State Clemency Project

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Willie Horton’s Shadow: Clemency in A healthy criminal justice system punishes no more than is necessary and creates opportunities for rehabilitation. Clemency advances both goals. This Report of the Center’s State Clemency Project focuses on Massachusetts, where just one sentence has been commuted since 1997. Without a realistic opportunity for clemency, more than 1,000 individuals serving life-without-parole sentences in Massachusetts— 13 percent of the state’s prison population—are condemned to die behind bars.1

Before 1980, governors sometimes commuted more than clemency believe that doing so would risk political suicide. a dozen sentences in a single year, drawing from a prison Yet, with today’s sprawling criminal codes and lengthy sen- population several times smaller than today’s. The Center’s tences, clemency is more necessary than ever before. archival review found that commutations were overwhelm- ingly granted to people serving life sentences for , most Politics alone do not explain why commutations are no lon- of whom served several decades or more before receiving ger granted in Massachusetts; there are also structural and clemency. This shows that an active clemency system does institutional problems with the way clemency is administered not mean being “soft on crime;” it means recognizing personal there. The Advisory Board of Pardons, which recommends change and accommodating new standards of proportionality. petitioners to the governor’s office, is stacked with law enforce- ment professionals who lack the perspective of a defense Criminal justice policy is often shaped by moments of fear advocate or formerly incarcerated person. Moreover, the fact and outrage, in response to exceptional acts of violence pack- that the Advisory Board also administers parole means that aged in media for mass consumption. Clemency is no excep- clemency attracts fewer resources and less attention than in tion. Although the decline of clemency in Massachusetts states where an agency is exclusively devoted to clemency. was part of a broader shift toward harsher punishment that These design elements, together with the fear-based mes- occurred around 1980, memories of specific crimes—like saging that distorts thinking around criminal justice policy, those committed by Willie Horton—suffuse political rhetoric tell the story of clemency’s demise in Massachusetts. with such emotional force that those with authority to restore

1 Massachusetts Department of Corrections, 2017 Prison Population Trends, 22.

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The frequencyThe of 3

Figure 4. Figure See He ushered in mandatory He ushered mini 4 note 17. infra , e.g., Black,, e.g., See significantly. The Board held an average of 5.5 hearingsaverage per The held an Board significantly. suggestssince 2005 that few petitioners in the last decade the ascentthe tough-on-crimeof politics explosion the and tice continued into the 1970s, when Governors Frank Sargent when Governors Frank 1970s, tice continued the into granted in Massachusetts 238 occurred (or 89%) 1945, since grants, and petitions and 2018, for clemency fell. Between 1973 the number of petitions processed the Board by annually of Pardons has conducted commutation hearings seven of Pardons only of prison populations States. across Governor United the an image didates in other states King cultivated at this time, of beingon crime.” “tough dramatically under the King administration (1979–1983), and under the King administrationdramatically (1979–1983), 3 Data regarding the number3 Data regarding of petitions processed the by purview of this Project, though official statistics that indicate declined along with commutations. have pardons and fewer than 1 per year after 2000. That the Advisory the That Board 2000. after 1 per than year fewer and and commuted 90 sentences, but fell off and Michael Dukakis commuted 90 sentences, but fell off usually to individuals who had already served many years in served years had already who individuals many to usually before 1980. Only one sentence one been has Only 1997. since commuted before 1980. public hearings the Advisory held by Board has also declined prison and who showed evidence of rehabilitation. This prac of rehabilitation. evidence prison and who showed Clemency’s decline in decline Clemency’s government sources request. public records government by Because pardons do notgenerally affect incarcerated persons, the they are beyond mums and attempted to restore capital punishment. Whereas punishment. capital restore to attempted and mums Clemency’s decline in the early 1980s correspondedClemency’s decline in the early 1980s with have been seriously considered for clemency. been seriously for clemency. considered have has not recovered. Of the 267 commutations that have been commutations that have Of the 267 has not recovered. 2 Unless stated otherwise, been obtained all statistics from have Massachusetts, by the numbers the numbers Massachusetts, by first stint as governor, from 1975 to 1979, 1978 losing before the 1979, to 1975 from first stint as governor, fell steadily from 101 to 10. 10. to 101 from steadily fell Democratic primary to Edward J. King. Like gubernatorial can Democratic J. primary Edward to term, previous the during Dukakis commutations 48 granted grant just 11. King would For much of the twentieth century, the governor of of governor the century, twentieth of the much For Michael Dukakis commuted about 50 sentences during his Massachusetts granted a handful of commutations each year, Massachusetts each commutations of year, handful a granted year during the 1980s, 2.9 hearings per year during the 1990s, hearings during the 1990s, per year 2.9 during the 1980s, year Advisory Board is not available prior to 1973. prior to Advisory Board is not available 4 Would-be candidates became discouraged the dearthby Would-be of

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stages—the Advisory Board, governor, and Executive Council— stages—the and Executive Advisory Board, governor, sion is subject Council, is sion body a consent the Executive the to of stages, discussed Part in detail Report. this 2 of greater in

same entity that issues clemency the recommendations to Clemency in Clemency to the governor either favoring or opposing clemency for the either favoring the governor to the governor. After reviewing the petitioner’s reviewing After and background the governor. governor, also became less accessible lifersgovernor, in Massachusetts. to tations fell off precipitously around 1980, likely a function likely of 1980, around tations fell off precipitously own public clemencyown hearing. A petitioner must pass all three of eight directly-elected officials whotwo-year serve terms. ency, taking account of the Advisory Board’s recommendation taking account of the Advisory Board’s ency, criminal history, the Advisory Board holds a formal typically criminal history, degree murder, who received 84% of commutations issued of 84% who received degree murder, and the governor’s Executive ClemencyGuidelines, Executive governor’s whichthe and the merits of clemency for evaluating criteria substantive are a broader shift toward more retributive penal practices retributive that more shift toward a broader in Massachusetts beyond capacity, the Willie Horton in saga a climate created capacity, beyond between 1950 and 1980. Parole, which is administered by the by which is administered Parole, and 1980. between 1950 began in the 1970s. Thosebegan most in the 1970s. affected declineby clemency’s petitions. If the governor decides to grant clemency, that deci petitions. decides If the governor grant clemency, to public hearing. It then transmits recommendation a written decides grant clem the governor whether to Next, petitioner. in order to be granted clemency. be to granted clemency. in order

risks of discretionary release. Massachusetts

How clemency is granted is granted How clemency A History ofA History State Clemency Project Clemency State Board of Pardons, whoseBoard Pardons, of members seven appointed by are In 1987, with clemency already decliningclemency with prisonsand already swelling 1987, In which politicians became unwilling to tolerate the perceived perceived the which politicians tolerate became to unwilling were peoplewere serving life sentences for first-degree or second- The Council may consent to clemency only after holding itsholding consent after clemency only to CouncilThe may To summarize, a petition firstby the Advisory is reviewed To The processclemency for reviewing petitions consists of three

An archival review of official of official review documents that commu shows An archival 1.

