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Anson Stevens-Bollen

Throwing Away the Key

How the concentration of power has denied New Mexico’s ‘30-year lifers’ a fair shot at parole

March 8, 2017, 12:00 am

Since 1985, OC Fero has lined his shelf with achievements.

The former high school principal was ordained as a priest in the Catholic Apostolic Church of Antioch. He has tutored young men on their way to GEDs and earned three master’s degrees himself, all in religious studies.

And in 1992, Fero, who is now 75, married Carole Royal, with whom he shares an abiding love of scripture, reading and far-ranging spiritual thought.

Attending the small ceremony in Los Lunas were the couple’s adult children from previous marriages. Fero’s tux was a little snug, as Royal tells it. The family continued the reception at her home, but Fero stayed behind at the Central New Mexico Correctional Facility.

As with all Fero’s accomplishments during the past 32 years, his wedding unfolded inside the walls of a New Mexico prison.

Fero shot his boss to death during an argument in 1985. After his conviction on a first-degree murder charge, a judge sentenced him to 30 years to life in prison. It was the first crime he’d ever committed, one he does not deny. He feels “terrible” to this day, he says.

He also feels it is time for him to go free and share a home with Royal outside the state Corrections Department’s concrete, steel and wire.

And state law, too, says he is entitled to a fair shot at freedom.

OC Fero and Carole Royal pose for a photograph during one of her visits to the Lea County Correctional Facility in Hobbs in 2016.
Courtesy Carole Royal

But public records and interviews by New Mexico In Depth and SFR suggest Fero and dozens of others like him may be getting less than an honest chance at parole. That’s because the power to decide is concentrated in one person: Sandy Dietz, chair of the New Mexico Parole Board.

Fero is one of 435 people serving 30-to-life in the state’s prisons, a sentence created in state law in 1980.

Eighty-nine times since 2010, a panel of Parole Board members has considered release of 44 individuals. Some of those individuals have appeared before the board as many as four times. Just six have been paroled, giving New Mexico an exceptionally low grant rate for parole-eligible lifers compared to other states.

Dietz has said she is philosophically disinclined to release those sentenced for the state’s most serious crimes. She told the Albuquerque Journal in 2012 that, to her, “life means life.” It is a stance a former board member and others interviewed for this story corroborate.

They say she runs the board like an “autocrat” and stacks the two- and three-member panels deciding parole for the “30-year lifers” with herself and others who believe, like she does, that people sentenced for murder and other capital crimes should never get out of prison, despite what the law says.

People who oppose Dietz say they have been fired from administrative jobs with the Parole Board or removed from their seats by Gov. Susana Martinez. The governor appointed Dietz to a second six-year term as chair in 2015, despite criticism.

The number of 30-year lifers continues to grow in New Mexico, now comprising 6 percent of the state’s prison inmates. The low release rate and rising number of inmates are among the reasons New Mexico has not seen a dip in overall prison population, as most other states have, since 2013.

The practice of denying parole under Dietz ignores data that show older inmates are unlikely to return to prison compared to younger parolees. Many, like Fero, are aging into their 50s, 60s and even 70s. And as more of the 30-year lifers come up for parole, Dietz’ preference for denial threatens to further strain taxpayers in a state that’s struggling to make ends meet. As inmates age, it often costs up to 40 percent more to incarcerate them because of rising healthcare and other costs.

The cases of New Mexico’s 30-year lifers are diverse. Some were sentenced for multiple murders, violent rapes or killing police officers, and are unlikely to be released because of the nature and number of those crimes and because they have had disciplinary problems in prison.

Others, like Fero, committed “crimes of passion” and have been model prisoners. They all deserve a fair hearing, but most don’t get one from Dietz’ parole board, says state Sen. Bill O’Neill, D-Albuquerque.“The board is not respecting the statute,” he says.

O’Neill is sponsoring Senate Bill 216, which would shift the burden away from potential parolees—who currently must make their case for release despite not being allowed to bring a lawyer or other advocate to hearings—to the Parole Board, which would have to make a detailed finding that the person is “unable or unwilling to fulfill the obligations of a law-abiding citizen.” It sailed through the Senate on March 2.

“This bill exists, honestly, because of the results of [Dietz’] leadership,” O’Neill says. “If the Parole Board were doing its job as, in a perfect world, we all expect it would be done, this bill wouldn’t be necessary.”

