If current trends continue, Robert Lee Lilley will likely die in prison.
He's been denied parole twice in the last two years and because he still denies guilt for the crime that put him behind bars, he's not likely to be let go any time soon.
Due to the nature of Lilley's crime -- his third conviction on charges of sexual assault against a minor -- some might say death behind bars is a fitting end for someone with a history of sexual abuse against kids.
But to Lilley's immediate family, who support his claims of innocence on the charge that now has him behind bars, society is wasting its time and money keeping the 70-year-old former sausage salesman at Territorial Prison in Cañon City.
For one thing, Lilley is quite literally on his last lung. A smoker for most of his life, he is confined to a wheelchair, has numerous health problems, and needs a constant supply of oxygen to simply keep breathing.
At one point, the state asked Lilley to sign "do not resuscitate" waivers so that he could enter Territorial Prison's hospice program when his condition worsens. But Lilley refused, still hoping that some day he might return home and be kept under the care of his wife, Mildred.
"He's not a threat to anyone," said Mildred, who has become an activist in social welfare and prison circles due to her husband's case.
"I'm too old," Robert Lilley adds between gulps of oxygen, pumped in through his nose. "You lose interest in [sex] when you get old."
Whatever you think of Lilley's case, it raises tough questions.
Like him or not, prisoner advocates point out that Lilley is well past his parole eligibility date. While state law gives Colorado's seven-member, governor-appointed parole board discretion on whether or not to parole an inmate, prisoner advocates ask what's the point of having parole if it's so hard to get.
And unless Lilley dies in his cell, he will be let go eventually, so why should taxpayers cover all his medical expenses in the meantime?
On the other hand, it doesn't require much physical agility to improperly touch a child, and if Lilley's in denial about his latest offense, is he more likely to re-offend?
These are exactly the kinds of difficult questions that parole board members must weigh when deciding whether or not to grant an inmate the limited freedom afforded by the state parole system.
They are questions that are being asked more and more often by legislators, prisoner advocates and corrections officials as the parole population swells in line with Colorado's booming prison population.
The state expects the prison population to increase from 14,726 in 1999 to 20,564 by 2005. That means a corresponding bloating of the state's prison budget, which has posted double-digit increases in recent years and now stands at nearly a half billion dollars when capital and operating costs are included.
Such questions are even more salient as the prison population ages and the costs of inmate health care rises. "Just as society is aging in general, so is the prison population," noted Christy Gonzales, spokesperson for the Colorado Department of Corrections, which runs the state's prison system.
That means more and more inmates who are well past the age range of high likelihood for committing crimes are still imprisoned. "I do think that parole can be a viable alternative when you have an aging prison population," said Jeaneene Miller, director of DOC's division of adult parole supervision and community corrections.
"[For] someone who's no longer considered a risk to the community and needs medical attention, it behooves us to find community resources where that inmate can be housed less expensively than in prison," Miller said. "We need to develop more resources for that kind of situation because we're going to be facing those kinds of cases more and more."
Cases like that of Robert Tyler. Convicted in 1987 of conspiracy to distribute cocaine, Tyler has twice been denied parole though he too is confined to a wheelchair, suffers from diabetes and is now legally blind.
Like many inmates before the parole board, Tyler says he's not guilty of the charges against him and that he just got caught up in a drug raid by attending the wrong party at the wrong time.
Be that as it may, Tyler said there's no way he could be a drug dealer today. He switches to the third person in describing how unlikely he sees the prospect of a blind, wheelchair-bound man entering the drug trade.
"But even if he was [going into drug sales], how would he count his money? How would he know what's going on around him? It's just not logical to me."
Why has he been denied parole? "They say I don't have a very good parole plan," says Tyler, a disabled veteran of the Vietnam war who served in an armored cavalry division in 1967 and 1968. "But I think I have a beautiful parole plan."
In short, Tyler would receive medical and other benefits from the Veteran's Administration, and he'd be able to live with one of his three daughters in Colorado Springs.
But there's a catch.
Though Tyler has completed dozens of educational and rehabilitative programs while in prison, even received his GED and associate of arts degree from Regis University while locked up, his disabilities make it difficult for him to find work once paroled.
That could prevent him from entering some community corrections facilities, transitional housing arrangements with strict rules and a requirement that inmates work. "Tyler is a well-educated man," a case manager wrote in 1998. "However, he is restricted in what he can do because of his medical problems. This may greatly limit him in looking for good steady work upon release."
