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Arizona Governor Doug Ducey
Arizona Governor Doug Ducey

Ducey Won't Release Nonviolent Offenders, Ignores Recommendations for Clemency

In 2015, Aubrey Bryson, who goes by "Lee," was sentenced to eight years in the Arizona state prison system for stealing a truck.

This February, with Bryson in the throes of Stage 4 metastatic cancer and just months to live, the Executive Board of Clemency unanimously approved him for compassionate release. Bryson needed just one more thing in order to go home and be with his family: a signature from Arizona Governor Doug Ducey.

Nearly two months later, Ducey has yet to approve the Board of Clemency's recommendation to release Bryson.

As the COVID-19 pandemic heightens the threat to Bryson and the health of more than 40,000 other Arizona inmates who live in crowded, unsanitary conditions, Ducey has refused to release any nonviolent offenders from state prisons, whether or not they've been recommended for clemency.

"No, we will not be releasing inmates," Patrick Ptak, a spokesperson for the governor's office, told Phoenix New Times via email. "We're going to protect public health and public safety and the Department of Corrections, Reentry and Rehabilitation is working with public health officials and following CDC guidance for correctional facilities."

Lawyers and family members of people incarcerated in Arizona's prisons dispute that the Department of Corrections is adequately protecting public health in prisons, where soap is rationed, hand sanitizer is depleted quickly, and social distancing is not always possible.

Asked why the governor had not signed Bryson's order for compassionate release to date, Ptak said, "We review all requests for clemency that come into our office based on the facts in each individual case."

Edward Bryson, Lee's elder brother, told New Times he wanted his brother out of prison to "finally have peace of mind and be around people that love him."

He said didn't understand why it was taking so long for the governor to sign the release.

"If it was their family in there, they'd be doing everything to make sure he could get out," Edward Bryson said. No one at the governor's office ever responded to the several calls and emails Edward had left with them, he added.

When Lee, who is six feet and three inches tall, entered prison, he weighed 245 pounds. Now, he weighs just 148 pounds, Edward said.

Lee is incarcerated at the state prison in Florence, where he is ranked as a low-minimum custody.

In January, doctors gave Lee a prognosis of "months to a short year" to live and said that he was at risk for bowel obstruction and significant intestinal complications, medical records show.

That prognosis of "a short year" might be too generous.

Joel Robbins, an attorney with the firm Robbins & Curtin, which is representing Bryson, said that at the commutation hearing in February, the state's doctor disagreed, saying that Bryson actually had less than three months to live.

Inmates can apply to Arizona's Executive Board of Clemency for an expedited sentence commutation known as "imminent danger of death."

Those inmates must have a written prognosis that they are likely to die within four months due to their medical condition. If the board approves, it sends a recommendation to the governor, who must sign off on the release. One exception is that if the board unanimously approves a recommendation for commutation, it automatically comes effective after 90 days — three months — if the governor does not act on it, according to board policy.

If Bryson, who may or may not have three months to live, were released, "he'd definitely come live with me," his brother said. "We've already discussed it. I've told the Executive Board of Clemency, I want him out here with me. We'll make do."

Their mom wanted to see Bryson, who has a daughter and two grandkids he hasn't yet met, Edward said.

In an article published this week in the New England Journal of Medicine, three medical doctors argued that jails and prisons needed to prepare for the COVID-19 pandemic by "'decarcerating,' or releasing, as many people as possible, focusing on those who are least likely to commit crimes, but also on the elderly and infirm," among other measures to help flatten the curve and limit transmission of the virus.

"We believe that efforts to decarcerate, which are already under way in some jurisdictions, need to be scaled up; and associated reductions of incarcerated populations should be sustained," they concluded.

Some judges and sheriffs have sought compassionate release of certain incarcerated people — namely those who are medically vulnerable and nonviolent, including in Harris County, Texas and Cuyahoga County, Ohio.

Last week, Maricopa County Sheriff Paul Penzone announced that he would suspend work furlough and work-release programs, allowing some inmates to work outside of jail while serving their sentences.

The goal was the ensure the safety of inmates and employees "by preventing inmates from leaving and re-entering the jail system daily," Penzone said in the announcement.

Advocates for prison and criminal justice reform in Arizona are calling for compassionate release and for the Department of Corrections to reduce the number of people incarcerated in its facilities.

In an open letter on March 30, Arizona House Democrats laid out concerns that the Department of Corrections was doing too little to protect its 9,000 staff and 42,000 inmates.

"The House members have received reports that sick inmates are not receiving adequate medical attention, that basic CDC recommendations on sanitation and social distancing are not being observed, and that the Department has been selling toilet paper, purchased for inmates, to its own employees at wholesale cost," they wrote.

They called for inmates over the age of 60, inmates with health conditions who faced higher risk of death if infected with COVID-19, or those incarcerated for nonviolent felonies to be furloughed. They also called for the department to devise a plan to authorize compassionate release for inmates older than 60 who also had underlying health conditions.

As of Wednesday, April 1, 34 inmates in Arizona had been tested for COVID-19; 29 tests came back negative. The rest are still pending, lawyers for incarcerated plaintiffs in the Arizona prison health care lawsuit Parsons v. Shinn said during a virtual panel aired over Facebook Live on Wednesday evening.

The Department of Corrections has refused to tell those lawyers which inmates have been tested, Corene Kendrick, an attorney with the Prison Law Office, said during the panel.

The Department of Corrections did not respond to a request for comment for this story. Centurion, the for-profit health care contractor for department, acknowledged New Times' request but did not respond by deadline.

At least one Arizona inmate recommended for compassionate release has died while awaiting Ducey's signature, but the total number is unclear.

KJZZ has reported that five Arizona inmates have been approved for clemency because of imminent death and are awaiting Ducey's signature.

In early March, Robbins & Curtin, the firm representing Bryson, filed a public records request with the governor's office asking for applications for sentence commutations, subsequent recommendations from the Executive Board of Clemency, and Ducey's approval or denial of each. They also asked for a full list of inmates who had died in prison while their requests for clemency, unanimously approved by the board, awaited Ducey's signature.

The request, which the firm said the governor's office has yet to acknowledge, is still pending.

Luis Antonio Caballero died in prison last September, a month after the Executive Board of Clemency recommended that the governor commute his sentence because he had less than four months to live.

Caballero was represented by the Tucson law firm Barton and Storts. After he died, the firm wrote a letter to the governor, saying that after the Board of Clemency forwarded its recommendation to him, "my office spoke to a member of your staff who indicated the recommendation was being reviewed and would be resolved in an expeditious manner."

That letter was shared with Robbins & Curtin, which shared it with New Times.

"That obviously did not happen, as Mr. Caballero passed away," the letter continued. "He was only able to visit with his family at the ASPC Tucson ... a few hours before his death."

"It was extremely cruel for the family not to have been allowed even a week with Mr. Caballero before he passed away," it argued, pointing out that Ducey's office had received the recommendation for early release a month before Caballero died.

The letter concluded, "I would hope that if this situation occurs in the future, your office will proceed in a more expeditious manner."

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