President Donald Trump recently issued a number of federal pardons, including to former Illinois Governor Rob Blagojevich, raising questions about clemency power and how it can be used on the federal and state levels. WGBH News' Morning Edition host Joe Mathieu spoke with Northeastern University law professor and WGBH News legal analyst Daniel Medwed about how clemency works in Massachusetts specifically. The transcript below has been edited for clarity.
Joe Mathieu: So, let's start with the theory behind clemency power and who holds it.
Daniel Medwed: Well, the clemency power dates back to "Ye Olde England," and it's currently enshrined in Article II of our federal constitution and in many state constitutions. At the federal level, of course, it's held by the president. At the state level, it's typically held by the governor.
As for the theory, the philosophy is this: the executive branch should have some type of extrajudicial power to exercise mercy to prisoners and other people who maybe didn't get justice from the courts or at least don't think they got justice from the courts. It's really a check on the judiciary. There are two major types of clemency, I should mention. First, there are pardons, where you excuse or forgive somebody for a past indiscretion [and] essentially wipe away or erase their conviction. Second, there are commutations where you commute or shorten a person's sentence. I should also add, because this has come up a lot, President Trump only has the power to grant clemency in federal cases. So, for instance, he couldn't grant clemency to Harvey Weinstein, who was convicted yesterday in New York State Court of New York State Crimes. Just want to clarify that.
Mathieu: Well, then, speaking of states, how does it work here specifically in Massachusetts?
Medwed: Well, Article 73 of our state constitution vests the clemency power in the hands of the governor. But as a practical matter, the Massachusetts Parole Board wields tremendous influence in an advisory capacity. The parole board consists of seven people who serve staggered five year terms and they have the power to investigate clemency petitions, conduct hearings if and when necessary, and ultimately to make recommendations to the governor about who should get clemency.
Mathieu: Are there many standards governing the parole board? Or do they have complete discretion to recommend or reject what they see fit?
Medwed: There are regulations and guidelines that cabin or limit the discretion. So, for instance, in order to be pardoned in Massachusetts, you have to demonstrate "good citizenship" as well as a specific, compelling and verified need for the pardon. In terms of process, what really happens is that the parole board will look at all the evidence in your favor — evidence from your correctional institution, the community, things related to your achievements and accomplishments — but the board will also look at the opposition, if any, to your petition, including giving the original district attorney's office that prosecuted your case an opportunity to be heard.
Mathieu: So, it goes then to Governor [Charlie] Baker. Does he then have freedom to do what he wants?
Medwed: He doesn't; it's also limited. So, yes, the governor can independently evaluate the recommendation — thumbs up or thumbs down about whether to proceed. But under our state constitution, a favorable clemency grant can only be issued upon "the advice and consent of the governor's counsel," which is an eight member elected body of people from different geographic districts in the Commonwealth who serve two-year terms.
So, at bottom, we have this front-end protection, the Massachusetts Parole Board, and this back-end Protection, the governor's counsel, to safeguard against arbitrary, capricious and discriminatory use of clemency by the governor — something we've seen at the federal level, arguably, with President Trump. Now that all sounds good, but the downside, I think, is that clemency grants are very rare. They are seldom seen in the Commonwealth of Massachusetts. Our governors are notoriously stingy. Perhaps the most progressive governor over the last 30 years, Governor Deval Patrick, only issued four pardons and one sentence commutation over eight years in the State House.
Mathieu: And so with those safeguards, there are more strict guidelines in Mass. than many other states, obviously.
Medwed: That's right, to protect against the governor exercising this in a way that might be deemed problematic.