Tyler and Lilley are just two cases among thousands of inmates -- men and women -- hoping for a crack at the outside. Most of the inmates who will apply for parole this year are not sick or old, and some say that those inmates deserve a break too, if Colorado is going to ever control the growth of its prison system.
"Most people think the reason the prisons are overcrowded is the stiffer sentences on the top end," said Diane Tramutola-Lawson, a leading prison advocate whose husband is in prison and has been denied parole.
"The tougher sentencing is a big part, but the big piece that doesn't get talked about as much is parole," said Tramutola-Lawson. "About 5,500 inmates are past their parole dates. Now out of 14,000 state prisoners, I'm not nave enough to say that all those eligible should come out. But certainly more could be paroled."
That claim is disputed by some in the criminal justice arena who say the parole board needs to look at inmates on a case-by-case basis. But there's no doubt that Colorado, like many states, faces a prison-funding crisis and parole policies play a huge role.
For one thing, it's cheaper to put an inmate on parole than keep him or her behind bars. While incarceration in Colorado costs roughly $62 per day, according to a 1998 audit of the state parole division by the Colorado State Auditor, an inmate on parole costs the system about $8 per day.
But that simplifies a much more complex picture. Because roughly 65 percent of all parolees violate the terms of their parole and get sent back to prison to serve more time, parole in some respects can extend the overall time someone remains a ward of the state.
And then there's mandatory parole. Approved by the legislature in 1993, mandatory parole requires all felons convicted after July of 1993 to serve an additional parole period after serving their full sentence. For example, a class two felon, who could get as little as eight years and as much as 24 years, will serve another five on parole once released from prison.
If an offender screws up while on mandatory parole, he goes back to the clink.
The efficacy of mandatory parole is hotly debated, but there's no disagreement that it has boosted both the parole and prison populations.
"With a larger parole population and increased lengths of stay on parole, we expect an increase in the number of admissions for new crimes and technical violations committed while under supervision," wrote members of the Legislative Council, which does budget and policy research for state lawmakers.
As of last fall, there were just under 4,000 people in Colorado under some sort of supervisory parole status. Since 1993, the parole population has grown at roughly 12 percent a year, though the rate had slowed to roughly eight percent in 1998. By 2005, the Legislative Council predicts an overall parole population growth of 54 percent.
"Before the imposition of mandatory parole, the average length of stay on parole was 11 months," the Council continued. "Now, with the current felony class distribution of new admissions, we estimate the average length of stay on parole will be 35.2 months."
In addition to creating a case workload crisis for parole officers, mandatory parole also expands the pool of people on parole who could, at any point, get sent back to jail for a "technical violation" of the parole conditions.
Another law passed in 1995 reduces the impact of mandatory parole by granting earned time to some nonviolent offenders. That law has led to a 20 percent drop in parole time for some nonviolent convicts, the report notes.
But another trend tips the balance back the other way: Recent parole boards have been less inclined to grant parole, releasing only 22.5 percent of applicants over a three-month period last fall, compared with rates around 30 percent in recent years -- a factor that directly contributes to the rising prison population trend.
To Tramutola-Lawson, the statistics send a poor message to inmates. "What's the incentive for inmates?" she asked. "Why enroll in all these programs and try to do good if you're never going to get any credit for it?"
Prison caseworkers and parole board members deny there's an inmate morale crisis. Morale is always pretty low in prison, they note, and inmates are naturally pessimistic and cynical about the process.
Parole board member Larry Schwarz said he doesn't think he's become tougher on inmates. "I think I've been pretty consistent, paroling no more or less people than before," said Schwarz, adding that mandatory parole is the main agent swelling the ranks of the paroled and those being considered for a revocation.
Notably, there's no provision in the parole board's mission statement that says parole board members should consider the relative costs to the state of a prisoner on parole versus an inmate in prison.
Parole board members are generally concerned with other costs: the price that victims of the crime paid, whether the convict has paid off that debt with time, whether the inmate has been rehabilitated and the potential cost to society should an inmate restart a life of crime.
"I've served under two different governors," said Schwarz, "and neither have ever asked me to make my decisions based on anything outside of public safety."
DOC's Miller agrees. "The best policy is to make sure we only release offenders that can be managed successfully in the community and make a successful integration, not just use parole to reduce the prison population," she said.
