Roger Stone, the only person to whom President Donald Trump has offered clemency during the pandemic, flashes his trademark double peace signs on July 12 outside his home in Fort Lauderdale, Florida. (Johnny Louis/Getty Images)
In commuting the 40-month sentence of Republican political operative Roger Stone earlier this month, President Donald Trump railed against "the Russia hoax" and "out-of-control" prosecutors who charged Stone with witness tampering and lying to Congress.
But notably, the White House press secretary statement announcing Stone's clemency also highlighted his age and medical conditions in explaining why he should not go to prison.
"Mr. Stone is a 67-year-old man, with numerous medical conditions, who had never been convicted of another crime," the July 10 statement says. "[He] would be put at serious medical risk in prison."
While Democrats and even some Republicans have questioned the ethics of Trump's decision, others have highlighted how the same logic should be applied to thousands of other aging people, many of whom have actually served years and even decades of their sentences.
"If you give Roger Stone a break and you say out loud, 'It's partially because he's old and sick,' well, then, OK: Give clemency to more old and sick people," said sentencing law expert Doug Berman, an Ohio State University law professor.
Roughly 288,800 people over age 50 currently live in state and federal prisons, and an estimated 70% of them have a current chronic illness or serious medical condition, according to the Alliance for Safety and Justice.
Older people make up the fastest-growing population within U.S. state and federal prisons, which have become hot spots for the viral contagion that is increasingly deadly the older its host. A recent study found that people in prison are 550% more likely to get COVID-19 and 300% more likely to die from it. So far, at least 625 imprisoned people have died from the virus.
Criminal justice reformers aiming to decrease the country's world-leading incarceration rate have advocated for years that aging people should be considered for early release or parole, considering the often inadequate health care available in correctional facilities as well as the fact that, generally speaking, the older you are, the less likely you are to commit another crime. Older people also cost more, per capita, to incarcerate.
Those calls have been amplified in the wake of widespread protests against racial injustice in the legal system. Last week, hundreds of New Yorkers marched in Manhattan to demand the state Legislature pass a package of bills, including one that would make people who've served at least 15 years eligible for parole at age 55.
A related bill would grant parole to anyone eligible unless there is "a current and unreasonable risk" the person would break laws if released.
Jose Hamza Saldaña, director of Release Aging People in Prison, said in a statement that the bills would help dismantle "white supremacist policies" that "define justice as perpetual punishment, revenge and permanent family separation."
"Justice must provide the opportunity for redemption and transformation and return to family and community," he said.
One of the easiest methods of releasing people, including the elderly, from dangerous prisons is the executive clemency power, which some governors have wielded more widely during the pandemic.
Illinois Gov. J.B. Pritzker, for example, has commuted more than 20 state prisoners' sentences since March. In his first year in office, he commuted just three sentences.
In April, New Mexico Gov. Michelle Grisham commuted the sentences of 46 people convicted for low-level crimes who were within 30 days of being released; Oklahoma Gov. Kevin Stitt commuted 450 sentences that same month.
But while some governors have been actively exercising clemency powers, Trump's commutation for Stone marked his first since declaring a pandemic. Stone reportedly has asthma and a history of respiratory conditions that makes him vulnerable to COVID-19; in late June, he posted social media videos saying "incarceration at a facility with COVID-19 during a pandemic is a deep state death sentence."
Trump's previous clemency grants have been notoriously personal: a recent analysis by Lawfare co-founder Jack Goldsmith found that 31 of Trump's 36 pardons and commutations were based not on recommendations by the DOJ's pardon attorney, but rather on endorsements from friends, celebrities and TV personalities.
Instead of granting more people clemency, Trump's response to the threat COVID-19 poses to people in prison has come via U.S. Department of Justice policies. In March, his administration instructed the Bureau of Prisons to release more people to home detention and to consider the medical risks of holding people in pretrial detention amid rising prison COVID-19 infection counts.
According to a BOP spokesperson, 6,997 people have been placed on home confinement in response to the COVID-19 pandemic — approximately 4% of the federal prison system's 158,838-person population.
