Helping People Reclaim Their Narrative

By Darby Aono, a 2022 Fellow cosponsored by Covington & Burling LLP and The Clorox Company Foundation. Darby is hosted by UnCommon Law.

Over the past decade, increased public support for racial justice has fueled legal reforms intended to address our nation’s racist wars on drugs and crime. Ensuing legislation, however, has often been exclusionary—limited to people convicted of “non-violent, non-sexual, and non-serious” offenses—and inapplicable to people currently in prison. As a result, thousands of people remain forced to spend decades of their life behind bars. In California alone, there are over 30,000 people currently sentenced to life with the possibility of parole—that’s one in three people incarcerated in the State. The vast majority of people serving life sentences are Black or Brown, and while many of them came to prison as young people, most will be elders before the parole process allows them to return home.

Discretionary parole is not yet part of the broader discourse around racial justice and criminal system reform, but it should be. Each year, between 7,000 – 8,000 parole hearings are scheduled in California, but only about 16% of these scheduled hearings result in parole grants. The Parole Board exercises extraordinary discretion in their decision-making power, which inevitably disadvantages people who can’t “show up” the way the Board wants them to, especially those with cognitive impairments, disabilities, or cultural backgrounds different from the commissioners. The limited data available from California demonstrate significant disparities in parole outcomes on the basis of race, wealth and cognitive ability, among other protected statuses. The State’s Legislative Analyst’s Office recently released a report citing growing concerns about the Board’s unfettered discretionary powers, as well as a chronic lack of access to adequate legal support for most parole applicants.

Exercising nearly limitless discretion, California’s Parole Board frequently denies parole for illegal reasons. Generally, parole denials must be challenged via habeas corpus petition, but because there is no automatic right to habeas counsel in the parole context, pro se litigants provide a primary check on the Board. However, systemic barriers and a lack of support make it virtually impossible for most parole applicants to do so. My Fellowship at UnCommon Law is focused on helping elders file habeas petitions to challenge illegal parole denials. My strategy takes a two-pronged approach: first, I’m providing direct representation to elders who have been denied parole. The second part of the approach seeks to improve access to justice for those without counsel: I am developing a comprehensive guide to filing habeas petitions in parole cases—including template arguments and other resources—so that people can challenge their parole denials and hold the Board accountable, regardless of whether they can afford an attorney.

I’m doing this Fellowship because I believe that every person deserves the freedom to tell their own story. Our legal system tells stories about incarcerated people every day—every time the system rips someone from their family, reduces them to the worst thing they’ve ever done, or forces them to spend decades in a cell, it pushes a narrative about the value of that person’s life. Every time a person is denied parole, the Board tells its own story about who the person is and what they deserve. Habeas petitions, while far from a panacea, provide an opportunity for people to reclaim their narrative for the record, to tell the Board, the courts, and the public about who they were, who they are, and who they hope to become. I feel privileged to walk alongside people on this journey, and I hope the journey leads them home.

To learn more about Darby’s Fellowship project, visit her profile here.