BESSEMER, Alabama—The glint from razor wire that girds the William E. Donaldson Correctional Facility seems out of place in the piney woods northwest of Bessemer. Donaldson, the maximum-security home of 1,500 convicted felons, was built in 1980 and is named for a prison officer who was stabbed to death by an inmate in its early years. The state Department of Corrections website describes its function: “Donaldson specializes in controlling repeat and/or multiple violent offenders with lengthy sentences that are behaviorally difficult to manage, and several hundred inmates sentenced to life without parole.”
One of those LWOPs, as they are known in prison lexicon, is Aaron Lamont Johnson, inmate No. 00190394. In 1994, when he was 19 years old, Johnson was accused of shooting to death another young man in their north Birmingham neighborhood. He was charged with murder and sat through four trials as the chief antagonist of the prosecutor’s narrative. Three mistrials were declared when jurors were unable to agree on his guilt or innocence.
Johnson was convicted at a fourth trial and sent to prison without possibility of parole under a drive-by shooting sentencing enhancement, though it was the victim who drove up and confronted Johnson in his yard.
Johnson has been locked up for 21 years. If Alabama has its way, and Johnson reaches the average African-American male lifespan of 72, he will have served 53 years in prison for a heat-of-the-moment offense committed when he was a young adult.
His story is an example of the enduring aftereffects of the politicization of American justice through legislated sentencing mandates. A generation ago, experts say, Johnson likely would have served fewer than 20 years for a comparable crime. Even today, he would be parole-eligible in many states. Instead, he is caught in the country’s lifer bubble, roughly 175,000 strong and growing, a neglected remainder of the lock-‘em-up frenzy of the 1980s and '90s.
The number of lifers today is comparable to the entire U.S. prison population in 1968. The racial imbalance is striking: Half of all lifers are black, four times the percentage of African Americans in the U.S. population. Yet so far lifers have been excluded from reform discussions, even though the country’s long-term prisoners are the core constituency of the methodical mass incarceration that is widely viewed as racist and ineffectual.
“I think violent crime, and homicide in particular, is still off the table politically,” said Ashley Nellis, an analyst with the nonprofit Sentencing Project.
Sentencing reforms are focused on the so-called non-non-nons—non-violent, non-serious, non-sexual offenders.
“There’s a lot of work to be done there, too,” Nellis told me, “but it’s not going to make a substantial difference in mass incarceration unless we consider the serious stuff, as well.”
Julie Stewart, president of Families Against Mandatory Minimums, said lifers have been “thrown under the bus” by lawmakers. Ryan King of the Urban Institute added, “It’s like we don’t want to deal with the problem—and life-without-parolers are the most extreme example.”
About 50,000 lifers are serving sentences without hope of parole, roughly the total population of Pascagoula, Miss., Brunswick, Ga., or Grand Island, Neb.
Alabama stands apart, with a handful of other Dixie states, in its enthusiasm for long prison sentences, even as entrenched mass incarceration fuels the state’s unremitting financial bonfire.
Alabama’s incarceration rate is the fourth highest in the country, just below its Deep South kin, Louisiana and Mississippi, and the national leader, Oklahoma.
Doris Schartmueller, a California State-Chico criminologist who has studied Alabama incarceration trends, said the state built a “permanent” prison population by applying habitual-criminal sentencing add-ons as crime was declining sharply in the 1990s and 2000s.
Since 1980, state prison rolls have grown nearly 400 percent—from 6,500 to 24,250 today (plus another 7,000 in custody outside of Alabama penitentiaries)—while the state population has grown just 23 percent. Alabama prisons operate at nearly double their official capacity of 13,318.
Schartmueller told me that long sentences and the politicization of parole ensure that the state’s dangerously overcrowded prisons will stay that way. The Alabama Board of Pardons and Paroles, with members appointed by and politically beholden to the governor, rarely approves discretionary parole.
“Due to these stringent parole practices, you will have a quite high percentage of prisoners who will grow old in prison and eventually die behind bars,” Schartmueller said.
Nearly a century ago, Lewis Lawes, the progressive warden of New York’s Sing Sing prison, described the soul-numbing monotony of life in a cage: “Death fades into insignificance when compared with life imprisonment. To spend each night in jail, day after day, year after year, gazing at the bars and longing for freedom, is indeed expiation.”
Aaron Johnson wards off that existential despair through prayer and a scholar’s diligence to his case. He earned certification as a paralegal through correspondence school and fights incessantly from inside Donaldson for exoneration or sentence relief. Neither appears to be forthcoming.
Johnson is a light-skinned black man of average size—5-foot-8, 154 pounds. His body bears none of the usual prison mementos; he is clean-shaven, with closely cropped hair and no tattoos. He is soft-spoken and polite, though this should not be mistaken for a lack of intensity.
“People have asked me over the years, how do you decide which case to take on?" said Claudia Whitman, an innocence advocate who has worked on behalf of Johnson since 2001. “There are a couple of factors. But the main one is the doggedness of the person insisting they’re innocent and their willingness to fight to prove it.
“Aaron is the most dogged person I’ve ever worked with. He’s never given up. He never stops.”
I have delved into Johnson’s life story for nearly a year, speaking with more than 25 people, some with a personal stake and some without. The crux of what Johnson calls his “situation” is this question: After 7,850 days behind bars, how much more punishment does he deserve?
“There are things that impulsive young people, men and women, may do that perhaps shouldn’t be the thing that defines their entire life,” Richard Cohen, executive director of the Montgomery, Ala.-based Southern Poverty Law Center, told me. “Throwing away the key is synonymous with saying there is no possibility of rehabilitation, no possibility of redemption. And as a country I don’t think we ought to say that about people.”
I spent many hours talking with Johnson’s mother, Dinah Robinson. At one point, I pressed her (yet again) to explain a puzzling detail about her son’s life.
