http://www.boston.com/bostonglobe/magazine/articles/2009/10/18/the_long_shadow_of_willie_horton/?page=full

More than two decades ago, a governor showed a prisoner leniency, with horrifying results. Our justice system hasn’t been the same since.

byun_donovan01_mag__1255707962_8096

A case for commutation? Joe Donovan is serving a life sentence for his role in the killing of an MIT student in 1992, when Donovan was 17 years old. Both of his codefendants, including the one who fatally stabbed the student, received lesser sentences and were released years ago. Below, listen to Donovan talk about his case for commutation. (Yoon S. Byun/Globe Staff)

By Michael Blanding October 18, 2009

Joe Donovan is not an innocent man. That much is clear from the events of September 18, 1992, the night he threw the punch that forever changed his life. It was three weeks past his 17th birthday, and Donovan was prowling the streets of East Cambridge with two guys he knew from the neighborhood: 18-year-old Alfredo Velez and a scrawny 15-year-old named Shon McHugh. They were looking to make their way to the Mass. Ave. bridge to cross into Boston and score some beer. Walking along Memorial Drive, Donovan bumped shoulders with a Norwegian MIT student named Yngve Raustein, who was with a fellow student. An argument ensued, and thinking Raustein was making fun of him, Donovan punched him in the face, so hard it dropped Raustein to the ground and broke Donovan’s hand.

Discuss
COMMENTS (30)
Willie Horton. (AP Photo/Lawrence Eagle Tribune) Willie Horton.
  • October 18, 2009 cover
  • october 18 globe magazine cover
Read more stories from this issue.

As Donovan doubled over in pain, Velez confronted Raustein’s friend, demanding his wallet. But McHugh had other plans. As Raustein tried to get up, McHugh unfolded a 7-inch hunting knife and stabbed Raustein, repeatedly and fatally, in the chest. Mere seconds after Donovan’s punch, all three teens fled over the bridge into Boston. It was only then, says Donovan, that he saw the knife and realized that McHugh had stabbed the man. By then it was too late. The three were arrested and tried under the “joint venture theory,” a law holding all accomplices responsible for a murder committed during the course of a felony such as armed robbery. McHugh was tried as a juvenile and served almost 11 years in prison. Velez cut a deal to testify and was out in eight. Alone among the three, Donovan was convicted of first-degree murder and received the mandatory sentence of life without parole.

Seventeen years later, he is still in prison, long after the actual murderer has gone free. At a meeting in the visitors’ lounge of Old Colony Correctional Center in Bridgewater, Donovan is tall and thickset, with an oval face and pale green eyes. He twists his big hands as he tries to explain why he threw that punch. “I don’t even know what the hell I was thinking,” he says, speaking so quietly it’s hard to hear him. “I was just a dumb kid.” On the other hand, he can’t wrap his head around the discrepancy between his sentence and McHugh’s. “He murdered a kid and they think he can be rehabilitated, and I am a year or two older and I didn’t kill anyone, but I can’t be? That makes no sense.”

The judge, at least one juror in the case, and even Raustein’s family now support Donovan’s release. But his chances of seeing daylight are near zero, because his only hope is commutation, a power held by the governor (and influenced by the state’s parole board) to reduce prison sentences. The practice is common in many states, and Donovan, eligible to be considered for the first time, was planning to file his petition this month. In Massachusetts, however, there hasn’t been a single commutation approved by a governor since 1997 — and there were only seven in the previous 10 years (four for murderers). Over the past 22 years, more than 650 petitions have been denied. In that same period, Delaware has approved hundreds, 12 for convicted murderers. Michigan’s Democratic governor has approved 23 in the past five years; in the prior 12 years, her Republican predecessor approved 34. And from 2003 to 2007, Maryland’s Republican governor granted 15 commutations, including five for life sentences for murder.

