WHEN DEATH COMES BEFORE RELEASE

State in no hurry to free

Jhana DuPont could hear the strain in her father’s voice on the other end of the phone line.

Her dad — Benjamin Smalls, 72, a prisoner at Green Haven Correctional Facility — had been hospitalized for seven days at Vassar Brothers Medical Center in Poughkeepsie for coronavirus, and he wanted to go over his legal affairs before they hung up.

“He knows the law so well (and) he had all of these steps he wanted me to know about,” said DuPont of the April 17 phone call. Smalls and his attorney had resubmitted his 118-page clemency petition during the pandemic.

Smalls was sentenced to 31 years to life and had spent more than 20 years behind bars for burglary, assault, kidnapping and criminal possession of a weapon after holding a woman against her will over a rental dispute. Since then, he had worked hard to better himself — and he hoped this time it would be enough.

“I was like, ‘Dad, it’s OK, I’ll figure it all out,” DuPont said. “(But) I kept thinking he doesn’t sound good, he’s trying to talk but I don’t want him to talk.”

As the call came to an end, Smalls said he wanted to tell his daughter one last thing.

“I need you to understand how much I love you and how much I appreciate your support. And regardless of how (your) other siblings feel about me, I love them too,” DuPont said, recalling his words.

“Your dad doesn’t want you to hear him like that,” she said. “He doesn’t want you to know how sad he really is. And I got a little panicky. I thought, ‘Does he think he’s dying?’”

Smalls died in his hospital bed on Monday. His clemency application was still pending.

Release the Aging People in Prison, a criminal justice advocacy group, sent an email April 28 to the state’s Department of Corrections and Community Supervision to consider Smalls and others for medical parole — a mechanism for release that’s often requested when people are running out of time.

That message was never answered. The agency later determined that, based on his physical condition, Smalls did not qualify.

“The law does not say that you