Has the governor reneged on COVID-19 Conditional Pardons?

By: Keith L. Hill

The contagious spread of COVID-19 in the Virginia Department of Corrections is not letting up. Why should it when the coronavirus continues to break daily records of infections and deaths across this country? While the virus continues to spread in the VADOC, deaths continue to climb at an alarming rate, too. Within an 11 day period, the VADOC reported 6 deaths, 3 at the Augusta Correctional Center, 2 at the Pocahontas Correctional and 1 at the Nottaway Correctional Center.

A lot of these deaths were attributed to older African-American males with underlying medical conditions, in other words, the most vulnerable offenders. These deaths could have possibly been averted had the governor made good on his word and agreement to "prioritize" and "expedite" requests for conditional pardons for those who exhibit COVID-19 related medical conditions. Instead, the governor has distance himself from granting any conditional pardons and has left the most vulnerable to struggle for their life under the premise "survive the best way you can." No offender, young or old, ever requested to be infected with coronavirus by a VADOC employee. For a lot of these infected offenders, their incarceration was for non-violent offenses and sentences which range from 3 to 10 years; they were not sentenced to death.

Interestingly, on May 12, 2020, a settlement agreement was reached with the governor and the Secretary of the Commonwealth to guarantee that a COVID-19 conditional pardon request will receive "priority" under the agreement if the petition clearly references an underlying medical condition related to the COVID-19 pandemic, in order to "expedite" petitions from individuals currently incarcerated. This unique COVID-19 conditional pardon process as simplified as it is did not exist prior to May12, 2020 because COVID-19 did not exist. There were no strings attached to this agreement such as an eligibility criteria or restrictions, therefore, the binary vetting process was a no-brainer. All the petition had to set forth was relevant information, including any medical conditions or other specific health concerns that would factor into the consideration of a COVID-19 pardon.

With a supposedly competent administration running the Office of the Secretary of the Commonwealth, the lag time from submission, to the review, to the grant of a conditional pardon has proven to be entirely too long or non-existent. With no eligibility criteria or restrictions in place, the process turns on one simple binary question: did the petition specifically reference a documented underlying medical condition related to the COVID-19 pandemic? If the answer is yes, then the inquiry ends and the grant process should begin.

It has been reported that individuals have applied for a COVID-19 Conditional Pardon, but have been informed by the Secretary of the Commonwealth that their petition will be thoroughly investigated which may take two years or longer. It strains credulity on how two years or longer translates into will be given "priority" and will "expedite" petitions from individuals currently incarcerated. This settlement agreement is starting to sound like the perpetration of a carefully engineered fraud because at this rate "two years or longer," a most vulnerable COVID-19 offender could likely be dead from the virus. What purpose would a posthumous Conditional Pardon serve? The ACLU should be outraged with this messaging. They should have already asked the U.S. District Court to void the settlement agreement because of the Defendants non-compliance and restore the original case to the docket for trial. If not, is this ready evidence that the ACLU is silently complicit in this non-compliance?

The recent COVID-19 related death at the Nottaway Correctional Center is just one glaring example of how the governor has renged on his word. The VADOC reported that the offender contracted COVID-19. He repeatedly requested the governor to be released because of his underlying COVID-19 health conditions, however, all of his requests to the governor went unanswered. He passed away on December 26, 2020 from COVID-19 related complications. He was not serving life nor was he sentenced to death.

Governor Northam is a pediatrician by profession. He took a Hippocratic oath to do no harm. In the midst of this deadly pandemic, you would think his mindset should be "the loss of one life is too many." Well the loss of 45 senseless lives is 45 too many. Shame on him. The longer his office shirks to review, expedite and grant requested COVID-19 conditional pardons, the more Nottaway incidents will occur. Whatever the reason for the governor's standoffishness cannot possibly bode well with the families of these dead offenders.

At the rate the infections are increasing and the deaths are climbing in the VADOC--45 to date, when will the governor hold himself accountable to the terms of this legally binding settlement agreement? The most vulnerable offenders cannot continue be checked offed as disposal baggage or discarded as just the price of doing business. Offenders not sentenced to death by a court of law deserve a sense of compassion, humanity and dignity when they, through no fault of their own, contract coronavirus. But most importantly, the family and the most vulnerable offenders expect transparency and the governor's word to be his bond.