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Clemency in Massachusetts and its Potential for Revitalization

pexels-rodnae-productions-6069522-scaledMassachusetts has a fraught history with clemency and has strongly disfavored this post-conviction remedy for decades. Last year, however, there was a slight uptick in the number of clemency grants: Governor Charles Baker approved 3 commutations for Thomas Koonce, William Allen, and Ramadan Shabazz and 10 pardons 

 Article 73 of the Amendments to the Constitution of the Commonwealth vests clemency power in the governor. There are two forms of clemency: commutation and pardon. A commutation is a reduction in sentence, which means the convicted individual faces a shorter period of incarceration than originally mandated. A pardon forgives the underlying offense, which means the individual’s conviction is erased. Although clemency power technically vests in the governor, there are multiple entities involved in the decision-making process. 

 The application process for clemency has three stages. First, an individual must submit a petition to the Massachusetts Parole Board, who sits as the Advisory Board of Pardons (“the Board”). The Board reviews individual clemency petitions that meet the minimum statutory and administrative requirements, and qualifies under the Governor’s Executive Clemency Guidelines. The Board has discretion to hold a hearing, where members of the Board can ask the petitioner questions to further inform their recommendation. Ultimately, the Board votes to decide whether to make a positive recommendation of clemency to the governor. Second, if the Board makes a positive recommendation, then the governor must decide if she wants to grant, deny, or ignore the petition—if one year passes without a decision from the governor, the petition is automatically denied. If the governor agrees with the Board’s positive recommendation, the petition is subject to the consent of the Governor’s Council (“the Council”). The Council is made up of eight elected officials and the Lieutenant Governor who serves by virtue of her position. If the sentence at issue is a felony, the Council conducts their own hearing before they make a final determination about whether to approve the governor’s clemency grant. If a petitioner is denied at any stage of the process, including if the governor ignores the individual’s petition entirely, the individual may re-apply in one year.  

 Although recent history shows a dearth of clemency grants, it has not always been this way in Massachusetts. An overview of clemency grants in the state, especially in the form of commutation, from the 1960s to present demonstrates a steep decline in gubernatorial grants of clemency. The Governor’s Council’s records show that since 1945, governors have granted 5,772 pardons and 267 commutations. In 1970, Governor Francis Sargent granted the largest number of pardons and commutations in a single year: he issued 477 pardons and one commutation. More than two thirds of the pardons and one third of the commutations in Massachusetts occurred between 1964 and 1971, which highlights the fact that governors used their clemency power much more frequently prior to 1971. 

 The substantial decrease in the number of clemency grants in Massachusetts was in large part a result of the political climate during the 1970s and 1980s. Against the backdrop of the “War on Drugs”—along with its racially discriminatory underpinnings—a push for increased mass incarceration nationwide, and William Horton’s weekend furlough in 1986, clemency grants became a rarity. Particularly notable is Governor Michael Dukakis’s significant decrease in grants of commutation between his two terms as governor. During his first term from 1975 to 1979, Dukakis commuted forty-eight sentences. In contrast, Dukakis only granted ten commutations from 1983 to 1991. Following the drop off in grants of commutations by Dukakis, there was almost a complete halt in the use of commutations in Massachusetts. Governor Bill Weld approved twenty-six pardons and seven commutations from 1991 to 1997; Governor Mitt Romney granted zero pardons and zero commutations from 2003 to 2007; and Governor Deval Patrick granted four pardons and one commutation. 

 The recent uptick in grants of clemency under the Baker administration gives Governor Maura Healey an opportunity to harness this momentum to reinvigorate clemency as an effective and more widely used post-conviction remedy as it was in Massachusetts before 1971. One way that Governor Healey can do this is by issuing new Executive Clemency Guidelines so that more individuals have an opportunity to plead their case to the Board. The Massachusetts Bar Association Clemency Task Force has issued a report with useful recommendations about how to make the clemency process fairer and more accessible. Some of these recommendations include: 

  1. Revising the Guidelines so that racial injustice and the disproportionate incarceration of people of color in the criminal legal system are factors of consideration when evaluating petitions.   
  2.  Revising the Guidelines to detail the procedural aspects of the clemency process so that petitioners have their cases heard and decided within a reasonable length of time. 
  3. Revising the Guidelines to take a more wholistic approach to evaluating petitions by considering other aspects of petitioners’ identities such as age and health conditions, trauma history, socioeconomic history, disabilities, and maturity level at the time of the offense.  

While Governor Healey did not explicitly include clemency as part of her criminal justice reform campaign when running for office, her campaign is built on addressing systemic racism in the criminal legal system and clemency can play an integral role in that.  

 If you have been arrested or are facing criminal charges, fill out our contact form or call our criminal defense attorneys at (617) 742-6020. 

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