Bruce Andrews is halfway through a two-year prison sentence in Kansas on drug possession charges. At 63, diagnosed with emphysema and fearful of what could happen if he ever got COVID-19, he applied in September for executive clemency and asked to be let out.
Earlier this month, he tested positive.
Andrews, who was housed in Winfield Correctional Facility, has been taken to Lansing Correctional Facility, where COVID-positive inmates are treated. His son, Chase Andrews, said his father has body aches and a fever.
They’re hoping for the best, but it’s the exact scenario the family wanted to avoid.
“I had just kind of felt like we actually had just finally got my dad back and then I was worried when they sent him because of his age anyways,” Chase said, adding that his father had been a year sober when he entered prison.
“And then the COVID stuff happens ... I mean he’s in there for drug charges.”
As the pandemic grinds on, Kansas Gov. Laura Kelly is under new pressure to offer clemency, an umbrella term that includes both pardons and commutations, to inmates as COVID-19 continues to pop up in prisons. At least 14 Kansas inmates have died and more than 5,900 have been infected, according to The Marshall Project.
Kelly, a Democrat who has voiced support for re-examining sentences handed down to non-violent, low-level offenders, has yet to grant any pardons since taking office and has announced no commutations. But more than 100 requests for clemency — many tied to virus-related health concerns — are either sitting on her desk or on their way, part of a wave of applications driven by the American Civil Liberties Union of Kansas.
Meanwhile, Missouri Republican Gov. Mike Parson in December issued his first round of pardons and a handful of commutations. The clemency, which mostly applied to people already out of prison, came after he won an election in which he promoted law-and-order themes. Still, his office faces a backlog of more than 3,600 applications that’s built up over several administrations.
The demand for clemency in Kansas pales in comparison, but the surge of clemency applications during the pandemic is unlike anything the state has seen in recent years. In 2020, 100 claims were reviewed, more than double the number in 2019 and 2018. As recently as 2015, inmates put forward just three applications.
Across the nation, supporters of criminal justice reform view the pandemic as an opportunity to shift attitudes toward clemency — which include pardons and commutations — and encourage governors to make more robust use of their almost-unlimited power to grant mercy. They want to spark a change in how clemency is used that lasts beyond the pandemic and turn it into a tool to combat mass incarceration.
“The executives tend to follow what has become a norm, and we’re saying that’s not what this should be about,” said Nadine Johnson, director of the American Civil Liberties Union of Kansas.
“It’s about what the law is,” Johnson said, “and the law provides this opportunity for change.”
Tough-on-crime attitudes, fear of political fallout and other priorities have combined to make clemency unusual. Kansas is among 16 states where pardons are rare, while Missouri is among 13 states where they’re granted infrequently or unevenly, according to the Restoration of Rights Project.
Kelly faces political cross-pressures over her handling of the pandemic in the state’s prisons. While the governor has resisted large-scale releases of inmates, she has prioritized them for COVID-19 vaccinations, drawing sharp Republican criticism.
The GOP-controlled Senate this month passed a non-binding resolution urging her to change course.
“The Governor treats her legal responsibility to protect inmates, who are wards of the state, with the utmost seriousness,” Kelly spokeswoman Reeves Oyster said. “That is why she has followed the public health guidance, rather than bowing to partisan pressure, and included inmates in the priority category of the Kansas vaccination schedule.”
Surge in requests, opaque system
Chase Andrews said his father, Bruce, first approached him about executive clemency after hearing about the process from another inmate. With the ACLU’s help, they submitted an application in September that included a statement from Bruce about why Kelly should consider his case.
The document laid out in Bruce’s words his medical problems, how corrections employees and inmates often don’t wear masks and the life ahead for him on the outside.
“I have a truck along with a huge family to support me – much more than many others in this facility,” he wrote, adding that Chase, who is a substance abuse counselor, is ready along with the rest of his family “for my return and will be a source of stability and help my continued recovery.”
Bruce’s application was submitted on Sept. 14, triggering a review process outlined in Kansas law that operates partially out of public view.