“I’m trying to understand,” I said.
She stopped me.
“I know you’re trying to understand. But to understand any of this, you have to understand what’s it’s like to be a young black man growing up in a place like north Birmingham, Alabama,” Robinson said. “And if you didn’t grow up black in Birmingham, you’ll probably never understand.”
Between Right and Wrong
On Sept. 13, 1994, a throng of 1,000 assembled outside the White House for a carefully staged event designed to add gravitas as President Bill Clinton signed the Violent Control and Law Enforcement Act.
The dais was packed hip to hip with some 200 people, a bipartisan mashup of Washington politicians, police chiefs, cabinet secretaries, mayors, and the kin of crime victims, all of whom seemed to believe that the law was a good idea for America.
Clinton spoke with a preacher’s pulpit rhetoric.
“When I sign this crime bill,” he said, “we together are taking a big step toward bringing the laws of our land back into line with the values of our people and beginning to restore the line between right and wrong.”
Moral transfiguration may have been the goal, but the 356-page legislative behemoth had a carrot-and-stick orientation. It endorsed funding of as much as $30 billion for police officers, prison construction, and other incentives and subsidies for states willing to go along with a federal prod to punish lawbreakers more severely.
Motivated in part by money, most states proved eager to do so, even though crime had just begun a precipitous decline. Hundreds of state and federals laws had already added sentencing enhancements for specific criminal acts, such as drive-by shootings. But Clinton’s signature that day in 1994 served to enshrine the lock-‘em-up ethos that institutionalized what we now recognize as unprecedented mass incarceration.
The very next day, September 14, Aaron Johnson was hanging out with friends on the hood of a car parked on a grassy siding in front of his wife’s family’s house on 25th Street North in impoverished north Birmingham, a world away from the White House.
At twilight, a Chevy Monte Carlo rolled to a stop near Johnson’s perch. The driver was a neighborhood adversary, Timothy Chester, also 19.
Johnson recalled the sequence of events as we spoke in a small, spare room in the visitors’ center at Donaldson prison.
“We’re sitting out there talking, just enjoying, you know, the evening,” Johnson said. “And he (Chester) pulls up. I don’t remember his exact words, but it was something to the nature like, uh, you got a problem with me?
“He just wanted to, how can I say this, agitate and irritate me. But he didn’t say nothin’ that would let me know where he’s comin’ from. So I’m like, man, why is you coming to my house with this? What’s wrong with you?”
Johnson said he told Chester to leave. Chester didn’t heed the advice, and their beef escalated into violence.
What was it all about? Johnson said, “This whole thing really results from the effects of crack.”
‘It Was a Scourge’
For a decade beginning in 1985, sections of Birmingham endured the crack-driven crime conflagration that scorched black neighborhoods coast to coast.
The city had 60 homicides in 1984, a 30-year low. As crack arrived the next year, the murder total jumped to 97, up 62 percent. The homicide surge reached 129 or more in each of the first five years of the 1990s.
“It was a scourge,” said Vickii Howell, an Alabama native who saw crack’s impact while covering courts for the Birmingham News. “It was some kind of cultural shift that happened. There were always drugs, but there wasn’t this kind of violence that came with it. It became this ‘New Jack City’ attitude that killing is cool and you prove your worth by how many people you can hurt or kill.”
Aaron Johnson and Tim Chester had been circling one another for months, according to Johnson. Their conflict illustrated criminologist Alfred Blumstein’s axiom that young men armed with guns are lousy at dispute resolution. Perhaps in another time and place, a pastor, parent, coach or cop might have interceded and saved two lives. That didn’t happen.
They lived in the same cluster of neighborhoods north of downtown Birmingham—Acipco-Finley, Enon Ridge, Evergreen—tucked between rail yards and a manufacturing zone on the west and the city’s airport on the east.
Metropolitan Birmingham is a traffic-snarled sprawl of 1.1 million people, nearly a quarter of Alabama’s population. But the city itself seems hollowed out. It peaked at 350,000 residents in the early 1960s before white flight began amid infamous white-on-black violence, including 50 bombings, many at homes where African-Americans had crossed real estate lines of demarcation.
Birmingham has shriveled to 210,000 people. Three-quarters of its residents are black, and three out of 10 live in poverty.
Aaron Johnson spent much of his childhood in a particularly destitute precinct known as Evergreen Bottom. Johnson grew up working as a caretaker at his grandparents’ group home for the developmentally disabled off Stouts Road there. His mother’s parents owned an entire block of property, including several two-story apartment buildings.
Evergreen Bottom is a grim place. Many buildings have been knocked down, leaving vacant lots waist-high with weeds that obscure dumped trash. A brick housing project, several two-story apartment buildings, and many small homes sit abandoned and moldering.
Half of the population there earns an income below the federal government’s poverty line of $11,770 for individuals. Sixty-four percent of adults living in that ZIP code are not working, and 30 percent have no high school diploma.
Narcotics grew deep roots in Evergreen Bottom generations ago. According to Johnson, a relative’s crack cocaine debt was the impetus for his conflict with Timothy Chester.
Johnson’s aunt, Mary Lou Robinson, lived in an apartment building that shared an alley with the Evergreen Bottom group home. Johnson said he was carrying trash to a dumpster one day when he stopped to chat with his aunt. They were joined by her daughter, his cousin Mary Ann Green and Green’s 6-year-old daughter Mesha.
Both his aunt and cousin were crack addicts, Johnson said.
As the relatives talked, Chester and two other men drove pulled up the alley to collect a crack debt from Robinson, Johnson told me.
“Chester hops out the car while we’re standing and talking and everything, and he’s telling my aunt, like, ‘Bring your ass here. Where my money at?’” Johnson said. He said he was upset that his cousin’s child had to witness this.