It’s no secret why Massachusetts has lagged behind: the memory of Willie Horton, the convicted murderer who terrorized a couple, raping the woman, in 1987 after escaping while on a weekend furlough allowed by then governor Michael Dukakis. The act pretty much torpedoed Dukakis’s presidential campaign a year later when ads showing Horton’s picture and images of inmates going through a revolving door hit the airwaves. Even years later, it lays bare the thorny political calculus of letting a felon out of jail. There is almost nothing for a governor to gain and everything for him to lose should the criminal commit another crime. “Ever since what Willie Horton did to Mike Dukakis, governors are going to think not twice but 10 times before they ever commute anyone,” says retired judge Robert Barton, who presided over the Donovan case. Tufts University political science professor Jeffrey Berry agrees. “If I was a governor’s adviser,” he says, “I would recommend he be very cautious.”

So far, Governor Deval Patrick has been exactly that, turning down the one recommendation for commutation he has received, from a 40-year lifer who has received the support of some of Boston’s most prominent civic leaders. He’s watched his parole board deny hearings for dozens more, including a murderer who, it turns out, was abused as a child by notorious Catholic priest the Rev. John Geoghan. These cases, like Joe Donovan’s, are far from simple. But the overwhelming number of rejections continues, even as states across the country increasingly consider early releases and other measures to reduce prison populations. On this issue, there are two competing visions of justice: Is it a system that allows for redemption and reevaluation over time, or is it strictly a system for retribution, where the judge and jury forever have the last word? The numbers in Massachusetts have squarely pointed in only one direction.

Commutation, a power that on the federal level is vested in the president in the Constitution, has been used regularly by states for some 200 years to reward good behavior and right mistakes made in sentencing. (Unlike pardons, which forgive the underlying offense upon release, commutations shorten the sentence but allow the conviction to stand.) Massachusetts approved anywhere between one and 16 commutations every year between 1945 and 1983. An uptick in violence in the 1980s, however, led to a “get tough on crime” movement that resulted in mandatory minimum prison sentences and a national decline in both pardons and commutations.

Then came Willie Horton. Sentenced to life for fatally stabbing a gas station attendant in Lawrence, he was released on a weekend furlough in 1986 and never returned. A year later, he stabbed and bound a man and raped the man’s fiancee in Maryland, where he is now imprisoned. In the 1988 presidential campaign, George H.W. Bush’s team used the incident to relentlessly hammer Dukakis as soft on crime. A few years later, a similar case of a criminal whose sentence was commuted in Pennsylvania and who then committed rape and murder sunk the gubernatorial aspirations of then lieutenant governor Mark Singel.

After that, “more than a few states . . . basically shut down the pardon process, which also includes commutation,” says Margaret Love, a US pardon attorney under the first President Bush and under President Clinton. The risks simply outweighed the benefits. “We all talk about second chances, but we don’t want to give anyone a second chance in this country because it’s too damn risky.” Although there hasn’t been a state-by-state study of commutations, Love has researched the use of pardons, which have been severely curtailed in all but 13 states.

In others, a more flexible sentencing policy or parole system has made lack of commutation less of an issue. Massachusetts, however, has some of the nation’s strictest sentencing laws. Mandatory minimums for drug trafficking range from three to 15 years. Second-degree (unpremeditated) murder means a mandatory minimum of 15 years before parole eligibility; first-degree (premeditated) murder is automatically punished with life without parole. Currently, 900 inmates in the state (17 percent of the total) are serving life without parole. That percentage is exceeded in only three states: Alabama, California, and New York.

As a result, the discretion on what charges to bring and what deals to cut has shifted more power to the hands of prosecutors and away from the bench. “Judges have seen a lot of their ability to make distinctions in circumstances stripped away,” says Gavi Wolfe, staff attorney for the ACLU of Massachusetts, who recently wrote a law-journal paper arguing for the revival of clemency. While commutation should never be routine, says Wolfe, it exists as an important “safety valve” to acknowledge changing circumstances. “In some ways, it is a more powerful concept than pardons,” he says. It’s not wiping away the crime, but “it allows for the possibility of change and growth on the part of either the individual or the criminal justice system.”

