The Massachusetts Bar Association (MBA) recently adopted the resolutions of the MBA Clemency Task Force (“Task Force”) urging the governor, lawmakers and the Massachusetts Advisory Board of Pardons (“Board”) to take steps to ensure that guidelines and procedures used in clemency matters are fair, result in timely decisions, and do not make clemency hearings or allowance of a clemency petition rare events, as has occurred over the last several decades. The Task Force co-chairs are Sabrina E. Bonanno and Pauline Quirion, and members include Hon. W. Travaun Bailey, Hon. Robert J. Cordy (ret.), Patricia A. DeJuneas, D’Andre Fernandez, Patricia Garin, Susan K. Howards, Professor Daniel S. Medwed, Shayla Mombeleur, Hema Sarang-Sieminski, Charu Verma and Ying Wang. Lee Gartenberg (former Parole Board member) served as a reviewer of the report. The resolutions address:
- Increasing the importance and sense of urgency given to clemency matters by decision-makers;
- Using clemency as a tool to mitigate racial disparities in sentencing and incarceration;
- Changing procedures that delay and impede access to hearings and clemency relief;
- Changing clemency guidelines substantively to ensure more fairness in the clemency process;
- Modernizing guidelines to consider age and lack of maturity for the offenses of young adults;
- Modernizing guidelines to consider the increased elderly population in prisons;
- Modernizing guidelines to consider special needs of women and LGBTQ+ populations;
- Expanding and broadening the composition of the Advisory Board on Pardons;
- Modernizing guidelines on the pardon process for more successful re-entry after prison; and
- Improving data collection.
“This report is about furthering equal justice under the law and the pivotal role that a well-run clemency process can play in both correcting systemic injustices and in creating hope and thereby encouraging positive rehabilitative conduct,” says Justice Robert Cordy. “It identifies the challenges our current system faces and presents thoughtful and realistic opportunities for major improvements. It could not be more timely.” Click to read the report of the Task Force.
Reinvigoration of Clemency
“Clemency is a historic remedy designed to serve as a fail-safe to address miscarriages of justice, provide motivation for confined persons to utilize resources for self-improvement, adjust sentences that no longer serve justice, and to promote successful re-entry into the community” says Pauline Quirion. “The governor, however, has not granted any commutations or pardons, and only one clemency hearing was held between the time he took office in 2015 and the date of our report. The question of how to reinvigorate clemency in Massachusetts has become urgent in this age of mass incarceration of Black and Latinx people across the country, and a pandemic that puts those in prison at high risk of infection.” Sabrina Bonanno adds that “Justice delayed is justice denied. It is unacceptable that petitions can languish for years. The right to request clemency is meaningful only if people have the opportunity to have decisions made in their cases at each step of the process within a reasonable amount of time.”
Promoting fairness and addressing racial injustice
Patty DeJuneas emphasized that “Generally, Massachusetts has a low rate of incarceration compared to other states. Seen through the lens of racial justice, however, that low rate of incarceration does not apply to people who are Black or Brown: Massachusetts has the highest level of disparities for Latinx people and the 13th highest for Black people. Clemency can and should be used to correct these injustices.” A recent Harvard study also showed that Black and Latinx defendants receive harsher sentences. DeJuneas states that “drastic steps must be taken to reduce unacceptably high levels of racial injustice in Massachusetts. Because racial discrimination is difficult to impossible to prove in individual cases, the clemency process should be used as a tool to combat systemic injustices.”
The Task Force concluded that present guidelines skew the results of requests for clemency in favor of denials of petitions. Patricia Garin, who has practiced before the Parole Board for over 30 years, explains that the guidelines “should focus on a person’s circumstances and efforts at rehabilitation, including whether the person will pose an unreasonable risk to public safety upon release and reintegration into society.” The current guidelines provide that a petitioner must have “clearly demonstrated acceptance of responsibility for the offense,” but are unfair in that they equate an appeal, challenges to a conviction, raising of any defenses, or exercise of constitutionally protected rights related to the criminal prosecution, with a failure to accept responsibility. The Supreme Court has said, “To punish a person because he has done what the law plainly allows him to do is a due process violation ‘of the most basic sort.’” United States v. Goodwin, 457 U.S. 368, 372 (1982). Garin said, “Thus, language to the effect that a pending appeal or challenge to a conviction or sentence is inconsistent with acceptance of responsibility should be removed from the guidelines. Otherwise, diligent representation tips the scales against allowance of clemency in most instances. The guidelines also should acknowledge that a person’s unwillingness to accept responsibility in some cases may stem from the fact that they are actually innocent. In those cases, deserving petitioners should be considered for clemency. In the past, the guidelines provided that whether further incarceration would constitute gross unfairness in light of the basic equities involved in a case, including the severity of the sentence received as compared to sentences of other equally culpable and similarly situated defendants, was a ground for commutation. This earlier guideline, which allowed people to challenge sentences or convictions as racially disproportionate, should be reinserted in the guidelines.”
