Taking Stock of Clemency in the Empire State: a Century in Review

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State Clemency Project

★ Taking Stock of Clemency in the Empire State: A Century in Review

Clemency in New York has long been declining, while the Part Two of this report accounts for clemency’s decline by state’s prison population has grown dramatically. Between placing it in historical context. Until the 1930s, commutations 1914 and 1924, New York averaged roughly 70 commutations and pardons were the primary means of discretionary release per year, equal to the total number granted between 1990 and in New York. That was no longer true when the Division of 2019.1 In 1928, Governor Al Smith granted 66 commutations Parole was established in 1930; the role of clemency was bound from a total prison population of 7,819.2 Had commutations to change. Following a reduction in annual clemency grants been granted at an equivalent rate in 2019, there would have in the 1930s, the clemency rate (i.e., the number of commuta- been approximately 373;3 in actuality, there were two.4 tions granted per 1,000 people incarcerated) remained steady for four decades, before spiking and dropping off again in As Part One of this report describes, the power to grant the early 1980s. See Figure 2. This second drop-off coincided clemency in New York rests exclusively with the governor.5 with emerging political forces that brought longer sentences Although an Executive Clemency Bureau provides adminis- and more incarceration in New York and across the nation. trative support, New York remains one of the only states with no independent advisory board. This is significant because As Part Three explains, all acts of clemency until the mid-1990s advisory boards serve at least two important functions: to were recorded in the governor’s annual “Public Papers,” a provide political insulation for the governor’s clemency’s set of documents memorializing policies and actions under- decisions, which may be unpopular, and to help the governor taken by the executive branch. These documents create an make better-informed decisions by vetting candidates and opportunity for rigorous historical assessment that does not making substantive recommendations. exist in many other states, where clemency records are often incomplete or nonexistent. Part Three takes up that task by

1 Clemency data for years 1992 through 2018 obtained via examining trends in the frequency of grants, the types of Freedom of Information Law request. sentences commuted, and the rationale commonly cited in 2 Public Papers of Al Smith, 1928 ; Bureau of Justice Statistics, Historical favor of granting clemency. Statistics on Prisoners in State & Federal Institutions, 1925-1986. 3 DOCCS Fact Sheet, Jan. 1, 2020, https://doccs.ny.gov/system/files/documents/2020/01/january-monthly-report.pdf (reporting a prison population of 44,284 on January 1, 2020). 4 Press Release, Governor Cuomo Grants Clemency to 11 Individuals, (Jan. 3, 2020), https://www.governor.ny.gov/news/governor-cuomo- grants-clemency-11-individuals. Of the eleven clemency recipients, nine were pardons and two were commutations. 5 N.Y. Const. art. IV, § 4. The clemency power extends to all cases except treason and impeachment. 2 2 0.1 <0.1 2012 2019 2019 2019 44,284

OH Rate

n 72,899

40 CT Rate

1979 n 40 1979

1.9 1979 MA Rate

Prison Population*

PA Rate PA 1.9

: Modern Clemency Trends : Modern Clemency : Clemency Rate (1940–2019) Rate : Clemency : Commuted Sentences in New York (1914–2019) in New York Sentences : Commuted : Commutations and Prison Population (1926–2019) Population Prison and : Commutations 4 1 2 3 11.8 136 Commutations NY Rate

66 *Population data collected of Justice Statistics the Bureau from and official state sources n n Figure Figure Figure Figure Figure Figure (Commutations per 1,000 Incarcerated) (Commutations per 1,000 (Commutations per 1,000 Incarcerated) (Commutations per 1,000 1968 0.7 1940 14 7,367 1926 35 1914 0.8

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, Madison Gray, New York’s York’s New Madison Gray,

