N.H. pardon process a complex, unique path

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.