Another method of release during the pandemic has been "compassionate release," a sentence reduction typically reserved for the terminally ill or severely medically compromised. The 2018 First Step Act, Trump's signature criminal justice achievement, made it easier to seek such releases, but only about 150 people were able to take advantage over the first 14 months of the law.
During the pandemic, that number has more than quadrupled as incarcerated people, judges and even prosecutors have mobilized to decrease prison populations, but the grand total of 776 is still a fraction of of the BOP's 158,838-person population — 20% of which is people over age 51, four months into a deadly pandemic.
Some politicians have argued against early releases for people convicted of what they consider particularly egregious crimes. In April, Sen. John Kennedy, R-La., urged Attorney General William Barr to deny early release requests from notorious Ponzi schemers Bernie Madoff and R. Allen Stanford.
"Releasing either of these individuals, or anyone similarly situated, would be an affront to those affected by their evil schemes, and a complete failure in the administration of justice," Kennedy wrote in a letter.
Judges, for their part, have "definitely been more willing to grant compassionate release due to COVID-19," according to Amy Povah, a formerly incarcerated activist who runs Can-Do Clemency. But she added that some judges are still denying release, even in cases where people are particularly at risk of infection.
"We're extremely concerned about medically compromised people who cannot socially distance in prison," she said. "They don't have the proper personal protective equipment. Most of them, from what I understand, do not have hand sanitizer. A lot of them are improvising by cutting up T-shirts because there's not enough masks."
While Sen. Lindsay Graham, the Senate Judiciary chair, signaled support for Stone's commutation on Twitter, writing "this was a nonviolent, first-time offense," the government has actually sought to keep people in prison who fit the same profile.
For example, Robert "Bubba" Pena, a 70-year-old former NFL lineman sentenced to 32 months last April for embezzling $2.5 million, sought compassionate release in April due to his age and health issues.
Pena was incarcerated at the Federal Medical Center in Devens, Massachusetts, which inmates in a separate lawsuit described as a coronavirus "powder keg" with a dozen shared toilets for 50 men, but the federal prosecutors in Pena's case argued that the BOP had taken extensive steps to limit contagion.
In opposing his release, the DOJ cited the 772 known COVID-19 cases in his home county as evidence that "home confinement would present a substantial risk of infection compared to remaining in that facility." Prosecutors also argued that Pena had not yet served enough of his sentence to qualify for release under guidelines that Barr issued.
In a May order granting Pena's release, U.S. District Judge Mark L. Wolf noted that the Bureau of Prisons "evidently ordered an exception to this requirement for President Trump's former campaign manager Paul Manafort even though he had only served 23 months of a 77-month sentence."
"Every person and case is unique, and Mr. Manafort may have health problems that place him at a particularly high risk," the judge continued. "However, making an exception to the policy for him and refusing to consider Mr. Pena and other elderly inmates on the merits will raise reasonable questions about whether justice is indeed blind."
For some inmates, however, calls for early release remain unanswered.
Ricardo Riojas is a 77-year-old serving life in prison due to a conviction for conspiracy to commit money laundering in connection to a marijuana trafficking ring. Several others involved in the case received clemency from President Barack Obama, but Riojas did not.
He currently requires the use of a wheelchair due to osteoarthritis in his knees and also suffers from sinus bradycardia, esophageal reflux, dermatitis, glaucoma, vitamin D deficiency and neuralgia, a painful nerve condition.
His 2019 request for compassionate release was denied in February. A subsequent motion filed in April has yet to receive a response from prosecutors or the judge.
"With Riojas' age and health condition, contracting the COVID-19 virus would undoubtedly be fatal," his motion states.
Povah, who is advocating for clemency for Riojas and dozens of others, said the Stone commutation was a signal that the president is aware of the plight aging people in prison face amid the pandemic.
"It gives me hope," she said.
Have a story idea for Access to Justice? Reach us at firstname.lastname@example.org.
--Editing by Katherine Rautenberg.