“So I said…‘C’mon let’s go. Get Mesha out from in front of this stuff.’ So Chester hollers something of the nature of, ‘Oh, you don’t like it? You don’t like it?”
“I just said, ‘Shit, go ahead on, man.’
“And that’s basically where it started from, that incident there,” Johnson said. “This is still my family. Even though they’re on drugs, we’re still family.”
For months afterward, Johnson said, he heard gossip that Chester had it in for him.
“I think he was just bluffing,” Johnson said. “He wanted to pull me out and see what I would do. In that time period, people wanted to make reputations for themselves. So they’d prey on people they think were weak…He wanted to be famous—street famous. Street cred is what they call it now.”
Johnson’s wife, Terina, and Chester’s girlfriend, Teresa Jones, had their own arguments about the stewing conflict. But Johnson said the two young men had no real confrontations until the evening in September ‘94.
I asked why Chester had shown up then.
“I really don’t know,” he said. “I know that people gossip a lot. Someone else may have caused him to do that—you know, like somebody told him that I said something. Anything to just keep up some confusion.”
Alone and in Trouble
Dinah Leah Johnson was 15 years old, a freshman at Phillips High School in Birmingham, when she met Aaron Robinson Jr., who was 23.
“It was quite the controversy,” she said. “People in my family wanted to have him arrested.”
But she stayed with him and got pregnant just after her 17th birthday. During her seventh month of pregnancy, her child’s father was sent to prison for five years for burglary.
“And there I was, alone by myself and in trouble, like a scared little rabbit,” Dinah Robinson told me.
She resolved to make a better life for her son.
“I started to teach him even before he came out,” she said. “We talked and talked and read and read. He learned from within. It was just he and I, and we just read our life away during my pregnancy. It was like a journey, you know?”
Aaron was born on Jan. 12, 1975. His mother had dropped out of school, but she earned a GED and took college classes while building a career in health care and office work in Birmingham and, later, Houston.
By the time Aaron’s father was paroled, Dinah had moved on.
“After he got out, I was all grown up, and I knew he just wasn’t the one for me,” she said. “I was doing all right, and we didn’t need him. I could take care of Aaron on my own, so I just kept it going, moving ahead.”
Aaron Johnson said his mother encouraged him to strive.
“She stayed on me about going to school—about making something out of my life, that I can be anything I want to be,” he said. “She would say, ‘All you have to do is go to school, read the books, build a work ethic, pray, go to church, and don’t worry about the rest of that stuff.’”
I asked Dinah Robinson what she imagined her son might become.
After a long pause, she said, “Well, what I did notice was his leadership abilities in the neighborhood. He seemed to be such a helpful and caring young man. He had some friends who were in trouble, and he helped them in so many ways. If they were failing in school, he would teach them. If they didn’t have anything to eat, he would bring them to me and we would feed them. He was just always trying to help, and everybody seemed to look up to him.”
She paused again.
“But you know, no matter how you raise them,” Robinson said, “it seems they always figure out a way to jump the fence and meet somebody they shouldn’t.”
Crack Harbinger in Houston
Robinson moved to Houston in 1982, when her son was 7. She spent about five years there, working as a health care aide and office assistant. When crack emerged in Houston, she sent Aaron back to Birmingham.
“I would see these young men standing on the corner, saying, ‘This is my corner. You can’t pass by,’” she said. “I just did not want Aaron caught up in something like that. I thought he would be safer in Birmingham.”
She rejoined her son in Alabama in 1987 and discovered that crack was there, too.
“I was worried about him,” she said. “You just never knew what would happen from one day to the next…You might die any day. A robber might shoot you. A drug dealer. The police. Your neighbor. Everybody has a gun. So you feel like you have to get a gun.
“I know that won’t make sense if you don’t live here. But that was the reality of being a young black man coming up.”
“You had to be ready to fight,” Aaron Johnson added. “When I was going to school the neighborhood started having turf wars. Gangs came in selling crack, and they carved up the neighborhoods into a bunch of divisions. You had to cross from one into the next just going to school. And if you’re not from that neighborhood, there’d be fights, shootings…So you had to be ready for that any day.”
On Jan. 12, 1992, Johnson was celebrating his 17th birthday with friends in a motel room. The party broke up acrimoniously at about midnight when a teenage girl accused another of flirting with her boyfriend.
Leaving the party, Johnson drove along the six-lane Red Mountain Expressway toward north Birmingham. In his car were two other teens, Demetrius Preyer, 15, and Kecia Collins, 17, a female who had been involved in the motel argument.
Johnson and another car carrying three girls from the party raced along, attracting a Birmingham detective, David Robinson. As he got close, the officer saw muzzle flashes from inside Johnson’s car. Robinson stopped both cars and learned that Collins had fired the shots, apparently while sitting on Preyer’s lap.
In a hand-written statement I found in court documents, Preyer said, “We were driving and a girl rides up on the side of us driving kind of funny, and we all were laughing and stuff. I drop my head. I got back up and she (Kecia Collins) picks up a gun and points at the window and before I could make a motion shots were fired and a police was riding up on the side of us.”
At least two bullets struck the other car. Miraculously, no one was hurt.
Detective Robinson found not one but three guns in Johnson’s car—a .32-caliber pistol, a .38 revolver, and a sawed-off shotgun. Johnson was adamant that the guns were not his. Court documents do not make their ownership clear.
The incident rated a four-sentence brief in the Birmingham News—three unnamed juveniles charged with attempted murder “stemming from a car chase.”
Birmingham had a record 148 murders in 1992, three a week, so a non-injury gun assault would not have attracted much news attention. But the expressway shooting can be seen as a template example of the casual violence that plagues black communities.
Collins, Johnson and Preyer were charged with three counts each of attempted murder, one for each of the teens in the second car. Preyer was granted youthful offender status. Johnson was offered a sentence of a year at Alabama’s Mount Meigs juvenile detention facility. But he insisted he had broken no laws and refused the deal, so his case was transferred to adult court by a juvenile judge who was miffed at him.
