Last December, Wyatt and Reid Evans petitioned for their freedom to no avail. When the brothers carjacked a man with a nonfunctioning weapon in 1980, they had no idea that he had a heart condition and would die of a heart attack only hours after the incident. Almost four decades later, the brothers are still serving life sentences for the crime that was committed when they were only in their late teens.
In Pennsylvania, where such sentences are ineligible for parole, clemency is their only hope for release. Eight other incarcerated lifers also saw their request for commutation denied at the public hearing hosted by the Board of Pardons that December afternoon. It had become what Board of Pardons chairman and Lt. Gov. John Fetterman has called “one of the most dismaying days of my life.”
Two months later, on Feb. 25, hundreds of advocates gathered outside of the office of Pennsylvania Attorney General Josh Shapiro in a Rally for Fair Commutations, demanding that he cast more votes in favor of clemency petitions as a member of the Board of Pardons. Shapiro isn’t alone in his apparent reluctance to push clemency petitions forward.
While in recent weeks, President Trump has garnered scrutiny for his decision to employ his pardoning power in service of his friends and those accused of white collar crimes, advocates say that using clemency for corrupt purposes isn’t the only way to abuse the powerful executive function: Both Democratic- and Republican-elected officials nationwide have also been underutilizing clemency, allowing some of the most vulnerable communities within the criminal justice system to languish and eventually die in prison.
Organizing efforts fueled by the formerly incarcerated, their loved ones, and criminal justice reform advocates have been pressuring officials to exercise their ability to grant clemency more liberally. In Pennsylvania, that activism could be the key to freedom for incarcerated people like the Evans brothers.
Long paths to freedom
Pennsylvania is one of only five states that renders people serving life sentences ineligible for parole, leaving clemency as their only hope of release.
Clemency includes two mechanisms of reprieve for those directly impacted by the incarceration: commutations and pardons. Commutations shorten the sentences of those who are currently incarcerated, which enables someone serving a life sentence to finally return home. Pardons, while not necessarily a full expungement of one’s record, exempt someone from punishment for an offense through early release and the restoration of any civil rights lost upon their conviction. Pennsylvania allows for both pardons and commutations, but since the 1990s, changes to the state’s clemency procedure as well as shifting political attitudes have resulted in a sharp decrease in the number of commutations granted for those serving life sentences.
As this sole path to freedom has become increasingly elusive for those sentenced to life in Pennsylvania, the population of lifers within the state has ballooned. In 1980, that number hovered around 850, but now it sits at over 5,400, making Pennsylvania the state with the second largest lifer population in the U.S.
The likelihood that someone serving a life sentence in Pennsylvania will be released is diminished by the state’s clemency procedure. An incarcerated person applying for commutation must send their petition to a five-member Board of Pardons comprised of a crime victims representative, a corrections expert, a medical professional, the lieutenant governor, and the attorney general. The board then hosts a public merit review to assess whether the application warrants a full public hearing. If so, the board makes a vote on whether to make a recommendation for clemency that will be sent along to the governor, who then makes a final decision.
From 2015 to present, the board has heard 56 petitions but has recommended less than half to Pennsylvania Gov. Tom Wolf, thanks in large part to the requirement of a unanimous vote before a petition can move forward to the governor’s desk. Imposed in 1997, the requirement means that just a single board member’s unwillingness to see the value in granting release can block someone from their freedom forever.
That’s why Shapiro has become an attractive target for organizers like those at the Amistad Law Project, who are pushing for fair commutations. “He represents an older politics,” said Sean Damon, who serves as Organizing Leadat the Amistad Law Project and helped organize the rally. “An older type of politics that came up in the ‘80s and ‘90s. That says, you know, once someone is incarcerated for a serious offense, the safe bet is to leave them in there.”
In 2019, Shapiro opposed more commutations than he supported, voting “yes” on 17 petitions, but moving to deny 24. Of the two elected officials sitting on the Board of Pardons, Shapiro rejected the most clemency petitions in 2019, standing in stark contrast to Lt. Gov. Fetterman, who has been vocal in his support of granting more commutations.
In the face of increased scrutiny, Shapiro responded on Twitter that he has voted for more commutations in his three years in office than all Philadelphia attorney generals in the last 25 years combined. However, advocates point out that he has also denied more applicants than all Philadelphia attorney generals over that same timeframe. Further, Shapiro has been known to vote down extremely compelling applications.
“He is routinely denying people, and voting against them, that have the Department of Corrections recommendation, and in some cases even have their prison wards showing up, essentially begging for mercy,” says Damon. “He has voted against people who had members of the victim’s family asking for the board to show them mercy. We think that that’s unacceptable.”
A political risk?
Shapiro’s failure to cast affirmative votes on clemency petitions is just one example of widespread reluctance among elected officials. Despite the embrace of criminal justice reform rhetoric among Democrats in recent years, many in the party continue to be swayed by tough on crime approaches and discredited ideas of what will actually ensure public safety.
Since the 1990s in particular, use of clemency was viewed as politically risky, often leading elected officials to commute only a small percentage of sentences or wait until the end of their terms to commute more significant numbers. Elected officials who might have their sights set on higher office are even less likely to grant clemency out of fear that it may turn off future voters.
