by William G. Cosmas
Two years ago in this journal, I examined the process of obtaining a pardon in the Commonwealth of Massachusetts from the perspective of having represented one of the first successful petitioners for such relief since 2002. This article examines the Executive Clemency Guidelines issued by Governor Charles D. Baker (the “Baker Guidelines”) as compared to those that his predecessor, Governor Deval L. Patrick, issued in January 2014 (the “Patrick Guidelines”).
In Massachusetts, a governor’s Executive Clemency Guidelines (the “Guidelines”) largely govern the process from petition to clemency. Statutes and regulations set forth the procedure through which the Parole Board, acting as the Advisory Board of Pardons (the “Board”), reviews, evaluates, and considers petitions for clemency. The Guidelines set forth the qualitative framework for that analysis, through an expression of the governor’s philosophy concerning clemency and the criteria that he or she will use to determine whether a petitioner merits recommendation to the Governor’s Council (the “Council”) for relief. On the day after his inauguration, Governor Baker rescinded the Patrick Guidelines, under which Governor Patrick had issued four pardons at the close of his term, halting administrative review of existing petitions until he could draft and issue his own Guidelines. Baker Rescinds Ex-Gov. Patrick’s Clemency Guidelines, Associated Press, Jan. 16, 2015. Governor Baker described his decision as “standard operating procedure,” because with a new governor comes a new understanding of the nature and contours of the governor’s pardon power. See Gov. Baker To Submit New Pardon Guidelines In Coming Weeks, Associated Press, Jan. 23, 2015. The Baker Guidelines were issued in December 2015.
An Apparent Attempt to Streamline
While the Baker Guidelines offer streamlined, procedural clarity and hew closely to relevant law, the Patrick Guidelines contemplated a holistic review of each petitioner, “intend[ing] to inform” the Board—the “public officials who are most able to make informed decisions on the persons seeking relief” —in its preliminary analysis of each petition. See Patrick Guidelines (“PG”) at 1-2. In contrast, the Baker Guidelines emphasize his prerogative to “direct” the Board’s analysis, in language that agrees with the Board’s recently-revised regulations (see, e.g., 120 CMR 900.01(2) (2017) (“The [Board] shall be directed by the Governor’s Executive Clemency Guidelines in its consideration of petitions for executive clemency.”) See Baker Guidelines (“BG”) at 1-2. Such emphasis also reflects the governor’s constitutional power, under Article 73 of the Amendments to the Massachusetts Constitution, to determine which clemency petitions merit submission to the Council for approval. See In re Op. of the Justices, 210 Mass. 609, 611 (1912); see also M.G.L. ch. 127 § 152.
Both sets of Guidelines reserve that power notwithstanding their own terms, but the Baker Guidelines explicitly acknowledge that they do not bind the Council, whose “concurrent action” on a petition is required to issue a pardon. BG at 2; see In re Op. of the Justices, 210 Mass. at 611. This nod to the Council’s constitutional independence, see Pineo v. Exec. Council, 412 Mass. 31, 36-37 (1992), an esoteric point of law easily lost on those without experience on Beacon Hill, may prove crucial to future petitioners who reach the final stage of review. Without this provision, a petitioner (and his/her counsel) might assume that the same Guidelines that governed the lengthy process to that point also set the rules for Council’s essential consideration of a petition. In truth, there are no rules for the Council’s analysis or for any related hearing other than those, if any, promulgated by the Council for the occasion.
Finally, the Baker Guidelines offer added precision by incorporating relevant statutory and regulatory provisions. For example, both Guidelines indicate that, for certain offenses, a pardon “rarely” would include restoration of a petitioner’s firearms rights. Unlike the Patrick Guidelines, however, the Baker Guidelines specifically incorporate the offenses included in M.G.L. ch. 140 § 121’s definition of “violent crime”: “any crime punishable by imprisonment for a term exceeding one year… that: (i) has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another; (ii) is burglary, extortion, arson, or kidnapping; (iii) involves the use of explosives; or (iv) otherwise involves conduct that presents a serious risk of injury to another,” BG at 4. Although the Supreme Judicial Court struck down part (iv) of the statute as unconstitutionally vague in May 2016, Commonwealth v. Beal, 474 Mass. 341, 349-51 (2016), the precision that the rest of § 121 provides may help petitioners set more accurate expectations for the process.
