News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Justice Can’t Wait: Governor Healey Grants Seven Pardons and Recommends Modernization of the State’s Clemency Guidelines

This is a follow up to a previous blog about clemency: you can read that post here.

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Last month, Governor Maura Healey recommended seven individuals to the Governor’s Council for pardons and on July 19, 2023, the Governor’s Council unanimously voted in favor of all seven pardons. A pardon is complete forgiveness of the underlying convicted offense, which erases the crime from an individual’s criminal record. These pardons make Governor Healey the first Governor in Massachusetts in over thirty years to successfully grant pardons during her first year elected. These seven pardons also mark the highest number of pardons granted by a Massachusetts Governor in their first term in over forty years.

In her public announcement on June 15, 2023, Governor Healey stated, “We are taking the extraordinary step of recommending pardons just months into the start of our administration because justice can’t wait.” She also emphasized that her administration views clemency as an integral executive power “that can help soften the harsher edges of our criminal justice system.” According to Governor Healey, she and her administration are actively working on “modernizing” the current Executive Clemency Guidelines by focusing on “racial and gender equity” and the “science of brain development research into how peoples’ judgment can improve through early adulthood.” All of these factors are currently absent from the Guidelines. Governor Healey has not announced an exact timeline for the release of her new Guidelines, but clemency advocates are cautiously optimistic that there will be new Guidelines in the next few months.

Although Healey said justice can’t wait, two clemency hearings scheduled on June 8, 2023, were unexpectedly postponed, without firm rescheduled dates. The justification for the postponement was that the Healey administration is working on issuing new Guidelines. While the announcement of issuing new Guidelines is a positive development for the revitalization of clemency in Massachusetts, this explanation for postponement of the hearings is inconsistent with previous actions of the administration. Since Governor Healey took office in January, there have been six clemency hearings: five pardon hearings and one commutation hearing. A commutation is a reduction in sentence, which shortens the period of incarceration that an individual must serve. For example, an individual who was convicted of first-degree murder serving a life without parole sentence can file a commutation petition to have their sentence reduced to second-degree murder, so that they can become eligible for parole. The Advisory Board held these pardon and commutation hearings despite the fact that the Healey administration has not issued new Guidelines; so, it is unclear why the administration has suddenly decided to indefinitely postpone hearings.

One possible factor in the postponement of clemency hearings is that right now there are only four Parole Board members. Under M.G.L. c. 27, section 4, there are supposed to be seven Board members, but since 2021, the number of Board members has fluctuated between six and five, and most recently dropped to four. Based on past practice, even if every Board member cannot attend a clemency hearing, each member will review the video recording of the hearing and vote on whether to make a positive recommendation to the Governor. In short, all Board members vote. The four current Board members are Tina Hurley, Dr. Charlene Bonner, Tonomey Coleman, and James Kelcourse, who have a variety of professional backgrounds ranging from correctional institution management to criminal defense. Although the indefinite postponement of clemency hearings creates uncertainty and frustration for petitioners who were granted hearings, the current low number of Board members gives Governor Healey the opportunity to appoint new Board members to serve five-year terms.

When there is an opening in membership of the Board, the Governor can appoint a 9-person panel including professionals with correctional enforcement and criminal legal system backgrounds to submit a list of six to nine or six to twelve people—if there is more than one opening—with at least five years of training and experience in parole, probation, corrections, law, law enforcement, psychology, psychiatry, sociology, or social work. Alternatively, the Governor can appoint a member who possesses those qualifications. Ideally, Governor Healey will appoint Board members with backgrounds in criminal defense, social work, or psychology, who bring holistic perspectives to the clemency review process, and are open to granting both more hearings and positive recommendations for petitioners.

While Governor Healey has made use of her ability to pardon people, if she genuinely believes that clemency is an integral executive power to soften the edges of the criminal justice system, she should also focus on recommending petitioners for commutation under her new Guidelines. In addition to prioritizing racial and gender equity and age and lack of maturity at the time of offense, Governor Healey can issue Guidelines that broaden the scope of who has the potential to be a strong commutation candidate. Currently, one of the biggest considerations for commutation eligibility is participation in institutional programs to improve personal development, achieve higher education and occupational skills, and engage in restorative justice while incarcerated. Each of the three recent successful commutation petitioners participated in almost every institutional program offered at their prison. Because these programs are not readily available to individuals who are serving life without parole sentences, this factor makes petitioners who have not participated in all of these programs, ineligible for commutation. Governor Healey can also create a clear timeline of review for clemency petitions: for example, taking the recommendation of the Massachusetts Bar Association Clemency Task Force to impose on the Board a deadline of ten weeks to determine whether each petitioner shall have a hearing and scheduling a hearing within six months of receiving the petition.

As the Task Force’s Proposed Guidelines point out, clemency is a way to combat the racial discrimination in our criminal legal system at each stage from policing to sentencing that has resulted in the mass incarceration of Black and Latinx defendants who are more likely to be convicted and face longer and harsher sentences than their white counterparts. Governor Healey has a unique opportunity to build on the momentum of granting seven pardons early in the first six months of her first term and issue Guidelines that give individuals serving life without parole sentences a viable chance to become eligible for parole.

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