by Ann Garrison
On May 4, former Black Panther Romaine “Chip” Fitzgerald agreed to a five-year denial of parole instead of insisting on a parole hearing, even though he has served more time than any former Black Panther still behind bars: 49 years. Chip was arrested in 1969 and charged with murdering a security guard and attempting to murder a highway patrolman who had stopped him and fellow Panthers for driving with a broken tail light. He was convicted and sentenced to death in 1970, at the end of a four-day trial, but that sentence was commuted in 1972, when the Supreme Court ruled that the death penalty as employed was racist and therefore unconstitutional.
Chip is now 67 years old and living with the consequences of a stroke; his friends and family fear he will die in prison. He has been moved from one state prison to another over the years and is currently in the California State Prison-Los Angeles. I spoke to his lawyer, Charles Carbone, whose office is in San Francisco.
Ann Garrison: Could you tell us what happened on May 4 at the California State Prison-Los Angeles? Did the Parole Board hearing even take place?
Charles Carbone: The hearing did not take place. We stipulated to a five-year parole denial. That means that Chip agreed to a five-year parole denial and signed the agreement. One of my colleagues in Los Angeles was there to create a record of that.
We had asked for a lesser period of parole denial, which under the laws could have been three years, but, unfortunately, the Parole Board said no. That left us in the unenviable position of having to stipulate to a five-year parole denial. We did not want to go forward with the hearing altogether because Chip has a record of recent disciplinary problems.
Under the law, the crimes of which he’s been convicted have largely lost their predictive value as to whether or not he would succeed in society. The Parole Board doesn’t base its decision on those very old crimes anymore, and the law is fairly clear that they should not.
He’s been in prison for almost 50 years now. So those crimes are not indicative of how he would behave. Even if the Parole Board completely buys into the district attorney and the state’s theory that Chip committed those crimes, it no longer takes them into consideration.
What does have predictive value, in their minds, is his behavior in prison. It’s sort of a catch-22 because, if somebody is in prison for questionable convictions, and then they break prison rules, the Parole Board will severely penalize them for any misconduct. That is basically what happened here.
In November 2015, a forensic psychologist hired by the Parole Board concluded that Chip had a high likelihood of recidivism should he be released.
AG: I read that psychologist’s report. It starts with Chip’s description of his political awakening, in which he cites the 1965 Watts riots, Malcolm X and the Nation of Islam as influencing him to change his life and his behavior. Then he said that he became disillusioned with the Nation of Islam after Malcolm X was assassinated and the Nation of Islam was believed to be responsible. That, he said, is when he decided to join the Black Panther Party, feeling they had better solutions for Black people, although he later became disillusioned with the party.
The psychologist wrote that Chip had embraced the idea of nonviolent activism while in prison. Further on he cites a handful of substance abuse violations and a fight in which Chip says he was just defending himself and that he was 60 years old and using a cane at the time.
There’s one violation for possessing a weapon; I believe it was a carved plastic knife. Chip says it belonged to his cellmate, but that both of them were written up for it, and that prison authorities had been out to get him because they’d been reading his mail and didn’t like his revolutionary politics. He said he gets mail from people all over the world who consider him a political prisoner.
The forensic psychologist also wrote that Chip is widely read and conversant in current affairs, politics and history, but that he has intellectualized his remorse about the crimes he was originally convicted of, and his remorse seems to lack emotional depth.
Does Chip have the right to another of these forensic psychologist’s evaluations?
CC: He has that right every three years, but it won’t make sense to ask for another until he’s approaching another Parole Board hearing, and that won’t be in November this year. He needs “clean time” on his record.
The combination of some recent rule infractions in prison and this forensic psychologist’s opinion that Chip’s previous infractions demonstrated his potential for recidivism were what finally kept him from being released. The combination of those two things would have been a dire outcome at any substantive parole hearing.
We would’ve gotten slammed with a very long denial, far longer than the five years that Chip ultimately agreed to. Unfortunately, in order to avoid that denial, we didn’t have a lot of good options.
The best one that we had was to put the hearing off to give Chip a greater opportunity to prove that any disciplinary infractions are anomalies, that they’re not in conformity with his character, and that he is very serious about complying with prison rules and regulations. Whatever we may think of those rules and regulations, a prisoner has to comply with them to be paroled. So we need that time in order to establish that record.
The good news is that we don’t have to wait the full five years. If we think that we have cured or fixed some of the problems that the board identified, and that Chip has successfully completed the recommended rehabilitative programs, we can go back to the Parole Board in fewer than five years.
