N.H. pardon process a complex, unique path

By: David Martorana

Posted: 4/20/06

© Copyright 2007, Keene Equinox

Since 1990, 224 pardons have been submitted in the state of New Hampshire, but only three have been accepted, and Pam Smart was not one of them.

Smart earned a life sentence without parole for her role in masterminding the murder of her husband Greg Smart. She was convicted of accomplice to first degree murder, conspiracy to commit murder and witness tampering. Smart is seeking a pardon of her sentence, which, generally speaking, is forgiveness of a crime.

Currently, New Hampshire only acknowledges the ability to pardon criminals from their sentences. New Hampshire is not a state that grants commutations.

According to Simon Brown, senior assistant to the attorney general in the New Hampshire Department of Justice executive clemency is rarely granted.

"[Pardons] are an act of executive grace. It is not a common thing to pardon someone. It is such a powerful thing to pardon a crime." According to Brown, one pardon has been granted by the governor and the Executive Council in the last four years.

New Hampshire Attorney General Kelly Ayotte adds why pardons are granted. "It's more of forgiveness rather than forgetting, the pardon doesn't erase the conviction it eases the consequences of the conviction. It's not granted on grounds of innocence but they (Executive Council) feel the person has served their punishment," said Ayotte.

However Senior Assistant Attorney General Jeff Strelzin said that a pardon undermines the jury's decision and gives little peace of mind to the victims of the case.

"It undoes what the jury did. That says the conviction only meant to be short term," says Strelzin.

Pardons are defined under article 52 of the New Hampshire Constitution. The definition of a pardon has not been revised since 1931.

"Somebody would have to propose a way to refine it. It hasn't happened. The Legislative Branch revises statures. There has been no movement with the changes and the power," said Brown.

New Hampshire has a pardon system where an executive council and the governor have dual responsibility to approve pardons.

"The pardon system in New Hampshire is done by the governor and the Executive Council. All have to vote. When they receive a petition, they consider all the information of the case. They seek information from all parties," said defense attorney and former N.H Attoryney General Peter Heed.

Brown describes the process of a pardon petition. A pardon is seen by many people before it reaches the governor and the Executive Council.

"What the office does in terms of the pardon process is the pardon petition is submitted with reasons and letters. We contact the sentencing judge and the attorney. We talk to the Department of Corrections, who puts together a package. We do not take a stance. Then the pardon petition is sent to the governor and the Executive Council for a decision," said Brown.

Smart was denied a pardon by New Hampshire Governor John Lynch over the summer of 2005. Smart continues to be at the mercy of the governor and the Executive Council. They did not believe that her exemplary behavior as a prisoner at the Bedford Hills Correctional Facility for women (Bedford, N.Y.) warranted enough reason to award her a lesser sentence.

"Pardons, pardon hearings should be reserved for exceptional circumstances. They are not a substitute for the court system. Ms. Smart has taken every opportunity to appeal and every time the courts have rejected her arguments. I feel-and it is clear that the Executive Council agreed-that she presented no evidence that warranted us rehearing the very issues that has already been duly considered by the courts," said Lynch.

Lynch explains why he and the Executive Council denied Smart a pardon of sentence in an email response to the Equinox.

"Because of the brutality of her crime, because of her lack of remorse and because she presented no miscarriage of justice, I opposed granting Pamela Smart's request for a pardon hearing. Pamela Smart was fairly convicted by a jury of New Hampshire citizens and she received a fair and just sentence in accordance with New Hampshire's laws," said Lynch.

Smart has had time to consider her actions (or lack thereof) while in prison. When speaking to her during an exclusive interview in September, Smart said that she should have listened to the governor and the Executive Council as to why she was not granted a petition.

"I felt really embarrassed [about the affair] I should have admitted it," said Smart.

Although, Heed would not critique the Smart trial because he is an active defense attorney, he did discuss how sentences were handled.

There have been numerous murder cases in New Hampshire the difference was how it was handled. "Until the 1970s, if you got a life sentence, you were eligible for parole after 18 years. Therefore, there were not a lot of pardons. Now there is a life without parole option. Many have been convicted and have been considered for petition," said Heed.

Heed also added that New Hampshire has always had capital punishment. New Hampshire allows for lethal injections.

The only thing Smart can do until she is eligible to petition for a pardon again is to continue gathering new evidence to support her case. When asked if she plans to petition again at the start of the next gubernatorial term starting in 2007, Smart said, "Probably, I can't do anything else right now."

Strelzin said that a request for a pardon is seen as a last-ditch effort to be forgiven of an existing sentence.

"[Pam Smart has been] making the same case. Everything she's had heard has been rejected. It's (petition request) really the last chance," said Strelzin.

Another way criminals could get lesser sentences is by applying for a commutation. Commutations are not granted in New Hampshire.