An Embrace of Retributive Justice
Both Guidelines establish similar basic threshold considerations for pardon relief, but the Baker Guidelines imbue those considerations with a retributive theory of justice. Perhaps drawing the line for the Commonwealth’s retribution at the petitioner’s release from state supervision, the Patrick Guidelines first considered whether “[t]he grant of a pardon is in the interests of justice,” considering “the nature of the underlying offense(s), the impact of the crime on any victim(s) and society as a whole, the petitioner’s role in the underlying offense, and the fundamental fairness and equity of granting a pardon to the petitioner.” PG at 3. By contrast, the Baker Guidelines identify the “nature and circumstances of the offense” as the first “paramount consideration,” paying particular attention “to the impact on the victim or victims and the impact of the crime on society as a whole.” BG at 3. The greater the severity of the petitioner’s offense, the more time “that should have elapsed in order to minimize any impact clemency may have on respect for the law.” Id. at 2.
The second threshold question under the Patrick Guidelines focused on a petitioner’s rehabilitation, considering whether “the petitioner has been a law-abiding citizen and presents no risk for re-offense,” to determine whether a pardon would be consistent with maintaining public safety. PG at 3. That analysis focused on the petitioner’s “good citizenship” during a period of time following confinement or probation based on whether the petitioner’s offense was a felony or misdemeanor. PG at 3. The Baker Guidelines’ analogous “paramount consideration”—“the character and behavior, particularly post-offense behavior, of the petitioner”—presents a striking shift from the Patrick Guidelines. See BG at 3. A petitioner must have “clearly demonstrated acceptance of responsibility for the offense for which the petitioner is seeking clemency” —and appealing or challenging the underlying conviction or sentence is “[g]enerally… inconsistent with acceptance of responsibility.” Id. In other words, a petitioner who exercised his legal right to appeal or challenge a conviction twenty-five years ago, no matter the justification, unwittingly disadvantaged his future clemency petition to Governor Baker in the process. The Baker Guidelines also essentially require that a petitioner have “made full restitution” to victims economically injured by the petitioner’s crime(s), giving “stronger consideration to petitioners who have made restitution in a prompt manner.” Id. A petitioner’s public service will also lead to “stronger consideration,” whether that public service consists of “substantial assistance to law enforcement in the investigation or prosecution of other more culpable offenders” or “service in the military or other public service, or . . . charitable work.” Id.
Narrowed Opportunity for Petitioners
Both sets of guidelines provide additional factors to be taken into account in determining a petitioner’s entitlement to relief, such as requiring a period of “good citizenship” since release from government supervision, but the Baker Guidelines take a narrower focus, limiting opportunities for petitioners. The Patrick Guidelines considered “either (1) a compelling need for a pardon; or (2) extraordinary contributions to society that would justify restoration of his/her reputation as a concluding step of rehabilitation.” PG at 2. Similarly, the Baker Guidelines require petitioners to “demonstrate both good citizenship and a verified, compelling need,” but do not expressly consider the “extraordinary contributions to society” that might have tipped the balance to clemency under the Patrick Guidelines. BG at 3. Instead, the Baker Guidelines require disclosure and investigation of “whether the petitioner has been the subject of any civil lawsuit, including any restraining order, during the claimed period of good citizenship,” thus imposing a greater burden than the Patrick Guidelines, which required consideration only of restraining orders or civil contempt orders. See BG at 4; PG at 4.
On the whole, the Baker Guidelines provide additional clarity—but commensurately narrower paths to clemency—than those they replaced. It remains to be seen whether and in what circumstances Governor Baker will exercise his constitutional power to grant the “extraordinary remedy” of a pardon—and whether his Guidelines will impact his ability to do so.
William G. Cosmas, Jr., is an associate at Fitch Law Partners LLP, where he works primarily in the areas of business litigation, white-collar criminal defense, government investigations, real estate disputes, and complex civil litigation. In 2014, he represented a successful petitioner for clemency in Massachusetts.
In the last weeks of his term, Governor Deval Patrick granted the first four pardons in the Commonwealth of Massachusetts since 2002. Of the more than 70 people who petitioned for a pardon in 2014, the Advisory Board of Pardons recommended five favorably to Governor Patrick. These were the Board’s first such recommendations since 2009. Governor Patrick submitted four pardons to the Governor’s Council for its advice and consent. Following public hearings on each petition, the Council approved all four, one of whom was my client.