Basically, to be paroled, a prisoner has to walk a straight line in prison. If Chip does that from here on, according to their rules, then we can go back in a year and a half, maybe two years, and say to the Parole Board, “Hey, board, we’ve cured some of the problems here. Can you hear us earlier?” And they have the power to bring him back at an earlier date at their discretion.
AG: Well, what sort of prison rule infractions is he accused of?
CC: The recent and most serious infractions weren’t even accusations. He’s been found guilty of possession of cell phones, with sound evidence, and he doesn’t deny that. There are a few recent cell phone infractions, one three months ago, in February of 2018, and one in 2017. The board coupled that with the earlier infractions cited in the forensic psychologist’s report, but the recent cell phone use is what they took most seriously.
The crux of it is that the proliferation of cell phones inside prison is such that they’re very tempting for inmates to pick up, especially because prison is such an isolating experience. Prisoners can’t really talk to their loved ones or their family.
Chip wants to be a grandfather; he wants to be connected to his family. He wants to be connected to his friends, and he just made some bad choices, for lack of a better term, by picking up and using those cell phones.
I challenge anyone in his position to be able to deal with the isolation, but the cell phone possession creates a parole hearing burden. The Parole Board doesn’t think it’s innocuous.
They look at that very seriously because, to them, it’s a threat to the safety and security of the prison. And there are also instances, unlike Chip’s, where people who are more nefarious use cell phones to commit further crimes. Prison authorities are not alleging that he did that, but they did find him guilty of personal use of cell phones.
AG: Chip sent me a copy of the Department of Corrections memorandum that listed confidential, aka anonymous, allegations that he was affiliated with various prison gangs between 2010 and 2012. One allegation says, “Confidential information was received alleging you were influential and/or in a leadership position amongst the Black inmate population.” That’s an overtly racist statement, inferring that the whole Black inmate population is a gang.
CC: The Department of Corrections is playing fast and loose with facts because they have what they call security threat groups (STGs). There are discrete criminal enterprises in prison that are run by all races.
If the prison authorities have actionable evidence that Chip has influence in those real criminal enterprises, they can put a case together, but they haven’t. All they’ve done is use speculation, innuendo and hunch.
All these confidential informants offer weird blanket insinuations, often not even talking about a particular security threat group or prison gang or street gang, but talking about Black inmates. That’s an absurdity, that type of charge. It holds no weight in my mind or in the eyes of the law, and it should not in the eyes of any self-respecting Parole Board. You can’t just make a blanket charge without offering facts.
There are layers of large issues to this, and it’s not only Chip, but other inmates as well. I have clients similar to Chip and similarly situated who are being told that they’re being denied parole but that the Parole Board will never tell them why because it’s confidential, according to their own Mickey-Mouse rules on confidentiality.
This is antithetical to basic democratic norms that are enshrined in the Fourth, Fifth and Sixth Amendments to the US Constitution, which give you a right to confront your accusers. You have a right to have notice of charges that are lodged against you. You have a right to present counter evidence.
Instead they rely on these highly questionable confidential informants, and not just to deprive a prisoner of, for example, a book. They do it to deprive prisoners of their liberty. It’s a very fundamental attack on a person by the state that is based nearly exclusively on confidential information.
Never mind the racist dimensions; I take that as a given. There’s a lot of racism in the Department of Corrections, not just ordinary prejudice but deeply embedded institutional racism that I assume. But as a lawyer, I look beyond that to the refinements of that racism where, like I said, they’re using confidential information against inmates to prevent them from leaving prison. To me, it runs afoul of anything closely related to a fair legal system.
AG: Have any lawyers challenged the constitutionality of relying on these confidential allegations of gang affiliation, or whatever, to decide whether or not to grant parole?
CC: Many have, over and over, but the CDCR [California Department of Corrections and Rehabilitation] always wins.
AG: And are these 2010-2012 allegations of gang affiliation central to Chip’s “unsuitability” for parole now?
CC: No, the main things keeping Chip in prison now are the two findings that he was recently in possession of cell phones, in 2017 and 2018, coupled with the forensic psychologist’s November 2015 report.
Charles Carbone is a prisoner rights attorney in San Francisco. His website is http://www.charlescarbone.com/.
Ann Garrison is an independent journalist based in the San Francisco Bay Area. In 2014, she received the Victoire Ingabire Umuhoza Democracy and Peace Prize for her reporting on conflict in the African Great Lakes region. She can be reached at email@example.com.