7 See Figure 7. The Public Papers 7. Figure See also Khalil Cumberbatch and See Cuomo Inspired Hope... and then let people let people and then Hope... Cuomo Inspired , Aug. 13, 2019. 13, 2019. , Aug. Cuomo’s clemency imperative: New York should should York New imperative: clemency Cuomo’s , Jan. 29, 2020. 2020. 29, , Jan. n.y times n.y , David Leonhardt, David Figure 6. Descriptions to grants refer often 6. of individual Figure See somebody their jurisdiction in convicted applies for clem supported the district by decreased attorney each decade time/nation/article/0,8599,1888864,00.html. two ounces or more of heroin, cocaine, or marijuana was punishable by punishable by or marijuana was cocaine, ounces of heroin, or more two longest sentences selling the original statute, for drug crimes. Under the announcement, without any increase in the numberthe announcement, without any of to prevent unfair disparity in punishment. Hence, Governor unfair disparity in punishment. Hence, prevent to ties offenses, marijuana changes for the making retro without the criteria for granting clemency have changed over time. changed over for granting clemencythe criteria have the prison community, and maintaining a clean institutional the prison community, that information is available. that information is available. the overwhelming majority of grantees have been individuals the overwhelming majority of granteeshave granted to people offenses. homicide of to granted convicted then, Since commutations granted in New York. in New commutations granted educational and vocational programs, active involvement in involvement educational and vocational programs, active ency. We found that the percentage of grantees who were percentage the grantees that of found were who We ency. convicted under New York’s infamous Rockefeller drug laws. York’s under New convicted active—Governor many Hugh Carey granted commutations to amended the Rockefeller drug laws in 1977—reducing penal in 1977—reducing amended the Rockefeller drug laws also reveal which factors were most associated factors commonly which were also reveal and correctionsare asked for an opinion officials) each time a minimum prison term of 15 years to life. a minimum prison life. of 15 to term years Dominic Dupont, Rockefeller Drug Laws, TIME (Apr. 2, 2009), http://content.time.com/ 2009), 2, TIME (Apr. Rockefeller Drug Laws, ing an expanded partnership with private organizations to organizations to ing an expanded partnership with private as identify and assist clemency promising applicants. Sadly, individuals sentenced under the previous statute, in order order in statute, sentenced previous the under individuals ing unfair sentencing practices. unfair ing legislature state the When in willing hands, clemency can be a useful tool for address record. Examiningrecord. these factors how provides insight into recommendations of prosecutors, (along with judges who Carey used fairness clemency promote to in sentencing by limiting the unintended consequences of sentencing reform. new york daily news daily york new show mercy to far more criminals sentenced to long prison terms criminals sentenced to long prison more to far mercy show from the 1940s through the 1980s, the last decade for which the 1980s, through the 1940s from down State Clemency Project Clemency State Part Four discusses, more than two years have elapsed discusses, sincePart have Four years than two more See 7 6 Enacted in 1973, the Rockefeller drug laws imposed some of nation’s imposed drug laws Rockefeller the some6 Enacted of nation’s in 1973, More recently, in 2017, Governor signaled Cuomo he that 2017, in Morerecently, would take a similarly active role in clemency announc role by active take a similarly would with favorable clemency decisions, participation such as in with favorable We found that most commutations before the 1970s were were most that found before 1970s the commutations We Yet, the history of discretionary release in New York shows how, how, shows the history of discretionary York release in New Yet,

Taking Stock of Clemency in the Empire State: A Century in Review 2 Taking Stock of Clemency in the Empire State: A Century in Review 3

------The 15

16 Second, clemency may 13 Third, one may seek com one may Third, 14 note 10. supra note 9. supra For more information about Governor Cuomo’s about information more Governor Cuomo’s For 12 the report institu must describe the applicant’s 17 Cumberbatch & Dupont, 7. supra note Clemency Guidelines, Dir. No. 6901, 6901, No. Dir. . . . Id Id See See See Id spondence lists); victim and telephone as to a statement applicant An clemency. of propriety the Superintendent to as tional history assignments, and program (including work give rise gross to unfairness,give that commutations in but only this category “will be granted.” rarely grants. tional strides … (b) in self-development and improvement of the applicant.” the rehabilitation ommendations provided to the Superintendent as part to ommendations provided of the quality of participation in assignments, educational and disciplinary and psychiatric psychological background); visitation and correspondence (including com evaluations; clemency see program, of this report. Part Four an applicant has been Pursuant incarcerated. Directive to any time, state that commutation is “extraordinary relief,” relief,” state that commutation is “extraordinary time, any an evidence shows and convincing” if “clear only appropriate categories. three of one within falls application First, clemency addressedidentified needs; treatment commutation and (c) unfairness because of the basic inequities involved.” unfairness because inequities basic the of involved.” judge. In addition, the Bureau obtains Bureau the report a addition, In judge. concerning be granted for an applicant who is suffering from a terminalbe a from granted for an applicant who is suffering performance and behavior from each from institutionperformance in which and behavior list visiting and corre puterized listings of the applicant’s project has yet to produce any increase produce in commutation project to any has yet information-gathering process. mendation from the districtmendation from the sentencing and attorney by the facility recommendation” “definite notification; and a is not entitled view supplementaryrec to volunteer staff or mutation if “further incarceration would constitute gross constitute mutation if “further would incarceration may be granted excep for an applicant who has made “(a) may programs and has rehabilitative responsible use available of consistent with public safetyis in the interest and of justice, illness be or other disability chronic that would “substantially release prison.” by mitigated from Guidelines do not offer exampleswould of circumstances that In each case, the Executive Clemency seeksIn each Bureau case, the Executive a recom 12 13 14 15 16 17 The Guidelines, which the governor may alter or rescind alter at may The Guidelines,the governor which vocational achievements, conductvocational achievements, within the facilities, and 6901,

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- As part 11

9 These threshold 10 12 colum. j. l. & soc. probs j. 12 colum. , a.d. 309, 313, 289 n.y.s. 362, 364 362, n.y.s. 313, 289 309, a.d.

