Section Review

Clemency is an act of mercy and a constitutionally based fail-safe designed to ensure justice is served in criminal cases when no other legal remedy is available. Historically, clemency was available with regularity in Massachusetts. However, the process became very political several decades ago and grants of clemency became a rarity, often granted only toward the end of a governor’s last term in office. In 2021, the Massachusetts Bar Association Clemency Task Force issued a report calling on Gov. Charlie Baker to overhaul and modernize his Executive Clemency Guidelines. While the governor did not change his guidelines, he granted clemency for the first time during his two terms in office. Ramadan Shabazz, age 73, who served over 51 years in prison, received a commutation along with Thomas Koonce and William Allen, whose offenses both occurred at age 20, and who, respectively, served 30 and 28 years in prison. Gov. Baker also issued 10 pardons.

The need for justice-centered guidelines

Each governor has the power to issue new clemency guidelines. As the new governor, Maura Healey can modernize and revitalize clemency by issuing new guidelines requiring that clemency requests be evaluated through a lens focused on justice. The MBA Clemency Task Force report from 2021 identified many areas for reform to ensure fairness in the clemency process and to promote greater public trust in the criminal legal system. This includes: 

• 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 guidelines substantively to ensure more fairness in the clemency process;
• modernizing guidelines to reflect brain research for offenses committed by young adults;
• modernizing guidelines to reflect the increased elderly population languishing in prisons;
• modernizing guidelines to reflect the prevalence of incarcerated survivors of violence, and LGBTQ+ populations; and
• modernizing pardon criteria to remove barriers to success after release from prison. 

“The MBA 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 (ret.), a member of the Clemency Task Force. “It identifies the challenges our current system faces and presents thoughtful and realistic opportunities for major improvements. It could not be timelier.”

Mitigating racial disparities

The question of how to reinvigorate clemency has become urgent in this age of mass incarceration of Black and Latinx individuals across the country. Patty DeJuneas, a member of the Clemency Task Force, commented that “Massachusetts has a low rate of incarceration compared to other states, but when viewed 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.” The Harvard study conducted at the request of the esteemed late Chief Justice Ralph Gants also indicated that Black and Latinx defendants receive harsher and longer 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.”

Eliminating unfair factors for clemency

The Baker clemency guidelines remain in effect until Gov. Healey issues her own guidelines, and they tip the scales in favor of denials of petitions. Patricia Garin, a member of the Clemency Task Force, who has practiced before the Parole Board for over 30 years, explains that “the current guidelines require that a petitioner must have ‘clearly demonstrated acceptance of responsibility for the offense,' but are unfair in that they equate an appeal, or other constitutionally protected challenges, to a conviction with a failure to accept responsibility.” The Supreme Court has opined that: “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). Thus, as Garin explains, “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.” 

Garin opined that new guidelines “need to include a focus on a person’s particular circumstances, including whether the person will pose an unreasonable risk to public safety upon release and reintegration into society.” She notes that guidelines should acknowledge that a person’s unwillingness to admit guilt and accept responsibility for a crime in some cases may stem from the fact that they are innocent despite a conviction. “In those cases, deserving petitioners should be considered for clemency.” Gov. Deval Patrick’s guidelines, for example, provided for commutations where continued incarceration constituted a gross unfairness based on the equities involved in a case, including the severity of the sentence received as compared to sentences of other equally culpable and similarly situated defendants. In sum, the guidelines should not rule out the possibility of an individual challenging a sentence or conviction as racially disproportionate or unfair in some circumstances.

Finally, the present clemency guidelines indicate that applicants should participate in lots of programs, but because so few training and other programs are offered at prisons, the guidelines should specify that petitioners should not be penalized for their inability to participate in programs. 

Survivors of violence and special populations

The Clemency Task Force report indicates that the clemency guidelines need to be modernized to reflect the special needs of women, the LGBTQ+ community and others who have histories of being victimized, the large elder prison population, and the research on brain development related to those who committed offenses as teenagers and young adults. 

Hema Sarang-Sieminski, a member of the task force and deputy director at Jane Doe Inc. (Massachusetts Coalition Against Domestic Violence and Sexual Assault), notes that “the vast majority of women in prison have experienced some form of sexual or domestic violence in their lifetime.” She adds that “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, or trafficking. Broader availability of clemency allows criminalized survivors to heal, rebuild relationships, and thrive toward the well-being of everyone in a community.”

The Clemency Task Force concluded that 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. Likewise, recidivism declines with age, and advanced age, incapacity, frailty, and lack of access to an environment in prison that is conducive to recovery or management of illness should be factors. Prisons are ill-equipped to care for elders with chronic illness or dementia, and it is also more costly to keep them incarcerated. Massachusetts, nevertheless, is among the states with high rates of incarcerated elders. Thus, age at the time of an offense and at the time of the clemency petition should be important considerations. 

Pardons

Pardons, like commutations, have been sparingly granted in Massachusetts for decades. The requirement in the present guidelines that a person seeking a pardon must produce written documentation that a conviction is blocking a particular job opportunity should be eliminated. Many employers do not contact applicants, let alone send a rejection letter, after conducting a criminal offender record information (CORI) check. The Supreme Judicial Court declined to require such proof from applicants trying to seal their criminal records. Commonwealth v. Pon, 469 Mass. 296, 320 (2014). Consistent with existing case law, the guidelines should be revised by the new governor to require that the Parole 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. 

Timely decisions

The Clemency Task Force recommended adherence to specific timelines at each stage of the clemency process. For example, Thomas Koonce, who was eventually granted clemency, waited six years for a hearing on his petition. The right to petition for clemency is meaningful only if decisions are made in a timely fashion at each step of the process.

Next steps

The MBA has sent a copy of the 2021 Report of the Clemency Task Force and proposed guidelines to Gov. Healey’s office with a request for a meeting. Gov. Healey indicated to the press that she is in favor of pardons for decriminalized cannabis offenses, and the Clemency Task Force is hopeful that this bodes well for issuance of new and improved clemency guidelines.

Over time, the law has shifted away from rigid tough-on-crime strategies of the last century toward changes in justice system policies that are more cost-effective, more data-driven, and smarter about recidivism. Gov. Healey’s seizing of the opportunity to reunite people in prison with their families and communities also would be consistent with recent polling showing voters approve of use of clemency by state governors and the president to reverse decades of over-incarceration and racial disparities, and to grant commutations to people who do not pose a threat in their communities. Greene & McElwee, Poll: Use Clemency Power to Fight Mass Incarceration, THE APPEAL (2021). Polls also show a majority of voters approve of use of commutation as an act of mercy as part of the rehabilitation process, to shorten excessive sentences, to correct old sentences that do not reflect current law, and to commute sentences of elders, and those who committed offenses at a young age or have chronic illnesses that require long-term care. Greene & McElwee, Poll: Why Voters Support More Clemency, THE APPEAL (2021).