Parole As Post-Conviction Relief:
The Robert Lewis Decision

By Andrew Vachss
Originally published in the New England Law Review
Volume 9, Number 1, Fall 1973

There was, sadly, nothing particularly unusual about the original trial and conviction of Robert Lewis: tried by an all–white jury for crimes against white victims, in which all the defendants were black, Lewis was sentenced on July 9, 1964, to a term of 50 – 57 years, and entered Trenton State Prison the following day.

Mr. Lewis, officially age 19 at the time of sentencing for his first conviction of any kind (in reality, Mr. Lewis was probably 16 at most; no birth certificate was ever produced, and he feigned being older in order to avoid what he had been told was a worse juvenile system) was found guilty of atrocious assault, kidnapping and rape, and carrying a concealed weapon—despite the testimony of the victim herself that he was not among the defendants who had kidnapped and raped her, the arresting officer's testimony that Lewis was not among those arrested at or near the scene on the evening of the crime, the fact that the "concealed weapon" was discovered in the car of the other defendants while Robert Lewis was not present, and the prosecutor's own remarks at trial seeming to exculpate, rather than implicate, him.

His case was continually appealed, to no avail. After repeated parole denials for vague and insubstantial "reasons," Robert Lewis, assisted by two law students who had developed an interest in his case, sought relief in the courts. Denied more traditional forms of post-conviction relief, such as habeus corpus, Robert Lewis and his legal advisors began researching another type of post-conviction relief—parole criteria—and began to understand the extent of the inequities, arbitrariness, and apparently unchecked power of the Parole Board in determining the actual amount of time a convict must serve.

Following this investigation, Andrew Vachss submitted an Affidavit to the Parole Board in the form of an amicus brief on Lewis' behalf; Robert Lewis was finally granted his parole and walked out of Trenton on September 18, 1973, having spent nearly ten years of his life incarcerated for crimes that not only he, but the victim, continually maintained he had never committed.

While there are many obvious injustices involved in this case, from the arrest through the years of imprisonment and denial of parole, what makes The Robert Lewis Decision truly unique is the extent of the ramifications brought to light and set forth in this article.

For instance, what goal is incarceration expected to serve with respect to inmates generally, and individual inmates specifically: is it simple retribution, is it rehabilitation, or some combination of the two?

In 1949, the U.S. Supreme Court stated: "Retribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence."

Then what of the courts' and Parole Board's insistence that parole is a privilege, not a right—regardless of circumstances—and the absolute authority of the Board (pursuant to New Jersey statutes in effect at the time) in deciding to release or retain prospective parolees?

With an almost complete lack of release criteria, how is a prisoner or the Parole Board to even know, much less comply with, the necessary standards making release "not incompatible with the welfare of society?"

This article describes the vagueness of the standards and capriciousness of Parole Board decisions, as well as the early evolution of parole reform attempting to address the inherent unfairness of a system seemingly "answerable" only to itself.

While The Robert Lewis Decision represented cutting–edge law–making in the early 1970s, the legal citations are seriously dated at this point, so law students and researchers must look elsewhere for a current analysis of the parole process; however, anyone interested in the development of "predictive" parole criteria designed to both reduce recidivism and ensure that rehabilitated individuals are not kept incarcerated so long that their chances of successful parole are reduced, rather than enhanced, will certainly find much of value in this Decision.

Likewise those interested in the role racial discrimination played (as it continues to play) in the arrest—trial—verdict—sentencing—parole continuum will want this file, as will anyone accepting the premise that incarceration should or could result in rehabilitation, as opposed to calcification, for certain inmates; the question of how best to gauge the "proper" time for release of a given individual prisoner; and perhaps the most important question of all—what defines a "rehabilitated individual?"

Robert Lewis entered prison as a teenager, with a 6th Grade reading level, and no prior convictions of any kind. While literally "growing up behind bars," serving a term tantamount to life in prison, denied parole for not expressing "sufficient remorse" for crimes he had steadfastly denied ever committing, and while his case was being appealed—and while seeing each of the defendants in the same case who had entered Guilty pleas released on parole as he himself remained incarcerated—Robert Lewis managed to obtain his high school equivalency diploma, earn some college credit, learn a variety of vocational skills, and avoid involvement with any serious incidents while confined to a maximum-security prison more frequently used to detain "older, more serious, and more recalcitrant male offenders with poor records and long sentences."

While these accomplishments are remarkable enough, considering the circumstances of his incarceration, what is truly impressive is the character of Robert Lewis himself, as demonstrated by what he actually made of his life when finally given the opportunity.

This file also contains updated information regarding Kamau Marcharia, formerly known as Robert Lewis, who has spent a quarter–century as a community organizer, receiving (in 1991) the Petra Foundation Award for community organizing; the Foundation's Board stated that Mr. Marcharia "has changed the system in every place he has lived ... leaving behind a newly enfranchised community in each location."

In addition to his work in the U.S., Mr. Marcharia has traveled to Northern Ireland and India, working with and learning from other organizers, has received several awards for his outstanding contributions to society, and in November 2000, was elected to his second term as County Council Representative for District 4, Fairfield County, South Carolina.

As of December 2013, Kamau Marcharia is still in office in South Carolina—a position he continually has to fight to maintain. To read about that fight, click here.

For the complete story of the legal and personal odyssey of this exceptional man, and of a friendship that has spanned decades and transcended prison walls, CLICK HERE.