Ultimately, prosecutors and defense attorneys worked out a deal: Johnson and Kecia Collins pleaded guilty to three counts of attempted assault, and their sentences of 10 years in prison were suspended as long as they avoided arrest for three years.
Becomes a Father
For two years, Johnson stayed out of trouble and worked toward a high school diploma. His girlfriend, Terina Cook, gave birth to their son, Demaraaron Johnson, on Sept. 11, 1993. Johnson and Cook were married four months later.
He told me he drank alcohol and smoked marijuana but had resolved to avoid hard drugs after observing its effect on his father’s family.
“…I was trying to understand why they were doing themselves like that,” he said. “You know, all the money’s spent, there’s no food, no transportation, nobody goes to school or anything of that nature.
“My little cousins was the people that was suffering the most…You walk in the house, ain’t no lights on, ain’t no furniture in the house. You’ve got children that are 8, 7, maybe the oldest was about 12, and they don’t have nothin’—no clothes because their parents and grandparents, aunties and uncles, done sold everything for crack. So it was pretty bad.”
He said crack’s destruction was as sudden as it was complete.
“It’s like one day you wake up and see a person, they’re healthy and strong, seem like they have plenty of life,” he said. “Then you wake up the next morning and it’s a totally different person. They’re all beat down and they don’t have anything, and you wonder what happened to everything. It’s like a 360 overnight.”
Johnson said he enrolled at Jefferson State Community College for the fall of 1994, planning to study business management.
But his life did its own about-face when Timothy Chester’s Chevy rolled up on that September evening, four days after he had celebrated his baby’s first birthday. Johnson admitted he was incensed that Chester had intruded on his family’s domain.
He said, “I walked over to him and I’m asking him, why you comin’ up here botherin’ me? You think I’m something to play with?”
He said Chester replied, “If you’ve got a problem with me, maybe I ought to kill your ass.”
Johnson said he feared that Chester and a front-seat passenger, later identified as Cedric Johnson (no relation), were armed.
“We were screaming at each. And then I did something stupid,” Johnson said. “I told somebody—my wife, one of her sisters, I don’t know who—to give me my gun.”
A sister-in-law fetched his .40-caliber Glock from inside the house. Here is his account:
I was watching the car, so I held my hand behind me and she put the gun in my palm, like a baton in a race. I walked over to the car, maybe 15 feet away. I had the gun pointed down, and as I got close and took one more step, Chester [still seated in the car] swings the door open at me.
He maybe was thinkin’ I was going to shoot him before he gets a chance to shoot me. So when he swung the door, I jumped out of the way. He basically got out of the car and tried to grab at the gun. We tussled. I had the gun in my left hand—I’m left-handed—and I swung it at him and hit him on the head. I hit him pretty good, and he fell back into the car, like he was half in and half out. The gun flew out of my hand when I hit him, and I turned to find it
At that same moment I saw the car light up. Somebody fired a shot. I know it ain’t my gun ‘cause it’s lyin’ 10 feet away. I didn’t know whether it was Chester shooting. But my mind is telling me that maybe I done got shot. But I’m OK, and all I can think is to get away. So I find my gun, I get my wife, we get in my car, and we leave.
Chester had been shot in the left temple. He was taken to Birmingham’s Carraway Methodist Medical Center, where he died five hours after the shooting. The county medical examiner said Chester had seven ounces of crack cocaine concealed in his mouth when he was shot.
Johnson surrendered to police later that day. He said he tossed the Glock out of his car window, and it was never found. He told police then, and continues to insist today, that the fatal shot was fired by Cedric Johnson, the passenger. A second shot shattered the rear window of Chester’s car. Cedric Johnson ran from the scene and returned later, after police had arrived.
His gun, if he had one, was never found, either.
As we sat across a table from one another in prison, I asked Johnson why he had the gun if he wasn’t involved in drugs and crime, as he claimed.
“Really, just protection,” he said. “Everybody had a gun in those days in those neighborhoods. I had to protect my wife and kid…I regret it every day. I wish I never had the gun, period. That was the worst decision of my life.”
On Trial for Murder
Johnson stood trial for murder in November 1996 in Jefferson County Circuit Court before Judge Mike McCormick. The stakes could not have been higher as a result of a muddling change in Alabama law.
In 1992, the legislature joined a number of states in adding sentencing enhancements for drive-by shootings, which were perceived as epidemic. The new Alabama law, Act 92-601, made it a capital offense—punishable by death or life without parole—to commit murder “while the victim is in a vehicle” or to fire a deadly shot “within or from a vehicle.”
The legislative target was car-to-car and car-to-street violence. Johnson was in his yard, and Chester drove up. Yet under a liberal application of the law’s sloppy language, Johnson was charged with capital murder.
His mother and father paid $18,500 to hire James McInturff and Walker Norris, reputable Birmingham criminal defense attorneys. During a weeklong trial, they built a case around Johnson’s assertion that Cedric Johnson had fired the fatal shot. Aaron’s relatives, including his wife, testified as eyewitnesses that the fatal shot came from inside the car. The defense suggested that Cedric Johnson was a police informant who was being protected by law enforcement.
The young prosecutors were Mike Anderton and Laura Poston; two decades later, both still work in the same district attorney’s office. They asserted that the gunshot that struck Chester’s left temple could not have been fired by Cedric Johnson, who was seated on the victim’s right side. Cedric Johnson testified that he did not have a gun that night, even though Aaron Johnson’s witnesses said he pinged shots back toward the house as he ran away.
The jury, six African-Americans and six whites, deliberated for two days and then announced a deadlock. Judge McCormick declared a mistrial. Johnson said he was told that the jury was split on racial lines—six whites for conviction, six blacks for acquittal.