, 248 In many states,legislature has the In many 8 The Pardoning Power:The Pardoning Perspective Historical

Meah Dell Rothman, See People ex rel. Page v. Brophy v. Page See People ex rel. sought and that the applicant will is longer than one year; to field inquiriesby to petitioners and other interested parties. the DOCCS serves the Bureau website, functions: three deter (1) to largely unchanged since the administration of Nelson Rockefeller. unchangedlargely Rockefeller. since the administration of Nelson cannot bejudicial ruling. statute or either by limited the Executive clemency initiative, of Governor’s Cuomo’s eligible for clemency, an applicant serve applicant an leastat one-half of clemency, for eligible eligibility requirements. The Guidelines be that, to require does grant or provide not to recommend which applications cases of impeachment.” established an advisory board recommend applicants to or mine whether an application meets clemency the governor’s eligibility each petition; to relating and (3) materials gather to (2) requirements; an indeterminate sentence (or three-seventhsan indeterminate of a determi any substantive assessment substantive any of the applicants. assist in making clemency decisions, the governor but no such Clemency The Executive advisory board York. exists in New GRECA.pdf. The criteria set forth in the Guidelines have remained remained set The criteria GRECA.pdf. forth in the Guidelines have aside for “humanitarian direction. at the governor’s reasons” after “the Clemency http://www.doccs.ny.gov/directives/ Guidelines”), after pardons after conviction, for all offenses conviction, after pardons except treason and in recent years to identify suitable applicants,suitable identify thethough to years recent in requirements are imposed by the governor, whose discretion imposed are requirements the governor, by nate sentence); is being the sentence that nate for which relief not be year. in the next for parole eligible Clemency Bureau has worked alongside volunteer attorneys alongsideClemency volunteer has worked Bureau Community Supervision, assembles information necessary

See New York’s New York’s 8 N.Y. Const. art. IV, § 4 Const. art. IV, 8 N.Y. (App. Div. 1936). Directive 6901 states that the requirements may set states 6901 may that the requirements Directive 1936). Div. (App. (Apr. 17, 2018), http://www.doccs.ny.gov/clemency.html. According to to According 2018), http://www.doccs.ny.gov/clemency.html. 17, (Apr. for the governor to examine the merits of each to application, butfor the governor

Clemency Clemency Process Part Part One Bureau, sitting within the Department of Corrections and 9 Department of Corrections & Community Supervision, Dir. No. 6901 6901 9 Departmentof Corrections No. & Community Supervision, Dir. & Case Study of New York & Connecticut York & Case of New Study 11 149, 176 (1976). 149, 10 Guidelines for Review of Executive Clemency (herein Applications of Executive Guidelines10 for Review The New York State Constitution State establishes governor the that York New The A document Clemency titled of Executive Guidelines for Review provides several clemency Applications (the “Guidelines”) “shall have the power to grant reprieves, commutations and reprieves, grant to the power have “shall

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osgoode hall l.j. osgoode hall l.j.

Governor Smith’s clemency Governor Smith’s 22

21 Meanwhile, a 1927 New York sentencing York New a 1927 Meanwhile, 23 (Mar. 8, 1921). 8, (Mar. , Dec. 2, 2009. 2, , Dec. 926 (Spring 2017). 926 See The Tradition of Granting Clemency, and Second-Guessing It Clemency, of Granting See The Tradition Smith commuted the sentence of John J. “Bum” Rogers, Rogers, “Bum” J. the sentenceSmith commuted of John stance on crime became he campaigned a liability when for scheme as Baumes known imposed Laws life an automatic this led inevita conviction; sentence for a fourth felony state The following system. parole growing rapidly state’s in New York in New York Clemency’s Clemency’s growing angrygrowing inefficacy about rising crime and the perceived criticism after Rogers returned to prison Rogers to returned after criticism connectionin with politically more risky. grew as granting such relief even ency reached its high water mark, however, the public was public was the ency mark, reached its high water however, and the 1980s do in Just as they would enforcement. of law a string of armed robberies. bly to more individuals needing relief through clemency, clemency, needing through relief individuals more to bly been persistent the last century: remarkably over president in 1928. Increase Penalties for Robbery, Grand Larceny and Burglary, and Burglary, Grand Larceny Increase Penalties for Robbery, 54 Discretionary State, Justice in the Administrative increased scrutiny of clemency in New York. In 1920, Governor In 1920, York. increased of clemency in New scrutiny closely was record scrutinized in local newspapers, and his Governor Herbertment by H. Lehman suggeststhat, at least the dialogue discretionary around releasein some has ways, muted over 500 sentences between 1915 and 1920. As clem 500 sentences and 1920. muted over between 1915 responded increasing penalties by the furor to and sending peoplemore prison. to Clemency has long been a political hot button in New York. Clemency been has long York. a political hot in New button Governors Charles S. Whitman and Alfred E. Smith com Historical DeclineHistorical ny times ny times for assault. immediate and intense The commutation drew 21 Assembly Passes Crime Wave Bills: Measures Drastically Assembly21 Passes Crime Wave York: New in Prohibition-Era and Parole Pardon Strange, 22 Carolyn 23 Part Part Two Distrust was directed not only at clemency, but also but at the directed Distrust at clemency, not was only 907, who in 1917 was sentenced a fourteen-year prison was to term who in 1917 There were also specific commutations that provoked also specific provoked that were commutations There 1990s, New York lawmakers in the early twentieth century in the early twentieth lawmakers York New 1990s, - - - - a grant of clemency a grant of does not automati 18