Ying Wang, special assistant district attorney, states that “Given that so few programs are offered at prisons, petitioners should not be penalized for their inability to participate in unavailable programs. The guidelines criteria also should expand to include the effect of continued incarceration, including but not limited to the person’s age, health, past trauma or victimization, socioeconomic history, disabilities, commitment to sobriety, personal growth, education and training certificates earned since the offense, and availability of treatment and opportunities to engage in efforts toward rehabilitation and self-improvement.”
Survivors of abuse and special populations
The Task Force concluded that the guidelines used in clemency need to be modernized to reflect the special needs of women and others who have histories of being victimized, the burgeoning elder prison population, and research on brain development related to people who committed offenses as young adults. “The vast majority of women in prison have experienced some form of sexual or domestic violence in their lifetime,” says Hema Sarang-Sieminski, public policy director at Jane Doe Inc. (Massachusetts Coalition Against Domestic Violence and Sexual Assault). “Clemency for survivors of sexual and domestic violence acknowledges the impact of trauma on an individual’s life and the capacity to heal, make amends and thrive with community-based care and support. Far too often, survivors of sexual and domestic violence are criminalized for acts they committed in order to survive. The trauma of prolonged incarceration intersects with the trauma of having survived sexual or domestic violence. Broader availability of clemency allows criminalized survivors to heal, rebuild relationships, and thrive toward the well-being of everyone in a community.”
Pauline Quirion noted that “Recidivism declines with age, and the guidelines should be modernized to provide that age and lack of maturity at the time of an offense are mitigating factors that support clemency. While research continues, studies show that parts of the brain that control behavior are not fully developed until early adulthood and into a person’s 20s. A person’s age at the time of an offense is an important consideration. Similarly, advanced age, frailty, incapacity, or lack of access to an environment that is conducive to healing, recovery, or management of illness should be factors.”
Composition of the Board and Data Collection
The Task Force concluded that justice demands changes in the structural and institutional ways that clemency is administered. The Board should reflect not only the perspective of prosecutors and law enforcement, but also that of other stakeholders, such as defense attorneys; formerly incarcerated persons; experts in substance use disorders, mental health, aging and recidivism; and representatives from the LGBTQ+ community and low-income communities of color disproportionately affected by incarceration. “People bring their pre-existing views into the workplace, and those views can be sticky. A board dominated by law enforcement will inevitably inject a law-and-order mentality into clemency review and result in few grants,” says Professor Daniel Medwed. Patricia Garin noted that the Board should be expanded from seven to nine members and reflect the following constituencies to provide essential perspectives that the Board currently lacks:
- No more than three members of the Board should have experience as district attorney office employees, law enforcement or corrections personnel;
- Two members should have expertise in mental health, substance abuse, aging, recidivism, and/or brain development, with at least one of them being a licensed mental health professional;
- One member should be nominated by Prisoners’ Legal Services of Massachusetts;
- One member should be a practicing member of the criminal defense bar nominated jointly by the Committee for Public Counsel Services, the Massachusetts Association of Criminal Defense Lawyers and the MBA;
- One member should be nominated by the NAACP; and
- One member should be a formerly incarcerated person.
Charu Verma added that collection and analysis of demographic data about petitioners seeking clemency would (a) lead to more informed discussions regarding biases, (b) identify and expose patterns of racism, and (c) help shape policy decisions. After the death of George Floyd and others, public confidence in the criminal legal system has been shaken, and to the degree that restoration of clemency relief may restore some public trust in communities of color, that would be beneficial.
Pardons
“Pardons are rarely granted and the guidelines are unrealistic,” says Pauline Quirion, who directs a criminal record-sealing project. “The requirement that a person seeking a pardon must produce written documentation that the conviction is blocking a particular opportunity should be eliminated. Many employers do not contact applicants, let alone send a rejection letter after conducting a CORI check. The Supreme Judicial Court declined to require such proof from applicants trying to seal their criminal records. Com. v. Pon, 469 Mass. 296, 320 (2014). Consistent with existing case law, the guidelines should be revised to require that the Board recognize that any criminal record poses a potential barrier to jobs and opportunities, and that the commonwealth has a compelling interest in reducing recidivism.”
*The MBA Clemency Task Force Report and this article are a collaborative effort from the task force. Members include:
- Sabrina E. Bonanno, co-chair
- Pauline Quirion, co-chair
- Hon. W. Travaun Bailey
- Hon. Robert J. Cordy (ret.)
- Patricia A. DeJuneas
- D’Andre Fernandez
- Patricia Garin
- Susan K. Howards
- Professor Daniel S. Medwed
- Shayla Mombeleur
- Hema Sarang-Sieminski
- Charu Verma
- Ying Wang