Commutation applications put on indefinite hold, as reformers press for action amid pandemic

Lt. Gov. John Fetterman (Source: Tom Wolf Flickr.)

Dozens of prisoners hoping to have their lengthy sentences cut short will have to wait indefinitely to plead their cases before Pennsylvania’s Board of Pardons, whose members have decided not to conduct interviews or cast votes remotely until the COVID-19 pandemic abates. 

Lt. Gov John Fetterman, the board’s chairman, said Tuesday that the public hearings the panel had scheduled for June will be delayed until the state Capitol reopens — a day that could be weeks or months away.

Fetterman told the Capital-Star last week that he did not want to vote on commutations in June unless the five-member board could muster the unanimous votes necessary to send deserving candidates to Gov. Tom Wolf’s desk.

He did not raise concerns at the time about the logistical difficulties of convening the board during the pandemic.

But Fetterman did raise a previous argument that he reiterated again on Tuesday: that the odds are already stacked against commutation-seekers in Pennsylvania, thanks to a decades-old clemency law that’s among the most stringent in the country.

“The prisoners already have a very difficult threshold to meet, and I don’t believe anything that would make it more difficult or more arduous [for them] is appropriate,” Fetterman told reporters Tuesday.

Prisoners seeking to have a life sentence cut short in Pennsylvania must win unanimous approval from the five-member board, whose members also include Attorney General Josh Shapiro and three appointed experts. 

Fetterman said it’s a rigorous standard under normal circumstances, when the board interviews candidates at the state prison in Camp Hill, Cumberland County, and then votes on their cases at public hearings in the state Supreme Court chambers in Harrisburg. 

But the state’s second-ranking elected official said it’s impossible for the board to conduct those high-stakes proceedings safely during a pandemic. 

Transferring prisoners to the Camp Hill prison and convening the board in close quarters could put everyone at risk of contracting COVID-19, he said. Interviewing prisoners remotely, meanwhile, might put them at a disadvantage as they appeal to the board for mercy.

“I think it’s in the best interest of prisoners to postpone [and] make sure they are afforded the opportunity to do that in person,” Fetterman said.

The board logged its busiest year in decades last year when it voted on 41 commutations in public hearings, granting 18.

Fetterman hoped that the caseload would rapidly accelerate in 2020. And the board was scheduled to vote on its largest-ever class of commutation seekers in June. 

But the pardons panel hit a roadblock in December, when it denied clemency to 12 out of 15 prisoners in a single day of hearings. 

Fetterman, Shapiro say they both believe in second chances. Pardons board votes tell two different stories

Fetterman told the Capital-Star last week that he wanted to avoid repeating that day in June.

The panel will still meet remotely that month to vote on pardons for ex-offenders seeking to have their criminal records expunged. The board recommended almost 300 such cases to Wolf last year, pardons board data show. 

But the decision to cancel commutation hearings for lifers stands in stark contrast to the request that criminal justice and prison reform advocates made of the Wolf administration in March, when they called on the board to ramp up its caseload to relieve prison populations and prevent COVID-19 outbreaks in state corrections facilities. 

Those groups stood by their position Tuesday, arguing that commutation remains one of the few viable paths to release for Pennsylvania’s 5,000-plus lifers, some of whom are elderly and medically vulnerable. 

“The Board of Pardons is going in the wrong direction,” Nyssa Taylor, criminal justice counsel for the American Civil Liberties Union of Pennsylvania, said. “Every state prison should have video or telephone conferencing capability. There is absolutely no reason why the board should discontinue this important avenue for release, at a time when such relief is sorely needed.” 

Sean Damon, an organizer with Amistad Law Project, a West Philadelphia legal aid firm, also rejected Fetterman’s argument that it wasn’t possible to conduct safe, in-person interviews or provide fair hearings online. 

While most courts across the state have only heard emergency matters since mid-March, many have migrated their proceedings to phone or video conferences. 

The Supreme Court on Tuesday ordered lower judiciaries to resume most of their operations in May while “strictly limiting” in-person hearings. And the state Superior Court announced the same day it would hear oral arguments on four cases over telephone. 

Damon argued that the pardons board ought to follow suit and give commutation seekers the opportunity to have their case heard remotely. 

But prisoners should also have the opportunity to appear in-person before the board members, who could convene in a larger-than-normal space to practice social distancing, Damon said. 

“Let the incarcerated person who is applying determine what level of risk they would like to take,” Damon told the Capital-Star. “These people might never get the chance to argue their case … if they want to risk doing an in-person interview, they should be able to do that, or be able to do a video interview.”

Prisoners would have to travel to appear for in-person interviews. But Damon pointed out that inmates are already being transferred between prisons as the Corrections Department tries to spread its population evenly across its two dozen facilities.

Fetterman’s announcement about the June commutation hearings came on the same day that the Corrections Department was reportedly  in the process of moving hundreds of inmates from SCI-Rockview in Centre County to other facilities in the state prison system, people familiar with the matter told the Capital-Star. 

A Corrections spokeswoman said she could not comment on the transfer. But she did say the agency would continue to “strategically reduce population on certain housing units throughout our system to achieve social distancing.”

Damon said these transfers are “incredibly irresponsible” since they create opportunities for the COVID-19 virus to spread between state prisons and infect prisoners and employees. 

But their persistence also presents “a sharp contrast to how Fetterman is portraying the risk” of commutation hearings, Damon said, since prisoners are already traveling between prisons and coming in contact multiple times a day with staff. 

“This is not a moment for people to play politics,” Damon said. “It’s a moment for all public officials to line up and go on the record on where they stand on second chances and reducing prison populations while people are at risk of getting sick. These hearings must proceed.”