The idea that clemency poses a political risk emerged in the wake of the high profile case of Reginald McFadden, a commuted Pennsylvania lifer who committed a string of murders and sexual assaults after he was released. As a result of the McFadden case, then-Pennsylvania Gov. Tom Ridge altered the composition of the Board of Pardons and instituted the unanimous vote requirement.
“It was understood that it would bring commutations to a halt and tie the hands of Ridge’s successors who might believe in second chances,” said University of Pennsylvania law professor Regina Austin. “This is a kind of collective responsibility where lifers are being forced to pay the price of Reginald McFadden and the bureaucrats of the time.”
However, advocates and researchers say the circumstances around McFadden were unique and rare. Among other factors, the Board of Pardons did not meet and interview McFadden prior to casting their votes as they do now with clemency petitioners. “It’s not widely understood that Reginald McFadden was the exception’s exception,” says Austin. As a result, “the specter of Reginald McFadden still hangs over the process.”
The likelihood of a case like McFadden’s occurring again amongst those who are serving life sentences is also particularly low given that a significant portion of lifers are aging—they are people who were incarcerated in their teens and are now reaching their 50s and 60s. Some have children and grandchildren who have never seen them outside the confines of a prison.
As the Sentencing Project notes, “most individuals ‘age out’ of crime, and therefore produce diminishing returns for public safety as people enter their thirties and beyond.” The rising age of lifer populations means that states are incarcerating people who are both far less likely to recidivate and far more likely to strain the states corrections budget. It can cost tens of thousands more to incarcerate a lifer as they age due to declining health and the associated medical services needed.
The key, Damon argues, is for the Board of Pardons to evaluate petitions based on who lifers are now, rather than at the time they were originally convicted.
“What that requires is that the board members really consider these applications fairly and instead of trying to relitigate a case. [The board should ask] who is this person now? What is their prison record? Have they rehabilitated themselves? What are members of the community saying about them? What kind of support do they have?” said Damon.
The desire to relitigate cases—some of which occurred decades ago like the Evans brothers’—can keep Board of Pardons members from seeing the growth and maturation of clemency petitioners and the positive role they could play in their communities upon release.
“There’s no community that bears the burden of mass incarceration more than those serving life,” said Austin. In 2017, Austin collaborated with Lifers Inc., a coalition of lifers incarcerated at SCI Graterford, a Pennsylvania maximum security prison, to direct the short documentary Second Looks, Second Chances. The film foregrounds the stories of lifers seeking clemency and those who have already been granted a second chance and released.
That includes formerly incarcerated people like Steve Blackburn, who successfully applied for commutation and has been released on lifetime parole. In the film, Blackburn explains not just the roles that lifers can play at home after release, but also the impact they have in the facilities where they are incarcerated.
“It was lifers who provided me with opportunities for rehabilitation,” said Blackburn in the film. “It was lifers who got me involved in [school] and helped me to see that I needed to improve myself academically—that I could make a contribution. It was lifers who helped men in the law clinics, and the possibility of commutation gives more reason for those lifers to continue that effort because it may be rewarded with freedom.”
“There’s another way to do things”
While advocates are particularly concerned about the efficacy of Pennsylvania’s clemency process given the state’s large population of lifers, organizers in other states have also begun to cite concerns and pose challenges to their own elected officials.
In Louisiana, yet another state where those serving life sentences are ineligible for parole, concerns lie not with the voting record of the state’s Board of Pardons and Parole, but rather with the final decisions made by Democratic Gov. John Bel Edwards. Now in his second and final term, Edwards has commuted just 34 sentences. That’s an improvement over his Republican predecessor, but still constitutes only 16% of the 207 recommendations forwarded to his desk.
New York Gov. Andrew Cuomo, also a Democrat, similarly came under public scrutiny following an investigation into a clemency program his office launched in 2017. Despite receiving 107 applications over two years, by November 2019, Cuomo had not acted on any of them. Public pressure after the investigation finally pushed the governor to pardon nine petitioners and commute two sentences in January of this year.
To ensure that momentum around clemency reform does not reverse course, there must be a cultural shift that informs our political priorities around criminal justice, one Damon believes is already underway. He believes that people are ready to make space for mercy and replace unsubstantiated fears with compassion. Leaders like Shapiro, Bell, and other elected officials just need to summon the political will to overhaul the current system rooted in “endless punishment,” he said.
“Mass incarceration is clearly a failed policy and it’s time for our leaders to show that there’s another way to do things,” said Damon. “It should be about people being able to change themselves.”
For lifers like Tyrone Warts, another commuted lifer featured in the documentary, the capacity for lifers to change themselves is worth being considered—not just for their own personal freedom, but also the potential benefit it can serve to society.
“What I remember vividly was, the day that I was coming home, I came out into the hallway and there were a number of lifers in the hallway coming to wish me well and I was hugging them and I was crying like a baby,” said Warts. “Men that were smart, who were generous, who recognized and were very remorseful about the activity of their young life, who could be a very powerful asset to society and yet here they were older men who would possibly die there if nothing changed.”