Willie Horton’s Shadow: Clemency in Massachusetts 2 Willie Horton’s Shadow: Clemency in Massachusetts 3

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Today,

10 Under that statute, that statute, Under 8 (2016). The other states three (2016). Life without parole: A Reconsideration. parole: A Reconsideration. Life without note 7. supra H.B. 4286. H.B. 4286. Nellis, Nellis, . Id See See sentence grew from one to 20. After the statute the passed, After between 20. one to sentence from grew 8 the maximum allowable sentence with no parole eligibility. eligibility. sentence with no parole the maximum allowable a states—,three Mississippi and Vermont—saw the lifer population soared. In 1971, when 275 people serv 275 populationwhen lifer the were soared. 1971, In constant, remained commutations lifers of to ratio 1971 the the percentage persons of incarcerated serving who are life or habitual offender law. trigger the state’s or de facto life sentences over that four-year stretch. or de facto life sentences that four-year over personscent of incarcerated lifers eligibility. are with no parole degree murder. Whereas clemency grants declined after 1980, clemency Whereas grants declined 1980, after degree murder. commuted just in office. sentence one during eight years de facto life sentences in Massachusetts rap continues grow to a third conviction requires that the individual serve requires individual conviction that the felony a third are Delaware, Louisiana, and Pennsylvania. Delaware, are police officer, legislators expanded number the legislators offensesof that police officer, ing life sentences, sentences. life ing 10 Governor Sargent commuted named a parolee Dominic after a Cinelli murdered In 2010, idly. Governor Patrick would have commuted 73 sentences 73 commuted 2015.in have Governor would Patrick decadesOver two the last commuted, after life sentence was larger increase in the percentage servingindividuals of life 9 10 11 Fillion, in conjunction Gordon with the Criminal Haas & Lloyd Between 1950 and 1980, approximately 84% of commutations 84% approximately and 1980, Between 1950 people serving life sentences. Had 2,022 In 2015 were there and Patrick Instead, commuted that year, no sentences were Massachusetts per is one of four states 10 than in which greater Boston: Policy Justice Criminal Coalition were granted to individuals convicted of first-degree convicted individuals or to granted second- were 2012 and 2016, the state’s population 16%. lifersof grew state’s the 20122016, and The number of crimes that can trigger a life-without-parole hopeThe only for these people is clemency. Justice Policy Coalition,

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1 2000- PRESENT usually 15 usually 6

, s 7 1990

s 21 Still Life: America’s Increasing Increasing Still Life: America’s 1980 (May 3, 2017). 3, (May

5

7 s 83 1970 Dukakis’ New Image—Crime New Dukakis’ Fighter s 70 1960 s 65 1950 states have a larger a proportion servingindividuals of states actualhave serving sentences actual and de facto of life sentences (i.e. stance on clemency had beenstance clemency had on political changing the warped by 5 Kenneth J. Cooper, Cooper, J. 5 Kenneth tides, sentences he commuted just and and 10 between 1983 onment without the possibility Second-degree of parole. once between 1975 and 1978. once between 1975 construct more prisons to accommodate the state’s boomingconstruct prisons more accommodate to the state’s and de facto life sentences. in Massachusetts? bility after a term fixed by the fixed court, a term sentencing bility after punishes first-degree with mandatory murder life impris prison Boston population. A 1985 Globe article observed that Figure 1: Commutations Granted by Decade by Granted 1: Commutations Figure 7 Ashley Nellis, The Sentencing7 Ashley Project, Nellis, Boston Globe 31, (March 1985). murder carriesmurder a mandatory eligi with parole life sentence, individuals servingindividuals long sentences of confinement. The state 50 years or longer50 years before consideration) comprise parole legislature during his second term, after mentioning it just it mentioning second his after during legislature term, 6 M.G.L.A. 265 § 2. In Massachusetts, commutations were usually granted to to granted usually Massachusetts,In were commutations Dukakis mentioned crime in every major address the state to Dukakis recaptured the governor’s office in 1982, but his his but 1982, Dukakisin office recaptured governor’s the Use of Life and Long-termUse Sentences 23.2% of the Massachusetts23.2% prison population. four Only years. According to a report a Sentencing the to Project, by According peopleyears. Who received clemency clemency Who received 1991. Meanwhile, he hired more police more he hired officers Meanwhile, and sought to 1991. - - 10 2018 : 16% Other crimes : 84% Murder

Specifically, the data show that, among those the data show received who Specifically, served con prison more time than individuals significantly time. Second, an active clemency system can advance indi Second, clemencytime. advance system can active an severity of an offense. the length of a sentence and the relative clemency in Massachusetts nevertheless served significant of first-degree convicted commutations, individuals murder Figure 5: Sentences Commuted by Type of Crime 5: Type Figure by Commuted Sentences Figure 4: Petitions Processed by the Advisory Board by 4: Processed Figure Petitions 1973 vidualizedjustice preservingwhile between relationship the victed of second-degree murder. 101

(’15– ) (’15– 0

0 Baker 2018

1 (’07–’15)

1,018 1 Patrick

(’03–’07)

0 Romney (’01–’02)

0 Swift

(’97–’01)

0 Cellucci (’91–’97)

6 Weld

(’83–’91)

10 Dukakis

(’79–’83) Commutations

11 King n

(’75 -’79) (’75

48 Dukakis (’69–’75)

LWOP Pop LWOP Sargent

40 n convicted of serious crimes “get off easy;” those off easy;” of seriousreceived convicted who crimes “get commuted to an average term of 24.5 years to life. These life. 24.5to of years term average an commutedto 80 10 actively granting clemency doesactively that individuals not imply Figure 3: Commutations and LWOP Population 3: Commutations and LWOP Figure Figure 2: Commutations by Administration by 2: Commutations Figure 1971 figures important allow several inferences. The first is that for first-degree murder were commuted to an average of 42 average to an commuted for first-degreewere murder

State Clemency Project Clemency State Thoseclemencyserved had typically who received many years, while life sentencesyears, for second-degree were murder years of their sentence. Between 1950 and 1980, life sentences and 1980, Between sentence. of their 1950 years

Willie Horton’s Shadow: Clemency in Massachusetts 4 Willie Horton’s Shadow: Clemency in Massachusetts 5 - 31 2017 24% The law would would law The 16 44% 2004 Lifer Parole Rate Lifer Parole

n

Lifers Paroled Lifers

n tunity for parole consideration after 25 years. after consideration parole for tunity of 10 to 12 to years. of 10 apply retroactively. Individuals between 14 and 18 years of between and 18 years 14 Individuals retroactively. apply serveage at the time of their crime would a minimum of Figure 6: Parole for Lifers (1990–2017) Lifers for 6:Figure Parole resentative Jay D. Livingstone and Senatorand Livingstone Joseph A. D. Boncore Jay resentative provide that would introduced legislation2019 of January in first-degreeof convicted opporan with individuals murder serve rules, would who jointor minimuma venture murder 16 House Bill No. 3358, An Act mass reduce incarceration. to 3358, House16 Bill No. 24 1990 34% Fortunately, some politicians appear act.to Rep- ready Fortunately, 15 except for those 20 years, to under the felony convicted - - , -

