Just a Start: Executive Pardons and COVID-19 in Kansas

In early March 2020, the first case of COVID-19 was confirmed in Kansas.[1]  More than a year later, and despite the introduction of vaccines, Kansas is still battling the virus with more than a 1,000 new cases per day reported during August 2021.[2]  Nationwide, there were between 70,000 and 150,000 new cases per day in August 2021.[3]  A major reduction of the U.S. prison population would have amounted to fewer daily cases and the prevention of millions of cases nationwide.[4]  Prisoners are especially vulnerable to COVID-19 infection due to crowding and poor health care.[5]  In Kansas, 22 incarcerated individuals and prison staff members have died from COVID-19.[6]  The most recent statistics show the highest rate of current resident cases exists in the juvenile corrections population.[7]

Under K.S.A. § 22-3701, the governor has the power to pardon or grant early release after the Prisoner Review Board issues a non-binding recommendation.[8]  12 states vest the pardoning power in the governor alone, 5 to a board alone, and 16 with a process like Kansas’s.[9]  Kansas prisoners receive pardons infrequently compared with other states’ prisoners.  In June 2021, Kansas Governor Laura Kelly only pardoned 8 individuals (of the more than 200 applicants).[10]  These 8 pardons were the most Kansas has seen in the last 15 years.[11]  Alabama, Delaware, and Connecticut have some of the highest rates – granting almost 1,000, or up to 80% of applications, per year.[12]  Moreover, in Kansas, a pardon does not expunge a conviction.[13]

In May 2020, the ACLU of Kansas began filing clemency (or pardon) applications on behalf of the incarcerated to get individuals out of over-crowded facilities.[14]  In utilizing her pardoning power, Governor Kelly focused on individuals who were charged with nonviolent drug crimes, demonstrated rehabilitation, had few disciplinary issues, and possessed strong indicators of success upon release.[15]  The COVID-19 pandemic and the toll that it has taken on incarcerated individuals has provided an impetus for seeking more executive pardons in Kansas.  Kansas should begin to follow the lead of other states who recognize that individuals deserve second chances.  Justice may no longer be served by keeping many individuals, pandemic or not, incarcerated.

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[1]  Jim McLean, The First Case of Coronavirus in Kansas is Confirmed in Johnson County, KCUR (Mar. 7, 2020, 5:31 PM), https://www.kcur.org/health/2020-03-07/the-first-case-of-coronavirus-in-kansas-is-confirmed-in-johnson-county.

[2]  Daily Counts of New Cases and Total Cases Reported by Date Diagnosed, COVID-19 Cases in Kansas, Kan. Dep’t of Health & Env’t, https://www.coronavirus.kdheks.gov/160/COVID-19-in-Kansas (last visited Sept. 7, 2021).

[3]  Trends in Number of COVID-19 Cases and Deaths in the US Reported to CDC, by State/Territory, Ctrs. for Disease Control & Prevention (CDC), https://covid.cdc.gov/covid-data-tracker/#trends_dailycases (last visited Sept. 9, 2021).

[4]  Bill Chappell, Crowded U.S. Jails Drove Millions Of COVID-19 Cases, A New Study Says, NPR (Sept. 2, 2021), https://www.npr.org/2021/09/02/1033326204/crowded-jails-drove-millions-of-covid-19-cases-a-new-study-says?utm_campaign=storyshare&utm_source=twitter.com&utm_medium=social.

[5]  Id.

[6]  KDOC COVID-19 Status, Kan. Dep’t of Corrections, https://www.doc.ks.gov/kdoc-coronavirus-updates/kdoc-covid-19-status (last visited Sept. 7, 2021).

[7]  Id.

[8]  Kan. Stat. Ann. § 22-3701(d) (West 2007).

[9]  Clemency Procedures by State, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/facts-and-research/clemency/clemency-by-state (last visited Sept. 7, 2021).

[10]  Gov. Kelly Releases Three ACLU of Kansas Clemency Project Clients, Paving the Way for Many More Such Releases, ACLU Kansas (June 24, 2021), https://www.aclukansas.org/en/press-releases/gov-kelly-releases-three-aclu-kansas-clemency-project-clients-paving-way-many-more.

[11]  Clemency is Rare Kansas; Advocates Hope for Change, Associated Press (June 29, 2021), https://apnews.com/article/ks-state-wire-kansas-health-coronavirus-pandemic-1e00834ea329445b6b622347afdfbd25.

[12]  Comparison of Pardon Policies, Restoration of Rights Project (May 2020), https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisoncharacteristics-of-pardon-authorities-2/.

[13]  Id.

[14]  Gov. Kelly Releases Three ACLU of Kansas Clemency Project Clients, Paving the Way for Many More Such Releases, ACLU Kansas (June 24, 2021), https://www.aclukansas.org/en/press-releases/gov-kelly-releases-three-aclu-kansas-clemency-project-clients-paving-way-many-more.

[15]  Sherman Smith, Kansas Governor Grants Clemency to 8, Embracing ‘Political Risk’ in Rare Use of Power, Kan. Reflector (June 24, 2021), https://kansasreflector.com/2021/06/24/kansas-governor-grants-clemency-to-8-embracing-political-risk-in-rare-use-of-power/.