By Robert C. Ross
In 2022, then-Governor Charlie Baker exercised the executive clemency power to issue fifteen pardons and three commutations. I offer some considerations and recommendations for practitioners helping a client prepare a petition for executive clemency, based on my experience reviewing those petitions with the team in the Governor’s Legal Office during my tenure as Governor Baker’s Chief Legal Counsel starting in March of 2019.
Pardons v. Commutations
The power to grant clemency in its present form is conferred on the Governor by Article 73 of the Amendments to the Massachusetts Constitution. To represent a client well, an attorney should first be alert to the different consequences that flow from the two different forms of executive clemency: commutations and pardons. “Although it has sometimes been said that the Governor’s power to commute sentences is derived from his ‘power of pardoning offences’ contained in Part II, c. 2, § 1, art. 8, of the Constitution of the Commonwealth, a commutation is not the same as a pardon.” Commonwealth v. Arsenault, 361 Mass. 287, 291 (1972) (citation omitted). While both commutation petitions and pardon petitions are screened by the Massachusetts Parole Board, they are distinct. A pardon offers forgiveness for the underlying offense, whereas a commutation is the substitution of a lighter sentence for a more severe sentence and, unlike a pardon, does not “do away with the conviction.” Id. at 292 (quoting Rittenberg v. Smith, 214 Mass. 343, 347 (1913)).
Reasonable minds can differ on whether a pardon or a commutation is a more “drastic” form of executive clemency. If an applicant for a commutation is presently incarcerated, as is nearly always the case, a commutation likely results in that person walking out of prison as a parolee, subject to conditions like any other parolee, and rejoining a community. In contrast, most people who seek pardons have long since left prison, if they ever spent any time there at all, and have presumably already demonstrated their successful reintegration into the community. Pardon applications are often driven by collateral consequences of the convictions, such as disqualification from employment or licensure eligibility. Thus, while the cumulative public safety of a community is arguably not impacted by a pardon, it may appear to be affected by a commutation.
A practitioner must remain conscious of these differences in his or her presentation on behalf of an applicant. An applicant for a commutation must satisfy both the Governor and the Governor’s Council (which provides advice and consent to the Governor’s recommendation) that the applicant will successfully transition to living in a community without reoffending. An applicant for a pardon typically has the (presumably lighter) burden of satisfying both the Governor and the Governor’s Council that the applicant has already successfully completed that transition.
Precedent v. Guidelines
Practitioners should also be aware that “precedent” has little meaning when it comes to executive clemency actions by a Governor or the Governor’s Council. Review of a clemency petition by the Parole Board (sitting as the Advisory Board of Pardons), the Governor, and the Governor’s Council is intensively fact-specific. Unlike a court, neither the Governor nor the Governor’s Council is “bound” to treat seemingly like cases alike.
Instead, practitioners today should pay close attention to any new Executive Clemency Guidelines promulgated by Governor Healey to guide the actions of the Parole Board. Governor Baker issued two sets of Guidelines, first in December of 2015 and, following enactment of significant criminal justice reform legislation in 2018, a second set in February of 2020. I write from the experience of drafting and applying that second set of Guidelines, which remain in effect as of this writing. Governor Healey has publicly stated that she intends to re-write those Guidelines, and the Parole Board has announced that it will refrain from scheduling further clemency hearings until those revisions are issued. If or when she does so, practitioners should focus primarily on tailoring their petitions and presentations to issues that those new Guidelines highlight. Practitioners can also take some (albeit, non-binding) guidance from the seven pardons that the Healey administration issued in July 2023. Practitioners should also be aware that the Governor’s Councillors are independently elected and are not bound in any way by the Governor’s Guidelines. Each Councillor will likely have his or her own issues of importance that should be considered when drafting a petition and preparing a presentation.
Despite public discussion that frequently revolves around guilt or innocence, the current Guidelines (properly, in my view), do not prioritize guilt or innocence as a consideration in a clemency petition. The three persons whose first-degree murder sentences were commuted by Governor Baker offer some valuable points of contrast:
- Thomas Koonce’s case involved equivocal evidence of guilt of first-degree murder. He was not convicted at his first trial, only at his second. In his case, the events occurred during an unpredictable group fight, in which Mr. Koonce fired a gun out the window of a car. While the evidence about Mr. Koonce’s intent was arguably ambiguous, Mr. Koonce did not deny firing a weapon and there was no question that the bullet fired by Mr. Koonce’s gun killed Mark Santos. Mr. Santos’s family opposed the commutation.
- There is no question that under then-applicable felony murder law, William Allen was guilty of first degree murder, even though he did not directly cause the death of the victim. He participated in a robbery with a co-defendant, during which crime he drove the car and kept hostages at knifepoint in an apartment bathroom while the co-defendant encountered the victim and killed him in the living room. While the co-defendant received a second-degree sentence because of a plea bargain, Mr. Allen refused to plead and received a first-degree sentence. The family of the victim of his crime, notably, supported his commutation.
- Ramadan Shabazz was found guilty of two first-degree murders during an armed robbery. He had been incarcerated for more than fifty years. The families of the victims of his crimes expressed no opinion about the commutation.
Despite differing evaluations of whether each petitioner “did it,” these three men shared a thorough acceptance of responsibility for their actions, remarkable determination, and extremely compelling stories of how they had remade their lives in prison. These are the reasons why Governor Baker commuted their prison sentences.
Clemency as Societal Reform
Public discourse has also proffered clemency as an effective device for redressing other societal ills. For example, a recent Massachusetts Bar Association Clemency Task Force report suggested that it might be a means of mitigating racial disparities in sentencing and incarceration. While that is certainly an important goal, I suggest that clemency is ill-suited to that task. Aside from the small number of petitioners who can be accommodated by the process, clemency involves an inherently case-by-case determination which prioritizes an offender’s behavior after a conviction. A clemency petition asks the Governor to pardon or commute the sentence of a specific individual, whose guilt has been established beyond a reasonable doubt, whose sentence was imposed by a judge fully familiar with the facts of the case, and whose crime had a specific (and often immeasurable) impact on the victim and their family. Because of the intense focus on demonstrated ability to contribute to society, the applicant’s demographic profile alone is unlikely to provide the type of individualized reassurance the Governor and Councillors are seeking through their review process.
In my experience, the Parole Board, the Governor, and the Governor’s Council are extremely conscious of all these facts when they review a clemency petition. An effective petition for clemency should reflect this awareness and focus on who the offender is now, and how they have gotten there.
Robert C. Ross is of counsel in the Boston Office of Greenberg Traurig, LLP. He served as Chief Legal Counsel to Governor Baker from March 2019 through January 2023. The views and opinions offered in this article are his alone, and not those of Greenberg Traurig, LLC, former Governor Baker, or former Lieutenant Governor Polito.
 Because commutation is regarded as an “extraordinary” remedy, the people who apply are either not yet parole-eligible or never will be parole-eligible. Thus, an approved commutation typically makes them parole-eligible. Governors may, but most often do not, prescribe their own conditions on commutations – they leave devising and imposing any such conditions to the Parole Board.