15 (Oct. 2000). Prisoner Reentry in Survey of Sentencing Figure 6. In 2017, the latest In 2017, 6. Figure See According to a report a to According the Urban by Meanwhile, commutations, already commutations, already Meanwhile, 13 14 Why Massachusetts’ Parole System Requires Reform Parole System Requires Massachusetts’ Why (March 2005). Before 1994, most individuals were parole-eligible most were individuals Before 1994, after 12 . Id segments of the prison population and eliminated good time serving one-third or two-thirds of the statutory minimum. zine.com/news/2013/06/25/massachusetts-needs-parole-reform/2/. the annual number of parole hearings number annual decreased,the parole of the and to 11% in 2011 and 14% in 2012. The overall parole rate also rate parole The overall in 2012. and 14% in 2011 11% to to 33to percent in 2002. dropped noticeably, from 63% in 2010 to 47% in 2011. Further, 47% to 2010 in 63% from Further, 2011. in droppednoticeably, effect. In December 2010, a parolee named a parolee effect. CinelliDominic In December 2010, considered for parole. credit. declinein Massachusetts. legislatorspassed a truth- 1994, In but one Board member and the appointment of a new chair person. for lifers rate was the parole In the prior eight years, Boston Magazine (Jun. 25, 2013), available at https://www.bostonmaga Boston 2013), available 25, Magazine (Jun. murdered a police officer, prompting the resignation of all a policemurdered officer, ings persons. than other incarcerated and Between 1990 released to parole by the DOCreleased by parole to dropped 80 percent in 1980 from 1990s. during the abated completely in decline, in-sentencing statute curtailed that for large eligibility parole hearings resulting in parole) fluctuated from a low of 6% in hearings resulting fluctuated of in parole) a low from Inaccessibility of Parole Parole of Inaccessibility 15 Jean Trounstine, 13 Policy Institute Justice Center, The Urban 14 12 Massachusetts Sentencing Commission, 34%. Immediately after the Cinelli incident, the rate dropped the Cinelli incident, the rate after 34%. Immediately Board began taking longerdecisions. make to Historically, lifers have been less successful hear lifers parole have at Historically, Now, one must serve before being full minimum term out the Now, percentagethe of individuals Policy Justice Institute Center, Effortsto curtail compounded parole the effect of clemency’s Practices: Truth-in-Sentencing Reform in Massachusetts Reform Practices: Truth-in-Sentencing 24%. This volatility reflects This volatility the Willie Horton of 24%. the power 2017, the parole rate for lifers (i.e. the percentage of parole for lifers rate (i.e. the parole 2017, Massachusetts year for which data is available, the parole rate for lifers was lifers for was rate the parole for which data is available, year 1997 to a high of 44% in 2004. a high of 44% in 2004. to 1997

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Work-Release is Suspended After Inmate Shoots Officer, is Suspended After Work-Release state’s habitual offender statute. The denied habitual offender his initialBoard statute. state’s Stewart stole a car and shot a police officer, before dying dying before stole a car and shot a policeStewart officer, to rob a department store in the Boston suburb of Woburn, Boston the in department a store rob Woburn, to of suburb to completion of the Alternatives the Board noted Cinelli’s of a former Boston police officer, Cinelli had an extensive extensive an had Cinelli Bostonformer a of police officer, he had beencriminal record; under the sentenced 1986 in of years after recent improvement criminal who had only membershearing attended the of a GED program. Family on its decision, written the Board believed genuinely in of second-degree who had been murder participating in the assault with intent to commit murder, and escape. The son assault commit murder, to with intent his completion and abuse attendance, treatment, his church pledgedand support to reentryhis in Cinelli com the to as a political time-bomb. and killed police John while attempting officer Maguire bid for parole in 2005, noting that Cinelli was “a habitual habitual “a noting was Cinelli that in 2005, parole for bid poor adjustment.” Three years later, at the 2008 hearing, later, Three years poor adjustment.” program. The same year, a spate of by Reginald Reginald of murders by a spate program.The same year, New York Times (Apr. 6, 1994). 6, Times (Apr. York New munity. The Board 6-0 voted conditioned on grant parole, to munity. recover. In 1994, officials suspended a work-release program suspended officials work-release a In 1994, recover. shift, prison work his to Instead after of returning murder. in a high speed Hampshire chase state police. with New and solidified national attention the view of clemency Fifty-seven-year-old parolee Dominic Cinelli shotin 2010. Cinelli’s good-faith rehabilitation. Unfortunately, however, however, good-faith Unfortunately, rehabilitation. Cinelli’s reentry unsuccessful. was Cinelli’s Officials recalled to prison 40 other individuals convicted convicted prison to recalled 40 individuals Officials other following crimes a participantfollowing by committed named Robert further substance abuse treatment and drug testing. Based 18 Discretionary to release yet programs in Massachusetts have servingE. who was Stewart, a life sentence for second-degree MA. At the time of his parole in 2008, Cinelli had served Cinelli MA. 22 in 2008, time of his parole the At McFadden, a clemency recipient from Pennsylvania, drew drew a clemency Pennsylvania, recipient from McFadden, The specter of Willie Horton reappeared in Massachusetts years of three concurrent life sentences for armed robbery, life sentences of three concurrent years for armed robbery, Violence program, his continued participation in substance

,

17 Horton Case Keeping the Jail Cells Shut Jail the CaseHorton Keeping end of the balloon, and the other end of the balloon and shoved Willie Horton down our throats and many Willie Horton our throats and many down and shoved became when a metaphor in an angry environment politicians were swept away by the angry by tides. Now away swept politicians were Willie Horton public policy-making metaphor. by ready to renter society. We have pushed down one pushed one down have We society. renter to ready explode.” to is ready have effectively blocked of those effectively the outflow are who have folks were looking for a quick and simple answer. We We looking answer. simple and quick a for were folks we have paralysis. It is a frightening trend towards towards trend It is a frightening paralysis. have we “They wrapped our necks the American flag around the “Willie Horton effect.” Politicians were were eagerexploitto Politicians the “Willie Horton effect.” be theseto political proclaiming moments rivals their by environment in a 1990 Boston in a 1990 Globe article:environment overhaul a criminal justice policy overhaul a single violent crime, after endured a crucible of public rageendured a crucible in the media. Across the discretionary release be as came to programs viewed country, early 1980s, had it not beenearly 1980s, for the actions of a lifer named political landmines. Massachusetts terminated immediately Boston 1990). 8, Globe (July regardlesssuccess, the policy’s of became overall as known its furlough program, even though only .1% of furloughed .1% though only its even furlough program, reflexively tooktendencyto flight. The 1986 in individuals man before repeatedly raping the man’s fiancé. fiancé. Dukakis man beforerepeatedly raping the man’s Clemency might have recovered from its from steep decline in therecovered Clemency might have his weekend furlough, and in April of 1987 he assaulted a furlough, and in April of 1987 his weekend Politics in the Land of in the Land Politics 17 Chris Black, State Clemency Project Clemency State Massachusetts House described of Representatives this toxic Willie Horton Horton Willie Willie Horton. In June of 1986, Horton from failed return to of 1986, Willie Horton. In June “soft on crime.” Representative Marjorie Representative Clapprood of the on crime.” “soft

Willie Horton’s Shadow: Clemency in Massachusetts 6 Willie Horton’s Shadow: Clemency in Massachusetts 7

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for five for five 25 In retrospect, it 26