The law requires the Prisoner Review Board to report to the governor on each application within 120 days of receipt. The governor is prohibited from granting a pardon or commuting a sentence until either 120 days has passed or the board submits its report, whichever happens first.
In theory, the identity of who has asked for executive clemency is a matter of public knowledge. A notice must be published in the official newspaper in the county where the person was convicted. In practice, KDOC doesn’t appear to maintain any online list of individuals who have asked for clemency.
The Prisoner Review Board’s work on clemency applications usually occurs in private. The three-member panel, which primarily oversees parole, is appointed by the secretary of corrections and the law requires the members to be corrections employees. The board isn’t an independent body — members serve at the pleasure of the secretary.
Of the 100 applications the board reviewed in 2020, it recommended four favorably, said KDOC spokeswoman Carol Pitts.
Missouri operates under a similar system, but with key differences. Clemency applications are reviewed by the Missouri Board of Probation and Parole, which makes recommendations to the governor.
But unlike Kansas, the board is independent from the corrections system, with seven members appointed by the governor and confirmed by the Senate. No more than four may be from the same political party.
The ACLU of Kansas said that as the organization began submitting more applications over the past year, the Prisoner Review Board sometimes missed the 120-day deadline. Pitts said the board is meeting the requirement, but acknowledged past delays.
“At times, due to circumstances beyond control, there might be slight delay, but it is an exception,” Pitts said in an email.
The board takes into account comments submitted from public officials, victims involved in the case and correspondence in support or opposition.
“Executive clemency is an extraordinary method of relief and is not regarded as a substitute for parole,” Pitts said. “The review process entails looking at information in reference to the offense and examining any compelling reasons provided by the applicant.”
The Kansas Department of Administration is also playing a role in reviewing applications, said Sharon Brett, ACLU of Kansas interim legal director. She said she thinks the agency’s involvement is a “vestige” from past governors.
“I’m not sure what the value add is from this additional step, but I do know it has added months to the review process,” Brett said.
Kelly’s office didn’t directly answer a question about the Department of Administration’s role.
“Governor Kelly believes that the clemency process needs close attention and should not be rushed,” Oyster said.
Political pushback
As advocates push for more clemency, at least some officials involved in criminal justice matters say there’s the potential for blowback if granted too widely.
Kelly is already facing political heat for prioritizing inmates for vaccines, which she has said is important for protecting prison employees and preventing the virus from spreading in communities near the prison.
“Have you observed what’s gone on during the COVID event?” said Kansas Rep. Russ Jennings, a Lakin Republican who chairs the House Corrections and Juvenile Justice Committee.
In Leavenworth County, which includes Lansing Correctional Facility, County Attorney Todd Thompson said his office continually hears that inmates may have access to vaccines faster than if they were outside prison.
“In regards to the virus, and at this time, they may be safer in the prison than outside it from contracting the virus,” Thompson wrote in an email. “Therefore, this should not be a rationale for early release through clemency.”
Parson faced relatively little criticism for his pardons and commutations in December, possibly because the vast majority of individuals named were already out of prison. The 24 pardons and a handful of commutations represent only a tiny fraction of the 3,695 pending clemency applications in Missouri, however.
“There are so many individuals who should not be behind bars right now,” said Missouri Rep. Tracy McCreery, an Olivette Democrat.
Parson spokeswoman Kelli Jones said the governor has instructed his legal team to continue reviewing cases in an effort to reduce the backlog.
Clemency proponents say governors should embrace their power, both now and in the future.
“I really wish that the governors would take it upon themselves — COVID or not — and not be so caught up in what I like to call the politics of mass incarceration,” said Aliza Kaplan, director of the Criminal Justice Reform Clinic at the Lewis & Clark School in Portland, Ore. “Do what’s right … send people back to their families.”
As Bruce Andrews remains at Lansing, his son Chase confesses he’s not optimistic about the chances his father will receive clemency. Still, he finds value in the process.
“Even if it doesn’t help him,” Chase said, “whether he has to finish out the time or not, at least maybe … it will bring light to the situation.”
This story was originally published February 14, 2021 5:00 AM.