On a scorching Thursday in July, Schwarz and fellow parole board member Curtis Devlin sit behind two separate cafeteria-style folding tables at opposite ends of Territorial Prison's visitors area.
Sitting before Devlin, a stocky black man with solid sideburns and a closecropped helmet of neatly trimmed hair, is James Lee Gray, a 21-year-old Hispanic man from Pueblo serving a six-year sentence for aggravated motor vehicle theft.
"You had a troubled youth -- to put it mildly," Devlin tells the man as a broad, straight smile opens under a thin, neatly trimmed mustache. "A less than sterling youth."
A former prison caseworker, Devlin sports a white shirt, a dark tie and the demeanor of a man who's friendly and polite but isn't gonna take much bullshit. He mixes stern looks and smiles with lectures about the sins of profanity and the benefits of personal responsibility.
"I'm sorry for what I did," Gray says, responding to a series of questions from Devlin about his car- stealing days. "I'd really like to apologize to the people I stole from."
Gray was 18 years old at the time of the crime, and he thought that doing drugs and stealing made him cool. "I was mixed up," he says.
Having completed his GED in prison, Gray said he'd like to go home so that he can work in his family's business. Then Gray's mother, Barbara Vigil, speaks. "We just want him home," says Vigil, breaking into tears. "We love him dearly and we miss him."
Vigil attributed some of her son's past troubles to his failure to properly use medication for depression. Now that his condition is better understood, she said, he's unlikely to get into trouble again.
Outside prison doors, Vigil says she thinks her son has learned his lesson. "He's done so well in prison," she says, tears still welling in the corners of her eyes. "He's gotten his GED. He's been through a lot and there's a lot he wants to prove to everybody now. He went in a child and in prison he's learning to be a man."
But if Gray does get parole, he faces a daunting task. First there are the basic provisions of parole: Stay away from drugs, alcohol, weapons, fights and other convicts. More challenging than that is finding someone willing to hire a convicted thief so he can begin paying back $11,895 in fines and restitution to victims.
"I'll make any sacrifice to stay out of prison," Gray said, adding that he doesn't want to be a burden on his family, or taxpayers, any more. "I want to help out my family with the bills and around the house."
Devlin seems impressed, but reminds the green-suited inmate that charity begins at home. "You have to do some stuff for Mr. Gray, too."
'Kill my number'
As a matter of pure statistics, the odds don't favor Mr. Gray.
Of the 18,103 applications for parole received by the parole board in fiscal year 1998-99, the last fiscal year for which the parole board has completed statistics, less than a quarter (4,222 applications) were approved.*
And that figure is somewhat inflated because it includes 1,363 prisoners released due to a mandatory release date. Another 3,712 parole applications were "waived" by inmates for a variety of reasons.
By far the biggest share of parole applications -- some 56 percent, 10,169 inmates -- were "deferred," meaning that either the full board or the individual board member who met with the inmate decided to put off recommending parole for at least another year.
While Mr. Gray's session seemed to have gone well -- expressions of contrition, a solid parole plan and support from family -- he has only a one-in-four shot.
And after he's released, his odds don't get much better.
Going purely by statistics, Gray has a two-in-three chance of returning to prison due to some sort of violation of his parole conditions. Roughly 65 percent of parolees return to either prison, jail or community corrections due to violations of their parole terms.
Another set of stats tell a slightly more optimistic story. In 1998-99, the BOP presided over 3,904 parole revocation hearings, roughly 1,100 of which resulted in the inmate going back to either community corrections, jail or prison.
Another 1,000 were allowed to continue on parole and another 1,400 had their hearings postponed into the next fiscal year.
Caseworkers and parole board members concede that parolees are often sent back on what appears to be a technicality. But there's usually more to the story, they say, than just the one minor infraction listed in statistical reports on parole revocation.
"People say 'minor infraction,' but that's in the eye of the beholder," parole board member Devlin explained in the time between parole hearings, as he waited for the next inmate to be brought down from his cellblock. "As far as people being sent back on petty, or technical issues, I would argue that it doesn't happen as much as some people would believe."
When it does happen, he added, it's often because the parole officer may have already given the parolee several warnings before recommending a revocation hearing.
"A lot of time, the stats don't tell you the rest of the story," he said. "Often times, it's not the first time [the inmate] had a hot UA [positive urine test for drugs], or the first time he didn't show for work, or [was] away from [his] residence."