27 2018 Update on Prisoner2018 Update (2005–2014) (May 2018). (May (2005–2014) . at 3. See id strict adherence to these policies would have prevented trag strict prevented these to adherence policies have would to provide the parole officer with a way to assess the parolee’s status to way assess the parolee’s officer with a the parole provide to the EOPSS noted that 7,901 parolees (including 341 lifers) had the EOPSS noted that 7,901 that first-time offenders“violent” are to recidivate less likely than people of property convicted crimes. 78% outperformingother in states: was parole tem 2009, in on rational grounds. Indeed,on rational grounds. the Massachusetts sys parole parolees successfully completed their parole, of the state’s of 51%. a national average compared to comings associated with Cinelli’s parole. First, the Board parole. comings associated Cinelli’s with and likely unsuccessfulopposed bid for parole, 2005 Cinelli’s when leading December months up to consecutive of 2010, that Cinelli would however, likely, case. It is edy in Cinelli’s relying on the parolee himself.” on the parolee relying a new crime. How many of these new convictions were for of these were many How new convictions a new crime. advance of Cinelli’s 2008 parole hearing; 2008 parole prosecutors Cinelli’s of had advance assessment tool been months earlier, several implemented been under Parole Board supervision in 2009. Of this group, Of this group, been Board under Parole supervision in 2009. parole officer failed to make “collateral contact” “collateral officer failed to make parole not reflect lifers.other paroled The postmortemreleased by crime justify to official the difficult is response to Cinelli’s instinct-based decision-making that led to Cinelli’s parole. parole. instinct-baseddecision-making Cinelli’s led that to Cinelli committed the crime. It is impossible whether crime. Cinelli committed the say to have been risk,of basis on the denied parole the risk had have 25 According to the Cinelli Memo, “[c]ollateral contacts “[c]ollateral designed are the Cinelli Memo, 25 to According Department Special of Justice, Report, 26 U.S. 27 (at home, in the community, at work, programming, in without etc.) in the community, (at home, failed to notifyfailed Middlesex the to County district in attorney 877 parolees (or 11%) returned to custody returned to during the calendar 877 parolees (or 11%) Like Willie Horton, Cinelli was an outlier, whose actions did an outlier, Like Willie Horton, Cinelli was Recidivism: A 9-Year Follow-up Period A 9-Year Recidivism: would have opposed Second, Cinelli’s again in 2008. have his parole would paroled. when Cinelli was The EOPSS report noted institutional several additional short year: 8% for technical violations and 3% for technical 8% for commission ofyear: crimesviolent believedgenerally is it though notis known, - - - -

22 , -

, 09’ parole of officer’s parole of officer’s 09’ Resigning from the Board from Resigning In 2011, Governor Patrick Nevertheless, the Board’s Nevertheless, the Board’s 20 19 21 Life Without Parole: A Reconsideration Life Without note 20, at 5. note 20, According to a 2011 report to According the by 23 Killings a year apart show parole’s risks parole’s a year apart show Killings supra , www.Boston.com, (Dec. 29, 2010). (Dec. 29, , www.Boston.com, Evidence-based assessment,risk fromfar while 24 , Maria Cramer & Jonathan Saltzman, , Maria Cramer & Jonathan Memo Cincelli, Re: Jonathan Saltzman, Jonathan . Memo Re: Cinelli from UndersecretariesMemo Cinelli from of EOPPS Re: Mary to Beth Id See See See, e.g. See, shooting in 2010. In early 2009, just months after parol just months after 2009, In early shooting in 2010. supervisor), and Leticia (clinical psychologist). S. Munoz superintendent treatment for the Hampshire for County Sheriff’sPamela Office), (former proba Lombardini federal sale review of the parole process. of the parole sale review tion officer), Thomas F. Merigan, Jr. (former federal probationJr. (former federal F. Merigan, tion officer), Thomas to a state judgeship a state of 2014. to in July the Board.the leaders enforcement Local called whole for law composition its not from altogether different in 2008 was comprised the Board was composition;current then, as now, overhaul would “have a dramatic effect on the parole rate.” a dramatic effect rate.” parole on the “have would overhaul 36 (2003) ing the Board’s failure to notify to the Middlesex failure Office. Districting the Board’s Attorney’s ute in order to broaden the application of LWOP and other application of LWOP the broaden to in order ute perfect, is believed be than the subjective, to reliable more police officer), Candace J. J. Kochin (former assistant deputy police officer), Candace Boston Globe 31, (Dec. 2010). Public Safety & Security procedural found several includ breakdowns, EOPPS (Jan. 12, 2011).Heffernan, Secretary, recidivism). ing Cinelli, the Board introduced its first evidence-based risk assessment tool. mostly of individuals with law enforcement backgrounds. enforcement mostly with law of individuals One former parole board chairman predictedOne former parole in 2011 that the Cinelli’s crimes which directed enraged its at the public, ire Cinelli’s killer gets hard look hard killer gets See have registered a score (indicating a high risk of registered of 9 out of 10 have lengthy, determinate sentences. determinate lengthy, had voted to parole Cinelli. He replaced the Board’s chairman Board’s the replaced He Cinelli. parole to voted had 23 24 21 Gordon Haas & Lloyd Fillion, Fillion, 21 Gordon Haas & Lloyd 22 20 A review of the decision to parole Cinelli by the Executive Office of the Executive Cinelli by parole of the decision to 20 A review following the Cinelli saga were Mark A.sagathe Cinelli were following Conrad (former Milton, forced the resignations of all five remaining members who the resignationsforced of all five 19 Board was already in place at the time of Officer Maguire’s time of Officerat the place in Maguire’s already Board was Ironically, a more rational reform than dismissing the entire rational reform a more Ironically, Indeed, the parole rate for lifers fell sharply in 2011 and 2012. Indeed, for lifers rate fell sharply the parole Legislators, expanded the habitual offender stat meanwhile, Massachusetts ofOffice &Executive Safety Public Security MA, police officer), Doris Dottridge (a former Mashpee, MA, with Suffolk County assistant district attorney Joshua Wall, with Suffolk County assistant districtJoshua attorney leadwho continued the Board to until Patrick appointed him (EOPSS), Cinelli would had the tool been in place in 2008,