Obtaining clemency is a rare occurrence – combining legal and political processes with little guidance. The journey from petition to pardon involves uncertainty for petitioners and their attorneys alike. This article aims to shed some light on the process.
The Governor’s pardon power is long established. Article 73 of the Amendments to the Massachusetts Constitution invests the Governor with “the power of pardoning offences… by and with the advice of [the Governor’s Council].” As a result, “[t]he power to pardon as vested in the Governor is not absolute but conditional, and that condition is that it shall be exercised in accordance with the advice of the Council.” In re Op. of the Justices, 210 Mass. 609, 611 (1912). The Governor has plenary power to determine candidates for pardon relief, but no form of clemency may issue without “concurrent action by both the Governor and Council.” See id. Since 1991, Massachusetts governors have issued a total of 57 pardons, drawn from an average of roughly 100 petitions per year, and 80 percent of those pardons date to Governors Weld and Cellucci. See Margaret Colgate Love, NACDL Restoration of Rights Resource Project, December 2014; Gavriel B. Wolfe, Note, I Beg Your Pardon: A Call for Renewal of Executive Clemency and Accountability in Massachusetts, 27 B.C. Third World L.J. 417, 429 (2007); Michael Rezendes, Granting Pardons No Priority for Cellucci, Bos. Globe, Nov. 26, 1999 at A1.
Each governor establishes parameters for the pardon process through Executive Clemency Guidelines that express his or her philosophy. Governor Patrick issued three sets of such guidelines during his tenure (2007, and January and July 2014). Both of the sets he issued in 2014 made clemency more attainable for petitioners. According to those guidelines, pardons are “primarily intended to remove barriers that are often associated with a criminal record or sentence, thereby facilitating the reintegration of the petitioner into the community of the law abiding.” Such relief will be considered “for a petitioner who has demonstrated a substantial period of good citizenship subsequent to the criminal offense and either: (1) a compelling need for a pardon; or (2) extraordinary contributions to society that would justify restoration of his/her reputation as a concluding step of rehabilitation.” Governor Baker has formally rescinded these guidelines and has yet to release his own. Three hundred petitions for clemency – whether pardon or commutation – currently are pending before the Advisory Board of Pardons, which has suspended its review of such petitions until Governor Baker issues his guidelines for them to follow. Gintautas Dumcius, Actor Mark Wahlberg’s Pardon Request, Like Others, On Hold, Parole Board Chairwoman Says, State House News Serv., April 8, 2015.
Not many people complete their incarceration and then pursue an education towards a career that will involve work in jails and prisons. Arrested at nineteen for his participation in a string of burglaries on Plum Island and the New Hampshire seacoast, my client served eight months in a New Hampshire jail and two years of concurrent probation in New Hampshire and Massachusetts. He sought the pardon of a single related Massachusetts burglary conviction for which he served that probation. Eight years after his release from jail, my client had turned his life around. He graduated from college with honors, two years of which he spent interning at the local jail and counseling inmates. After graduation, a professor – who was the superintendent of another county jail in New Hampshire – hired him as a corrections officer, exploiting a loophole subsequently closed following news coverage of my client’s successful service. In Massachusetts, my client sought a pardon so he could pursue a career in criminal justice that would have been practically unattainable to him with a criminal record.
There were challenges to his petition, however. Like the petitioner whom Governor Patrick did not recommend to the Governor’s Council, my client was not a Massachusetts resident, living instead with family in New Hampshire as he attended graduate school. Unlike the other successful petitioners, my client was a young man – only in his late twenties – and his age might have worked against him by facilitating a perception that he was more likely to re-offend.
My client’s journey to a pardon began, as each one must, with a pardon petition form, available on the Parole Board’s website, which requests biographical information, discussion of the events related to the conviction for which pardon is sought, and an explanation of why the candidate seeks and merits a pardon. The form remains centrally important through the pardon process, and therefore it is best if counsel assists in filling it out. Relevant CORI information and police reports should be reviewed to create as accurate a petition as possible to avoid problems due to mistaken memory as the petition advances. Any petition also should avoid claiming the petitioner deserves the pardon, no matter the merits of the petition.