That safety valve, however, has all but vanished in Massachusetts, even while other states have been going in the opposite direction to trim costs. States like California, Colorado, Kentucky, Oregon, Michigan, and Texas are either considering proposals to free more inmates or have already taken steps to increase early releases.

When Dukakis first took office, his staff put together a three-tier process for commutations, whereby applicants go first before the Massachusetts Parole Board, a state agency, which issues a recommendation to the governor to be approved or denied. The governor then reviews the cases and decides. (It’s possible, but highly unlikely, for a governor to overrule a negative recommendation. Dukakis says he never did.) Finally, the Governor’s Council, an elected panel that also reviews the governor’s judicial nominees, must sign off. Despite the bureaucracy, Dukakis approved 48 commutations (and more than 500 pardons) during his first term, from 1975 to 1979. He admits to being more cautious during his second stint, 1983 to 1991, but still approved 10 commutations (and nearly 300 pardons).

The number fell, however, with Republican governor William Weld, who approved seven commutations and some 50 pardons during the next six and a half years. The last commutation in the state was under Weld in 1997, when Joseph Salvati was found to be framed for murder by rogue agents of the Boston FBI office; he was let out after nearly 30 years. Since then, Republican governors have proved even more sparing. Paul Cellucci and Jane Swift approved several pardons but no commutations; Mitt Romney boasted of not approving any in either category.

Eric Fehrnstrom, Romney’s former press secretary and current adviser, says Romney didn’t have a blanket policy against clemency. “It was [his] view that it would take an extraordinary set of circumstances for him to set aside a criminal sentence and substitute his judgment for the judgment of a judge or jury,” he says, calling the cases of Horton and freed inmates who go on to commit crimes “cautionary tales that suggest a more conservative approach, which is what we adopted.” He specifically points to the case of Joseph Yandle, whose life sentence for his role in a 1972 murder was commuted by Weld in 1995 but who was later found to have lied about his Vietnam War record and sent back to prison. “Clearly a mistake was made there, and I think it did have a chilling effect on subsequent governors.”

That approach has its share of advocates. Massachusetts-based victims rights group Community VOICES, for example, doesn’t support commutations, except possibly in cases where a victim’s family favors it. “To commute a sentence is just another slap in the face for them,” says the group’s president, Laurie Myers. The fact that a commutation doesn’t forgive the offense doesn’t matter to her. “You can say [prisoners] are not being forgiven, but if they are allowed to leave prison regardless of the sentence, that is a kind of forgiveness.”

When Deval Patrick took office in 2007, prisoner advocates hoped his experiences as a defense attorney and civil rights attorney in Bill Clinton’s Justice Department would lead him to visit the issue with fresh eyes. Indeed, the new guidelines he issued for commutation when he took office spelled out several instances where it would be warranted. Among them: a prisoner who had made “exceptional strides in self-development”; one who had previously suffered abuse at the hands of the victim; and one who was given a sentence deemed unfair in relation to “equally culpable and similarly situated defendants.” More than two years later, however, he’s yet to find anyone worthy of those strictures, including one very high-profile case that crossed his desk.

rnold King was flying high on booze and weed when he shot a young political worker named John Labanara at point-blank range during a botched robbery in downtown Boston in 1971. Despite the brutality of his crime, many say King, sentenced to life without parole, has clearly changed over his nearly 38 years in prison. He completed at least 25 furloughs (the state no longer grants those) and has earned bachelor’s and master’s degrees, written numerous newspaper articles, and counseled youths.

Appearing before the pardon advisory board, which is also the parole board, for the fourth time in October 2007 (it was the sixth time he was applying overall), he made a passionate case for his rehabilitation. He was supported by two Boston city councilors and several state representatives, as well as Harvard Law School professor Charles Ogletree and Boston Foundation chairman the Rev. Ray Hammond.