- - - Although 34 Pursuant state to 33 The Board may consider evi The Board may 35 These officials have six weeks to six have These officials 32 . Id six months from the petition’s filing to hold the hearingto hold the and filing the petition’s six months from such proceedings, but shall confine itselfto matters solely transmit a recommendation to the governor. The attorney The attorney the governor. transmit a recommendation to general district the and must be attorney notifiedadvance in the sentence was imposed.the sentence was the Advisory of commutation. Meanwhile, the propriety Board tory Clemency requirements with the governor’s and Executive the governor’s Executive Clemency Guidelines. Executive the governor’s the calling of meet to rules relative “make the Board may of the hearing an opportunity and afforded testifyto and examine the petitioner’s witnesses. of two courses.of two If it decides that no public hearing is necessary, questions the correctness, regarding regularity or legality of the petitioner.” clemency to vote. the hearing the Board’s after but prior to dence received 32 M.G.L.A. 127 § 154 The Massachusetts Code defines of Regulations 33 120 C.M.R. 900.01. 34 35 M.G.L.A. 127 § 154 is “highly and substantially more probable to be true than not.” 120 beis “highly to and substantially true than not.” probable more on the merits quasi-legal of a petition. determination its ultimate, any other facts deemed relevant to the merits other to of the petition. factsany deemed relevant may call the Board aforementioned officials. Alternatively, C.M.R. 100.00. This standard guides the Board’s fact-finding as well as as fact-finding guides This standard the Board’s C.M.R. 100.00. justice and fully protectjustice and fully public safety. proved that commutation would advance the interests of advance that commutation would proved provide the Board the regarding recommendation with a written provide and petitioner’s social, criminal, and institutionalhistories,” proceedings of the trial court, and shall not consider any regulations,the Board conducts to according its analysis not the review it “shall ings the proceedings and to thereat,” reviews the petition for “substantial compliance” with statu with the petitionreviews for “substantial compliance” a case and prepare[s] summaryinvestigation concerning the it transmits the petition the Governor along with a written to by the offered recommendations recommendation and any Guidelines. a finding of substantial Upon the compliance, for a public hearing on the petition’s merits; the Board has for a public hearing on the petition’s Board’s Executive Clemency Unit conducts “a preliminary conducts ClemencyUnit “a Executive Board’s whether a petitioner has, by “clear and convincing evidence,” evidence,” and convincing whether a petitioner “clear has, by bearproperly which of upon extension the of propriety the The purpose of an Advisory Board hearing determine is to At 10 weeks from the petition’s filing, the must take oneBoard the petition’s from weeks 10 At “clear and convincing evidence” as evidence showing that a conclusion as evidence showing evidence” and convincing “clear

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table on page 11. See Members one from must be drawn

30 All but one current member have a law a law member All but one current have

31 The Board salaried carries officials, full-time, seven

29

and Structure of and Structure

section describes the process in further detail and identifies hamper that structural administration the of design flaws Clemency in Clemency the petition to the attorney general,the petition commissioner the attorney of cor to the consent of the Executive Council, conducts which consentthe Executive its the of own three-stage review. First, the Advisory Boardthree-stage of Pardons— review. enforcement background. background. enforcement of the following professions: “parole, probation, corrections, probation, professions:of the following “parole, of the Executive Council.of the Executive clemency in Massachusetts. office, which conducts the second stage of review. If the gov If the which conductsoffice, the second review. stage of that decision is subject to ernor decides grant clemency, to 30 The Board’s chairman is designated the Governor. by 30 The Board’s 31 M.G.L.A. 27 § 4. and social work.” appointed to five-year terms by the governor with the consentby the terms governor appointed five-year to a felony conviction. a felony petition to the Executive Secretarypetition the Executive to of the Governor’s Council, public hearing is made. before a final determination public clemency hearing. Based on its findings, the Advisory rection, police chief of the municipality in which the crime

law, law enforcement, psychology, psychiatry, sociology psychiatry, psychology, enforcement, law law, Massachusetts 28 This requirement applies only to petitioners applies28 to This requirement only serving time for 29 120 901.02 C.M.R. §

State Clemency Project Clemency State Pardons. Board the governor’s to submits recommendation a written Petitioners for clemency in Massachusetts face a daunting was committed, and the districtwas in whose attorney district which transmits the application to the Advisorythe transmitswhich application to the Board of which also serves as the Massachusetts Board—holds Parole a The Advisory Board’s firstThe Advisory of business order to forward is Board’s A petitioner initiates the process submitting his or her by The Advisory Board of Pardons The Advisory Board

2. The Institutions

Willie Horton’s Shadow: Clemency in Massachusetts 8 Willie Horton’s Shadow: Clemency in Massachusetts 9 -

Clemency Clemency Denied 29% N = 38

Governor/ 71% Executive Council Executive Granted Baker’s Guidelines state Clemency Clemency 39 Massachusetts requires that law 40 . at 4.4 (Special Factors for Clemency Relating to Sentences to (Special for Clemency Relating for Factors . at 4.4

Id Board Favors Favors Board Clemency 40% sentence for first-degree until the murder petitioner has servedyears, which is the amount of time normally fifteen served someone by second-degree of convicted prior murder tion, a clemency petition is reviewed by the governor. An An the governor. tion, a clemency by petition is reviewed Clemency for Guidelines,criteria Executive the substantive grant clemency”:to circumstances and of the (1) the “nature consider commuting a life to is unlikely that the governor consideration. parole to report governor the actsall at legislature the clemencyof to need not though the governor provide the end of each year, evaluating the merits of clemency petitions. The Guidelinesevaluating the impact victim the on (e.g. offense” on and society as a 39 Executive Clemency Guidelines issued by Governor Charles D. Baker, Baker, Clemency Guidelines39 Executive issued Governor Charles by D. are meant to direct the Advisory Board’s review process meant direct review are to the Advisory and Board’s particularly post-offense behavior. Dec. 10, 2015. Dec. 10, First Degree Murder). rationale for clemency decisions. incoming governor traditionally publishes of traditionally a new version incoming governor evaluate the governor’s office petitions. how itselfindicate will considerations in deciding paramount whetheridentify “two Once the Advisory Board issues its report and recommenda whole), and (2) “the character and behavior of the Petitioner,” of the Petitioner,” “the character and behavior whole), and (2) The current Guidelines,The current issued Governor Baker by in 2015, 40 The Governor N = 96

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Advisory Board 60% Recommendation

Clemency Board Opposes Board Figure 7. Of the 96 hearings Of 7. Figure Figure 7. 7. Figure See

See 37

A person who receives a favorable A person a favorable who receives

36 38

Hearing Granted 8% N = 1,133

No 92% Advisory Board Hearings Granted Hearings Hearing Petitions Processed/ Petitions should grant clemency. the date of a petition’s filing. of a petition’s the date granting of such relief.” that the Governor would “rarely, if ever, grant commuta if ever, “rarely, that the Governor would Advisory Board advises where…the againsttion relief the the Board were simply an appellate court, simply the Board without consider were clemency. Conversely, the Executive Clemency Guidelines Executive the Conversely, clemency. of being granted clemency. of being granted clemency. 37 Data for the year 1986 was not available. not available. was 1986 37 Data for the year Clemency Guidelines38 Executive L. Issued Governor Deval by Patrick, 36 Dissenting transmit a minority opinion for the members may able recommendation. Of the 38 petitionersable recommendation. recommended able), only about 8.5% of commutation petitions of (a total of 96 about able), only 8.5% Governor’s consideration. The Board’s recommendations and reports recommendations Governor’s consideration. The Board’s before (the earliest the Board. that data is avail Since 1980 year are accessible requestare public records by for a period from of 10 years petitions) earned a hearing. III.(B)(2)(h) (May 21, 2007).III.(B)(2)(h) (May in effect during the Patrick administration expressly stated recommendation from the Advisory Board has a 71% chance the Advisoryrecommendation from Board has a 71% ing whether clemency the public interest. is in The hearing is held during this time, 38 (or 40%) were followed by a favorable a favorable by followed 38 (or 40%) were held during this time, hearing to reflexively defend the underlying conviction, as if conviction, underlying the defend reflexively hearing to favorably by the Board, 27 (or 71%) were ultimately granted ultimately were the Board, by 27 (or 71%) favorably followed by a Board recommending whether the governor by vote followed Figure 7: A Statistical Analysis of the Clemency Process Process of the Clemency 7:A Statistical Analysis Figure Board 3% recommendation. This means of indi that roughly Prosecutors and other law enforcement officials often officials often use the enforcement Prosecutors and other law Importantly, the Board’s clemency hearings adversarial. are Board’s the Importantly, viduals who petition a favor the Board for clemency receive As 7 indicates, most hearing a Figure petitioners not do receive ------47

