Governor Healey adds equity, fairness to her clemency priorities

Clemency is a simple enough concept. It’s an act of mercy, a tempering of a justice system that hasn’t always been just. But in Massachusetts it has been nearly unicorn-like in its rarity — and largely for political reasons.

In the past 25 years, risk-averse Massachusetts governors have only granted four commutation petitions, the most recent three near the end of Governor Charlie Baker’s term. Commutations reduce an inmate’s sentence, but do not expunge their record. Pardons — an erasing of the record — are also relatively rare in the state. Baker issued a little over a dozen — all during his final days in office.

Commutations, which can only be granted by the governor (with the approval of the Governor’s Council), are the last legal remedy available to right a wrong. But they are more than that. A truly functional clemency process — not the unicorn variety — also provides hope to the incarcerated and signals that good behavior and taking advantage of the too-scant programs the state’s Department of Corrections offers counts for something. It can also be used to make up for past racial disparities in criminal sentencing — a sad fact of life in this state documented most recently in a Harvard Law School study.

Now Governor Maura Healey is issuing her own set of clemency guidelines — this time not just legal boilerplate, but for the first time in the state’s history explicitly acknowledging they will be used to address “historical wrongs” pointed out by that Harvard study, and “make our Commonwealth more compassionate and more just.”

“We need to insure that our system is fair, that it’s equitable, that sentences are proportionate to the crimes committed, and that the guidelines recognize all that,” Healey said in an interview with the editorial board.

“And it’s the right thing to do,” she added. “I don’t care how much political risk there is. There’s no sense in delaying what we need to do.”

The guidelines now spell out the governor’s priorities to the Advisory Board of Pardons (the name given to the Parole Board when it sits on clemency petitions) and to the legal community.

The Healey guidelines closely follow those proposed last spring by the Massachusetts Bar Association’s Clemency Task Force, which were also in part guided by the results of that Harvard Law School study. That and such compelling real-life cases as that of William Allen, who served some 28 years under a life without parole sentence when the man who actually wielded the knife in a 1994 robbery had been released 10 years earlier after pleading guilty to the crime.

Allen was one of more than 1,000 men and women (of the state’s current population of 5,429) serving life without parole sentences. At least 108 of them — like Allen — were sentenced under the felony murder statute that was considerably narrowed by the state Supreme Judicial Court in 2017, but without an order requiring a legal look-back at those cases. According to an amicus brief recently filed in a case seeking that retroactive review, 82 percent of those individuals are people of color.

As Healey’s new guidelines now state, “The governor will consider if continued incarceration would constitute gross unfairness in light of the basic equities involved, including, but not limited to the severity of the sentence received in relation to sentences received by other equally culpable and similarly situated defendants, the extent of petitioner’s participation in the offense, and intervening changes in the law.”

The guidelines will also take into account “the persistence of racial disparities and their root causes,” as shown by the higher incarceration rates of Black and Latino defendants. They also recognize

In the past 25 years, risk-averse Massachusetts governors have only granted four commutation petitions, the most recent three near the end of Governor Charlie Baker’s term.

“science-based evidence” on youthful brain development and will take into account “the age, maturity, and intellectual abilities of the petitioner at the time of a criminal offense.” Likewise the advanced age or diminished health of inmates over the age of 50 will be considered, although the guidelines explicitly note that commutation is not a substitute for medical parole.

Also acknowledged are the “unique circumstances” of the incarcerated who are LGBTQ+, survivors of sexual assault, domestic violence, and human trafficking, who are “often at heightened risk of harm and experience additional trauma while incarcerated.”

But this is no get-out-of-jail-free card. “I was attorney general for eight years,” Healey said. “I prosecuted and my office prosecuted human trafficking cases, and we prosecuted major crimes. There are violent offenders out there. But we’re going to make sure we’re putting public safety first.”

It will, however, take a clemency process that was virtually meaningless and turn it into meaningful tool for rehabilitation. The specific timetables for action by the Advisory Board of Pardons make the process a far cry from the sham it has been for decades.

Healey signaled early on that she intended to make more generous use of her clemency powers than her predecessors by issuing 11 pardons only halfway through her first year in office — breaking from the standard gubernatorial practice of that being a parting gesture. She proposed two more pardons Tuesday.

But clemency is a matter of both policy and personnel — requiring a Parole Board willing and eager to implement the governor’s new rules. Healey has already made two appointments and one re-appointment to the seven-member board, leaving just one vacancy, which she said would be filled “soon.” So in short order this will indeed be Healey’s board — newly charged with moving expeditiously on clemency petitions.

That board combined with a sound and merciful policy — a policy that gives real meaning to rehabilitation and to second chances — won’t open some mythical floodgate on the state’s prisons, but it can offer new hope where once there was none.