Lynne Labanara, the sister-in-law of the victim, disagreed. “I don’t feel that Mr. King has changed but is working to change his image to the public,” she said. Nevertheless, the advisory board unanimously recommended that the governor commute his sentence. About a year later, Patrick denied the request, lauding King for helping young people but describing his disciplinary record as “far from exemplary.”

In the hearing, King was criticized for two minor violations of prison rules: sending a birthday card and a letter to the home address of a teacher in a prison program. King’s supporters were flummoxed. “If Arnie King can’t be released, it’s hard to imagine anyone would reasonably meet the guidelines,” Ogletree says. Though disappointed by the decision, Ogletree hopes Patrick will change over time. “At some point you have to take risks,” he says, “to show your independence to be unbought and unbossed.”

Kimberly Haberlin, Patrick’s deputy press secretary, says in a statement that the guidelines the governor has established “are comprehensive and rigorous and ensure that decisions are made based on the facts and merits — not the politics — surrounding each case.”

Despite the focus on the governor’s role in these cases, most petitions never even reach his office; they are denied without a hearing by the parole board, which has for years been dominated by law enforcement and corrections officials. During the 1970s and ’80s, the board was more diverse, containing social workers, psychologists, and ministers, says Patty Garin, a Boston attorney who deals frequently with the board. In her view, these were people who had the ability to accurately predict when offenders had gotten beyond their crimes. “This parole board looks at its job as finding reasons to keep people locked up,” she says. “They rely on behavior that happened 30 years ago, as opposed to what happened in the last 10 years.”

Patrick has done little to change the composition of the seven-seat board; his first appointment was Mark Conrad, a former police officer who served as his driver during his gubernatorial campaign. (Conrad, now chairman of the board, declined to be interviewed.) After outrage from social workers and several state legislators, Patrick’s next appointee was a psychologist, Leticia Munoz. However, Patrick has allowed two members, both former probation officers appointed by Romney, to continue to serve despite the expiration of their terms and has neglected to fill a vacancy on the board for nearly two years. (A second vacancy occurred late last month.) Another Romney appointee, a former deputy county sheriff and probation officer, fills out the current panel.

Meanwhile, in the last five years, the board has denied more than 200 petitions without a single hearing other than those for King. One of those turned down was that of James Costello, now 43, who is serving life without parole for a home-invasion robbery and murder of an elderly neighbor when he was 15. Costello was tried as an adult and found guilty of first-degree murder when his two older accomplices testified against him. Not known at the time, however, was that Costello had been molested for years by John Geoghan, the defrocked priest. Costello’s lawyer, Helen Holcomb, argues that had that information been known at the time, Costello would have been tried as a juvenile and likely be free now. But Costello has been denied even a hearing by the parole board, which noted his strides in self-development are “remarkable” but do not rise to the level of “exceptional.”

Costello is hardly the only inmate in Massachusetts serving life for crimes committed as a juvenile. The state has been more aggressive than its neighbors in sentencing juveniles to life without parole. According to Lia Monahon, a lawyer and a former fellow at the Children’s Law Center in Lynn, there are 57 now in prison in Massachusetts compared with nine in Connecticut, three in New Hampshire, two in Rhode Island, and zero in New York, New Jersey, Maine, and Vermont. In the early 1980s, Massachusetts’s Supreme Judicial Court ruled that life imprisonment was not “cruel or unusual” punishment for juveniles, since commutation was always possible. “I doubt seriously that the court would assert that” at this point, says Monahon. Yet, she says, adolescent psychologists and neuroscientists alike have attested to the capacity that young people have for change — the exact criterion for commutation. They are simply not done developing when these juvenile offenses occur, says Monahon. “You can’t decide when someone is 14 or 15 or 16 or, in Donovan’s case, 17, that they are irredeemable.”

