“How long will I need to be in here?”: The “Elder Statesman” dies after contracting COVID-19 in NY prison
As Benjamin Smalls looked out of his window from his hospital bed in Poughkeepsie, New York, he told his daughter he was grateful for the view.
The 72-year-old Smalls, who had been incarcerated at Green Haven Correctional Facility in New York since 1999, spent his final days in a COVID-19 hospital isolation unit. For most coronavirus patients, being entirely alone in a medical facility is an unprecedented hardship. But Smalls told his daughter on the phone that the conditions in the hospital were an improvement compared to those in prison.
“At least he wasn’t in jail when he passed away,” Jhana DuPont said of her father, who died at Vassar Brothers Medical Center on May 5 after a three-week hospitalization period. “He said to me, ‘I have a window I can look out of, that’s better than being in my cell.’”
Smalls first showed visible signs of the virus on April 8, according to a source at Green Haven Correctional Facility. He was unable to walk, found it difficult to breath, coughed all through the night and was hospitalized two days later. According to DuPont, her father was ultimately hospitalized because one of his cellmates brought attention to his suffering.
“One of his cellmates’ moms called me, and was so concerned because they could hear him trying to breathe,” DuPont said. “[Green Haven officials] were like ‘Oh, he’s fine, he’s just having some breathing issues’ and very nonchalant, but when one of his cellmates was making a racket, that’s when they finally decided to take him to the hospital.”
She said that prison officials failed to keep her informed about her father’s rapidly deteriorating health, despite the fact that she called both the hospital and the prison every day and drove up to the hospital herself to seek more information. Eventually, she sent a letter to the superintendent of the correctional facility so that hospital officials would be allowed to tell her how her father was doing.
In the meantime, the Release Aging People in Prison campaign — which DuPont calls her “heart and soul” — was fighting for Smalls to receive clemency or medical parole from New York state. Even before Smalls was hospitalized, DuPont said it was frustrating to hear stories on the news reporting the release of wealthy individuals from prison –– such as the president’s friends –– while her father languished in his cell.
When her father repeatedly told her on the phone that he loved her and her siblings no matter what, DuPont knew he didn’t expect to survive. Up until his final moments, though, Smalls worried about the status of his clemency paperwork, asking his daughter: “How long will I need to be in here?”
In the prison, Smalls — widely called Mr. Smalls, as a measure of respect — was a member of the leadership board of the Project for a Calculated Transition (PACT) program. PACT was formed in the 1970s by a group of incarcerated individuals who were transferred to Green Haven after the Attica Prison riot. The group is dedicated to service and rehabilitation, and its members run a series of courses inviting incarcerated men to talk about forgiveness and personal growth.
In addition to their internal work, PACT has also sustained a 40-year relationship with volunteers from Yale Law School, called the Green Haven Prison Project. YLS volunteers visit the prison once every two weeks to participate in reading groups facilitated by PACT members. The readings are often distributed by YLS students and are sometimes selected by the incarcerated men on topics of overlapping interest: usually social, legal and political issues. Over the years, YLS students and PACT members have conducted debates ranging from healthcare in prisons, to Confederate monuments, to gender and sexuality issues.
According to Devin Race ’13 LAW ’19, who volunteered at Green Haven from 2016 to 2019 and became co-director of the project during his final year, law students and inmates alike saw Smalls as a trusted mentor. Glen Skinner, who is Smalls’ childhood friend, said the feeling was mutual: working with the law students gave Smalls some semblance of normalcy in prison.
“A number of people have nicknames on the inside,” Race said. “But Mr. Smalls had a title: The Elder Statesman. And that pretty well captured his aura. He viewed himself as a sort of guiding figure to others, but at the same time, he was very humble about everything he had to learn and wanted to examine his own beliefs.”
According to Race, Smalls came to reading circles with both a pair of gold-plated glasses from the 70s and an exploratory, professorial approach to discussion. Race said that each time Smalls responded to another person, his tone was curious and open — he aimed to invite others into the conversation rather than shut them down.
Race mentioned one particular discussion group where Smalls requested that the group discuss the #MeToo movement as an example of Smalls’ desire to challenge himself and venture into complex material. Smalls asked the other inmates to push through their preconceived ideas and not to shy away from elements of the discussion that make them uncomfortable.
Smalls, who obtained a paralegal certificate from New York University in 1978, served as a legal advocate and a clerk in the prison law library, advising other incarcerated people on how to navigate the court system. Passionate about restorative justice, he helped hundreds of men file appeals and request transfers or file restrictions on visitation — rendering him especially skilled at post-conviction appeals law.
In fact, Race said that many YLS students found themselves learning about the law from Smalls, as he had been doing legal research for many years longer than they had. His cell was so overstuffed with legal documents that prison officials regularly ordered him to clear it out.