45 (Recall that the (Recall 46 , Task Force on Parole and on Parole Force , Task Figure 8. The Council has a 8. Figure See Figure 9. 9. Figure See The Politics Conceptualizing of Forgiveness: , 21 Fed. Sent., 21 Fed. R. 3 (2009). Rachel E. Barkow, E.Rachel Barkow, . at 29. scientists, the Massachusetts and the legislature, ship is not diversified. that it is contrary the spirit of the statute… to of that appointing authority. Considerable disparities appointing that of authority. different result member parole when board Governors about criminal justice issues…often reflectabout the views criminal justice issues…often been recognized criminologists by [] and other social persons from law enforcement may meet the literal may enforcement persons law from [T]he need for a diversified parole board has long [T]he need parole has long board for a diversified ments, Board Parole members’ attitudes and beliefs boards in rates among parole appointed of parole by letter of the law, but a strong argument can be made of the law, letter Massachusetts Board. Parole As gubernatorial appoint A parole BoardA parole composed of entirely largely or even Report of the Boston of the BarReport Association: Parole Practices in Massachusetts See Id similar composition. spective of prosecutors, corrections experts enforce and law to the Board’s clemency functions: and parole the Board’s to convened to address to rates. declining parole convened enforcement professionals.enforcement a 2002 reporta 2002 issued the Boston by Bar Association Task and experience in one or more of the following fields: parole, fields: parole, and experience of the following or more in one university and shall have had at least five years of training had at least five and shall have university Community Reintegration (August 2002). (August Community Reintegration bers “shall bebers college graduates orof an accredited four-year “shall choose may Board which the governor from backgrounds position. To the extent that sentencing commissions are that sentencing the extent commissions are position. To psychology, enforcement, law corrections, probation, law, Despite the diverse sociology and social work.” psychiatry, report observations, made the following equally which apply instructive, clemency boards should reflectinstructive, not the only per alsoment officials, but that of defense formerly attorneys, persons,incarcerated victims’ advocates. and members, the Board years for has been law by dominated Concerns about the Board’s lack of diversity were aired in aired were lack of diversity Concerns about the Board’s Institutional Composition Institutional and Their Effect on Reintegration Community Force on Parole and Community Reintegration, which was was which and Community on Parole Reintegration, Force Clemency The success of an advisory body depends on its largely com statute provides that mem governing The Advisory Board’s 45 46 47 Advisory Board and Parole Board are the same body.). The Advisory Board Board the same and Parole body.). are

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44 Thus, a peti 42 (Aug. 24, 2017),(Aug. After each After hearing, 43 In fact, the Council has traditionally , 49-SPG 23 (2015). B. B.J. 41 From Here to Clemency: Navigating the the Navigating to Clemency: Here From Governor’s Councilor Mary Hurley proposes new rules, caus new rules, Councilor proposes Mary Hurley Governor’s Figure 9. Six of the eight are lawyers. lawyers. Six of the eight are 9. Figure Schoenberg, solicit general the attorney and the district input from attorney sion is subject to the “advice and consent” and of the Executive sion is subject the “advice to seem to have been unaware of their existence. been unaware seem have to https://www.masslive.com/politics/index.ssf/2017/08/governors_coun the Council votes in private. A clemency grant becomes finalthe Council votes in private. the hearing and may examine the petitioner’sthe hearing witnesses and may “and tioner granted a hearing before the Council may have little have tioner granted a hearing before the Council may tion. Rules and procedures such hearings left to are governing discretion. the Council’s grounds, three former prosecutors, three former grounds, and a former trial judge. commonwealth against the petitioner…” commonwealth or no advance knowledge about of the proceeding. the nature or no advance operated rules without written of procedure. council members include three with law enforcement back enforcement council members with law include three each representing a district plus the for a two-year term, its In addition to clemency duties, the Council provides cio. advice and consent for various gubernatorial appointments, consentand advice various for Current the state treasury. from as for expenditures drawn present [the Council] the case to full information as to of the ing controversy on a board with history with ing controversy on a board of name-calling in the jurisdiction prosecuted.which the petitioner in was its own substantive criteria; it must, however, hold a public it must, criteria; however, its substantive own including judges and members Board, of the Parole as well when she proposed adopting a set of basic rules Shira of procedure. Council. The Council is a body of eight elected officials, hearing if it wishes to ratify a favorable clemency determina hearing if it wishes ratify a favorable to cilor_mary_hurle_1.html. Written “rules of order for the assembly of order of the “rules cilor_mary_hurle_1.html. Written members but even of the Board and 1993, in 1991 printed council” were State Clemency Project Clemency State Both appear general at and districtattorney the may attorney If the Council decides hold a hearing, to it must notify and Executive Clemency Guidelines,Executive the Council apply is free to Lieutenant Governor, who presides the Council who ex offi over Governor, Lieutenant Per the state constitution, the governor’s clemency deci See when a majority of the Council ratify it. to votes Massachusetts Pardon Process Pardon Massachusetts 42 One Member, a former state court a former state opposition faced vociferous judge, 42 One Member, 41 William G. Cosmas, Jr., Cosmas, Jr., 41 William G. 43 M.G.L.A. 127 § 153. 44 M.G.L.A. 127 § 152. Whereas the Advisory the Whereas Board the governor’s must apply The Executive Council The Executive

Willie Horton’s Shadow: Clemency in Massachusetts 10 Willie Horton’s Shadow: Clemency in Massachusetts 11

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50 The parole rate for lifers convicted of second- for lifers convicted rate The parole 48 . at 35. Id shift in composition coincided decline with a 29% in parole [Board] are allowed to remain vacant for lengthy periods for lengthy of time… vacant remain to [Board] allowed are members sit as voting continue to of the Parole [and] individuals 50 The Task Force also expressed Force concern that “positions50 The Task on the the Advisory Board had a relatively diverse membership. membership. the Advisory diverse Board had a relatively correctionsturing three experts,former prosecutors two and chiefs and no member in criminal defense. has a background oppose the petition for a second A full majority of the time. The result: 1997. one commutation since clemency. degree murder dropped from 41% in 1990 to 0% in 2000. in 0% to 1990 in 41% dropped from degree murder the Board.dominate conducts hearing,ecution. then It adversarial an itself which in Massachusetts (Feb. 2013). in Massachusetts (Feb. and invites the district general—whoand invites and attorney attorney a lone defensea lone attorney—solicits the prosecutors input from in the petitioner’s arrestand policeinvolved pros and officers presently prosecutors half the members once were or police prosecutors, corrections experts, police and officers. This process bears emphasis. The Advisory Board—presently fea Board long after their terms have expired.” expired.” have Board their terms after long resembles a criminal prosecution. (who Then the governor also be a former prosecutor!)may conducts a second review. appeared already at the Advisory Board have hearing—to may more diverse, law enforcement professionals continue to professionals enforcement continue to law diverse, more Council must vote to ratify the governor’s decision grantCouncil ratify the governor’s to to must vote her case to a separate administrative bodyher case a separate to administrative (the Council), where for non-lifers. If the governor favors clemency, the petitionerthe presents orhis clemency, favors governor the If Despite the Task Force’s recommendation to make the Board to recommendation Force’s Despite the Task The Council rules conducts unwritten to a hearing according The Task Force observed that throughout the 1970s and 1980s, observed and 1980s, Force the 1970s that throughout The Task the clemency throughout enforcement The presence of law 48 Prisoners’ Legal49 Services, of Parole Paper: State White The Current After 1990, however, the Boardthe became former by dominated however, 1990, After