The measure enjoys some bipartisan support and the hopeful enthusiasm of O’Neill, a former executive director of the state’s juvenile parole board and a longtime criminal justice reform advocate.

But in an emailed statement to NMID and SFR, Martinez vowed to veto the bill if it reached her desk, calling it “tone deaf” and citing her 25 years as a prosecutor.

Dietz ignored multiple requests for an interview in the past six weeks, and Parole Board Executive Director Sherry Stephens declined to comment on her impressions of Dietz. Stephens says in an interview she had not witnessed the type of behavior described by others, nor had she received complaints about Dietz from board members since taking over as executive director in October 2012.

Dietz is operating within the framework of a 1980 law the Legislature passed to ensure incarceration for at least 30 years before someone with a life sentence can be paroled. It requires a hearing every two years once an inmate has served the mandatory 30. The state also has a life without the possibility of parole statute, which replaced the death penalty when it was repealed in 2009.

The 1980 law and the statute O’Neill is trying to change set the stage for the release of would-be parolees on the 30-year lifer list in just 7 percent of hearings from 2010 to 2016 under Dietz, an analysis by NMID and SFR shows. New Mexico did not provide reliable data to The Sentencing Project, a national organization that advocates for justice system reform, for a report the nonprofit published last month about parole-eligible lifers around the country. The organization’s research showed that, of 23 states that did provide figures, just two had a lower grant-rate than New Mexico for a similar time period: South Carolina (3 percent) and Wisconsin (2 percent).

The one-page forms that describe why New Mexico inmates were not paroled show they were denied based on criteria such as “nature and seriousness of offense,” the use of a weapon in the crime, and vague standards such as “parole at this time would depreciate the seriousness of your crime.”

Some list additional reasons, such as “poor adjustment in institution” and “inadequate parole plan and/or no parole plan.” On the vast majority of forms, Parole Board members left blank a section for suggestions on how the inmate could improve chances for parole, such as drug counseling or psychological therapy.

Explore the parole slips for New Mexico's 30-year lifers

Fero’s denial slip is bare bones. It provides no clues as to how he had passed his time in prison or hints at how to get out on parole at a subsequent hearing.

Still, long before he received the slip, he dreamed of the day of his hearing—having counted many of them since Feb. 22, 1985. That was the day he murdered his boss, Gallup-McKinley schools superintendent Paul Hansen, during an argument over Fero’s employment, inside Hansen’s district office.

Fero served his time behind bars with a clean record and much regret since.

The shooting “should have never, ever happened,” Fero says now. “Remorse? If you prayed for 32 years for someone, for a family … ” His even, steady voice halts during a telephone interview from inside the Lea County Correctional Facility in Hobbs. “I felt terrible, and I still feel terrible today.”

Fero was given just three days’ notice before his hearing on March 24, 2015, he says. He was unprepared, but expected to get out. The hearing that’s supposed to be closed to everyone but the inmate and the board members quickly took on an ominous tone, however.

“I noticed they left the door open, and [Hansen’s] family is out there listening,” he says, referring to the family of the man he killed. “Dietz had already made up her mind.”

Hansen’s family did not respond to a request for comment for this story, and the Corrections Department would not make anyone from its victim advocate division available for an interview.

Fero says the two other board members, Verna Morris and Laura Chavez, tried to ask questions about how he had spent his time in prison, but Dietz interrupted and refocused the hearing to the murder itself. (Neither Morris nor Chavez could be reached.)

A few days later, Fero’s caseworker delivered the bad news. The denial devastated him.

“I really believed that I was going to be released. My archbishop believed. We had many officers at the institution I was at. They thought I was going to be released,” Fero says. “I was supposed to be the one to make it. When I didn’t make it, it just discouraged me for so many others.”

Dietz occupies one of 10 currently filled seats on what is supposed to be a 15-member parole board composed of geographically and professionally diverse members who live near New Mexico’s prisons. The idea is that different members preside in two- or three-member panels for parole hearings.

But Mary Thompson, a former board member, and others interviewed for this story say Dietz stacks those panels, often with herself and others who believe that “life means life” in order to deny parole.

Dietz placed herself on at least 63 of the 89 panels and has voted for parole four times, according to records provided by the Parole Board. Only board member Caryn Apodaca has decided parole for a 30-year lifer at that same rate; she has sat on 66 panels and also voted to set four people free. No other board member has been on more than 33 panels. (Apodaca could not be reached for comment.)