Attorney McInturff told the Birmingham News’ Vickii Howell, “He should have been found not guilty.”
Two days after the trial ended, Johnson was surprised by a development in his expressway shooting case from 1992: Judge McCormick revoked Johnson’s probation and ordered him to serve the suspended 10-year sentence for assault. He had been barred from possessing firearms as a condition of his three-year probation. Trial testimony had shown that he had a gun in September 1994, so he was declared a probation violator.
Three Do-Over Trials
The district attorney mounted a second capital murder trial in August 1997. Again, Johnson’s parents paid $18,500 to McInturff and Norris. Testimony and the framing of events by both sides were similar to the first trial. One important new narrative detail was reported by Jim Day in the Birmingham Post-Herald:
“In the prosecution’s version of events, Deputy District Attorneys Mike Anderton and Laura Poston described how Johnson, 21, searched for Chester throughout the day, carrying a gun to settle a dispute between them.”
This added a predatory overlay to the events, even though it was Chester who drove up on Johnson.
Birmingham police Detective Jimmy Warren, accused by the defense of protecting his informant Cedric Johnson, denied that in second-trial testimony. Phyllis Rollan of the Alabama Department of Forensic Science testified that blood-spatter evidence was consistent with the prosecution’s narrative.
The trial result was a second hung jury. Johnson was told that jurors again voted along racial lines—blacks for acquittal, whites for conviction. Anderton immediately announced plans for a third trial.
“It’s our contention that they are wasting the state’s money,” McInturff told reporters. “If it were any case other than capital murder, it would be too many (trials).”
Legal complications and financial considerations forced Johnson’s family to abandon McInturff and Norris after the second trial. They hired Cynthia Umstead, a young attorney who followed McInturff’s game plan. The third trial, in June 1998, concluded with yet another hung jury (9-3 for acquittal, according to Johnson).
Prosecutor Anderton pressed on toward a fourth.
Howell, who covered courts for the Birmingham News for 11 years, told me she did not remember Aaron Johnson’s case, even though she wrote a number of bylined stories about it.
“Unfortunately, there were a lot of murders going on back then, so sometimes I’d have to run between trials,” said Howell, an African-American who grew up in Mobile, Ala.
She said it was exceedingly rare for a criminal case to go to four trials. The only one that came close, she said, was a series of prosecutions in the headline-making 1995 slaying of William Hardy, a deputy sheriff moonlighting as a motel security guard.
In that similarly knotty Jefferson County prosecution from the same era, four men were charged with capital murder: Toforest Johnson, Ardragus Ford, Quintez Wilson and Omar Berry. Berry and Wilson were held on murder charges for 15 months then set free when the chief prosecution witness repudiated the story that investigators say she initially told.
Ford faced trial three times. After two hung juries, he was acquitted. Toforest Johnson’s first trial also ended in a hung jury, but he was convicted in his second go-around and sentenced to death.
Howell said the murder of a cop was the sort of case that would normally prompt prosecutors to press so many trials.
She said the drive-by shooting enhancement suggests the district attorney was trying to make an example of Aaron Johnson. “So many people were being shot in drive-bys that they were throwing the book at the people involved to discourage others,” Howell said.
Johnson’s fourth capital murder trial was held in November 1998, five months after the third mistrial, two years after trial No. 1, and four years after the homicide. Witnesses had begun to scatter, which made Umstead’s defense more challenging.
The Johnson family had run out of money, and Umstead was paid by the court for the fourth trial.
Johnson said he was confident as he was delivered to court. “I figured one more mistrial and I can go home,” he told me.
That trial was presided over by Chris Galanos, a visiting judge from Mobile, 260 miles away, who was brought in to bolster Jefferson County’s overextended bench. Johnson’s first three trials lasted seven or eight days each. Galanos made it clear he was in a hurry to get home to Mobile. He vowed to dispose of the case in three days—and he did.
Johnson saw red flags. His familiar roster of eyewitnesses, including his wife and her sisters, were not in the courthouse; they had not received subpoenas. He said Umstead made impromptu changes in the defense plan, suggesting that he testify for the first time.
“She told me it was my only chance to tell our side of the story,” Johnson said.
Unrehearsed, he stammered through a fierce cross-examination. Judge Galanos allowed transcripts of defense witness testimony from earlier trials to be entered into the record, but lawyers say juries are more likely to be influenced by in-person testimony.
The quick fourth trial ended with a conviction for capital murder. The penalty phase began immediately, and Johnson testified a second time to save his life. The jury voted 8-4 for life without parole.
Expecting freedom, Johnson was instead locked away forever.
Fourth Trial ‘a Travesty’
The death of Timothy Chester left a trail of human wreckage among his loved ones. His girlfriend, Teresa Jones, was pregnant at the time of the homicide and gave birth to their son, Timothy Jr., just weeks after his father’s funeral.
Jones described the void in her son’s life in a brief courthouse interview with Howell.
“He cries every night, asking, ‘Where’s daddy?’” Jones said. “What am I supposed to tell him?”
Timothy Jr., now 21, apparently still lives in Birmingham. Attempts to reach him were unsuccessful.
Whether or not Aaron Johnson killed Chester, his series of trials stand as a paragon of messy justice. Persistence paid off for the prosecution over a defense that seemed to have grown complacent.
In his petition for a new trial, filed on Jan. 26, 1999, appeals attorney Erskine Mathis argued that Johnson had lost an unfair fight.
“The state should not be allowed to try someone forever,” Mathis wrote. “There must be a stopping point. At some point a defendant’s money for defense or even his resolve to continue the fight wears out. Should the state be allowed to prevail because it is more wealthy and able to pass the case to someone else when individual state agents become tired?”
