Representing a Clemency Petitioner: Seeking the Extraordinary Remedy
By Timothy C. Foley
“The Governor views commutation both as an extraordinary remedy and as an integral part of the correctional process. Review of a petition for commutation of sentence is not intended to serve as a review of the proceedings of the trial or appellate courts, or of the guilt of the petitioner. It is intended to serve as a strong motivation for confined persons to utilize available resources for self-development and self-improvement and as an incentive for them to become law-abiding citizens and return to society.” Executive Clemency Guidelines (“Guidelines”) § 2.2 (Feb. 21, 2020).
In the fall of 2019, James Perkins, a former co-worker and friend, asked if I would meet with his childhood friend, Thomas Koonce, a man incarcerated at MCI Norfolk. In 1992, Mr. Koonce was convicted of first-degree murder and sentenced to life in prison without the possibility of parole. At our first meeting, Mr. Koonce was impressive. Although Mr. Koonce had been incarcerated for nearly 30 years, he maintained unusually strong social connections to the world beyond prison for a person serving a life sentence; he had nurtured a network through family, community support, education, self-help curriculum, and leadership roles in restorative justice. The initial planned one-hour meeting lasted four hours. My pro bono representation began.
The Path to Commutation
In Massachusetts, executive clemency applications are considered according to guidelines issued by the Governor that describe the factors that will be considered in assessing an applicant. In 2014, Prof. Patricia Garin of Northeastern University School of Law’s Prisoners’ Rights Clinic, along with three of her law students, filed a petition for commutation on behalf of Mr. Koonce under Governor Deval Patrick’s updated Executive Clemency Guidelines, after a previous application of Mr. Koonce’s had been denied under an earlier version of the guidelines in 2010. In February of 2016, Prof. Garin filed an updated supplement to the 2014 petition consistent with Governor Charlie Baker’s revised 2015 Guidelines.
By February 21, 2020, when Governor Baker promulgated his second and final Executive Clemency Guidelines, I had come to represent Mr. Koonce. In April of 2020, notice of the updated Guidelines was provided to the existing 117 petitioners for commutation and 209 petitioners for pardon. On June 24, 2020, I worked with Mr. Koonce to submit his last and final supplement, and on August 7, 2020, he received notice that his petition would receive a hearing before the Advisory Board of Pardons (“Board”).
The Advisory Board of Pardons
At the initial Board hearing, the petitioner has the burden to prove by clear and convincing evidence that all the facts presented, as viewed through the lens and limitations of the Guidelines, present a rehabilitated, extraordinary candidate for commutation. Callahan v. Westinghouse Broad. Co., Inc., 372 Mass. 582 (1977). Not only does one have to fit squarely within the required parameters, but one must also have the ability to demonstrate such fit before this intimidating Board, which serves as the gatekeeper. One month before the October 27, 2020 Board hearing, Mr. Koonce and I committed to reading the Guidelines every other day.
In the 2014 petition, Prof. Garin and her students had presented a detailed history concerning Mr. Koonce, which provided an important and informative foundation, along with a review the transcript of the petition that was denied in 2010. As part of our preparation, we analyzed and weighed the prior submissions and hearing transcript against the new amended Guidelines to find ways to strengthen our petition. A petitioner must be fully educated on how the Guideline factors relate to his petition.
It is imperative to inform the petitioner of the required notice to interested parties. The petition is sent to the Massachusetts Attorney General’s Office, the District Attorney’s Office (jurisdiction where the offense was committed), the Chief of Police (jurisdiction where the offense was committed), and victims. The client must be prepared for the potential of both legal and emotional opposition testimony. In some instances, it might be advantageous to communicate with the District Attorney’s Office. Providing the prosecutor’s office with all the information included in the petition as well as other relevant information may promote a persuasive deliberation and positive recommendation.
Because membership on the Advisory Board of Pardons and the Massachusetts Parole Board overlap, it is useful for a petitioner to review the video recordings of the prior Life Sentence Hearings before the Parole Board, which can be obtained by Public Records Request. G.L. c. 66 § 10. The viewing will familiarize the petitioner with the members of the Board, their pattern of questioning, legal interests and views, temperaments, and personalities. It can be useful for the petitioner and attorney to review Life Sentence Hearings with a range of outcomes. One hearing should be a denial of parole, in which the initial crime introduces egregious facts. A second hearing should be a denial of parole in which the candidate has been incarcerated for a lengthy period of time but is denied because he or she has not sufficiently participated in rehabilitative programing. The third hearing should be a unanimous positive vote to grant parole in which the candidate has served a lengthy sentence and has participated in programing, education, and self-development. The information concerning individual Life Sentence Hearings are archived with the Records of Decisions. Acquainting the petitioner with the preferences of the Board members can serve to reduce anxiety, eliminate surprises, foster familiarity, and assist the petitioner in comfortably expressing their alignment with Guidelines.
On October 27, 2020, the Board held a 5 ½ hour hearing on the merits of Mr. Koonce’s petition. On January 14, 2021, the Board unanimously recommended that Governor Baker commute Mr. Koonce’s sentence from first degree to second degree murder, making him eligible for parole.