Before her appointment to the board, Dietz worked for decades as a victim advocate in the Bernalillo County District Attorney’s Office. The experience of supporting crime victims and their families shaped her perspective, according to Thompson, and she often “bullied” fellow appointees who did not see things her way after her appointment to the chair by then-governor Bill Richardson in 2009. Dietz even occasionally expressed her displeasure toward victims’ family members who were against the continued incarceration of a potential parolee, says Thompson.

Only one of the six 30-year lifers released in New Mexico, Donald Whittington, has violated parole and been reincarcerated—for a minor infraction involving an argument with a parole officer.

Thompson was on the panel that voted to release Whittington in 2010. She says Dietz was “furious” with the decision, and that’s when the trouble really began.

“I think she was humiliated because she had promised these families these guys would never get out,” says Thompson, who spent her career as a licensed mental health counselor.

After the Whittington case, Thompson says Dietz began removing her from panels, even those that would’ve naturally included her because they were to be held near her home in Santa Fe. She says Dietz did the same with others who seemed inclined to “make independent decisions.”

“It was my position that you had to look at the whole case,” Thompson says. “There are cases in which someone has bettered himself in prison, and the underlying crime had risen out of human pain that caused him to do something he never would’ve done and would never do again. Then there are people who are just cold-blooded murderers, who have been problems in prison and who should not be let out.”

In April 2012, Thompson sent a letter to Dietz that she had agonized over for weeks, laying out her case against the board chair. She knew it might get her removed from the board—and it did.

Another casualty of that time was Ella Frank, who had been the board’s executive director. Frank tells NMID and SFR it was clear that, like Thompson, she had a fundamental disagreement with Dietz over how to deal with the 30-year lifers, although the two never had a face-to-face argument.

Not long after Thompson’s letter landed, “I was told the governor was making some changes and my services would no longer be needed,” Frank says, declining to speculate on the reasons for her firing. “They gave me 30 minutes to pack up my stuff, and I was escorted from the property.”

Each of the four votes Dietz has cast to parole inmates during her tenure as board chairwoman has followed news stories detailing the rift at the Parole Board, including objections from prominent defense attorneys to her style and practice. One of her votes to parole an inmate came after Senate Democrats, led by O’Neill, mounted an opposition to her reappointment over her handling of the 30-year lifer cases.

Dietz was reappointed on a vote of 31-7.

A Martinez spokesman did not respond to questions about the firings of Thompson and Frank, but wrote in an email that the governor “is absolutely confident in Ms. Dietz.”

New Mexico’s recalcitrance in addressing its “lifer” population is common in other states, too, according to a report released last month by The Sentencing Project. The study identified four factors as responsible for longer sentences and fewer releases for parole-eligible lifers: political pressure and parole-board meddling from governors concerned about appearing soft on crime, parole boards themselves, changes in state law that make people wait longer for a first hearing, and a narrowing of rights—including legal representation—for parole applicants.

New Mexico checks all four boxes. In addition to Dietz’ pushing the law to its limits with Martinez’ blessing, the state’s 1980 law has meant parole-eligible lifers have spent longer terms in prison than they used to.

Nationally, the number of people serving life sentences—both eligible for parole and not—continues to rise, even as reform efforts aimed at low-level, nonviolent offenders have reduced the overall prison population by 5 percent between 2009 and 2015, according to The Sentencing Project.

New Mexico has bucked the overall reduction trend, partly because the state’s 30-year lifer population has swelled to 435, figures provided by the Corrections Department show. Just four years ago, that number stood at 367.

Sandy Dietz, chair of the state Parole Board, believes “life means life.” The governor says that’s fine.

The parole-denial trend foreshadows a potential continued prison population increase in New Mexico. Each year, more and more of the 30-year lifers will become eligible for parole. And Dietz’ term as chair of the board runs until 2021.

New Mexico’s 30-year lifers who have come up for parole average 58 years of age. Incarcerating inmates as they get older in New Mexico often increases the cost to taxpayers from about $35,000 a year to as much as $50,000, according to the Corrections Department. At least two of those who have been denied parole are living in the department’s Long Term Care Unit, which costs even more.

“They’ve spent more than a million dollars locking me up, and some of that’s money that could’ve gone to children or the homeless,” Fero says.

And a 2012 Corrections Department report presented to the Legislative Finance Committee showed that inmates released from prison between the ages of 18 and 29 returned at a rate of 45 percent. That number falls to 3 percent for those 55 and older.