“Mr. Smalls was a brilliant litigator,” said Jose Saldana, the director of RAPP, who befriended Smalls while they were incarcerated together and later fought for Smalls’ clemency. “He could have done what so many other people do, just focusing entirely on winning his own freedom. He may have compromised that somewhat by wanting to help others … that defines who he was as a human being.”
Many of his loved ones see a tragic irony in the fact that he ultimately died with clemency and medical parole applications pending, unable to get the second chance he so fervently fought for others to have.
In her grief, DuPont said she finds some comfort in the notion that her father made an impact on his community while incarcerated, instead of waiting to be released into the outside world. She has received countless letters from inmates and their families expressing gratitude for his work, she said.
“He was considered among the true elders,” said Saldana, who says his mission with RAPP is to change the system that killed Smalls. “He was one of the few jailhouse lawyers I’ve encountered over 38 years of incarceration that actually represented himself as the people’s attorney.”
Long before he was incarcerated, Smalls was known as a community-minded person. He graduated in the first class of Mount Vernon High School in 1965, and according to his daughter, he was forced to drop out of college in order to help his mother provide for his sisters’ education. He became a licensed real estate agent and worked in the financial district.
Later, he found his groove as a small business owner, focusing on providing jobs for local youth in his neighborhoods. He opened a deli, a seafood takeout restaurant, a production company and a publishing company. He also opened a private club in Harlem, and a cabaret in the Bronx, both of which his daughter attributes to an enduring love of music.
“All the restaurants and all the stores … it wasn’t so much that he wanted a restaurant, he wanted a store, it was more that he wanted something he could make sure the local people could work at,” DuPont said.
When DuPont was growing up, Smalls was above all a practical parent. He taught his children life skills, such as how to save money and balance a checkbook, and worked long days and nights to provide for them. Out of all her siblings, DuPont was closest with her father.
“We had a great relationship up until the time right before he was [incarcerated],” DuPont said. “I won’t say it wasn’t great then, it was just hard to understand … Once I released my feelings to him, our relationship turned 360. I’ll forever be his baby girl — he would call me that.”
In 1998, according to court records, Smalls was involved in a rental dispute with a female tenant, who he allegedly threatened, abducted and held at gunpoint. He was sentenced to 31 years in prison for kidnapping and related charges, though the woman who was his alleged victim did not press any charges against him.
Despite these charges, Smalls maintained that he was innocent his whole life. He filed appeals multiple times throughout his sentence, including two habeas corpus petitions alleging that he was denied effective counsel during his trial.
According to Race, Smalls hadn’t discussed the particulars of his case with PACT volunteers. However, Race said that he admired his commitment to the character development components of the PACT program, which asked people who caused harm before they went to prison to think about their actions and how it affected their community.
“I was always impressed by that because I feel like someone who was innocent could get very frustrated and disillusioned, being in a group with character development programming that felt like it was making assumptions about him that were incorrect,” Race said. “Despite being innocent of what wound him up in prison, he was always willing to work with people.”
When the coronavirus reached the United States, criminal justice advocates immediately recognized the vulnerability of incarcerated people. In prison, social distancing is virtually impossible as inmates eat, sleep and exercise with each other. According to a lawsuit from the American Civil Liberties Union, common areas such as dayrooms, mess halls and showers can become hotbeds for virus transmission.
Advocates like Dave George, RAPP’s associate director, considered this especially outrageous, given that as the crisis unfolded, NY Gov. Andrew Cuomo ordered the mass production of cloth masks and state-issued sanitizer in NY prisons. According to George, the prisoners earned what he calls “slave wages” for carrying out this work. Ironically, the money earned from prison wages is often used by prisoners to gain access to soap and other prison hygiene supplies, as they must purchase them from the prison commissary.
“The system did zero to prevent the entering or spread of the virus,” George said. “It caused a lot of harm and is probably going to continue to cause harm now that it’s in there.”
According to the NY Department of Correction website, the DOC has taken multiple measures to try to curb the spread of the virus — including providing masks for inmates, increasing sanitation measures for common areas, suspending in-person visits and reducing the capacity of dorm units. However, the virus has continued to advance through correctional facilities — as of June 2, the state reported 1281 correctional staff cases, 511 positive inmate cases and 16 inmate deaths. Many activists suspect that the number of positive cases is likely to be much higher due to a lack of widespread testing.
Before the COVID-19 pandemic, RAPP, which was founded by formerly incarcerated people, focused on initiatives like changing the composition of the New York State parole board and championing the Fair and Timely Parole Act. Their goal is to ensure that the parole release process is based on who an incarcerated person is in the present, rather than the nature of their crime of conviction.
RAPP switched their efforts from advocating for specific legislation that promotes fair release in NY prisons to launching a campaign pressuring Cuomo to grant wide-sweeping clemencies to elderly incarcerated people. The campaign earned national attention, gaining the support of other advocates, leaders in Congress, public health experts, DAs and philanthropists.
