by Ed Lyon

Since the beginning of the COVID-19 pandemic, health and penology experts have urged state and federal governments to depopulate their prison systems. State governors remain under increasing pressure to use their executive clemency powers to achieve this purpose. Some are, some are not. Some can, some cannot.

California has the nation’s second largest prison system. Its embattled Democratic Governor Gavin Newsom, recently embroiled in a recall election, commuted 23 prisoners in 2019, 55 during the height of the pandemic but only one as of May 27, 2021. One area where California excelled in prison depopulation was parole. Even with Newsom’s measly commutation numbers, if we include parole releases, the prison population plunged 23% to about 96,450. This is the first time in over 30 years California has had less than 100,000 state prisoners [See: PLN, Feb. 2021, p.32].

However, only about 10% of those releasees were elderly, a penal demographic whose recidivism rate is less than one percent and are at increased risk of COVID-19 infection and mortality. Twenty percent of America’s prisoners are elderly according to the National Institute for Corrections [See: PLN, Nov. 2019, p.54].

Colorado’s Democratic Governor Jared Polis has granted only 3 commutations and 18 pardons since 2020 [See: PLN, Jun. 2021, p.61].

Illinois governors have absolute clemency power. In 2019, Democratic Governor J. B. Pritzker issued 11,000 plus pardons for marijuana convictions ahead of a new law legalizing it. During 2020’s heavy COVID-19 months he granted 38 commutations, up from 3 in 2019.

Oregon’s Democratic Governor Kate Brown’s pre-COVID-19 era record was also dismal. She granted 20 pardons, approving six conditional commutations, and denying 240 commutations from July 1, 2015 to February 14, 2020. During the next six months, she commuted 123 sentences.

Louisiana’s Democratic Governor John Bel Edwards ran on a criminal justice reform platform. He granted 34 commutations during his first term and 36 during 2020.

Texas runs the nation’s largest state prison system, a statistic COVID-19 has not changed. Republican Governor Greg Abbott granted no commutations or pardons during the pandemic. However, all commutation and pardon requests must be submitted first to the Texas Board of Pardon and Paroles (BPP). Only if the BPP initially approves, then recommends a commutation or pardon request be granted, does the governor have any say. Parole releases sharply decreased during 2020 by over two thirds, from almost 6,000 monthly, to 1,848. Six prisons were closed during this period. The influx of prisoners from those closed units made social distancing physically impossible at the units they were crowded into.

Texas still has over 121,000 citizens in prison. In June 2021, Abbott closed a seventh prison, the Brisco unit. It is now a jail, housing persons crossing the Mexico border in Texas charged with criminal trespassing. Despite COVID-19, only 1,001 of the 79,552 state prisoners already eligible for parole release were paroled between March and December 2020. There were 15,333 prisoners who reached initial parole eligibility and were released during that period. A full 62% of the Texas prison population, or 78,551, continue to remain parole eligible.

Washington state’s Democratic Governor Jay Inslee granted eight pre-COVID-19 era commutations. In 2020, 437 people received commutations, mainly prisoners who were not convicted of sex offenses, violent or otherwise serious charges, along with others within 75 days of their release date, the bulk of them in April 2020. As of May 27, 2021, Inslee granted 25 more commutations.

One major reason for most governors who can commute sentences but are not, is the political specter of the “soft on crime” label. Louisiana’s Governor Edwards is a Democrat who has a Republican State Attorney General eyeing a run for the governor’s office. Louisiana’s Parole Project Deputy Director Kerry Myers stated, “If Edwards starts signing large quantities of commutations at once, we know his opponents will make it a political issue, even if public safety is a factor.”

Aliza Kaplan is the Director of the Lewis & Clark Law School’s Criminal Justice reform clinic. She stated, “Governors have become afraid of using their power [to commute sentences] because of politics, but that’s never what the clemency power was intended for.”

An American Civil Liberties Union (ACLU) poll conducted in 2020 revealed bipartisan support for COVID-19 driven clemencies. Democrats approved them by 86%, independents by 81% and Republicans by 73%. This prompted advocates to lobby governors, helping to ease their political fears in an effort to hopefully affect 50,000 commutations for 2021 as part of an ACLU campaign.

The anemic response of state governors during the pandemic illustrates how prison reform continues to face great resistance in the United States with very few in a position of power being willing to do anything to actually significantly reduce prison and jail populations. And no one being willing to give prisoners substantive rights to humane conditions of incarceration. 

Sources: theappeal.org, KUT-FM radio’s The Texas Standard News

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