In Donovan’s case, he has hardly been a model prisoner. His record lists 30 disciplinary tickets, including several for fights with inmates and one for possessing a crude weapon. In addition, he has done two stints in solitary for violent behavior. Donovan defends his record by saying it’s impossible to stay out of trouble at MCI-Cedar Junction in Walpole — the state’s maximum security prison, where he was assigned his first 10 years. His first stint in solitary, for two years, was for participating in a vicious, racially motivated brawl in which he says he was forced to defend himself from attack. His second — for four years — was for assaulting a guard, an act for which Donovan was later cleared by a Norfolk County jury, after arguing he acted in self-defense.

On the other hand, Donovan has earned a reputation for defusing tension. One family friend says that when she came to visit him, a corrections officer jokingly referred to him by his prison nickname, “Joe Jesus,” for his penchant for talking friends out of violence. In one incident, he tried to talk down a violent inmate drunk on contraband liquor, holding him against the bars while a guard escaped from the cell, according to reports from two guards.

Whatever his record in prison, it’s the disparity in sentencing for his crime that presents the most compelling case for commutation — even to the victim’s family. In an e-mail to a Donovan supporter, Dan-Jarle Raustein, the victim’s brother, wrote, “I am and have believed from the beginning, that the ‘life without parole’ sentence was way too harsh. I am in favor of a release if [Joe] can show that he is ready to face the community.” After Donovan wrote the family, Yngve Raustein’s mother, Inghild, wrote to that same supporter, saying, “I fully agree . . . he now should be given a new chance.”

Retired judge Robert Barton also says the punishment was excessive. “I haven’t stayed up nights worrying about Joseph Donovan and that trial,” says Barton, a 22-year veteran of murder trials in Superior Court. But, he says, “seeing what has happened over the past 15 years, it seems unfair and inequitable that someone should have to spend his life in jail when you look at what happened to his colleagues.”

Carolyn Butterworth, a Newton resident who served as a juror in the trial, believes the wrong sentence was delivered. For her, the sticking point was the felony murder rule — if the jury found Donovan guilty of armed robbery, they had to convict him of first-degree murder as well. There was some doubt at the trial, however, about how much Donovan actually participated in the robbery, and that doubt has only grown over time.

At the trial, codefendant Alfredo Velez testified that Shon McHugh (who’s currently on trial in Virginia on drug trafficking charges) showed Donovan the knife before the three teens met the MIT students and that afterward Donovan was waving around $30 in cash, the amount held in Raustein’s wallet. The two assertions were enough to establish that Donovan participated in and benefited from a premeditated armed robbery. Velez’s original statement to police, however, contained neither piece of information.

Now working as a residential remodeler in Texas, Velez clearly remembers specific details about the night, but he says he doesn’t recall whether Donovan saw the knife before the robbery or whether he had the cash afterward. “I don’t remember anyone waving money in the air,” he says. “I really don’t.” Despite the questions about the crime, Donovan’s lawyer, Ingrid Martin, is emphatic that the commutation request isn’t a retrial of the case but that the central issue is the severity of the sentence.

When Donovan talks about the crime itself, his soft voice gets even softer. “I was the guy who made the first bad decision,” he says. “Maybe Shon would have killed someone else, maybe he wouldn’t have.” Regardless, “I’ll always feel responsibility for the choice I made.” Realistically, he doesn’t think he has much chance of succeeding in his commutation appeal, but he says that if he ever does get out, he won’t return. “I’ll flip burgers, I’ll sweep streets.”

The decision to release Donovan, or any prisoner, especially one convicted of murder, is a risky one. But at the core of any deliberation is a question much bigger than any single case: Does a society that often celebrates second chances benefit overall from taking that risk?

Ultimately, the answers rest in the lap of the governor. “You are never going to get the politics out of it,” Dukakis says. “There are safeguards out there, but someone has to make the decision, whether you like it or not.

“Governors have this authority,” he says, “and they’ve got to decide . . . where and when it ought to be used.”

Michael Blanding is a frequent contributor to the Globe Magazine. Send comments to magazine@globe.com