though to present day the majority of commutations present though to day For those For serving sentences, determinate commuta 20 19

New York State Department State of Corrections and Community York New See Supervision, Profile of Under Custody Population as of JanuarySupervision,Under Custody 1, 2018 Population as of of Profile the year, tion automatically triggerstion automatically release prison. from terminate sentence, terminate ering clemency applications on a continual basis throughout determines whether release based is warranted on the risk of cally terminate the applicant’s custodial Instead, that sentence. the applicant’s terminate cally are announced in December. announcedare in December. announced roughly once per year, usually around Christmas. around usually once perannounced roughly year, person becomes and the BoardParole of eligible for parole, reoffending and the the and reoffending seriousness among offense, the of other (Oct. 2018). factors.

20 Public Papers of Hugh L. Carey, 1976. 20 Public Papers of Hugh L. Carey,

State Clemency Project Clemency State In 1976, Governor introduced Carey Hugh practice a consid of 1976, In For most of New York’s history, acts of clemency were acts clemencyof were history, most York’s For of New For the roughly 40% of incarcerated persons 40% of incarcerated the roughly servingFor an inde 18 § 8002.2. Codes Comp. tit. 9, R. & Regs. N.Y. 19

Taking Stock of Clemency in the Empire State: A Century in Review 4 Taking Stock of Clemency in the Empire State: A Century in Review 5

- - - In 1979, In 1979, In order 31 30 The revised 29

The law was partly modified by the 1977 partly modified was Marijuanaby the The law 28 . Id statute did not apply retroactively or create a right to resen a right to or create retroactively statute did not apply indi commutations to seven granted ultimately Carey statute; that the “the revised law might be appliedthat the “the revised in an equitable law the normal threshold eligibility requirements for clemency the “special review” resulted in commutations for 27 A-1 Moresen the end of his administrationthrough in 1982. be than would and 1982 between commuted 1979 tences were tencing, however, which meant that individuals convicted of convicted meant which individuals that tencing, however, serving different sentencesthe same based crime were vastly exercise his clemency Governorto powers, Carey conducted commuted over the following 36 years combined. 36 years the following commuted over executive discretion to plug the gaps left by the legislature. In plug the gaps discretion the legislature. to left by executive offenses.AIII and A-II for incarcerated Becauseindividuals of drug York’s offendersand 13 New othersprosecuted under offenses. of larger amounts and for the sale of marijuana. Seeing convicted. this as an opportunityon when they were ameliorate their harshness,ameliorate Governor Carey continued use to Governor waived Carey nondiscriminatoryand manner,” and conducted a case-by-case drug sentences of A-I review amountsreducedand marijuana of penalties possessionfor a case-by-case of people review serving time under the 1973 under the supervision A. of Richard the Governor’s Brown, under the revised statute. people convicted under the pre-1979 statute were left serving left were statute pre-1979 the people under convicted Clemency and the and Clemency resentencing was not provided to Class A-I offenders, some Class A-I resentencing not to provided was sentencesminimum 15-year for conduct the reform, that, after mandated life sentences for a broad range of low-level drugmandated life sentences range for a broad of low-level 30 Public Papers of Hugh L. Carey, 1979. 30 Public Papers of Hugh L. Carey, 31 Counsel Court Supreme and a former State Justice. laws. Dozensby Carey commuted were drug offenders more laws. Rockefeller Drug Laws Laws Drug Rockefeller first-time drug offenders; the change allowed for drug offenders; for the changeresentencingfirst-time allowed 28 N.Y. Penal Law § 220.10 (McKinney) (repealed). (McKinney) § 220.10 Penal Law 28 N.Y. (McKinney) § 221.00 Penal Law N.Y. 29 Enacted in 1973, New York’s infamous Rockefeller drug laws drug laws infamous Rockefeller York’s New Enactedin 1973, Act, decriminalizedwhich Reform possession small of was punishable by a minimum term of 3 or 6 years. a minimum term punishable by was viduals who would have beenprosecuted for misdemeanors have who would viduals 1979, legislators modifiedtoas applied the statute sentencing 1979, As the legislature further amended the Rockefeller laws to to As further legislature the amended laws the Rockefeller - -