“The fourth trial was a travesty,” said Claudia Whitman, Johnson’s longtime wrongful conviction advocate. Whitman, Mathis and other appeals attorneys have challenged the validity of the conviction on a number of counts. Among them:
- Chain-of-custody evidence issues with the car and questionable forensic testing on blood-spatter patterns and bullet trajectories;
- No residue testing on Cedric Johnson to determine whether he had fired a gun;
- Ineffective counsel by Umstead in her failure to subpoena defense witnesses in the final trial;
- Errors by Judge Galanos, who failed to instruct jurors of options to a capital murder verdict, including manslaughter. (Galanos, a former district attorney in Mobile, was later cited by the Center for Public Integrity as a national leader in prosecutorial errors and misconduct.)
Johnson’s parents paid $25,000 to Mathis and $15,000 to Birmingham attorney Roger Appell for appeals, according to Dinah Robinson. (Aaron Johnson has sued Appell, who did not reply to a request for an interview.) They also paid $10,000 to Rita Briles, yet another Birmingham-area lawyer, to handle his post-conviction relief appeal, known as Rule 32. (Robinson said Briles missed a crucial filing deadline.)
Whitman believes that the missing witnesses led to Johnson’s conviction. She collected statements from Terina Johnson and others, who said they had not been subpoenaed and would have testified. (The snafu may have been related to change-of-address complications after a fire destroyed the home of Terina’s family.)
Whitman also found a new, non-family eyewitness who swore that Cedric Johnson shot Chester. And she sought an evidence analysis from Dan Spitz, a Michigan pathologist who frequently testifies as a forensic expert. Spitz concluded that Johnson’s version of the events is plausible, and he wondered why the defense did not hire a blood-spatter expert to counter the prosecution’s theory of the case—a fundamental component of a competent criminal defense.
Aaron Johnson has done many of his own legal filings since earning certification as a paralegal in 2003 from Blackstone Career Institute. In part, this is necessary due to a conundrum of a sentence of life without parole.
Toforest Johnson, convicted and condemned to die 20 years ago in the hotel parking lot murder of the off-duty Alabama sheriff’s deputy, is represented in ongoing post-conviction proceedings by two prominent legal advocacy groups, the Southern Center for Human Rights in Atlanta and the Berkeley Law School Death Penalty Clinic.
He is one of about 3,000 men and women on death row in the U.S. With their lives at stake, most have access to experienced defense attorneys and knowledgeable advocates.
Claudia Whitman has been tireless in her work on behalf of Aaron Johnson, but she is not an attorney. She has begged for pro-bono legal advocacy to no avail. Johnson, like many of the country’s 50,000 life-without-parolers, struggle to attract attention to their cases, especially if there is no DNA evidence to guide a wrongful-conviction challenge.
Dinah Robinson estimates that she and her son’s father have invested more than $100,000 in his criminal defense and appeals. They have exhausted their savings and refinanced or sold family properties. They complain that several attorneys pocketed their money and did little work.
Robinson also hired a retired Texas cop as a private investigator.
“I sent him $3,000,” she said. “He came to Birmingham, we talked about Aaron’s case, and he left. I never heard from him again. I called him to try to get my money back, and his wife cussed me out.”
Johnson describes Alabama defense attorneys as “vultures circling the prisons.”
Although he believes he has been treated unfairly by the Alabama criminal justice system, Johnson insisted during our prison conversation that he is not resentful.
“It was a hell of a learning experience,” he said. “I’m at fault because I should never have had the gun and I should never have assaulted Tim, so I’m gonna take responsibility. But I think 20 years was sufficient for that aspect. And to actually say I killed him, nah, don’t do me like that. If they’d have been fair about the whole situation, then I would never be in my predicament (serving life without parole).”
Johnson dreams that someone in the justice system, out of benevolence or as a result of one of his court filings, will recognize his sentence as unjust and set him free.
Alabama’s ‘Flinty’ Republicanism
But sentence relief does not seem likely in Alabama, where a flinty version of Republicanism reigns. Reform legislation that passed last year focuses on crimes of the future, not the past, through reclassification of nonviolent offenses that might now lead to probation rather than mandatory prison time. The GOP point man on the issue, Sen. Cam Ward of suburban Birmingham, made it clear what reform would not entail.
“No one is getting released early,” he declared.
That seems antithetical to the stated goal of significantly reducing Alabama’s prison population. But the ghost of Willie Horton haunts re-election dreams in the Yellowhammer State, where the parole process has become petrified.
Across the history of incarceration in the U.S., most violent felons have eventually become eligible for supervised release. Some have committed new crimes; inevitably, some always will. Alabama politicians—and, to be fair, those in the rest of the country—do not view that inevitability as acceptable. They see no political upside to discretionary parole.
Perhaps not coincidentally, Alabama incarcerates African Americans at a rate that is more than double their population ratio: 59 percent of inmates are black, while just 27 percent of state residents are African American, predominantly members of the Democratic minority.
Alabama has lagged the nation in recovery from the recession, and it faces annual spending cuts driven by budget deficits—$300 million in 2015, $200 million this year. Mass incarceration bears part of the blame. Prison spending has tripled in 20 years, to $499 million this year, nearly a quarter of the state’s general-fund budget.
The imposition of long, stern sentences since the ‘90s ensures bloated prison budgets well into the future.
Aaron Johnson is one of 1,552 Alabama inmates—4.9 percent of the total prison population--serving life without parole. But virtually half of all inmates—47.8 percent—in Alabama prisons are serving sentences of 20 years or more.
Forty-one percent of inmates are 40 or older. Those in the 51-to-60 age bracket number 4,334, up 69 percent in the past 10 years. And 1,508 inmates are 60 or older, twice as many as 10 years ago.
Alabama spends about $17,000 per prisoner per year, or about $47 a day. But analyses by the National Institute of Corrections, Pew Charitable Trusts and others estimate that it costs four times that much—$70,000 a year, or $192 a day—to care for senior citizen inmates.
