“Denied, without prejudice, for failure to state a prima facie case for habeas relief.”
Laying on the top bunk of the San Quentin cell assigned to me, I read those words on the California State Appellate Court’s one-page ruling over and over. “Without prejudice” means you can refile the same issue in that same court—something that does not usually happen. This was not exactly the decision I wanted, but at least they left the door open for me to resubmit the appeal I had filed in February, which included new evidence.
I had prayed that the court would decide that the homicide I committed was justified, reverse my conviction and begin the process of having me released. I was recovering from a COVID-19 infection that caused a pounding headache, chills, weakness and the feeling that my nasal passages were closing. My illness made the need to be free more urgent than ever.
I shouldn’t have been exposed to the virus in the first place. For the first three months of the pandemic, San Quentin went without any confirmed cases. But in late May there was a transfer fiasco: The California Department of Corrections and Rehabilitation (CDCR) sent 121 men from the California Institution for Men in Chino, which had 450 cases, to San Quentin.
When he testified before the state Senate Public Safety Committee in July, the prison health system’s federal receiver Clark Kelso said that some of the Chino men were tested three or four weeks prior to transfer—far too long to be reliable, he said.
I heard in early June that several guys from Chino tested positive once they got to San Quentin. Predictably, the virus spread beyond quarantine areas.
In North Block, where I was housed, social distancing was out of the question: There were nearly 800 people occupying 414 cells on June 19. Despite the double bunks, those 6-by-9-foot cells were clearly designed for one person.
University of California medical experts who toured San Quentin warned that unless the prison reduced its population by 50 percent, its overcrowded cell blocks and poor ventilation would cause a full-fledged epidemic. And yet the governor and the corrections department refused early release for people who had commited violent crimes. People like me.
It didn’t matter if you’d served decades in prison, aged out of crime, no longer committed violent acts or had an inflated sentence due to three-strikes laws or so-called “sentencing enhancements.” No one considered that paroled lifers have less than a 1 percent rate of committing a crime again, compared to nearly 49 percent for other prisoners.
Designations of “violent” or “nonviolent” are as fake as race. They aren’t true indicators of dangerousness. All crimes have a butterfly effect that leaves someone, somewhere harmed. The politicians who accept NRA money when polls show that most Americans support gun control measures are accessories to mass murders. The white collar criminals who sham families into poverty are accessories to any suicides by the victims of their Maddofing. A drug addict, seemingly hurting no one but themselves, directly finances the 9-millimeters that dealers use to kill over territory. Even the drug dealers who put business over violence still sell a product that compels fiends to commit fraud, child neglect, robbery, prostitution and murder.
Before I committed violence, I experienced a whole lot of it. The worst happened when I was 17 and I ran away as a robber shot my little brother in both of his legs for a gold ring. I started carrying a gun in 1988 to redeem that cowardice and altered my path from clerking at a law firm to needing a lawyer. Twelve years later, when two armed men robbed a friend right in front of me, I reacted with a hail of gunfire.
The man I am today would rather be robbed than to kill another Black human being. Through years of self-help groups, reflection and study, I have healed. I’ve learned from books like Danielle Sered’s “Until We Reckon” that the poverty and violence that I experienced were key factors in the commission of my crime. “The Body Keeps Score,” by psychiatrist and trauma researcher Bessel van der Kolk, showed me that seeing my little brother shot caused physical changes in my brain that contributed to me killing someone when faced with circumstances reminiscent of that robbery.
Most of the older men housed at San Quentin have healed and have stopped resorting to violence as well. Even with over 1,000 lifers, this is one of the safest places I’ve ever lived. It’s so safe that people tour the prison. NBA stars like Draymond Green and JaVale McGee have sat at tables on the yard in the midst of dozens of tatted-up men to play dominoes and chess. Over 3,000 volunteers, mostly women, facilitate self-help groups without direct CO supervision. Yet, when state officials had a chance to save people from COVID through early releases, they classified us as violent. I guess they read “The New Jim Crow” but skipped “Just Mercy.”
After the court made its “without prejudice” ruling in my case on June 30, I had 90 days to refile. Due to the constant quarantines, I was unable to get inside the law library and phone access was limited. I decided I needed an attorney.
I didn’t have enough money to hire anyone, so I asked my friend Su to launch a fundraising campaign. By the time I reached her, I only had about 60 days left on my statutory deadline. If I filed after that, my claim would be time barred unless I could provide a good reason for the delay.
I had read in other cases that hiring a lawyer who starts an investigation counts as good cause. I also figured that catching coronavirus would be an acceptable justification. On August 15, the date Su launched a GoFundMe, COVID-19 had infected over two-thirds of the San Quentin population—2,100 people—and claimed 25 lives.
By October 16, we had raised $14,563. While it fell short of our $35,000 goal, it was enough to pay a lawyer for a case review. Two other friends agreed to contribute however much I fell short.
I briefly considered not hiring the lawyer because on October 20 a state court determined that the warden of San Quentin had deliberately failed to protect us from COVID-19, and ordered the prison to reduce its population by half. But the court left it up to the deliberately indifferent prison officials to decide if they would reach the reduction through releases or transfers. For the most part, San Quentin chose transfers.
On October 23, as soon as a CO opened our cages, I raced to the phone booths to call Su. She quickly accepted the call but opened our conversation with, “Please don’t be mad at me.”
“What? What happened?”
“GoFundMe shut down the account and refunded everyone’s money. You can’t have legal campaigns on their site.”
Time stood still as sensations of anger, shock and fear passed through my body. I sighed deeply and told her to start a campaign on another website then have everyone re-donate.
With more research Su and I learned that you can in fact do legal campaigns on GoFundMe, but the crimes can’t involve violence. Without regard for the circumstances of my case or who I am today, I was once again being judged for something I did 20 years ago—something I wish to God that I could change but can’t, no matter how many other changes I have made.
Rahsaan “New York” Thomas is the co-host and co-producer of the Pulitzer Prize-nominated podcast “Ear Hustle.” He’s also a contributing writer for The Marshall Project and San Quentin News. He is currently incarcerated and pursuing a legal campaign to secure his freedom.