JEFF GERRITTCorrections Dept. should give parolable lifers fair hearings
November 11, 2007
No one expected Kenneth Foster-Bey to spend more than 30 years in prison -- least of all the judge who sent him there.
In 1975, Judge Robert J. Colombo gave Foster-Bey a life sentence in the shooting deaths of two Detroit drug dealers, after Foster-Bey turned down a plea deal for 7 1/2 -15 years.
During sentencing, however, Colombo made it clear that he would approve a parole for Foster-Bey inas soon as 10 years if Foster-Bey completed his education and showed substantial progress.
More than 25 years later, in a letter to a defense attorney, the retired judge was even more emphatic, stating that he and most Michigan trial judges understood that by imposing a life sentence they were assuming a chance for parole.
"It was with that in mind that I imposed a sentence of life for second-degree murder," Colombo wrote in July 2001, adding that he never intended Foster to serve even the 27 years he had then spent in prison.
Foster-Bey, now 54, is caught in the middle of a change in parole policies and practices that a federal judge recently ruled unconstitutional. U.S. District Judge Marianne Battani declared that the rights of more than 1,000 inmates serving life sentences with the possibility of parole have been violated since state parole polices toughened in 1992.
Struggling with a bulging prison population and $2-billion budget, the Michigan Department of Corrections should welcome the ruling, which could lead to the rightful release of hundreds of lifers. In some cases, these prisoners have been locked up for decades longer than sentencing judges intended -- at a cost to taxpayers that runs well into millions of dollars.
Needless legal fight
Rather than fix the problem, however, the Department of Corrections is locking and loading, fighting the needed change, as it did last year with prison health care. MDOC plans to appeal the Battani ruling.
Instead, the state ought to give the inmates -- convicted mostly of armed robbery, second-degree murder or assault -- fair and constitutional hearings and parole those who could safely go home.
In 1992, the Legislature and Gov. John Engler replaced corrections professionals on the seven-member Parole Board with 10 political appointees. Legislators also reduced the frequency of parole reviews and, later, scratched a requirement that a parole board member interview lifers. The board need only give them a file review every five years. As a result, many lifers with excellent prison records are not seen.
The new board practically adopted a life-means-life policy. But those sentenced before 1992 were sent to prison with an understanding that their parole process would be different, and their release determined by considerations the board now ignores. An inmate's progress and self-improvement appear to matter little anymore.
"The crime itself now trumps everything," said Paul Reingold, the University of Michigan clinical law professor who brought the class-action lawsuit on behalf of lifers.
The judge agreed, calling the retroactive changes unconstitutional.
Change in policy
The Department of Corrections continues to deny any shift in parole policy or philosophy since 1992. But statistics tell a different story.
In the decades before 1992, parolable lifers served an average of 15-18 years, and 5%-15% of those eligible were paroled each year, according to the Citizens Alliance on Prisons and Public Spending.
After 1992, the Parole Board released only a handful -- on average, far less than 1% a year.
"The clear intent of the Legislature was to distinguish parolable lifers from those serving life without parole for first-degree murder," said Barbara Levine, executive director of CAPPS. "Everyone -- judges, Parole Board members, prosecutors and defense attorneys -- understood that."
The lead plaintiff in the class-action case, Foster-Bey is in many ways typical of the more than 1,000 lifers covered by the ruling. He had a job and no criminal record before he committed the one horrible act that has since defined his life.
With an excellent prison record, he has earned dozens of awards for social and vocational work. He has not had a misconduct ticket since 1991. Foster-Bey came to prison when the state and federal government still provided college opportunities for inmates. A high school dropout, he earned his GED in prison and then earned an associate's degree, and later a bachelor's degree in psychology and sociology.
A ravenous reader of history and law, he is a skilled jailhouse lawyer who spends much time helping inmates prepare legal cases. Foster is polite and precise in speech and manner, and follows the teachings of the Moorish Science Temple of America.
Before he went to prison, Foster-Bey, an interior/exterior decorator, helped to plan a drug house robbery. He knew the dealers and set up a drug buy, but said he waited outside while the other two men went inside the apartment. After one of the dealers resisted and pulled a gun, both dealers died in the ensuing shootout.
"I have nothing but remorse and regret for what happened," he told me last week at Ryan Correctional Facility in Detroit. "I want a chance to give something back to the community I've hurt."
Second chance in order
The Department of Corrections rightly expects inmates to improve themselves and atone for their mistakes. DOC ought to do the same. The department has been found guilty of a constitutional violation. It can correct that mistake by enabling a special panel to review these parolable lifer cases, applying the same standards to them that were in place before 1992.
If past experience holds, practically all of these inmates will make good. Lifers have far lower recidivism rates than other parolees, with only 2.2 % of them convicted of new crimes, a CAPPS study shows.
Even with fair and constitutional hearings, many lifers would not get released -- nor should they. Others, like Foster-Bey, almost certainly would. They've earned the second chance their sentencing judges intended them to have.
Providing that chance is the fair, constitutional and -- given the state's crowded and costly prison system -- smart thing to do.
On the net: www.capps-mi.org