Special Prosecutor / Lawyer / / Lawyer Special Prosecutor Police Chief / Attorney / Chief / Attorney Police Attorney—personal injury Attorney—personal Corrections Prosecutor Professional Background Professional Prosecutor / Trial Lawyer / Trial Prosecutor Defense attorney Corrections Politician Judge / Politician / Attorney / Politician Judge Politician Policy Public Police Officer / Attorney Police Prosecutor / Consultant Court Psychologist Corrections Professional Background Professional Volunteer Prosecutor Volunteer Commissioner Police Sheila Dupre Board Member Christopher Iannella (D) Christopher Moroney Gloriann Colette Santa Colette Council Member Council Figure 9: Executive Council (current members) Council (current 9: Executive Figure Figure 8: Advisory Board of Pardons (current members) (current of Pardons 8:Advisory Board Figure Mary E. Hurley (D) Mary E. Hurley Eileen Duff (D) Eileen Marilyn Petitto Devaney (D) Petitto Marilyn Robert Jubinville (D) Jubinville Robert Lieut. Gov. Karyn Polito (R) Karyn Polito Lieut. Gov. Dr. Charlene Bonner Charlene Dr. Paul M. Treseler (Chair) M. Treseler Paul

(ex officio) (ex Jennie Caissie (R) Joseph C. Ferreira (D) Joseph C. Ferreira Terrence W. Kennedy (D) Kennedy W. Terrence Coleman Tonomey Tina Hurley - - - seeking political appointments a will face that they know such as the Advisorysuch as the Board, partial with responsibility for demand for substitute goods; less when one is available, the Advisory Board’s decision-making has been the Advisory influenced Board’s the other grows. Yet, when one institutionone when administers both Yet, otherthe grows. of boththe provision goods, a bottleneck creating at the back political independence—its A board’s capac the governor. of reprisal—will beof reprisal—will compromised if the board is captured judicial appointments, state to matriculated consistently serving directlyfrom often examples Board. the on Recent confirmation hearing the before Council. change in leadership or reduction in funding—may disruptchange in leadership or reduction in funding—may that the entire recall instance, end of the justice For system. a district attorney’s office and a judgeship. Other Advisory Other a district office and a judgeship. attorney’s ally unelected, politicalally insulation for is that they provide by the political or career interests of individual members. political the interests career by or individual of the career aspirations of itsby members. it is Nevertheless, both clemency and parole. Parole and clemency are like both and clemency like Parole are clemency and parole. parole and clemency, a single institutional event—such as a institutional a single event—such and clemency, parole to a sharp decreaseleading for lifers. in parole police officer, include Joshua Wall (chairman from 2011-2014), Maureen E. 2011-2014), (chairman from include Joshua Wall is impossible for certain what extent know and to to whether ity to make potentially unpopularity to decisions without fear Council can deal at arms length given that BoardCouncil members can deal at arms length given One advantage of advisoryOne advantage boards, whose members usu are Individual Political Incentives Individual Political for all three, the Advisoryfor all three, Board a bridge provided between question to fair Advisorythe whether Board Executive and In the case Advisory of the Board, past chairpersons have gone run for statewide offices. on to BoardIt members have Board was forced to resign in 2011 after a parolee murdered a a parolee murdered resign after to in 2011 Board forced was More generally, there are drawbacks to vesting a single entity, vesting to a single entity, drawbacks are there More generally, Walsh (2004-2008), and Michael J. Pomarole (2000–2002); (2000–2002); Pomarole J. and Michael (2004-2008), Walsh

- That number 51 51 Massachusetts Board Parole Annual Report, at 13. to reinvigorate clemency in Massachusetts. reinvigorate to government branch or office. Meanwhile, the Advisory the office. branch or Meanwhile, government Board the Executive Council mustthe Executive perform its advice-and-consent threat of collective inaction.threat of collective This is particularly true where of the overall prison population. The Board’s 1985 annual annual 1985 prison population.of the overall The Board’s cases must be whereas parole to every in order granted year; duty as to the appointment the as to duty judges of state the for in order easy to ignore when resourceseasy ignore instance, to constrained. are For of more traditional government functions, traditional government and it is therefore of more each agency has competing institutional priorities that draw and Council perform continue to their other responsibilities, agency’s budget were allocated clemency. agency’sto budget were a narrower release mechanism with little effecta narrower on the size attention and resources away from the agency’s from clemency and resourcesattention away judiciary functional; remain to contrast, in the Council could prevent catastrophic overcrowding in prisons, clemency is catastrophic overcrowding prevent neither is likely to risk the financial or required to political capital neither is likely is almost certainly lower today, since the Board holds fewer is almost today, certainly lower report that, at most, indicated percentage several points of the is responsible thousands of parole for viewing and monitoring marynot or commutations; the pardons function parole, is range of gubernatorial appointees on expenditures and responsibilities. More specifically, the Advisory Board’s pri the Advisory responsibilities.Board’s More specifically, Clemency may seem non-essential or gratuitous Clemency may context in the One drawback of a multi-agency clemency model is the multi-agency a of clemency model the is drawback One hearings now than it did during the 1980s. Sohearings than it did during the 1980s. long as the Board now Diffusion of responsibility amongresponsibility of Diffusion fail to actfail to on clemency other petitions without disrupting any from the state treasury; and the governor’s office oversees the state treasury; office the governor’s and from a three groups of decision-makers of groups three State Clemency Project Clemency State Executive Council and consentExecutive provides advice on a broad with all its political hazards, has fallen by the wayside. with all its the wayside. political by has fallen hazards, vast administrative state. It is not surprising that clemency, It is not surprising that clemency, state. administrative vast