Counsel also should advise the petitioner as to the nature of a pardon pursuant to Massachusetts law. While a pardon removes the penal consequences of a conviction, such as statutory bars to employment, the facts of the underlying offense remain and may present similar barriers. Comm’r of Metro Dist. Comm’n v. Dir. of Civil Serv., 348 Mass. 184, 194 (1964). The petitioner must decide whether to seek a full pardon – which restores the ability to apply for a firearms permit – or to proceed with a conditional pardon that does not and therefore may be more palatable to the Governor and/or the Governor’s Council, based on the petitioner’s underlying offense and biography. The guidelines will dictate the required additional steps, if any, that a full pardon application requires; however, the facts of the pardoned offense may still preclude the issuance of a permit. See Firearms Records Bureau v. Simkin, 468 Mass. 168, 180 (2013).
The Advisory Board of Pardons
Candidates submit their petition forms, together with letters of recommendation and other documentation, to the Council, which forwards them to the Parole Board, operating in clemency cases as the Advisory Board of Pardons. See G.L. c. 127, § 154; 120 CMR 100.00, 902.02. The Board initially reviews pardon petitions for “substan[tial] compli[ance] with the criteria set by statute, the Governor’s Pardon Guidelines, and the Advisory Board’s regulations…” 120 CMR 902.04(1). Based on this review, the Board must submit a recommendation to the Governor within ten weeks, unless “adequate consideration of the case requires a hearing on the merits.” See G.L. c. 127, § 154. In such cases, the Board’s Executive Clemency Unit directs an investigation “concerning the petitioner’s criminal, social, and institutional histories, as well as concerning any other factor deemed relevant to the issue of pardon.” Id. Parole officers fact-check the petition, following up on background and CORI information, and conduct an in-person interview of the petitioner. Copies of the petition also go to the Attorney General’s Office, to the district attorney and chief of police for the relevant jurisdiction, and the Secretary of Public Safety, each of whom has six weeks to make a written recommendation to the Board. See id.; 120 CMR 902.05.
If the petitioner merits further consideration, the Board convenes a hearing before at least two of its members, at which time the petitioner has the burden “to show, by clear and convincing evidence, that pardon relief is appropriate.” 120 CMR 902.09(2). Regulations enumerate both a list of potential topics and the procedure for such hearings, and petitioners may offer testimony in support of their application, as may government officials and victims, whether in opposition or support. See G.L. c. 127, § 154; see also 120 CMR 902.09. Considering only “matters which properly bear upon the propriety of the extension of clemency to the petitioner,” the Board makes a recommendation to the Governor no later than six months after the Board’s receipt of the petition. See G.L. c. 127, § 154; 120 CMR 902.10. However, “[a] pardon is not generally available to individuals who do not meet the applicable Governor’s Pardon Guidelines.” 120 CMR 902.01(2).
Back to the Governor’s Office
Once the petition returns to Beacon Hill with the Board’s recommendation, the Governor and the Office of the Governor’s Legal Counsel review the two documents and begin their formal analysis of the candidate. Nothing requires the Governor to follow the Board’s recommendation – Governor Patrick advanced only four of the five candidates recommended for pardon relief – as he or she applies his or her Guidelines.
The Governor’s Council
If the Governor decides to grant a pardon, the venue shifts to the Governor’s Council and therefore the focus shifts to the Council’s constitutional advise and consent function. The Governor’s Guidelines do not bind the Council even as it considers pardon petitions – and Advisory Board recommendations – crafted to comply with them. See Pineo v. Exec. Council, 412 Mass. 31, 36-37 (1992). As a result, the Councilors, in coordination with the Governor’s Office, control the structure, extent and nature of any public hearings the Council holds on a pardon petition. See id. In 2014, the Council held a series of intensive public hearings on each pardon, and during these hearings, Councilors posed questions directly to the petitioners, witnesses, and counsel. Other incarnations of the Council, however, may choose to proceed differently. Finally the Council schedules a vote on whether to ratify the Governor’s decision to grant a pardon. A petitioner must wait a calendar year from any denial of pardon relief to reapply. 120 CMR 902.12.
At the end of this long and winding process, the petitioner hopefully has a well-earned second chance at life under the law. My client remains grateful for the clemency afforded him – and hopeful, both for his own future and for the futures of others who may, eventually, obtain such relief for themselves.
William G. Cosmas, Jr., is an associate at Sally & Fitch LLP, where he works primarily in the areas of business litigation, white-collar criminal defense, government investigations, and complex civil litigation. In 2014, he represented a successful petitioner for clemency in Massachusetts. He received his undergraduate degree from Georgetown University and his law degree from Boston College Law School.