Commutations, however, exist in other states. A commutation reduces a sentence's length and/or terms of the sentence.

According to Randolph Hartnett, secretary for the Minnesota Board of Pardons, commutations are defined as "an act by the board of pardons to reduce an individual sentence so it does not affect the underlying conviction. The sentence can be shortened up to the time already served."

However granting commutations are rare. According to Hartnett, commutations have not been awarded to any individual in 20 years.

The Minnesota Board of Pardons can, however, reduce a sentence in other ways. For those who have committed first degree murder or have demonstrated a high degree of sexual violence, the board of pardons can grant indeterminate sentences. For any other crime committed, the board of pardons can grant determinate sentences.

Those with indeterminate sentences have to serve a two-thirds policy. Meaning, for example, if a person has an 18 year sentence, that person, under the two-thirds policy could serve 12 years of the sentence and spend the remaining six years under supervision of the state (similar to parole.) At the end of the sentence the commissioner of corrections releases the person from punishment.

Hartnett says that the Minnesota Board of Pardons can choose to lift or reduce a sentence further as they see fit.

"The board of pardons has the power to set a prisoner free or release him early at any point of time. That has not been used in 20 years."

Prisoners who have determinate sentences serve their sentences and the board of pardons can extend those sentences for bad behavior.

For those who have been released by the commissioner of corrections, there is a third option. Those people can apply for an extraordinary pardon. An extraordinary pardon allows individuals to clear their name after serving a sentence with the board of pardons.

Other states like Michigan have a commutation policy which converts life sentences into time served.

Those who have committed first degree murder or have placed explosives resulting in death, those crimes cannot be paroled. For all other cases, the Michigan Parole Board grants parole depending on the circumstances of the case, according to Russ Marlan, spokesman for the Michigan Department of Corrections.

Marlan gives examples of some punishments that may be given by the Michigan Parole Board to prisoners who were sex offenders or drug users.

"If it was a sex offender, the person would be regulated away from certain places, away from women with children." If it was a person who was a drug user, "no cell phones or pagers, there would be frequent drug testing," said Marlan.

Michigan passed its life without parole stature in 1931 under Public Act 328. Currently, there are 4,500 people serving life sentences, 60 percent of whom are serving sentences of life without parole, according to Marlan.

Washington, D.C. allows for federal commutations.

This means President George W. Bush has the power to shorten an existing sentence. According to www.usdoj.gov, "only federal criminal convictions such as those obtained in the United States district courts may be pardoned by the president. In addition, the president's pardon power extends to the Superior Court in the District of Columbia and military court martial proceedings."

This year, Bush has pardoned 58 sentences and has commuted two others. For all other criminal matters within the District of Columbia, pardons are used. The applications are sent to Mayor Anthony A. Williams.

Regardless if a prisoner is pardoned by the president or the mayor, prisoners need to demonstrate that they can contribute positively to society.

"Persons who want to be pardoned, have to demonstrate rehabilitation. Rehabilitation is helpful to people who want to get on with their lives," said a representative of the office of the Pardon Attorney.

In New Hampshire, Lynch says that prisoners can be rehabilitated in prison, but he does not believe it is possible for Smart.

"I do think it is possible for criminals to be rehabilitated. I do not believe, however, that rehabilitation, or good behavior in prison are sufficient reasons for pardons. Prisoners have an obligation to follow the rules of corrections institutions, and to rehabilitate themselves. Those two acts alone do not absolve them of their crimes and the need to accept punishment for them," said Lynch.

Until Lynch and the Executive Council see that Smart has acknowledged her crime and admitted guilt, then there will be no forgiveness of her sentence.

According to Rev. John Levko, forgiveness in the Roman Catholic Church is defined as "our forgiveness of one another's offenses, our forgiveness of our sins that God will grant us."

Smart realizes that her fate rests in the hands of the governor and the Executive Council. She can only hope to find enough evidence to prove that she is worthy of a pardon and get on with the rest of her life.

The three individuals who were pardoned by the governor and the Executive Council were Leonard C. Spitale who was pardoned by then Gov. Stephen E. Merrill of his 1966 assault and robbery charge. Spitale is a minister of the Evangelistic Association of New Hampshire and needed a pardon to cross the border into Canada where he could be a part of helping out a prison ministry there.

In 1997, June Briand was pardoned of her 1987 second degree murder charge of Briand's husband James (Jimmy) Briand because it was proven that she suffered from battered wife syndrome.

Merrill could not be contacted for comment.

In 2003, Keith Andrew McNeil was pardoned of his two 1999 assault charges by then Gov. Craig Benson so he will be able to serve with the New Hampshire Army National Guard.

According to Benson, "the wife and child wanted the pardon. They [felt they] were part of the problem." Benson put it on the Council agenda. The family agreed to be testified at the hearing. They wanted to fix the situation.

© Copyright 2007 Keene Equinox