Willie Horton’s Shadow: Clemency in Massachusetts 12 Willie Horton’s Shadow: Clemency in Massachusetts 13 - - - an 54 - Hamilton ReportHamilton at 6. See These statements reflect one prosecutor’s interested opinion 55 shortening an individual sentence. shortening an individual sentence in 2014 than the 7.5-year term she received in 2009. 2009. in she received term sentence than the 7.5-year in 2014 54 Massachusetts Advisory in the Board Recommendation of Pardons, In ad criminal record. lengthy Cruz also detailed Hamilton’s 55 Mr. ter from Plymouth County District Attorney Timothy J. Cruz, J. County Timothy Plymouth District from ter Attorney on appeal, indict defend her conviction to and to Hamilton toward release. If negotiations appear to have been coercive, been release. If negotiations coercive, appear have toward to that observation be should the Board to made and Council. a shorter received have would the criminal code, Hamilton to drug offenders serving minimum mandatory sentences,” recommendation favoring observation the Board’s critical to contrast, In appended same the report let a to was clemency. drug abuse and addiction that plagues County.” Plymouth chusettsbenefit functioning a from would clemency system. one person; it incentivizesamong those rehabilitation who degree permanently removes a persondegree permanently removes consider parole from dition to Mr. Cruz’s letter addressing letter the Advisory Board, Plymouth Cruz’s Mr. dition to as well as the overriding need to “combat the epidemic of of epidemic the need “combat to overriding the as well as about policy broad issues, and bear of little on the propriety are no longer in place today. For defendants who plead out, For no longer in place today. are avenue clemency as the only ation upon leaving conviction, urging the Board not to recommend Hamilton for clemency. urging the Board for clemency. recommend Hamilton not to Clemency Matter of Deanne 3 (Oct. (“Hamilton Hamilton, 31, 2014) provide earlier parole eligibility for convicted non-violent convicted for eligibility earlier parole provide prosecutors about plea context bargain how should provide Report”). in the history the in justice of Massachusetts. in should Officials individual’s sentence was the product sentencewas policies of charging that individual’s the to unrelated ways affected in ing outcome the sentencing the circumstances to culpability or of the crime. individual’s illustrates information a prosecutor what should and should not interpose. The report explained that, as a result of revisions Cruz noted the “substantial amount of resources” required honor that history by restoring clemency. honor that history restoring by clemency. commutation. Report an important has found, second place chances have In Massachusetts, the decision in the first charge to murder will not outlive the original terms of their sentence. As sentence. their of this terms original the notwill outlive The Advisory Board report for petitioner Deanne Hamilton The new sentencing policyto reflected intent a “legislative Assistant Jessica District Healey appeared Attorney in person oppose to Whatever measures is no doubt taken, there that Massa- are Whatever needlessA commutation does than prevent more suffering for ------revi

There 53 note 7, at 10. note 7, note 17. supra supra

The result,The commissionerformer a as correctionsof Black, Nellis, Nellis, 52

See See ship is dominated by former law enforcement professionals,enforcement former law dominated by ship is

system, at leastsystem,at 13% peopleof behinddie will there incarcerated in Massachusetts 52 53 tations in assessingopine on should they Nor rehabilitation. talize clemency. The Advisory Board and Council required are talize clemency. tioning for clemency. It also obscures decision- the Board’s tioning for clemency. granted in Massachusetts. Without a functioning clemency of the offense. Instead,of the offense. a prosecutor an might explain how choose to testify, they should not oppose clemencychoose based on testify, to each year, since it was already in place at the time clemency in place at the time already since it was each year, ated person an essential provide would perspective that the a more diverse Advisory Board. The Board’s current member Advisory current diverse a more Board. The Board’s and report, the process a black box. remains Governor Charlie ably capable of generatingably at least of commutations a handful by law to solicit the district to from in the testimony attorney law by jurisdiction If prosecutors convicted. a petitioner where was bars. personal ideology, and should acknowledge the office’s limi and should acknowledge the office’s personal ideology, put it, is “a system built on despair,” in which the individual the individual in which built on despair,” system put it, is “a making process;petitions if rejected are hearinga without institutional apathy and discouragesinstitutional peti apathy from individuals near future. Nevertheless, the existing Nevertheless, structurenear is presum future. is no reason expect to structural changes clemency in the to One straightforward improvement would be would for the AdvisoryOne straightforward improvement

has averaged one hearing every two years, despite receiving one hearing years, every two has averaged Reviving Clemency Clemency Reviving fell off during the 1980s. fell off during the 386 petitions over that time. This degree inactivity of signals that time. 386 petitions over Prosecutors effort the in to alsocould prominently figure Board lacks. currently Further, the governor and Executive Council should assemble and Executive the governor Further, Board become to active. more Baker Council must and the Executive pressure the Advisory Board to hold more clemencyBoard hearings. hold more the Board to Since 2005, Decades have passed since commutations were regularly passed regularly Decades since commutations were have whether a grant of clemency would deprecate the seriousness deprecate whether a grant of clemency would

with just one defense attorney; adding a formerly incarcer adding a formerly with just one defense attorney; 3. “has very little incentive to do anything but his time.” do anything to “has very little incentive

Council Votes Council Hearing; and parole board) and parole rules of procedure. of procedure. rules Pardon Committee Pardon governor’s decision. governor’s Majority vote ratifies ratifies Majority vote Lieut. Gov. (ex officio) (ex Lieut. Gov. Executive Council Executive input from AG and DA. AG input from Council notifies & collects Council notifies & collects No legislatively prescribed prescribed No legislatively & consent on gubernatorial & consent on gubernatorial 8 directly elected officials + elected 8 directly drawing from state treasury state from drawing appointees (including judges (includingappointees judges Council is responsible for advice Council is responsible Approves governor’s expenditures expenditures governor’s Approves

Council Guidelines Governor Provides lists of all lists Provides clemency grants to grants clemency & consent of Executive & consent of Executive legislature at end of year legislature Grants clemency with advice clemency Grants Publishes Executive Clemency Clemency Executive Publishes

Board Petition of Pardons Board’s Written Written Board’s merits by clear & clear merits by Recommendation Advisory Board Advisory Board Board applies Exec. applies Exec. Board corrections officials corrections convincing evidence convincing members, appointed members, transmits petition to transmits DA, AG, police chief, Clemency Guidelines Clemency Petitioner must prove must prove Petitioner 7 Executive Clemency Unit Clemency Executive & character assessment;& character Advisory Board Hearing Advisory Board State officials may testify may officials State by governor with advice & governor by Conducts fact investigation Bd. may summon witnesses may Bd. functions as the State Parole Parole functions as the State consent of Executive Council consent of Executive Advisory Board of Pardons also of Pardons Advisory Board The Massachusetts Clemency Model The Massachusetts Clemency State Clemency Project Clemency State

Willie Horton’s Shadow: Clemency in Massachusetts 14 Willie Horton’s Shadow: Clemency in Massachusetts 15

symposia and conferences addresstopics to significant this mission in three main arenas: academia, the courts,this mission main arenas: in three of prosecutorial legal discretion significant issues. create criminal justice matters. criminal justice practices of government, at all levels analyzes important issues of criminal law, with a special analyzes important issues of criminal law, and public policy debates. uses the Center’s research and experience with criminal justice practices inform courts to in important criminal justice particularly matters, in cases in which exercises justice expertise practices improve in the criminal to justice and enhance the public dialogue system on please visit www.prosecutioncenter.org or write to or write please visit www.prosecutioncenter.org [email protected] produces scholarship on criminal justice issues, and hosts in criminal law and procedure. The litigation component and procedure. in criminal law focus on prosecutorial and discretion.power It pursues Acknowledgements Acknowledgements About the Center Ben Notterman and edited by the Center’sand edited Ben by Executive Notterman Center The thanks the Courtney M. Oliva. Director, The public policy component applies the Center’s criminal about or read more the Center, contact, to, contribute To This report was drafted by Research Fellow ResearchThis report drafted by Fellow was The report designed Michael Bierman. was by The Center the Administration on of Criminal Law the academic component,Through Center the researches Vital Projectsits Fund for financial support. 139 MacDougal Street, Room 307 New York, New York 10012 [email protected] www.prosecutioncenter.org