Clemency Q&A with Sharon Brett, Legal Director

Last year, the ACLU of Kansas launched the Clemency Project, and we’ve filed 108 applications for Clemency with Governor Kelly’s Office.

Sharon Brett, Legal Director at the ACLU of Kansas, answers frequently asked questions about the project.

Q: First off, what is Clemency?

SB: Clemency broadly refers to early release from prison as granted by the Governor. Most people know of the Presidential “pardon” power. In Kansas, the Governor has the power to pardon, which can mean either erasing a person’s conviction from the record or—more often—commuting a person’s sentence, releasing them from prison earlier than scheduled.

Clemency is a core part of the balance of power in our state government. Many states grant the Executive Branch this power as a vital check on the justice system. In Kansas, the Governor’s power to grant clemency comes from statute.

Q: How did the Clemency Project get started?

SB: When the epidemic first broke, we recognized, as many civil rights attorneys and people across the country recognized, that the people incarcerated in our prisons and jails were, essentially, the most vulnerable to COVID-19.

There’s no way to social distance in prison; you’re not given sanitation supplies, you’re not even given masks a lot of the time. So people who are living in our prisons and jails were extremely vulnerable to this airborne disease.

So we filed a piece of litigation, Hadley v. Zmuda, that was attempting to get the state to release a large number of prisoners so we could cut down on the population inside of our state prisons and try to allow for some more distance between people and to reduce the number of people who would potentially be exposed in that setting.

Unfortunately, that case was dismissed on procedural grounds, so the affiliate had to look for an alternative path forward to help these people.

Q: So that became the Clemency Project. What is the Clemency Project?

SB: When the Hadley case was dismissed, the affiliate pivoted from a litigation strategy to a project-based strategy that was basically filing a large volume of petitions on behalf of incarcerated people asking the governor to grant them Clemency.

So that’s what we began in late May of last year. In the past year we have filed 108 petitions on behalf of people asking the governor for Clemency.

For a subset of individuals, we’ve also filed something called “Functional Incapacitation.”

Q: What’s Functional Incapacitation? How is it different from Clemency?

SB: Functional Incapacitation is a separate process, but it’s similar to Clemency. It’s also an early release valve, but it’s a little bit different in terms of who gets to make those decisions and the criteria that’s used to evaluate them.

So, Functional Incapacitation is essentially, as it sounds, identifying individuals who are incapacitated. They are often sick or disabled, and the argument to KDOC is that they don’t pose any “threat to public safety” if they were to be released, by virtue of their condition. It is essentially arguing for mercy, and arguing that there is no need to keep them incarcerated.

The functional incapacitation process works differently from Clemency in that the governor is not the ultimate approving authority. Rather, it’s the Prisoner Review Board, which is a part of the Kansas Department of Corrections.

The Functional Incapacitation process is pretty convoluted. The application goes through probably 7 or 8 different layers of review just within the facility where the applicant is incarcerated… then it goes to the Secretary of the Department of Corrections, then it goes to the Prisoner Review Board.

So you have all these officials reviewing this application before a person could actually be granted release due to functional incapacitation, but there are no standards published anywhere on how those decisions are made.

Despite these roadblocks, we had a big success earlier this year when our client Christopher McIntyre was released from prison through the Functional Incapacitation process. Although we’re glad for this, there are so many others who deserve the same chance. We highlight several examples in our Stone Catcher’s Blog.

Q: Do these tools get used often?

SB: Like Presidential pardons, historically these powers mostly get used at the end of a Governor’s term. Both Brownback and Coyler issued limited pardons, both only at the end of their gubernatorial tenures. I’d argue they were intended to be used more actively, throughout a Governor’s term, as part of the system of checks and balances.

Even though Clemency powers are vested in the Governor, the Prisoner Review Board— which I mentioned while discussing Functional Incapacitation— still gives a recommendation as part of the process. We know from what they’ve shared how few applications they recommend for release.

From the records on their website, between 2015 and 2018 they received 84 applications and only recommended 8 for release, so fewer than 10% get recommendations. Likewise, the Functional Incapacitation review process seems to almost automatically produce non-recommendations for release.

So while these tools do get used, the trend is to use them as a Governor’s last act. The Prisoner Review Board’s review authority wasn’t established so that they could blanket-reject applications, and the Clemency power wasn’t built to sit on the shelf until reelection isn’t a concern. Instead, the process needs to be a whole lot more transparent, objective, and fair. And it should be used more often. We’re all familiar with this process already, we just need to use the system throughout a Governor’s term as intended to help Kansans.

Q: What happens when someone is released through either Clemency or Functional Incapacitation?

SB: Clemency applicants also usually plan to live with a partner or family, such as a parent or sibling, but often describe their vocational skills and discuss their plans to find employment. There are differences in plans; some applicants are older and describe a peaceful retirement with loved ones or beloved pets. Regardless, as a part of the process, there is a plan in place.

I often say that clemency decisions should be about not what you did but who you are. It’s not about where you’ve been but where you’re going. That’s what these applications show—plans for release, for employment, for stability and community and connectedness upon release.

Through this project we have heard countless stories of people in prison who have worked hard to be successful after release. We’ve heard stories of people who are sick, and who seek early release to get proper medical care. Clemency is a real tool, granted to the Governor, to help real people change— or sometimes save— their lives.

Q: How do you apply for Clemency?

There are forms you file with different agencies to apply for Clemency. We have a toolkit on our website with a list of every form, examples, and guidance for filling it out. The toolkit walks you through the process, and includes a packet with all the forms as well.

We hope by making this available and as streamlined as possible, we empower people to use this vital process. We know that a lot of people have actually submitted applications through this toolkit, and we want that to continue. People run for Governor to make a difference, and we want ours to see how much Clemency allows her to do just that for families all across Kansas.