Samantha Lucio clutched her cell phone and nervously paced the floor of her parents’ house as she peppered her husband Antonio with questions during one of his twice-daily phone calls from prison.
Did he feel sick?
Had he been tested yet?
About 200 men at Northeast Oklahoma Correctional Center in Vinita had already tested positive for COVID-19, where Antonio Lucio is serving a seven-year prison sentence for possession with intent to distribute marijuana. It will be about two years before he will be eligible for parole.
But Samantha is worried her husband could get sick in prison and might not make it home.
She wrote a letter to the Oklahoma Pardon and Parole Board asking it to recommend reducing Antonio’s sentence with a commutation. Her husband has high blood pressure and is overweight, which could put him at risk for health complications from COVID-19, she wrote.
“As a single mother I am stressed and scared by the global crisis,” she wrote. “I want to facilitate my husband’s release, not just because he is so repentant, but because I need his support in raising our children. It is such an uncertain time, and the world is scared.”
A commutation, which Gov. Kevin Stitt would ultimately have to approve, is Antonio’s only chance at getting out of prison early during the coronavirus pandemic.
But the Pardon and Parole Board typically only weighs whether a sentence is excessive or unjust in deciding to recommend a commutation, not health concerns.
Oklahoma has few other mechanisms in the law for early release from prison.
As the coronavirus spreads rapidly through Oklahoma correctional facilities, the state is examining the possibility of commuting the sentences of some nonviolent offenders with three to six months remaining on their sentences, Gov. Kevin Stitt said at a press briefing on Tuesday.
Details of the plan are still being hammered out with the Pardon and Parole Board and district attorneys, Stitt said.
“We’ve got to follow the law,” Stitt said. “Public safety is of number one importance.”
The Oklahoma Department of Corrections has already recorded more than 3,000 cumulative cases of COVID-19, including seven prisoner deaths that may have been caused by the virus. Three Department of Corrections staff have died and 22 prisoners were hospitalized as of Tuesday.
Groups including Oklahomans for Criminal Justice Reform, the ACLU of Oklahoma and the Oklahoma Policy Institute have called for the state to take steps to reduce the prison population in order to prevent more prisoners from contracting COVID-19, including early release for some prisoners.
Nicole McAfee, director policy and advocacy for the ACLU of Oklahoma says she believes there is more Oklahoma could do to expedite commutations or consider more prisoners for medical parole.
“Largely, everyone is sort of acting like everything is under control. In private conversations, I hear a lot more of ‘we’re doing the best we can’,” she said. “But there has to be some bigger reckoning around the fact that a sort of status quo of ‘the best we can’ is not good enough for folks in the custody and care of the state.”
The Oklahoma Department of Corrections says there are few existing legal remedies to release more people from prison. The agency is mandated by state law to hold prisoners for the duration of their sentences.
The concept of early release from prison “is not a thing” in Oklahoma, said Justin Wolf, spokesman for Department of Corrections.
“Oklahoma criminal law is written very aggressively and strictly to prevent the Department of Corrections from releasing inmates before their sentences are over,” he said.
State law also prevents the early release of many prisoners on GPS monitoring devices.
Prisoners with sentences longer than 10 years are ineligible for the program until they have less than two years left to serve.
Violent offenders aren’t eligible for electronic monitoring, nor is anyone with a prior conviction for a violent crime in the past 10 years. Prisoners who have been denied parole in the past year or who have escaped from prison in the past 10 years are ineligible. Anyone serving time for possession with intent to distribute drugs within 2,000 feet of a school is also barred from the program.
A long wait
Antonio was charged with possession with intent to distribute marijuana in 2019. During a traffic stop, an Enid police officer discovered digital scales and about 1.3 ounces of weed in Antonio’s car, divided into small plastic baggies.
He agreed to plead guilty in January in exchange for a seven-year prison sentence. He faced the possibility of an even longer prison term if found guilty at trial.
Antonio has a long list of prior criminal convictions, including for injury of a public building and multiple felony counts of drug distribution. With his past criminal history, state sentence enhancement laws allowed prosecutors to seek a maximum sentence of life in prison, according to charging documents filed in Antonio’s case.
Oklahoma will vote on State Question 805 in November, which would end prosecutors’ ability to use prior non-violent felony convictions to seek longer prison sentences.
Antonio filled out a request for a commutation hearing in March, but the already long wait for a hearing was delayed when the prison lost his paperwork.
