A good deal of attention has focused this past year on policing — the input part of the criminal justice process — but what about the other end of that pipeline? What about those already caught up in the system but looking for clemency as a way out of a long and often unjust sentence?
For them, in Massachusetts, the only exit runs through a seven-member board, a body dominated by those with law enforcement backgrounds that in the past six years has held only one commutation hearing — last October — while some 240 petitions for clemency have been pending.
The state Parole Board has basically served as a traffic cop, stalling those petitions, which means that, with rare exception, they never reach the governor’s desk.
Now the Massachusetts Bar Association is putting its considerable heft behind efforts to restructure and broaden the board (also known as the Advisory Board of Pardons when it’s dealing directly with a commutation or pardon), force it to hold to reasonable time standards for acting on petitions, and modernize its guidelines to ensure a “fair, racially unbiased” process.
“In the Commonwealth of Massachusetts, the power of clemency is an under-utilized tool that should be applied on a case-by-case basis to address systemic failures, such as the racial injustice that permeates every step of our criminal legal system,” the MBA’s Clemency Task Force wrote in its recent report to the MBA House of Delegates. That body recently approved a number of resolutions aimed at guiding those reforms.
The concept of clemency traces its roots back to Alexander Hamilton and the Federalist Papers (number 74, for students of history). Governor Charlie Baker, in new guidelines issued just last year, reiterated that clemency is “an integral part of the correctional process.”
However, until the October hearing on the case of Thomas Koonce, a Black former Marine serving a life sentence for the 1987 killing of a New Bedford man, the Massachusetts board had not granted any commutation hearings since 2015. Koonce, a 20-year-old home on leave at the time of the shooting, had long maintained he acted in self-defense and had turned down a chance to plead guilty to manslaughter, which would have gotten him a 5- to 10-year sentence.
His commutation petition was filed in 2014. The board voted to commute Koonce’s sentence and sent their recommendation to Baker this January. It is still pending before the governor.
The board also granted a hearing in the case of William Allen, another lifer, whose petition has been pending since 2017. And while the hearing was granted in early March, a date has yet to be set. Allen has spent 27 years behind bars for his role in a 1994 Brockton killing.
Noting, “The right to request clemency is not a meaningful remedy unless people are afforded the opportunity to have their cases heard and decided within a reasonable amount of time,” the MBA resolutions call for implementation of specific timetables.
The MBA called for a board review of every clemency petition within 10 weeks to determine if a hearing will be granted and, if a hearing is granted, for the board to report its recommendation within six months of receiving that petition. The governor would be required to make his decision within another six months.
None of that is particularly onerous, but it would represent a sea-change in current practice, where petitions languish in limbo for years despite a statute requiring swift action at least on pardons. A coalition of more than 70 community groups wrote to the governor in January protesting the generally slow pace at which the board operates, particularly for parole hearings involving lifers; they noted the board “routinely takes more than seven months to issue a fully prepared Record of Decision.”
Martin Healy, the MBA’s chief counsel, said that “much of this falls within the governor’s purview.” He explained that Baker “can change the operation of that body if he chooses to. And there are a number of things he could do by executive order.”
But one reform that would require legislative change is the proposed expansion of the seven-member board — all appointed by the governor — to nine members, and with specific requirements for a more diverse body than the current one. Of the six sitting members (one slot is currently vacant), one is a former prosecutor and three have backgrounds in law enforcement or corrections.
Baker could take a giant first step and fill that open slot — vacated by a former prosecutor — with another mental health professional (one psychologist does sit on the board) or a member of the criminal defense bar or, following the model adopted in the police reform bill, a member of a civil rights organization.
The MBA report also urges the governor to adopt new guidelines that would prioritize clemency for victims of domestic violence, those convicted at a very young age, and those who are now elderly, frail, or chronically ill.
A humane criminal justice system demands a clemency process that can right wrongs, provide incentives for good behavior within the prison system, and, ultimately, provide hope. By largely ignoring the clemency process, Massachusetts fails that test — and that demands sweeping reforms such as those the state’s bar association is proposing.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.