The Power of Clemency

The power to grant pardons and commutations – a little-known aspect of a Massachusetts governor’s authority, and one that has been rarely used in recent years – has sprung into the public’s attention in recent months, leading us to review how that power may be exercised, offer some history, and assess the current state of play.

Under Article LXXIII of the state constitution, “The power of pardoning offences … shall be in the governor, by and with the advice of [the Governor’s C]ouncil.”  Pardons wipe a conviction from the grantee’s record; commutations, which are also covered by the constitutional language on pardons, shorten a sentence but leave the underlying conviction in place.  Applications for pardons and commutations — collectively termed “clemency” — are reviewed by the Parole Board, which — acting in its capacity as the Advisory Board of Pardons, and with the help of its Executive Clemency Unit — ensures that the requirements for clemency are met, conducts investigations about petitioners, holds hearings if appropriate (with opponents of clemency in each case invited to speak), and makes a recommendation to the governor.  If a governor approves clemency, the decision must then be ratified by the Governor’s Council.

Recent governors have, at least in theory, solicited formal clemency requests.  But the reality is that few such requests have been approved in the past couple of decades.  Indeed, until the past few months (see below), no pardon had been granted in Massachusetts since 2002.  Nor had any commutation been forthcoming since 1997, when Governor Bill Weld commuted the life sentence of Joe Salvati, who had served nearly 30 years for a crime he didn’t commit.  Even by then, only seven had been granted in the previous 10 years – with pardons also becoming less frequent — according to a 2009 article in the Boston Globe Magazine, which posed the rhetorical question, “Is [the justice] system [one] that allows for redemption and reevaluation over time, or is it strictly a system for retribution, where the judge and jury forever have the last word?”

That same article, noting several other states with far-higher rates of commutations, traced the decline in the granting of commutations back to the case of Willie Horton, which figured prominently in Governor Michael Dukakis’s unsuccessful campaign for President in 1988.

Across the country, pardons have traditionally been granted most often at the tail end of the calendar.  Surely the Christmas holiday has something to do with that timing, and perhaps the approach of a new year does as well.  It is especially common for a governor, or a President, to offer pardons or commutations at the very end of his or her last term, free from the need to seek re-election.

And so it happened that in 2014, Governor Deval Patrick, with his time in office drawing to a close, rewrote the rules he had previously applied to clemency requests, with an eye toward encouraging more applications.  For example, the new pardon guidelines did away with the requirement that a petitioner demonstrate a “compelling need” for clemency, instead focusing on whether he or she had made “extraordinary contributions to society” or faced a deportation that would be “unnecessary for public safety” and generate “especially harsh or unfair consequences.”  Commutations, under the guidelines, should be approved only if the petitioner can show the sentence was “unduly harsh” – either for a non-violent offense or as the result of the joint-venture or felony-murder laws – or that the petitioner has served a substantial portion of the sentence and is suffering from either a terminal illness or a serious debilitating condition.  For either type of clemency to be granted, applicants should “present no current risk of reoffending.”

About 70 people applied for pardons in the last year of Governor Patrick’s term, but only eleven have yet received hearings, and of those only four were granted pardons.  Among them were True-See Allah, a former gang member who now heads the Suffolk County Sheriff Department’s Boston Re-Entry Initiative, and Jeffrey Snyder, who has kept a clean record since serving two years after being caught selling marijuana as a teenager in the 1980s and said his conviction has kept him from pursuing his dream job as a high school sports coach.  In addition, one sentence was commuted — that of Deanne Hamilton, a recovering cocaine addict who said her substance abuse stemmed from childhood sexual abuse.  Hamilton had previously been released when her conviction was vacated but was sent back to prison when the Appeals Court reinstated her sentence.   She had three years left to serve at the time of her commutation.

Since taking office, Governor Charlie Baker has withdrawn Governor Patrick’s guidelines, promising to announce his own guidelines shortly.  In the interim, however, the remaining applications are in limbo, with Parole Board hearings on hold for those applicants — including, most famously, Mark Wahlberg.  We will continue to follow this issue.

— Michael Avitzur
Government Relations Director
Boston Bar Association