Dwayne Kennedy threw a man from a moving car in 1988, but that's not what's keeping him in prison today. It's not the inmate he stabbed 17 years ago either; the state parole board forgave him that.
Instead, California prison officials are keeping Kennedy locked up for an extra five years — costing taxpayers roughly $250,000 — because guards caught him with a contraband cellphone he says he borrowed to tell his family he had just been granted parole and was coming home.
It was "just stupid on my part for even using it," Kennedy told a pair of parole commissioners convened in June 2010 to decide his punishment for breaking prison rules. But "cellphones are just everywhere in prison nowadays.... It's easy to borrow one from a guy," Kennedy said.
Indeed, Kennedy's access to the phone underscores a rapidly growing problem for California corrections officials. Just five years ago, only 261 of the devices turned up behind state prison walls. This year, guards are on pace to seize about 15,000 phones — nearly one for every 11 inmates. Almost as troubling as prisoners gaining access to cellphones is their frequent source: prison employees.
Last month, a federal grand jury charged Bobby Joe Kirby, a Northern California prison guard, with wire fraud. Inmates paid him for phones via Western Union and other services, according to the indictment. When Kirby showed up to collect the cash at one location, he had to answer a security question he arranged with the inmates. "What's your favorite color," the clerk asked. "Green," Kirby replied.
State investigators found that another guard made $150,000 in a single year delivering cellphones to inmates. He was fired.
Phones are so prevalent in California prisons that even highly scrutinized inmates can get their hands on them. Charles Manson has been caught with two. Inmates have used cellphones to run drug rings, intimidate witnesses and order violent attacks on the outside. Despite state leaders' rising anxiety over inmates obtaining phones, smuggling them into prisons wasn't against the law until this month.
Gov. Jerry Brown signed a bill on Oct. 6 making it a misdemeanor punishable by up to six months in a county jail. Brown also issued an executive order that requires prison officials to increase the number of random searches of employees and to determine how much it would cost to send them through airport-style screening on their way into work.
Under the new law, most inmates caught with phones face losing 90 days of credit earned for good behavior.
In Kennedy's case, using the cellphone derailed his parole bid and effectively lengthened his prison stay by at least five years. That's because a 2008 ballot measure extended the time inmates serving life sentences must wait for a new hearing when they are denied parole or their parole offer is revoked.
When the two parole commissioners met to decide his punishment for violating the cellphone rule, Kennedy said that he had made the calls because he was "overwhelmed and just happy" that he had been granted parole.
"He was so happy.... We were crying and praying," recalled his sister, Yolanda Kennedy, one of the people he called.
But months later, parole commissioners John Peck and Dennis Smith found that Kennedy's willingness to violate the prison rule proved he is an "unreasonable risk of danger to society." They revoked his parole offer and imposed the five-year wait until his next hearing.
The commissioners' decision seemed a bit severe to Debbie Mukamal, executive director of Stanford University's Criminal Justice Center, who noted that the state is under a U.S. Supreme Court order to remove tens of thousands of inmates from its overcrowded prisons.
"I wonder if they're punishing [cellphone use] more severely because it's something they feel like they can't control," Mukamal said.
Heidi Rummel, a former federal prosecutor who now advocates for inmates' rights as co-director of USC Law School's Post-Conviction Justice Project, said there should be some evidence of harm before imposing such a harsh penalty.
"It would seem that why he had the cellphone would be a critical factor in deciding whether it made him a danger to society," Rummel said.
The Los Angeles County Superior Court and the 2nd District Court of Appeal have rebuffed Kennedy's efforts to get the decision overturned. His attorney, Keith Wattley, has filed a petition with the state Supreme Court. "There's never been any allegation he's done anything illegal with this phone," Wattley said.
Kennedy, 44, has been in prison since 1990, serving 15 years to life for kidnapping and conspiracy to commit murder. He's now at Chuckawalla Valley State Prison in Blyth. He became eligible for parole in 1999 but a decade passed before parole commissioners found he was no longer a threat to society and recommended his release. They noted that Kennedy had stayed out of trouble for seven years and had a stable home and good job waiting for him on the outside.
The cellphone bust changed everything.
"Frankly, this panel didn't buy that you were going to call your supporters to thank them," said Peck, a parole board commissioner and recently retired prison guard who presided over the June 2010 hearing. "There is no way you would put your parole date at risk to make a thank-you call."