, New York State Bar State York , New

In 1976, Governor Hugh Carey com In 1976, 24 26 Our Parole System

25 Most significantly, Carey later granted com later Carey Most significantly, 27 successfulfailures, 5 readjustmentthose and only 5 table as they may be, are few in comparisonfew in are be, thewith may they as table themselves general condemn the of soundly principle character which lend themselves readily to sensationalcharacter to themselves which lend readily failures, 100 regret 50 or even exploitation. But 5 or administered parole. are frequently enough to damn the system of parole damn the system of enough to frequently are in the eyes of the public, particularly if they are of a particularly if they are of the public, in the eyes thousands of casesmany handled and should not of Even though under parole there may be cases 100 of may there under parole though Even survivors of a commercial airliner that crashed the islandsurvivors of a commercial into still in its relatively infancy. Such coverage cultivates fear cultivates Such coverage infancy. still in its relatively to the governor. to to individuals incarcerated at Rikers incarcerated Island who helped individuals to rescue the early twentieth century, when discretionary release was century, the early twentieth of the Rockefeller drug laws that had since been revised,of the Rockefeller drug laws a opinion. Yet, more than 80 years later, New York remains remains York New later, years 80 than more Yet, opinion. performs an administrative role but does role performs not administrative an issue recommendations among the minority of states with no independent advisory and distorts clemency decision-making and parole. around use of the clemency power described in further detail below. use of the clemency described power in further detail below. board for clemency. penchant sensationalizing for crime datesleast at back to mutations to 29 individuals incarcerated under provisions under provisions incarcerated individuals 29 mutations to in February of that year. muted the sentences of eight school teachers incarcerated institutions capable of withstanding the vicissitudes of public Governor Lehman’s observations reflect that the media’s observations reflectmedia’s the that Governor Lehman’s for violating a state statute that prohibited public employees for violating a state statute that prohibited striking. from 27 Public Papers of Hugh L. Carey, 1976. 27 Public Papers of Hugh L. Carey, 25 As explained in Section Clemency Bureau 1, the Executive Harriman, 1957. 26 Public Papers of Averell 24 Gov. Herbert H. Lehman, 24 Gov. In 1957, Governor Averell Harriman granted 11 commutations11 granted Harriman Governor Averell In 1957, Lehman’s observations demonstrate why it is vital to establish observations it is vital to demonstrate why Lehman’s years, at times it has proved useful for New York’s governors. York’s useful times at for New years, it has proved Association Bulletin, Dec 1, 1937. Although executive discretion has drawn protest over the the protest over discretion has drawn Although executive - - , 37

Passed dur 36 washington washington ,

n.y. times n.y. 38 , , Dec. 13, at 1991, A38; 13,, Dec. at 1991, n.y. times n.y. , Out of Grief Comes a Legislative Force Lost Crusader Inspires ‘Jenna’s Law’ Lost ‘Jenna’s Crusader Inspires Parole Board Under Scrutiny in Murder Suspect’s Release Suspect’s in Murder Scrutiny Parole Board Under , Jan. 13, 1990, at 30. at 30. 13, 1990, , Jan. , June 15, 1998, at A01. 15,, June 1998, See No More Willie Hortons More See No twelve murders in the Rochester area. Although Shawcross murders in the Rochester area. Although Shawcross twelve committed by formerly incarcerated persons. incarcerated instance, formerly by committed For and discretionarycrime control release had reached a fever on suspicion of murdering six female victims,on suspicion of murdering one of whom capitalization on violent crimes committed by formerly incar crimescapitalization on violent formerly by committed man a persons. beingcerated 1989, in after paroled year A perceived him was of the murders, the decision parole to after crime victimsafter enacted during an 18-month period. as evidence of the Board’s perceived incompetence. In 1992, In 1992, incompetence. perceived as evidence of the Board’s been until his sentence serving in Pennsylvania a life term pitch, Jenna’s Law belonged to a cohort of 50 state laws named belonged a cohort Law to 50 state laws of Jenna’s pitch, May 3, 1998, at 43-44. at 43-44. 1998, 3, May Robert Hanley, Robert Hanley, nursing a parolee in Albany. student by murdered when the emotional surrounding intensity ing an election year, named Arthur Shawcross was arrested connectionin was with named Arthur Shawcross 36 Evelyn Nieves, Nieves, 36 Evelyn 37 Dale Russakoff, 38 however rare, became public obsessions, and the media’s became public obsessions,rare, however and the media’s post times n.y. fixation on them created an atmosphere in which Pataki’s fixation on them created an atmosphere in which Pataki’s 32-year-old New York parolee Nathaniel White was arrested was White parolee Nathaniel York 32-year-old New was just 14 years old. In 1994, Reginald McFadden, who had McFadden, Reginald old. In 1994, just years 14 was arrested New in Governor Mark Singel, was by commuted was was nearing paroled and the end of his sentence was when he was been released the time he committed most by have would The passage of Jenna’s Law was in keeping with the media’s in keeping the media’s with was Law passageThe Jenna’s of Jenna’s Law was named for Jenna Grieshaber, a 22-year-old Grieshaber, named for Jenna was Law Jenna’s At the same time, the media fixated more than ever on crimes the media than ever the same fixated more time, At York in connection Such crimes, and a rape. murders with two York “tough” crime policies easy advance. to were “tough”