The Governor’s Office
The Board must submit the report and recommendation to the Office of the Governor’s Legal Counsel. Guidelines at § 7.1.1. The petition at this point enters the political and public policy arena. The petitioner is not entitled to a hearing at this stage. Consequently, there is no handbook or roadmap to follow.
For the advocate, this phase is a true venture into the practice of executive law. There is no hearing for which to prepare, no tribunal whose decisions can be researched. A specific strategy tailored in the best interest of the client, and client’s petition, must be developed and conveyed to the Governor and the Governor’s Legal Counsel. In some circumstances, the use of media outlets and in-person meetings with the Governor’s legal team could be useful. In Mr. Koonce’s case, we decided to minimize media outlet contact and publicity. As revealed at the numerous hearings, Mr. Koonce professed his sincere sorrow for his actions which resulted in the death of Mark Santos. Not only did Mr. Koonce express remorse, but his life during his incarceration centered on compunction of conscience. As the Santos family opposed the commutation, it would have felt disingenuous and a departure from true empathy to pursue a media campaign in support of the petition because of the potential additional impact such an effort could have on the Santos family.
Instead, Mr. Koonce relied on the strength of his petition as well as a continued open dialogue with the Governor’s team of attorneys. It is the advocate’s responsibility to communicate with the Governor’s legal office to stress the strengths of the petition; in Mr. Koonce’s case, the unanimous recommendation, criminal justice reform, the political climate, and his extraordinary petition for commutation.
When the Board recommends that the Governor grant a commutation, the Governor has one year to act from the date of the Board’s recommendation. If no action is taken within one year, the petition is presumed to be denied. Guidelines at § 7.2.
On January 12, 2022, within two days of the deadline, Governor Baker accepted the recommendation in favor of Mr. Koonce’s commutation. It was the first such recommendation in Massachusetts since 1997. Matt Stout & Shelley Murphy, Baker Approves Commutation Requests for Two Convicted of Murder, The Boston Globe, Jan. 12, 2022.
The Governor’s Council
The recommendation must have the advice and consent of the Governor’s Council. Into the unpredictable. The Massachusetts Governor’s Council, also known as the Executive Council, is composed of eight individuals elected from districts every two years, and the Lieutenant Governor, who serves ex officio.
The Governor’s Councillors answer only to their respective constituents. “Whereas the Advisory Board must apply the governor’s Executive Clemency Guidelines, the Council is free to apply its own substantive criteria; it must, however, hold a public hearing if it wishes to ratify a favorable clemency determination. Rules and procedures governing such hearings are left to the Council’s discretion. In fact, the Council has traditionally operated without written rules of procedure. Thus, a petitioner granted a hearing before the Council may have little or no advance knowledge about the nature of the proceeding.” Ben Notterman, Willie Horton’s Shadow: Clemency in Massachusetts, NYU Law Center on the Administration of Criminal Law at 8 (Dec. 18, 2019) (citing William G. Cosmas, Jr., From Here to Clemency: Navigating the Massachusetts Pardon Process, 59.2 Bos. Bar J. 23 (Spring 2015)).
On January 26, 2022, the Governor’s Council held a 9 ½ hour public hearing concerning the advice and consent of Governor Baker’s decision to commute Thomas Koonce’s sentence. The individual line of questioning from the Councillors included a rehashing the of the facts of the offense, the trial, family life, military service, the period of incarceration, the Department of Corrections experiences, restorative justice, education, and racism in the criminal justice system. The questioning was as varied and diverse as the members of the Council. Such a hearing is an advocate’s nightmare: a tribunal in which the “jurors” (the Councillors), not the prosecutor, cross-examine the petitioner, there are no rules of evidence, no judge, no objections, and no defined standard of proof. As intended, the hearing is a true independent inquisitory test of the clemency process, which is, in many ways, the perfect check and balance to assess a positive gubernatorial recommendation for such an extraordinary remedy. Guidelines at § 1.
On February 16, 2022, the Governor’s Council voted and agreed unanimously with Governor Baker to grant Mr. Koonce the commutation. The vote is held at an independent public hearing at which Councillors have the opportunity to address their individual, political, social, and public policy reasons for the vote.
Mr. Koonce was released from MCI Norfolk on April 19, 2022.
Conclusion
For the advocate, practicing law in the executive branch rather than the judicial branch of government can be challenging and rewarding. The rules are different. The tribunals constantly change. Whether the remedy is clemency or parole, it takes a wide range of skills. In the executive forum, one must become a legal advisor, public policy observer, political advisor, and public relations representative, all within the narrow parameters and guardrails of the gubernatorial guidelines. For me, practicing in the executive branch is a valuable experience, especially with the mentorship and guidance of Prof. Garin. In the end, post-conviction remedies based on merit bring hope to many, not just the extraordinary.
Timothy C. Foley is a sole practitioner with an office in Quincy. Much of his practice is centered on criminal defense and parole advocacy. Prior to practicing law, he was a Court Officer for 20 years, assigned to the Central Division of the Boston Municipal Court and the Stoughton District Court. Beyond family and the law, his interest is in ice hockey and he currently is the head coach of the Belmont High School Varsity Boys’ Ice Hockey team.