As strange as it may sound, Devlin said, some inmates intentionally violate so they can go back to prison and "kill their number," a term that means finishing out their full sentence, Devlin said.
Because some convicts can barely cope with life on the outside, let alone the rules of parole, they reason it's safer to just do straight time rather than deal with potential parole violations and, ultimately, a longer overall time in custody.
"One individual told me, 'I just have a year to do, so I'm just going to go back and kill my number,' " Devlin said. "If you kill your number, you don't have to answer to anybody. You just walk out. You go anywhere you want."
"Expect the worst"
The next inmate to sit across the table from Devlin leaves the interview with only these words to his fianc: "Hope for the best, expect the worst."
Indeed, John Ochoa faces even tougher odds than Gray.
Ochoa was out on parole once before, but was sent back because he had a "hot UA" and failed to comply with an intensive supervision program, which includes electronic monitoring.
He was out for two months.
As the session got going, Ochoa credited both his criminal past and his more recent lapse on parole to "being young and dumb and trying to be cool, trying to be more than I am, trying to be tough ... more of a leader."
But Devlin isn't satisfied, pushing the man to think about what he's done. "Why in the world would you do anything to bring you back to a place like this?" Devlin asked, noting that had the inmate stayed on parole, he would have accrued "earned time" and shaved months off his overall sentence.
"I was trying to make up for lost time," Ochoa responded, adding that he was trying to put two years of lost good times into the first two months of his parole.
During his roughly 20-minute hearing, Ochoa explained why he didn't think he needed a sex-offenders class. (In 1993, when he was 18, he racked up a misdemeanor for having sex with a 13-year-old.) But he added that he completed classes in basic mental health, substance abuse and anger management.
He also got a stiff lecture from Devlin for using the F-word, described his past involvement with drugs and gangs and conceded he once was cited for escaping from community corrections.
"But I'm a changed man now," Ochoa told Devlin. "I'm almost 30 years old," he said, adding that his mom is sick, and he's about to lose one of his kids due to his presence in prison. "People change, they get tired of all this. All I know is I can change. I can become a better person."
Maybe so, but the fact is that Ochoa (like many other inmates now behind bars) is no longer serving his original sentence for drug distribution, but for violations of the conditions of his mandatory parole.
"I blame myself for this. If I had not been out there partying, I would not be here now."
Statements by prison caseworkers interviewed for this story suggest that Ochoa's story is perhaps a bit truer to reality than the images of sick and dying inmates held up by prisoner advocates.
"I have to tell you, I have not seen any come back that did not deserve to come back," said Dave Teigen, case manager supervisor at Territorial Prison. "I'm not going to say that it's never occurred. But there's always a reason for them coming back."
That reason, adds Charles Garcia d Jaquez, one of seven caseworkers who works for Teigen at Territorial Prison, is usually a long history of warnings from a parole officer.
"I had this one case, a guy who had been put on probation but never made the terms of probation," he said. "Then the court put him on ISP (intensive supervision with electronic monitoring), but he violated from that. Then he was put in Community Corrections and he violated there, too. So then he's sent back to DOC and the first thing he asks me is, 'What are you going to tell the parole board?'"
"It's a snowball effect," Teigan interjects. "People are not generally revoked for just one thing."
"There's also a percentage of inmates who do well in the correctional environment; they have no problems or write-ups while in jail," adds Garcia d Jaquez. "But when you take away the structure, they start using drugs; they start getting involved with illegal activities."
So whatever problems there may be with the parole system, Garcia d Jaquez suggests, inmates are to blame for the time they have to spend behind bars. "Ninety-nine percent of these inmates have worked very hard to come back here," he said.
Still, some caseworkers concede that, for many inmates returning to the streets, parole is a minefield of potential violations waiting to happen. "It can be a vicious cycle," said Rick Martinez, caseworker supervisor for Fremont Correctional Facility.
Martinez says the parolee is to blame for his or her circumstance, and is well aware of the rules, having signed a parole agreement before leaving prison. But he agreed the terms of parole are often incredibly difficult for most inmates.
"Here's a population that has already proven that it has problems following rules and they're expected to observe a set of rules that are even more strict than the rules for everyone else," he said. "It's legal for most of us to have a drink, for example, but not for a parolee."
* Because some inmates waive their application hearings, or are deferred for periods of less than a year, the number of parole applications exceeds the number of inmates incarcerated in Colorado.
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