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The 1995 The 1995 33

For one, the expansion expansion the one, For 32 , New York Law Journal (Jan. 31, 2006), avail (Jan. Journal Law York , New

35 ‘Dismantling Parole’: Parole Release Rates Plunge Rates Plunge Parole Release Parole’: ‘Dismantling John Caher, Caher, John Public Papers of Hugh L. Carey, 1975-1982. Public Papers of Hugh L. Carey, See tory increased and greatly minimum sentence, the severity tencing.” Specifically, the Sentencing Reform Act of 1995 1995 the ActReform of Sentencing Specifically, tencing.” that few other governors have accomplished. Yet, the spurt accomplished. Yet, have that few other governors tence and being released on parole, individuals would serve would and beingtence individuals released on parole, of sentencesoffenders.” for “persistent felony violent eliminated parole for individuals classified under New York’s York’s New classified for individuals under eliminated parole changes in the 1990s that made parole less available and and less made parole that changes available in the 1990s even though such individuals became though such individuals no lesseven deserving because of political consider Unfortunately, of clemency. of clemency for drug offenders corresponded with fewer offenderscorresponded drug clemency for of fewer with peoplecommutations for homicide crimes, of convicted of commutations between 1976 and 1982 also illustrated the and 1982 of commutations between 1976 determinate sentences a perioddeterminate be by to followed of post- four of these imposed sentences were for first-degree murder. ations, clemency is treated as though it were an exhaustible ations, clemency treated as though it were is in the 1990s penal code as second-time offenders. violent felony people who can receive it. people who can receive able at https://www.law.com/newyorklawjournal/almID/1138628122760/. paroled in New York. paroled in New From 1977 to 1982, Carey commuted 119 more sentences, more but only 119 Carey commuted 1982, to 1977 From increased certain prison name of “truth in sen in the terms resource, even without structural even resource, limitations on the number of modern clemency. of limitations release supervision. As these anticipated, were reforms Sentencing and Parole Reform Reform Parole and Sentencing 33 Correction Law § 803(1)(c), as amended by Laws of 1995, ch. 3, § 27. ch. 3, of 1995, 33 Correction Laws § 803(1)(c), as amended by Law (McKinney) § 70.08 Penal Law 34 N.Y. 35 32 From 1975 to 1976, excluding grants to participants grants to excluding in a school strike, 1976, to 1975 32 From Governor George Pataki spearheaded a series of legislative law also required people servelaw to leastat 85% of the statu leveraged the power and versatility of clemency a degree and versatility of to the power leveraged See followed by a dramatic decline a dramatic by in the numberfollowed of people felony offenders. Instead of felony serving an indeterminate sen State Clemency Project Clemency State By using commutations to correct to By using commutations structural unfairness, Carey Under Pataki’s Tough Policy Tough Pataki’s Under 14 of 20 commutations went to people convicted of first-degree murder. people to of first-degree convicted of 20 commutations went 14 murder. 1998, Jenna’s Law eliminated parole for first-time violent violent for first-time eliminated parole Law Jenna’s 1998,

Taking Stock of Clemency in the Empire State: A Century in Review 6 Taking Stock of Clemency in the Empire State: A Century in Review 7

to 14 35% 27% 38% 2009 2000 1 11% 1980S

to 26 1999 1990 2 13%

3 1970S

to 76 1989 1980 6

to 62 1979 1970 20% 1960S 34 Other

n 0 to 1969 1960 48 32% 1950S

Drugs 39

3 n to 1959 1950 51 : Commutations by Offense Type (1940-2018) Offense by : Commutations : Percentage of Commutation Grants : Percentage 7 5

