Gov. Maura Healey on Oct. 31 unveiled an overhaul of the guidelines she will consider for pardon and commutation applications, which her office said "explicitly outline" for the first time how a governor will deploy executive clemency as a tool to "address unfairness and systemic bias in the criminal justice system."
"The Governor views executive clemency as a means of addressing unfairness in the criminal justice system. As such, she will consider whether issuing clemency would address a miscarriage of justice and if continued incarceration would constitute gross unfairness," her office wrote in a news release.
Last updated by Gov. Charlie Baker in 2020, the guidelines previously stated that pardons and commutations were "not intended" to revisit trials or appellate cases, nor reflect a review of "the guilt of the petitioner."
That language is gone from Healey's revision, which does not include the word "guilt" in its seven pages. A new preamble states that a governor can use the extraordinary act for "correcting legal errors, righting systemic wrongs, addressing historical injustices, exercising compassion, showing mercy, promoting equity, and fighting racism."
Healey wrote in a section on pardon eligibility that she would "not give executive clemency lightly."
"Many petitioners will have a compelling need to seek clemency," she wrote, adding that "[i]njustice is itself a weight to bear."
Martin Healy of the Mass. Bar Association said Tuesday that the new guidelines "clearly reflect a more fair and equitable approach to the clemency process by taking into account both historical injustices and modern criminal justice jurisprudence."
Patricia Garin, co-director of the Prisoners' Rights Clinic at Northeastern School of Law, said she was "impressed and encouraged" by the revisions and felt "we may finally have a governor who has the courage to get smart on crime."
"They will become a reliable way to address unfairness and miscarriages of justice in our criminal legal system. Her strong statements that she will take the persistence of racial disparities and their root causes into account when deciding clemency requests, along with her pledge to consider the unequal treatment often affecting migrants, ethnic and cultural minorities, those who are LGBTQ+, poor, women, migrants, and the disabled, show a sincere commitment to fairness and equity, while addressing public safety," Garin, who frequently testifies before the Governor's Council on matters involving parole and clemency, said.
Pardons grant official forgiveness, while governors can shorten or eliminate a convict's sentence by granting a commutation.
Healey maintained language from Baker's guidelines stating that "commutation is not a substitute for the availability of medical parole." But, she added, "consideration should be given to a petitioner's age (over 50 years old) or diminished health as a factor that supports a request for a commutation."
In making commutation decisions, she also plans to weigh the "unique circumstances" of LGBTQ+ people and survivors of sexual assault, domestic violence, and human trafficking, who are "often at heightened risk of harm and experience additional trauma while incarcerated," according to the guidelines.
Healey served as attorney general for eight years before winning election to the corner office, and said Tuesday on WBUR's "Radio Boston" that she approached her clemency revisions "as a former prosecutor and civil rights lawyer," and that the new guidelines "are about impact."
"They're about having an impact on the lives of hundreds of people in our state. And it's not a responsibility that we take lightly. As you know, I was attorney general, and I was charged with the responsibility of investigating and prosecuting through my office, so many crimes, holding people accountable, protecting victims. It's also the case that our system, and the system for clemency and parole, has not taken into account certain things that we should account for," she said.
The governor added an eighth section onto the end of the document, giving notice that she "[p]eriodically ... may issue additional supplemental guidelines" to "address specific issues" which the Parole Board would apply to "relevant" applications.
Outlining her general approach to clemency, Healey wrote that she is "mindful that racial disparities exist at every stage of the criminal legal system" resulting in "mass incarceration of Black and Latino defendants at a rate far higher than their White counterparts."
She also said she will consider scientific studies "tending to show when the parts of the brain that control behavior become fully developed and how the process of development impacts behavioral decision-making."
Governor's Councilor Tara Jacobs observed at a council meeting in September that the bulk of Healey's pardon recommendations thus far have been for people who committed crimes during their teenage or emerging adult years.
Clemency petitions are usually vetted by the Parole Board before the governor decides whether to send them to the elected Governor's Council for investigation and final approval votes.
Healey sent two more pardon requests to the council Tuesday, proposing forgiveness for Robert Miller, who was convicted in 1992 of counterfeiting licenses, and for Eric Nada, convicted in 1996 on distribution of a Class A controlled substance.
Miller was 21 years old at the time he was convicted, and Nada was 22.
Healey is the first governor since Gov. Paul Cellucci to issue pardons during her first year in the corner office, and within nine months the Governor's Council has approved all 11 of Healey's recommendations that it has considered.
The governor said on the radio Tuesday that "for me, you know, it's -- 'justice delayed is justice denied.' And I don't want to wait to get going when it comes to securing justice and doing what is right and making sure that we have as fair a system as possible."
