remembered the board’s function. “We’re not here to retry you,” he said, cutting off his previous line of questioning. “We’re here to determine your suitability for parole. If you encountered the same situation, how would you handle it? What would you do different?”
“I have changed tremendously over the past 17 years,” the 61-year-old inmate said.
“What’s changed about you?”
Fred chose the politically correct answer.
“First of all, I’ve learned how to handle the anger part of it. Second of all, I’ve gone to AA. I made a decision to turn my world over to my Higher Power. This would never happen again. This would never happen again.”
“So tell me, I asked you this before,” the commissioner continued, “tell me how you feel about the victim and tell me in just a few short sentences. How do you feel about what happened to him?”
“I wish I could bring him back,” Fred said. “Take me.”
As in all of Fred’s past hearings, the commissioners were surprised to be encountering a prisoner with no previous record other than the offense, as if instead of familiarizing themselves with the case beforehand, as required by law, they were encountering the fact for the first time.
“So you had no criminality?” the commissioner asked.
“No, sir,” Fred said.
“No juvenile record?”
“No adult record?”
“This is your only arrest?”
“This is it.”
The lack of a previous criminal record and 16 years of discipline-free behavior in prison make Fred, at age 61, an unlikely candidate for recidivism and are considered “suitability factors” that by law weigh in favor of his parole. Fred, with Nancy’s coaching, had learned his lessons well from the third parole hearing. He’d followed all of the recommendations given him, rejoining AA even though he doesn’t consider himself an alcoholic, remaining trouble-free in prison, and developing ties to the outside world in the unlikely event he is ever given a parole date. All positive suitability factors. How much they weigh against unsuitability factors such as the bald fact of Fred’s second-degree murder conviction, is a measure the commissioners decide.
It didn’t take them long. This time, they declared Fred an “unreasonable risk” because the “commitment offense was dispassionate.” He remains unpredictable because “he does not understand why he became so violent.”
The next weekend, Nancy McGill walked up to Fred Nesbit in the visiting area at Folsom Prison, gave him a hug and peck on the lips (prison rules allow her to give him one more hug and a peck upon her departure), then sat down across the table from him. His prison dungarees made him seem all the more blue.
“It’s just so procedural,” he said, recalling his latest parole denial.
“You remember what you agreed to, don’t you?” Nancy asked.
Yes, Fred remembered. He was supposed to stay positive. Her faith in him, in the belief that someday they would be together on the outside, was buoyant. Already she had helped him file an appeal of the board’s decision, and she was preparing a Rosenkrantz-style writ in case that will be submitted when the appeal is inevitably denied. Basking in Nancy’s ebullience, Fred could afford to feel positive, thinking of a day they might hold hands and stroll through a park. But in his deepest, darkest moments, in the cramped, clammy quarters he shares with his cellmate in Folsom Prison, 61-year-old Fred Nesbit worries that day might never come.