47% 0 to 1940S Drugs Other Murder Murder

1949 1940 50 n n n n Supported by DAs by Supported Figure Figure Figure Figure 6: Decade Offense, by Figure Commutations - - - -

Figure 6. Governor Hugh Carey, in office Governor Hugh Carey, 6. Figure See

Figure 5. Yet the distributionthe acrosscommutations of cat Yet 5. Figure and Why suitable candidates has likely increased as more people have increased people likely candidates has more as suitable have Since then, most commutations have gone people to convictedSince then, most commutations have Since 1940, people and drug crimes of homicide convicted Since 1940,

to FOIL Requestto (on file with author). Clemency in New York, York, in New Clemency there is no reason why individuals from both from individuals groups is no reason cannotthere why tencing policies,tencing particularly when combined with legislative tations for drug sentences coincided with a decrease in com that clemency can beremedy for draconian an effective sen the Rockefeller drug laws. the 1940s to the 1960s, murder was by far the most by was common murder the 1960s, to the 1940s together accounting for roughly three quarters three together of all grantees. roughly accounting for offenses demonstrates both ofthe limitations and the capacity of drug crimes. egories of crimes has changed dramatically over time. From egories From time. of crimes has changed over dramatically offenseby those commutations. committed received who of sentences which most to are commuted, the extent often a finite, exhaustible resource. Even though the numberresource. exhaustibleof Even a finite, and other publically available sources examine which types to and other available publically been incarcerated, commutation grants have declined. been commutation grants incarcerated, have be considered for clemency simultaneously. Unfortunately, Unfortunately, be considered for clemency simultaneously. prevent sentencing disparitiesprevent that resulted changes from to prosecutors have supported or opposed clemency, and the supported prosecutors or opposed have clemency, grants: ten of the sixteen commutations granted between commutations granted of the sixteen grants: 2016 and 2018 ten Commutations by Type of Offense of Type Commutations by mutations for people of homicide crimes. convicted Of course, reform. Unfortunately, the increase in the number of commu Unfortunately, reform. modern clemency practices. On one hand, Governor Carey’s shows use of clemency 1980s in the early expansive relatively reasons most commonly cited in favor of granting clemency. of granting clemency. reasons most in favor cited commonly 39 Recent statistics Recent 39 reflect balanced distribution a more of commutation went to individuals convicted of murder or attempted murder. Response murder. or attempted of murder convicted individuals to went however, clemency is often administered as though it were clemency administered as though it were is often however, have received about the same number received of commutations, have

from 1975 to 1982, was especially was in using clemency to active 1982, to 1975 from Part Three See The shift in commutations toward people of drug convicted The shift in commutations toward

This Section uses the Governor’s data culled from Public Papers Who Receives Who Receives - Appendix See

45 note 10. supra the Clemency Guidelines, See the Center instead examined press releases, news clippings Some factors, such as the “circumstances of the crime,” were were crime,” the of Somefactors, “circumstances the as such the time of offense, provocation by a victim or third party, by a victim party, or third provocation the time of offense, the top five in at leastat in four the of three periodsexamined; five top the community- (volunteer, thesecommunity involvement were of available rehabilitation programs.” rehabilitation of available mentioned but became once frequently time. less common over including age at bearof the crime thought to on culpability, offenserehabilitation as opposed of the crime. to the nature educational achievement (i.e. participation in educational (i.e. educational achievement and institutional activities),oriented development, vocational and other public statements in order to ascertain to rationale the order in statements other public and address beginning in 1995. programs while incarcerated) was the single most was common while incarcerated) programs incarcerated). Theseincarcerated). existing with the findings align broadly … and responsiblein self-development use and improvement in carrying role out the crime. an individual’s and intoxication, mon over time, while others have become less so. For example, become For less while others so. have time, mon over (disciplinary record while adjustment history overall and Clemency’s Guidelines, which emphasize “exceptional strides Guidelines,Clemency’s which emphasize “exceptional prioritize to stated post-of evidence intent GovernorCuomo’s for commutations during years 1995 or later. or later. 1995 years for commutations during clemency of periods the for 1960-1979, factor in favor cited Because governors have not issuedBecause Public Papers have governors 1994, since within twenty-year intervals, beginning in 1940. beginning intervals, in 1940. within twenty-year 44 The term “circumstances of the crime” here refers to aspects refers to here of the crime” “circumstances The term type this with aligns from explanation of away movement The The Center identified the most mentioned factors commonly 1. The results show that certain factors have become com 1. The results more that certain show factors have also other Three factors among were and 2000-2019. 1980-1999, 44 The practice was abandoned in favor of an annual “state of the state” of the state” of an annual “state 44 abandoned The practice in favor was 45

