Every day, Richard Lee Chalk prays that he’ll be let out of prison. He applied for clemency five months ago and now that there’s a coronavirus outbreak, going home is even more urgent. The 61-year-old has a heart condition and Type 2 diabetes, which means catching COVID-19 could be deadly. But even apart from his health and age, Chalk is the perfect candidate for clemency.
He’s spent more than three decades behind bars for a felony murder charge, even though he didn’t pull the trigger. Since then, Chalk’s become a mentor, taken courses on law and conflict resolution, and worked as a cook in the prison kitchen, making big meals for family visitation days.
“I have done everything possible during this incarceration to change from the person who I was when I came to prison to the person who I am today,” Chalk wrote in a message from prison.
He’s hoping New York Gov. Andrew Cuomo (D) will release prisoners like him with health issues. But Chalk’s sister, Linda Luciano, worries about what could happen if he isn’t allowed to go home.
“Not my brother, or nobody else, deserves to die from this virus in prison,” she said.
Granting clemency to people like Chalk should be a no-brainer. Prisons are highly susceptible to an outbreak, and releasing people is the only surefire option to slow the coronavirus’ spread. And yet governors around the U.S. are not using their power to release people in any meaningful way, despite the fact that more than 40 staff and detainees in state and federal facilities have already been killed by the coronavirus, according to data compiled by UCLA School of Law.
While multiple lawsuits have called for the release of sick and elderly incarcerated people, legal experts say it wouldn’t be enough to stave off the public health crisis in prisons. Governors could use clemency to dramatically reduce prison populations — by letting out those who are imprisoned for minor violations, close to the end of their sentences, or who have pending applications that just need to be signed. But only nine have taken advantage of this power, albeit in minor ways.
Governors have the power to save lives. Instead, they’re showing political cowardice.
“If you don’t have the will to release people when literal lives are at stake, what does that say?” said Rachel Barkow, a faculty director at NYU School of Law. “I will blame the governor of my state when people die in prisons here. I will blame him because he had the power to do something.”
Public health experts have called prisons tinderboxes for outbreaks since people sleep mere feet apart and don’t have ready access to cleaning supplies, masks or soap. If prisons release more people, they’ll have more space and supplies to keep those still incarcerated safer ― ideally, enough to maintain social distancing and remain clean.
There’s already a legal mechanism to make this happen. In every state, incarcerated people can apply for clemency to be released or have their sentences reduced. In some cases, applicants have serious health issues and are looking for compassionate release. But in many instances, they are seeking clemency because their sentences are wildly disportationate to the crime they committed and they’ve shown growth and remorse behind bars.
In the majority of states, the governor has the sole discretion to approve applications, while in others, applications first go through a parole board that makes a recommendation.
Clemency is an act of mercy, but it’s also an important antidote to a criminal justice system that doles out harsh sentences for low-level offenses, particularly to men of color, and forces people to spend their lives behind bars for mistakes they made in their youth. Roughly one-quarter of prisoners nationwide are incarcerated for nonviolent offenses, some for minor parole violations, and 14% have served long enough sentences that they can no longer be considered a public safety risk, according to a report from the Brennan Center for Justice at NYU School of Law.
Yet despite all these compelling cases, and the fact that many governors have “almost unfettered power to grant clemency with the stroke of a pen,” according to Steve Zeidman, a professor at CUNY School of Law, they rarely do. And not even a global pandemic has changed that reality.
“I will blame the governor of my state when people die in prisons here. I will blame him because he had the power to do something.”
- Rachel Barkow, faculty director at NYU School of Law
With the exception of Oklahoma’s governor, who released more than 500 people last year after the state downgraded certain nonviolent felonies to misdemeanors, politicians usually commute a small fraction of sentences relative to their state’s prison population. In Louisiana, the state with the highest incarceration rate in the U.S., the governor has only reduced 34 sentences throughout his four years in office — a step up from his predecessor, who only granted three during his term. In Arizona, which has the fourth-highest incarceration rate, the governor reduced only five people’s sentences in three years, and in 2019, New York’s governor granted zero commutations. Zero.
The situation is no better on the federal level, where President Donald Trump only reduced two people’s sentences in 2019.
Now, even as the pandemic spreads, governors from some states, like Arizona, have explicitly said they refuse to release any nonviolent offenders.
Even states that have let people go, such as California or Kentucky, have only released less than 4% of the total prison populations ― far from enough to stave off the spread of COVID-19.
Governors “are chipping at a margin in a way that just seems like it’s designed to say, ‘Look, I’ve done something,’ but not designed to protect public health or safety,” said Jessica Brand, the founder of a social justice consulting firm, the Wren Collective, and a former public defender. “It’s like patting yourself on the back for doing what you should have done a long time ago.”
She said if governors wanted to use their clemency power to save lives, they could halve their states’ prison populations without endangering the public.
It’s a given that governors should start by releasing the most vulnerable people from prison, said Brand, but there are other groups they could be let go as well, such as prisoners whose sentences are almost up and older people who have already served lengthy sentences.
In Florida, for example, almost 50,000 people are scheduled to be released in the next three years. In North Carolina, there are more than 3,000 people over the age of 55 who still have more than three years left on their sentences, though on average they’ve been incarcerated for close to two decades, according to data crunched by Brand and her colleagues.
“The 75-year-old asthmatic coming out of prison is not coming to attack you and your family,” said Barkow of NYU School of Law. “They are going to be peacefully resting somewhere.”
Governors could also grant people reprieves, which would pause their sentences, if they aren’t willing to commute sentences, Barkow noted. And especially from people who are close to their parole or release dates, they could fast-track existing applications that can often languish for years on a governor’s desk.
“The 75-year-old asthmatic coming out of prison is not coming to attack you and your family. They are going to be peacefully resting somewhere.”
- Barkow
Of course, in some states, and certainly at the federal level, granting clemency is a cumbersome process rather than a rapid response to an emergency. But most governors do have the power to release people without involving members of a parole board, and legal experts told HuffPost their biggest hesitation to do so involves electability.
“You don’t need legislation. You don’t need a commission. You don’t need a parole board,” said Zeidman about the clemency procedure in New York state, where Cuomo has yet to grant any prisoners clemency during the coronavirus. “To me, it’s all about optics.”
He said politicians don’t want to be seen as soft on crime, or risk the possibility of granting someone clemency who might reoffend despite that being very unlikely.
“They’re more afraid of the one case where someone will go out and do something wrong than the people who will die in prison,” said Brand. “We may have one store broken into, but we might have hundreds of people who die.”
Clemency is not only a way to curb the coronavirus outbreak in prisons, it’s an opportunity to reduce America’s mass incarceration system that keeps 2.3 million people a day behind bars to the tune of $182 billion dollars each year. It’s a chance to send a message that most people stuck behind bars are nonthreatening humans who have served more than enough time and don’t deserve to be held in prisons so packed that they can’t protect themselves from a global pandemic.
But instead of seizing on this moment to reform a broken system through clemency, governors are cowering behind the shattered pieces.
If that doesn’t change, Chalk and others like him could pay a fatal price instead of spending their golden years with family.
“He deserves to come home,” said another sister, Geannie Chalk. “He’s been punished enough.”