Nazgol Ghandnoosh, a researcher at The Sentencing Project and author of its recent report, acknowledges that building consensus for reform around those sentenced for violent crimes is more difficult than changing policies for low-level offenders. But, she says, long sentences with roadblocks to parole for those who are eligible contradict what judges expected at the time of sentencing.

“There’s no doubt that these people have committed violent crimes,” Ghandnoosh tells NMID and SFR. “They’ve killed people, and we will never get those people back. But the real question is, what do we do to prevent that from happening to other people? We are choosing not to invest in programs and practices that help reduce crime. We are invested in an emotional, overly penal policy because we are angry about crime.”

O’Neill’s bill to change parole board rules regarding 30-to-lifers received bipartisan approval from its first legislative committee—Senate Public Affairs—following questions from GOP Sen. Craig Brandt of Rio Rancho. Brandt seemed genuinely puzzled by what the proposal would change if it were to become state law.

“I thought you served your term and you were paroled. And you got out,” Brandt said to Sheila Lewis, a retired state public defender whom lawmakers asked to serve as an expert witness during the committee hearing.

“That would be a logical conclusion,” Lewis, who once served as an appellate lawyer for Fero, told Brandt.

The hearing highlighted the varied support the proposal has garnered. A representative of the American Civil Liberties Union stood up to speak in favor. Next came Pat Rogers, a former Republican national committeeman whose support for the measure appears to go against the governor, a longtime ally.

Rogers says in an interview that his interest in the issue grew out of his realization that “the present system is not serving either the taxpayers or the inmates.”

He adds that he has advocated for paroling an inmate named Reilly Johnson, who was convicted of first-degree murder in 1982. Johnson has three times been denied parole, each by panels that included Dietz.

“He’s now been in prison for 36 years for a very serious crime,” Rogers says. “He’s got all sorts of degrees in prison.

“I don’t think it’s upholding conservative principles to put someone in jail and throw away the key,” Rogers says. “The system is good at condemning. Our system is not particularly good at providing people the keys to succeed on the outside.”

Fero’s case may be exceptional among the 30-year lifers, but it is not a complete anomaly.

At least one man on the 30-year lifer list was granted a new trial: Carl Case, who was convicted in 1982 of first-degree murder and first-degree criminal sexual penetration in the rape and death of Nancy Mitchell in Carlsbad. The state’s key witnesses recanted their testimony after Case’s original trial, and DNA testing performed years later did not link him to the crime.

Despite that, Case has been denied parole three times, all by panels that included Dietz, who each time listed “history of sexual deviancy” among her reasons for denying him.

The 10th Circuit Court of Appeals has overturned a federal district court judge’s new trial order.

“Carl Case is innocent, having been wrongfully convicted 35 years ago for a crime he did not commit,” Marc Lowry, one of Case’s appellate lawyers, tells NMID and SFR, adding that Case has a relatively clean prison record and a viable parole plan that includes employment opportunities.

Meanwhile, three inmates have died awaiting hearings—including Robert Chavez, who killed his wife and was convicted in 1981. Thompson, the former board member, remembered the case and says that over the years, Chavez’ daughter forgave him for killing her mother and told the Parole Board that she wanted her father to live with her in Arizona after his release. Dietz, according to Thompson, was unmoved and told the daughter as much. With another board member, she denied Chavez’ parole in November 2011. He died four months before his second hearing was to take place.

Larry Merriman died in 2014 after two denials. Randy Pense lost three chances at parole and died last fall.

Fero says he hopes O’Neill’s reform bill passes. Even if it doesn’t, he still has hope that he may be released after an upcoming hearing. He says he wants to live with his wife and provide holy sacraments to homeless people.

For her part, Carole Royal says she never expected to be married to a man in prison. The two met as friends and colleagues, principal and teacher, in the Gallup-McKinley school district two years before Fero killed Hansen. They remained in touch and close even after Fero’s incarceration.

Royal was in denial about her love for Fero for years, she says, until one day in 1991, it hit her after visiting him in prison. They were married months later.

She believes he will be released one day.

“In fact, I am so determined that I’ve said that if he dies in there, I’m bringing his body home,” Royal says, thumbing through a scrapbook of photos showing the couple during prison visits through the years. “He’s coming home, one way or the other.”



This story was published jointly by SFR and New Mexico In Depth. NMID’s Trip Jennings contributed reporting.


 

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