In February, Gov. Robert Bentley proposed an $800 million solution to the endemic, dangerous overcrowding in Alabama’s relic prisons. Early release was not on the table. Instead, he wants to issue 30-year bonds to build an entirely new replacement set of four prisons. The legislature appears willing to comply, with the proviso that the lucrative building contracts go to in-state construction companies.
Drive-By Fix Fails
In 2006, just before Republican dominance took hold in Alabama, two Democratic state representatives sponsored a bill to fix the nebulous language of the 1992 drive-by shooting law under which Johnson was convicted of capital murder.
It seemed a minor miracle when a correction passed both houses in the form of a joint resolution. Legislators said they intended the change to be applied retroactively, which would have given Johnson a path to parole.
The resolution said the 1992 law was designed to limit capital murder enhancements to drive-by shootings that were “gang related or intended to incite public terror or alarm.”
But no reform comes easily in Alabama.
“This clarification by the legislature should have changed the sentences for countless individuals serving life without parole (due to) the prosecutors’ and judges’ misapplication of the law,” according to a prisoner advocacy group, the Free Alabama Movement.
But two successive Alabama attorneys general, Republicans Troy King and Luther Strange, have refused to recognize the joint resolution; they say it doesn’t have the weight of law.
“I remember going into the law library at St. Clair (the prison where he was held at that time) one day, and the guy who worked there showed me a story about the change in the drive-by law,” Johnson said. “He told me, ‘You’re going to be out of here soon.’ My mom called and was all excited.”
I said the attorney’s general’s interpretation must have been devastating.
“Naw,” he said. “I laughed. I had to. It keeps me from being super, super sad.”
Should Johnson’s capital conviction be regarded as prosecutorial overreach, considering the attempted legislative fix? I submitted that question and others to his prosecutors, Poston and Anderton.
I asked the same question of Brandon Falls, Jefferson County DA since 2008 and a staffer there since the 1990s. He, too, failed to answer.
In April 2009, Whitman, Johnson’s advocate, spoke with Falls after he appeared on a panel at a college near Birmingham. He said he was willing to review old prosecutions, and Whitman sent him documents detailing her issues with Johnson’s conviction. Two years later, Falls replied that the prosecution of Aaron Johnson was undeserving of his review.
Mother’s Uncaged Birds
Johnson’s mother, Dinah Robinson, still lives in north Birmingham, in a tidy little house on 36th Avenue North, just off Interstate 65. Her son’s prison is barely 45 minutes west of home, but she stopped visiting him because she grew mortified by the frisks to which she was subjected. (Johnson rarely has visitors; his wife Terina disappeared from his life long ago.)
Robinson remains dedicated to her son, whose photos adorn her home. She speaks with him by phone several times a week, and she provides financial and logistical support for his appeals, telephone expenses and other needs.
Robinson is 59 years old, intelligent, reflective, and like her son, soft-spoken. Over a series of conversations, she frequently expressed bewilderment at the “nightmare” that had befallen her son and her own life.
She spends much of her time as caregiver for Aaron’s father, Aaron Robinson Jr., a bedridden diabetic who requires insulin shots four times daily. (She married Robinson in 2005, 30 years after she gave birth to their son.)
“I’ve spent all my life taking care of people,” she told me. “I’m going to need my son to do that for me someday. And if he can’t, who’s gonna see about me?”
Robinson keeps company with a small flock of brightly colored parakeets in her living room. Their cage doors are wide open; the birds are free to roam.
“I started letting them loose when I came home from seeing Aaron in prison one time,” Robinson said. “I walked in the door and saw those birds trapped in those cages, and I just couldn’t do that to them anymore. So I decided to open their doors. And you know what? They’re so much happier living like that.”
Not long ago, Robinson went to a pet shop in Northport, Ala., to buy another parakeet. She chose a solid yellow bird that caught her eye. But as a shop employee reached to remove it from its enclosure, it evaded his grasp, escaped the cage and beat a path to the front of the store, where an arriving customer had just activated the automatic doors.
“Those doors parted like the Red Sea, and he flew straight out,” Robinson said. She was horrified because she knew the bird wouldn’t survive outdoors, “and I set that chain of events in motion.”
But she prayed about the parakeet and found solace. “It was just so magical, the way it happened,” she said. “The way that parakeet went free—that’s the way Aaron is going to go free.”
Faith informs her view of her son’s circumstances. When I asked how she explained his life, I expected an answer rooted in sociology—poverty, drugs, the black urban experience.
Instead, she said he was trapped in a “generational curse.” (She added with a smile that certain friends think she’s crazy.)
The concept is a favorite subject of Sid Roth, a televangelist Robinson follows. (He cites a Kennedy family curse based on Joseph Kennedy’s bootlegging.)
“From my understanding, when a relative—and it can be way down in the family—creates a great sin, like stealing or killing, that sin continues on for generations and brings a curse into that family,” Robinson said. “No matter who you are, when you open that door to sin, if nobody repents and stands in the gap and goes to the Lord and prays for forgiveness, that curse passes on down from one generation to the next.”
She noted that Aaron’s father was in prison when he was born, and that many other relatives on his paternal side had served time.
A few minutes after she explained the family curse, I asked whether her son had maintained a relationship with his own son, Demaraaron, now 22.
“They try, but it’s hard,” she said.
I asked whether she saw much of her grandson.
“Not since he got arrested,” she replied.
He is in jail in Birmingham, awaiting trial following a state arrest related to heroin possession and a federal arrest for currency counterfeiting. From behind bars, Aaron Johnson has been working on his son’s case. Recently he wrote:
My son and his generation all think the same. They are undeveloped children who are treated as intelligent adults! And once they are in trouble, it seems it never stops.