He wrote that he believed his seven-year sentence was excessive.
“I hope you can find it in your heart to look into my case so I may get home to my family, and be the father and loving husband I am,” he wrote on the application.
Mitchell Thrower, the prosecutor with the Garfield County District Attorney’s office who handled the 2019 criminal case said in an email that he did not think seven years was an excessive sentence under state law given Antonio’s lengthy criminal history. Antonio entered into a plea agreement with the advice of an attorney, he said.
It took until September for Antonio to get a letter from the Pardon and Parole Board letting him know his application would be considered at a future meeting—date unknown.
The board has about 2,900 pending commutation applications. Some are more than a year old, said Kyle Counts, the agency’s general counsel.
The agency has a large backlog of cases waiting to be heard after a series of reforms to state law over the past few years that reduced penalties for many drug-related and property crimes.
Pardon and Parole Board Chairman Robert Gilliland spends days in advance of each monthly meeting poring through as many as 400 commutation applications. Many come hand-written from people in prison.
The board tries to process applications in a timely manner, but also has to strike a balance with ensuring each case is given adequate consideration, he said.
“It’s more important to have all the information we need to make a make a decision that’s right for the person who’s applying and also for the state,” he said.
The Pardon and Parole Board is doing triage with the mounting pile of applications, placing people seeking commutations for low-level property and drug convictions at the front of the line for a hearing. People violent convictions for offenses such as first-degree murder are placed at the back of the line, becuase they are less likely to recieve a favorable vote, Gilliland said.
The global pandemic has also slowed the board’s work. Pardon and Parole investigators have not been able to gain access to some state prisons in recent weeks because of lockdowns after outbreaks of COVID-19, agency staff said at a board meeting last week.
The only release valve
The Oklahoma Pardon and Parole Board is the state’s only release valve for overcrowded prisons, said reform advocate and attorney Colleen McCarty, who believes the state could reduce prison populations by granting more prisoners medical parole during the pandemic.
McCarty launched two online petitions this spring calling for the Department of Corrections to recommend medical parole for many nonviolent offenders including pregnant women, people with compromised immune systems, and anyone over age 60 or eligible for release within 6 months.
In response for calls for compassionate release, The Department of Corrections made a list of 126 prisoners with the most intensive medical needs for medical parole, but cut everyone from consideration who was serving time for a violent crime, had mandatory minimum sentences not yet met, domestic abuse charges or were registered sex offenders.
The final list was just 14 names long.
In May, the Oklahoma Pardon and Parole Board approved 12 prisoners for medical parole based on the Department of Corrections’ recommendation.
The board is willing to consider additional medical parole cases if and when the Department of Corrections submits any, Gilliland said.
It wasn’t the widespread release to reduce the spread of the COVID-19 that McCarty had in mind.
“This spring, the priority was to get more people out so they could socially distance, but now the numbers are so high, I think maybe that ship has sailed,” she said.
The Oklahoma Department of Corrections has since spread rapidly through state prisons.
Four of the seven facilities the Department of Corrections has currently identified as hotspots for outbreaks of COVID-19 are minimum-security prisons with open dormitory-style housing, where prisoners sleep in close quarters on bunks beds.
‘What if something happens and he doesn’t get to come home?’
Samantha has little hope that the board Pardon and Parole Board will hear Antonio’s request for a commutation before he is eligible for parole in about two years. She still calls periodically, to ask if Antonio’s name will make it on the board’s monthly docket.
“They don’t care. He’s just a number,” she said.
She watched as Pardon and Parole Board’s last monthly meeting, held remotely and streamed over the internet in keeping with social distancing practices and counted the many denials.
She’s tired from working nights as a forklift operator at a poultry processing plant to support her two sons, 1-year old Tonio—named after his dad—and David, age 12.
If Antonio were home, he could help with the baby during the day and she could get more sleep.
“I work all the time and it seems like when I’m not at work, I’m with my kids,” she said.
Samantha was at work on Friday evening when she got a call from Antonio on her cell phone. She rushed to the bathroom to answer.
Antonio was one of more than 70 men at the Vinita prison who had just tested positive for COVID-19. So far, Antonio hasn’t had any physical symptoms. Samantha is still worried.
After hanging up with Antonio, she went outside to smoke a cigarette and calm her nerves.
“What if something happens and he doesn’t get to come home,” she asked. “Those are the things that I have to sit here and think about.”