Commutations: Justice and Mercy


Gov. William Donald Schaefer's grant of commutations to eight women who had been chronically abused by partners they had killed or injured was a fully justifiable and informed decision. The decision also was well within Maryland's commutation tradition.

The universal assumptions underlying the executive commutation power are that human judgment is fallible and that mercy is an inseparable component of justice. For many years, these important values have been reflected in the commutation decisions of Maryland's governors.

Around the turn of the century, Maryland governors began using the commutation power to mitigate the harshness of sentences. From 1911 through 1913, 156 prisoners were released from prison as a result of commutations. Every elected governor in modern times -- Lane, McKeldin, Tawes, Agnew, Mandel, Hughes and Schaefer -- has exercised this historic power.

Although the written justifications for executive commutations in Maryland have been sketchy, several important themes emerge from available commutation decisions, particularly decisions commuting death sentences to life imprisonment. Maryland's governors have commuted sentences of prisoners whose guilt they doubted, but they have not required proof of innocence as a condition of commutation. Instead, commutations have been granted to admittedly guilty prisoners who had limited intellectual capacity, who were emotionally disturbed or who had grown up or lived in particularly traumatic family environments.

In the cases of the eight women whose sentences Governor Schaefer commuted, the histories of domestic violence were directly related to the crimes. These compelling histories were provided to Governor Schaefer, not only in the comprehensive 250-page report prepared by the Public Justice Center's Domestic Violence Task Force and the House of Ruth, but also in the individual prisoner files that are kept by the state prison system. These prisoner files included presentence investigation reports, which contained the prosecutors' views about the facts of the cases and the culpability of the women.

In making his decision, Governor Schaefer had as much information before him as is ever available -- or need be available -- to determine whether the mercy that is the hallmark of executive commutation justified sentence reductions.

The Domestic Violence Task Force interviewed more than 30 women prisoners who have been victims of domestic violence. It recommended that the governor commute the sentences of 12 who had been severely and repeated abused before they responded with force. After an independent review by his staff, the governor rejected four and approved eight.

Governor Schaefer did not find that the eight women were

innocent, nor did he release them from all restraint. Rather, he released them from prison but placed them on parole for the remainder of their prison terms. If they violate the conditions of commutation, they can be returned to prison.

Public controversy about commutation decisions is not new.

Those who have long memories will recall Governor McKeldin's laconic reply to critics of his decision to commute three death sentences to life: "Some people are just freer with the rope than others."

Former Ohio Governor Richard Celeste's decision in 1990 to commute the sentences of 27 women also was greeted with both criticism and acclaim. Today's public debate in Maryland carries on this tradition.

The Sun's coverage of Governor Schaefer's laudable commutation decisions focused on three of the eight women, particularly Bernadette Barnes, who was convicted of hiring a man to kill her husband. Mrs. Barnes, who had worked for 17 years as a state employee, had never been convicted of a crime before her homicide conviction.

It is impossible to understand from The Sun's coverage why Governor Schaefer commuted the sentence of a contract killer, an important aspect of the case that was discussed in the 250-page report that was given to the Governor. Neither The Sun's sterile notation that "No question exists that Bernadette Barnes suffered prior abuse," nor its cryptic suggestion that there was even more "documentary evidence of possible abuse" than was provided to the governor, begins to capture the 17-year hell in which this 90-pound, middle-aged woman lived.

Her mother, her two daughters and Mrs. Barnes described in detail how her husband shot her in the head 10 years before the homicide, temporarily blinding her and causing her permanent partial paralysis; and, thereafter, how he physically and sexually abused her; beat her with a belt; once locked her in her basement for days; and threatened to bomb the home of a family member if she sought refuge there.

The husband served three months in jail for shooting the bullet that remains in Mrs. Barnes' head today as a constant reminder of her former life.

The abuse of Mrs. Barnes, severe as it was, did not justify her crime. It did not provide a complete defense to a homicide charge. Nor should it have. However, the history of abuse in Mrs. Barnes' case properly was considered by the governor in determining the degree of her culpability and mitigating her punishment.

The abuse suffered by the other two women profiled in The Sun articles also was severe and chronic.

Like Mrs. Barnes, three abused women were granted clemency, commutation or a conditional pardon in the last three years by governors in Washington, Illinois and New Hampshire (by then-Gov. John Sununu, no less), even though they were convicted of crimes that involved murders for hire. These figures do not include the 27 abused women whose sentences were commuted in 1990 by Governor Celeste.

When Governor Schaefer made his commutation decision, he had before him histories of abuse that were not admissible when the eight women were found guilty of their crimes. Why? Maryland law bases self-defense on the historically male notion that homicides resulting from face-to-face combat are legally defensible, but few others are. The law gives little protection to a woman who is the victim of escalating violence which she cannot directly resist, because she would be killed instantly if she did so. Unless a woman is being severely abused at the moment of resistance, often the history of abuse, no matter how severe, will not be admissible at trial.

For those who, despite the compelling merits of the eight cases and the long tradition of gubernatorial commutations, think Governor Schaefer overreached, there is a ready answer. Now pending before the Maryland General Assembly are bills that would allow (but not require) courts to admit at trial evidence that the defendant was physically and psychologically abused by the victim of the alleged crime. Judges would decide preliminarily whether the abuse was serious enough and sufficiently related to the crime to justify its admission. If admissible, judges and juries, not governors, would decide whether the abuse mitigated guilt.

Until such legislation is enacted, governors will be called upon to exercise the commutation power on behalf of abused women who are not allowed to explain why they have killed abusive mates. Until then, decisions like Governor Schaefer's are fully justifiable.

Michael Millemann is president of Public Justice Center, Inc.

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