Fault Lines
24 April 2017

Innocence v. Freedom: Hobson’s Choice in Parole Hearings

Sept. 24, 2015 (Mimesis Law) — In a stark California prison near Salinas, a man remains behind bars despite having served his time and despite being a model prisoner while doing so. For 35 years, Fred Swanigan has lived his days and nights in a tiny cell. For 35 years, Fred Swanigan has maintained his innocence. Since 1996, Fred Swanigan has appeared in front of the parole board 12 times. Each and every time, Swanigan refused to admit guilt. And each of those 12 times, the parole board denied Swanigan’s request for release.

But earlier this month, Swanigan won a victory with a California appellate court. The court ruled that Swanigan cannot be repeatedly denied parole based solely on his assertions of innocence. The opinion even called the conviction itself into question.

Court records noted that Swanigan is a “model prisoner, including being an ‘exceptional worker’ in the laundry room, and routinely scored as the lowest risk for recidivism.” So it would seem that the denial of parole had everything to do with a lack of contrition and nothing to do with risk of reoffending.

Swanigan was 20 years old when he was convicted in 1981 for the murder of Ronald Como. With no physical or forensic evidence to link Swanigan to the crime, prosecutors built the case on four eyewitnesses who identified Swanigan as the killer. While the California appeals court didn’t find those eyewitnesses to be terribly persuasive or reliable, the 1981 jury convicted Swanigan and he received a sentence of 27 years-to-life in prison.

Before, during, and after the trial, Swanigan maintained his innocence. Once he became eligible for parole in 1996, he never waivered on his innocence and refused to admit guilt. Admitting guilt—holding oneself accountable for the crime—often factors as the key component of the consideration for granting parole (in addition to risk assessment and recidivism).

For the inmate who is innocent, this presents a problem: admit guilt and get out, or maintain innocence and stay put. It’s a no-win situation that often boils down to a personal decision of how badly a person wants to get out of prison and what he or she is willing to say to make that happen. Swanigan’s case may seem like a rare glitch in the system, but it’s a common-enough occurrence that it even has its own Wikipedia entry.

In a system where there are no points for innocence, the decision in Swanigan’s case demonstrates a marked shift in our approach to the parole system. Parole decisions still prioritize an inmate’s “insight” into responsibility, regret, and repentance, but the judges noted, “[i]f one does not admit committing the crime, one cannot have insight into committing it.”

While the shift is notable, however, it also is a slow one. Some courts, including ones in Alaska and New York, have granted parole to men who maintained their innocence, but those decisions are few and far between. Perhaps part of the reason for the swing is something that the New York Times pointed out, “Parole commissioners, like the rest of society, have come to recognize that there are far more innocent people in prison than we had ever imagined, so they’re more receptive to that argument.”

Of course, for those who oppose the release of a prisoner, it seems like an easy leap to say that prisoners have nothing better to do than proclaim their innocence. Yes, some offenders are in complete denial in the face of certain guilt, but as we find more errors and wrongful convictions, this vaunted misconception seems to be eroding.

Before we get too excited about parole boards not holding innocence against an inmate, however, it still is an uphill battle both before and after release. For Fred Swanigan, he got a favorable decision, but is still behind bars. The state could appeal the decision and even if it does not, Swanigan probably has to wait for his next parole board appearance to see the light of day.

Moreover, parole and being on the “outside” presents a host of other challenges. Freedom is not innocence. It is not exoneration. Instead, parole functions as a “curfew” that greatly restricts the freedom of that individual. The conviction stays on the record, and for life that person is labeled an “ex-con.” Employment becomes difficult. The family of the inmate is also deeply affected before and after the prison stint.

The decision in Swanigan’s case is a good one, but it’s still a long road for the innocent who make it to parole. Freedom comes at a high price.

Main image via Flickr/H. Michael Karshis

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