“It was people like Benjamin Smalls who we had in mind when we launched that campaign,” George said. “People who had already done decades in prison, people who were in their seventies, people who had underlying health issues and who could be safely released and supported in the outside world.”
Already in 2014, Smalls’ friend Skinner created a Change.org petition to ask for executive clemency for Smalls, asserting his innocence and emphasizing the positive impact he had as a businessman and lawyer. Skinner was always highly confident in his friend’s ability to advocate for his freedom; he just needed to get him in front of someone in power who would listen. Skinner said he’s been thinking about that petition a lot these days, whenever he misses his friend.
“I would just need to put him in front of a judge, in front of a jury, in front of a Supreme Court justice, anyone,” Skinner said.
Smalls had already applied for executive clemency from Cuomo in 2018, based on heart issues and glaucoma. After the pandemic hit, before Smalls had even contracted the virus, his lawyer drafted another emergency clemency application to the Governor’s Office.
Advocates from RAPP repeatedly wrote to the Governor’s Office on Smalls’ behalf, warning that he was medically vulnerable. Former Yale Law School students who had worked with Smalls through PACT, as well as two professors, also wrote letters of support. The Governor’s Office’s response acknowledged the application, but did not indicate that the governor would be taking any action on Smalls’ behalf.
Within weeks, Smalls tested positive and was moved to the hospital for emergency care. RAPP wrote again to the Governor’s Office, reiterating their request for clemency and also requesting that Smalls be released on medical parole — which allows the release of incarcerated people who are terminally ill or have serious health issues.
“The state prison system didn’t even have the decency to respond to that request,” George said. “To this day, they haven’t responded — almost a month after Mr. Smalls’ passing.”
Green Haven Correctional Facility declined to speak about Smalls’ death, redirecting the News to the Governor’s Office. The Governor’s Office did not answer several requests for comment.
As governor, Cuomo has the executive authority to grant clemency to any and all incarcerated people.
“He can end mass incarceration literally with the stroke of a pen,” George told the News.
In April, 165 physicians and medical professionals penned an open letter to Cuomo asking him to grant emergency clemencies for at-risk populations. The authors specifically mentioned that releasing NY’s roughly 10,000 elderly prisoners would save lives and resources that could be reinvested into necessary public health tools during the COVID-19 crisis.
However, Cuomo has granted no clemencies during the pandemic. Instead, he set up a limited release mechanism designed only for people who are medically vulnerable, have less than 90 days left in their sentence, and were convicted of nonviolent crimes. This has freed less than 1 percent of the state prison population — a number that pales in comparison to the hundreds of people that have been granted clemency in other states like Kentucky, Oklahoma, California and Washington. Attorney General William Barr, who has historically advocated for the expansion of prisons and prison labor, has removed a higher percentage of incarcerated people from federal prisons than Cuomo has in NY.
Saldana said that only allowing release for those convicted of non-violent crimes disregards the fact that those convicted of violent crimes have often spent the longest amounts of time in prison, working to transform their lives for decades.
Elderly individuals are some of the most at-risk populations for complications relating to COVID-19 infections. At the same time, older individuals are the least likely population segment to re-offend, according to a study from the United States Sentencing Commission.
“Other governors have done way more than he has despite having prison systems with far less instances of the virus,” George said. “It’s objectively a national disgrace that NY Gov. Cuomo has granted zero clemencies. And the consequences of that are people like Mr. Smalls dying.”
Public health data has shown that the coronavirus disproportionately affects Black and brown people, but the racial disparity is especially harsh for incarcerated people. As of May 14, RAPP reported that people of color accounted for 81 percent of deaths in New York prisons during the COVID-19 outbreak, calling mass clemencies an “essential component of racial justice.”
Cuomo has been routinely praised for his COVID-19 response, particularly for his honest daily briefings, but advocates like George urged more media attention on Cuomo’s failure to protect people in prisons. “He loves to talk about the connectedness of his family,” George said. “But the irony is that it is his sole responsibility that people are dying in prison and are permanently separated from their families.”
While George notes that coronavirus-related deaths in NY prisons have been preventable, he is especially angry and disheartened by the way Smalls’ case was handled.
“We put it on a platter for the Governor’s Office,” he said. “We teed it up and the response was apathy … I think it should make all New Yorkers very angry.”
The lawyer who worked on Smalls’ clemency application was special counsel at a major NYC law firm. Smalls had letters of support from former student volunteers and two professors at Yale Law School. His clemency was backed by grassroots advocacy groups in New York. He had friends and family ready outside to take him in. At 72 years old and with health conditions, he was clearly at risk.
“It’s a tragedy that Mr. Smalls wasn’t released and that he died in prison,” Race said. “I think that his life, and the life of his family, and the world more broadly would have been enriched if he had been able to live outside of prison walls.”
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Correction (6/24): The article has been changed to clarify that it was former YLS students who wrote letters of support.