Why Massachusetts has a ‘culture of caution’ on clemency and commutations

Last week, Gov. Charlie Baker commuted the sentences of two Massachusetts prisoners, Thomas Koonce and William Allen, the first time he has drawn on clemency power to spare criminal defendants. Daniel Medwed, Northeastern University law professor and GBH News legal analyst, joined host Henry Santoro on Morning Edition today to discuss why clemency in Massachusetts is so rare. This interview has been edited for clarity and length.

Henry Santoro: Let's start with the basics of this case. What is clemency and what are its origins?

Daniel Medwed: In essence, clemency is the power of an executive official to extend mercy to citizens to spare people who've suffered some type of criminal sanction. There are two basic types of clemency in Massachusetts. First, we have pardons, which is a full forgiveness of an underlying offense. Basically, erases the crime from your record.

And second, there are commutations where you reduce a person's sentence. The clemency power dates back to Ancient Rome and the goddess Clementia, when Julius Caesar used to use it to spare fallen comrades or enemies on the battlefield.

Santoro: And we know what happened to him.

Medwed: Yeah, it didn't turn out so well, but nowadays it's enshrined in Article Two of the Federal Constitution and Article 73 of the Massachusetts State Constitution. And whether it's wielded, Henry, by an emperor or a king, a governor, a president, it's treated as quote, "a benign prerogative" of the chief executive, and it serves as a check on the judicial branch to make sure that judges are applying sentences fairly and equitably.

Santoro: How does it work here in Massachusetts, and does the governor's office field requests and then make decisions on its own?

Medwed: Not exactly. Here's how it works. So, under that article, Article 73, the clemency power is vested in the executive branch and we've developed what's known as a hybrid model for fielding these requests. They first go to the Massachusetts Parole Board, which is composed of seven people, each of whom serves a seven-year term. They evaluate the clemency applications, maybe hold hearings, and then make non-binding recommendations to the governor. That's what happened with Thomas Koonce and William Allen. Those cases were vetted by the parole board before the recommendations landed on Charlie Baker's desk.

Santoro: You just mentioned how clemency applications get to the governor's desk. But after Governor Baker receives a recommendation, does he have the complete freedom to follow it or to shut it down?

Medwed: He doesn't have complete freedom, Henry. What he does, of course, is he can evaluate the claim, decide whether to follow the parole board recommendation or not, but ultimately before he can formally make a clemency decision — our state constitution requires that it can only happen upon quote "the advice and consent" of the governor's counsel. So, there are front end checks in the form of the Massachusetts Parole Board, but there's also a backend check with the governor's counsel. So the governor does not have complete discretion in this area.

Santoro: Are the rules different from state to state or are they consistent?

Medwed: They are different from state to state. Many have these hybrid models, but other states give more power to the governor specifically.

Santoro: Why does Massachusetts have such a poor record of issuing pardons and commutations? These are Baker's first in in more than six years of him being in office.

Medwed: That's true. We have an atrocious record when it comes to clemency, and I think there are lots of explanations. Here are two of them. First, we have a long-standing culture of caution in this area, which a lot of people date back to what's called the Willie Horton effect — that infamous situation in the 1980s, when a Massachusetts prisoner, while out on furlough, committed several violent crimes, an event that presidential candidate George H.W. Bush capitalized on to portray his rival, Massachusetts Governor Mike Dukakis, as weak on crime. We've had a culture of caution that's persisted ever since even Deval Patrick, our most progressive governor, only issued four pardons and one commutation.

Second, I think that the procedures within the Massachusetts Parole Board are too cumbersome and hidebound, especially when it comes to holding hearings. Since Governor Patrick's last clemency decision in 2015, over basically a five-and-a-half year period, there was only one commutation hearing, even as 250 cases waited in the queue. Things might be changing. We had four in December, Henry. That could be a fluke. Or it could be a sign that the parole board is being a little bit more generous in this area. We'll have to see.

Santoro: I love how the historical factor goes all the way back to Julius Caesar and Clementia. That's fascinating history right there.