Life on hold: How the COVID-19 pandemic derailed Pennsylvania’s pardons board

(Flickr/Matthias Müller)

This spring was supposed to kick off a banner year for Pennsylvania’s Board of Pardons, the five-member panel that can cut short sentences for inmates serving life in prison. 

But even as the COVID-19 pandemic puts state prisons in lockdown, the board’s chair says its efforts to release prisoners – many of them aging, infirm and prone to the worst ravages of the disease – may be on hold.

The pardons board may not convene for its scheduled session in June unless its members can find a way advance worthy commutation candidates to Gov. Tom Wolf’s desk — an objective that is made difficult by Pennsylvania’s stringent clemency laws, which require the board to vote unanimously to recommend commuting a life sentence, Lt. Gov. John Fetterman, the board’s chair, told the Capital-Star.

Fetterman said he wants to avoid a repeat of the board’s most recent meeting, in December, when 15 prisoners asked the board to reduce their prison sentences and all but three were denied.

The proceedings drew sharp criticism from prison reform groups and corrections experts, who said that many of the applicants the board denied were model prisoners with clean conduct records and, in some cases, severe medical issues.

They also spurred protests outside the offices of Attorney General Josh Shapiro, who opposed more commutations than any other board member last year.

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

Pennsylvania has one of the largest populations in the country of inmates sentenced to life in prison without parole. But none of those inmates are eligible for release under an emergency order Wolf signed on April 10, which aims to avert COVID-19 outbreaks in state prisons by transferring up to 1,800 prisoners nearing the ends of their sentences. 

Wolf told reporters on a conference call last week that it would be up to the Board of Pardons to release lifers. 

But Fetterman, who is responsible for scheduling the sessions where the board votes on commutations, said the next day that the board has been unable to fulfill the governor’s wishes while it’s saddled with one of the most restrictive clemency laws in the country.

Bills that would change Pennsylvania’s clemency laws have stalled in the Republican-controlled General Assembly. And an effort, led by Wolf’s office, to find another, constitutionally sound way to advance commutation cases was derailed when the COVID-19 pandemic hit Pennsylvania in March, Fetterman said.

Fetterman told the Capital-Star that it would be premature to hold the high-stakes votes until they have “a mechanism that moves the process forward.”

“In the absence of certain agreements, I would question the value of having the previously scheduled” sessions, Fetterman said Friday. “We want a constitutionally acceptable path that allows us to depopulate our prisons of lifers [who] are no longer a risk to society.”

Fetterman said he could not offer details about the review of Pennsylvania’s clemency laws, which would likely be led by the Office of General Counsel, a legal division of the Governor’s Office. A Wolf spokeswoman declined to comment.

Since arriving in the executive branch in January 2019, Fetterman has sought to help Wolf reverse a decades-long trend that saw commutations grind to a near halt in Pennsylvania.

The pardons panel heard more commutation cases last year than in the previous two decades combined. Before that momentum evaporated in December, Fetterman told the Capital-Star that the commutation caseload would accelerate in 2020.

Four months into the year, however, the pardons board has not voted on a single commutation.

One lawyer who studies harsh sentencing in Pennsylvania was dismayed to learn that the pardons board may not hear even cases in the midst of the COVID-19 pandemic, which has already killed one prisoner and infected 22 more in state correctional facilities.

He accused the two elected officials on the board of prioritizing politics over the health of prisoners.

“Josh Shapiro will have blood on his hands, and Lieutenant Governor Fetterman needs to stop protecting him and call him out,” said Bret Grote, a professor of law at the University of Pittsburgh and the director of the Abolitionist Law Center, a legal aid firm that seeks to reduce prison populations. “Cancelling a meeting is essentially allowing the prisons [to turn] into euthanasia sites. It’s unconscionable and it’s cowardly.”

Even if the board does not vote on commutations in June, it will still vote on pardons for ex-offenders seeking to have their criminal records expunged, Fetterman said. 

Shapiro spokeswoman Jacklin Rhoads said the attorney general “is preparing for the June session of Board of Pardons to move forward as scheduled, unless advised otherwise” as he works with the Department of Corrections to review cases for prisoners who qualify for early release under Wolf’s executive order. 

Shapiro has defended his clemency voting record and supports amending the state constitution to let the board recommend a commutation with a simple majority vote.

A review of pardons board data from 2019 reveal only one occasion when Shapiro cast the sole vote against a commutation. On six other occasions, he was joined by corrections official Harris Gubernick in dissenting against an applicant.

Prison reform advocates have nonetheless singled out Shapiro as the greatest impediment to commutation in Pennsylvania. More than 100 of them rallied outside his offices in Pittsburgh and Philadelphia earlier this year to ask him to use his clout to “show mercy” to repentant prisoners. 

Grote said he supports legislative action to reform commutation in Pennsylvania, which is the only state in the country where a board of pardons must vote unanimously to send a candidate to the governor.

But that doesn’t mean the current law should serve as a pretext if board members are unwilling to extend clemency to deserving prisoners, especially during a public health emergency, Grote said. 

A 2018 report Grote co-authored found that 5,300 inmates in Pennsylvania state prisons were serving sentences of life without parole. Today, many of them have health complications and have passed the age where most criminologists say they are unlikely to commit crimes, he said. 

“We’re talking about elders who pose no risk whatsoever to society,” Grote said. “This is pure, punitive politics.”