The Inflation of Sentences
Billy Wayne Sinclair speaks with rare authority about interminable punishment for young men. Like the Johnsons, he had serious crime troubles as a teenager in Louisiana. In 1965, a few weeks after his 20th birthday, he shot and killed an attendant during a gas station holdup in Baton Rouge.
His death sentence was commuted to life in 1972, after the Supreme Court invalidated capital punishment. Sinclair found inspiration as a prison journalist while serving life. He and his wife, Jodie, spent decades fighting for his freedom. He was paroled 10 years ago, after 40 years locked up.
“This system we have now where everyone is locked up, pitched into prison and thrown away, without any hope of ever being released, I don’t believe in it all," Sinclair told me. "It’s devastating to our criminal justice system.”
He said life without parole is no more humane than capital punishment, and jurors ought to recognize that.
“That decision clearly is being made by someone who never spent one single solitary day in prison, and they do not know what it takes to survive,” he said. “There’s nothing humane about life without parole.”
UC Berkeley law professor Jonathan Simon argues that the popularity of extreme sentences like life without parole has had an “inflationary effect” on punishment for all types of crime.
Until the 1970s, life without parole was unheard of in the U.S., and it still is extremely rare in most of the world. But as jurors have grown queasy with capital punishment, they have imposed life (with and without parole) with jarring regularity.
Ashley Nellis of the Sentencing Project said the normalization of extreme sentences “desensitized the country into how out of synch we are with the general human rights conversations when it comes to punishment.”
In the 1970s, a heat-of-the-moment killer could expect to serve as little as 10 years in prison.
Sinclair noted that under Louisiana’s old “10-six” rule, many convicted killers enjoyed presumptive parole after 10 years and six months. When the death penalty was suspended, Louisiana legislators imposed a 20-year minimum for murder and soon raised that to 40 years. The state in 1979 became a standard-bearer in the “life-means-life” sentencing movement.
As a result, virtually all 4,700 people serving life in Louisiana have no chance of parole.
Sinclair said certain killers have forfeited their right to live freely—serial or spree murderers like David (Son of Sam) Berkowitz, Charles Manson, Jeffrey Dahmer, the Unabomber. But the art of justice comes in determining who deserves a second chance.
Is the same life-without-parole sentence equitable for Aaron Johnson and Gary Ridgway, who strangled 50 women in the northwest? Paul Wright, a former homicide lifer in Washington State who now edits Prison Legal News, called that “a serious disconnect.”
Some Support Review Mechanism
Systematic post-conviction reviews are gaining modest traction in the United States. Twenty four district attorneys now have conviction integrity units—which means that 99 percent of the 3,000 DAs in the U.S. don’t have them.
Sinclair supports creation of comparable sentencing review panels—“not political cronies but professional people who understand the criminal justice system”—for lifers and other prison long-termers, beginning after 15 years served. The panels would function like parole boards used to before they became calcified by politics.
Stefan Underhill, a federal judge in Connecticut, has suggested that judges be given a chance to review the integrity of their own sentences. This “second-look review…would allow every sentenced defendant one opportunity to petition his sentencing court for a reduction based on extraordinarily good conduct and rehabilitation in prison,” he wrote in the New York Times.
The idea has some support even in conservative Alabama.
Last month, a Republican state senator from Montgomery introduced a bill to create an Innocence Inquiry Commission to review claims by convicted felons.
“We’ve had some very high-profile exonerations lately,” state Sen. Dick Brewbaker said, “which ought to make anyone kind of pause and wonder if the process is as good as we think it is.”
Marc Mauer, executive director of the Sentencing Project, suggests that sentences be capped at 20 years, except for mass shooters and other egregious killers. He points out that data suggests nearly all criminals quit the lifestyle after age 40. (A Stanford University study found that just five of 860 California lifers paroled from 1995 to 2010 had returned to prison on new felony charges.)
Peter Wagner of the Prison Policy Initiative said that it is shortsighted for lawmakers to ignore sentencing relief for those convicted of violent felonies, about half of all state prison inmates in the U.S.
“In some of these cases, we are talking about significant offenses that happened a long time ago and are unlikely by reasons of age or other factors to occur again,” he said. “And in many other cases the label ‘violent’ offense is really misleading and applies to offenses that most people wouldn’t consider very violent at all.”
President Clinton now says he regrets championing the extreme punishment of his 1994 crime act. "I signed a bill that made the problem worse," Clinton said, by locking up “minor actors for way too long.” Democratic presidential frontrunner Hillary Clinton, who supported the act in 1994, has also pushed away from her past tough-on-crime rhetoric.
Yet the law continues to weigh on many of the country’s 2.3 million prison inmates—people like Aaron Johnson.
Richard Cohen of Alabama’s Southern Poverty Law Center, noting that a generation has been lost to mass incarceration, suggested it is time for the country to find a new path.
“Look, we want to be a merciful people, but I don’t think that mercy is contrary in any way to justice,” Cohen told me. “We want a justice that ought to be tempered with mercy and understanding.
“I think sometimes our nation reacts on the basis of fear and anger. And I don’t think good public policy is made on the basis of fear and anger.”
As my time with Johnson at Donaldson prison grew short, I asked whether he dreamed of life as a free man.
“Every day and every night,” he replied. He told me he would leave Alabama—“I’d probably spend one night with mama”—and move to New York or Los Angeles to work to expose wrongful convictions for a law firm or advocacy group.
As I rose to leave, Johnson asked if he could amend that answer. He said he has urgent work in his home state.
“One thing I would like to do is stop people from fallin’ in the same trap I fell in, thinkin’ a certain way,” Johnson said. “Alabama being so poverty-stricken, it’s the state of mind of the people. They’re divided and they don’t know how to be good friends or care for one another like it’s supposed to be.
“I really want to do something about it, but it’s gotta be more than just me. It’s gotta be a collective effort.”