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42 - the See Until 1995, 1995, Until 43 This political 40 note 10. 112-13 (Harvard University Press 2019). University (Harvard 112-13 supra prisoners of politics: breaking the cycle of politics: the cycle prisoners breaking Almost half of the 109 individuals who received who received Almost individuals half of the 109 41 Rachel Barkow, Barkow, Rachel Public Papers of Nelson Rockefeller, 1970, at 907-908 (describ at 907-908 1970, Public Papers Rockefeller, of Nelson See See support for clemency those applicants, even for whom further the governor to solicit the sentencing to judge from recommendations the governor governor is not legally required to explain clemency is not decisions, to required legally governor this information was included in each annual governor’s this information was the last decade for which such information was collected.the last decade was for which such information the Governor’sthe Public Papers,which listed and each pardon of annual grants supported by a district attorney fell over five of annual grants supported five district a by over fell attorney in the 1980s, decades,consecutive 11% 47% to from in the 1940s commutations between 1940 and 1949 were supported the were by and 1949 commutations between 1940 district in whose attorney prosecuted. county the crime was commutation granted during a calendar year. In fact, sum commutation granted during a calendar year. prosecutor’s recommendation in each so case, it is possible that not all favorable recommendations are reflected are recommendations in the Public Papers. favorable not separately made public. Governors are not required to record the Governors record not to required are not made public. separately ing commutation of David Wright). It remains standard procedure standard for It remains Wright). ing commutation of David and actions undertaken by the executive branch. Although aand actions undertaken the executive by applicant. attorney who initiated the clemencythe who initiated process attorney behalf on of an Clemency Guidelines, became less likely to recommend clemency. The percentage became less recommend clemency. to likely and prosecuting district attorney, though the recommendations are are though the recommendations and prosecuting district attorney, grants. Data was not available for the year 1971. for the year not available grants. Data was it is customary summarize briefly reasons to the for each grant. report all acts of clemency to the legislature each year, includ report acts all each year, legislature the clemency of to offense prison and sentence. eaching individual’s maries the district of a number that it was of grants indicate reality probably explains why prosecutors today rarely express prosecutors rarely why explains today reality probably true. not always This was seemsincarceration unnecessary. Reasons for Granting Clemency for Granting Reasons Prosecutor Recommendations Recommendations Prosecutor

State Clemency Project Clemency State Public Papers, a set of documents memorializing policies It is often difficult to predict to difficult who willIt is often clemency be granted or Prosecutorial support noted in frequently for clemency was In recent decades, candidates have staked campaigns on their decades,In recent candidates have Prosecutors in New York are elected, are in most as they are states. Prosecutors York in New why. The New York State Constitution State directs to the governor York The New why. whatever policieswhatever appear “toughest” on crime. of mass incarceration of mass incarceration As the twentieth century progressed, however, prosecutors centuryAs the twentieth progressed, however, 43 N.Y. Const. Art. IV § 4. 43 N.Y. 42 These mass clemency excluding percentages by calculated were 40 41

Taking Stock of Clemency in the Empire State: A Century in Review 8 Taking Stock of Clemency in the Empire State: A Century in Review 9

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with 52

By working with the with the By working 51 With scores of clemency

55 54 note 49. note 49. supra Lawmakers and leaders across from Lawmakers 53 NACDL/FAMM State Clemency Project, State stateclemency.org. NACDL/FAMM State Clemency Project, State Logan, An introduction Steven from See See https://stateclemency.org/training/. tion of the program by providing technical assistance technical and providing by program the of tion bono the pro training of attorneys.” tion rate between 1940 and 1980. betweention rate 1940 the understanding be that clemency decisions would deter expressed legalthe community support and enthusiasm cations to the Governor’s Counsel’s Office to review,” to Office Governor’sthe cations to Counsel’s 51 Press Release (Oct. 2015), Governor 22, Cuomo Grants Clemency to 2017), 21, 52 Press Release (Aug. 53 54 of .58 at rate granted per commutations were 1980, to 1940 55 From certainly an improvement over the zero in Governor granted over certainly an improvement applicants identify viable and organizations to of volunteer offense committed. clemency ect public-private become for would template a individuals-and-launches-pro-bono-clemency-program. applications still pending, it is unclear what the immediate and “provide a steady supply of high-quality a steady supply and “provide clemency appli prepare thorough applications, the average commutation rate commutation average the applications, thorough prepare partnerships across the country. Four Individuals and Launches and Individuals Bono Pro Four Clemency Program, https:// resources those “identify to deserving of a second chance” rather than the typeof rehabilitation mined evidence of by www.governor.ny.gov/news/governor-cuomo-grants-clemency-four- Cuomo’s first term, the frequency of grants remains low byfirst frequency the term, low remains grants of Cuomo’s historical standards, especially the size to of New in relation future holds for clemency in New York. York. holds for clemencyfuture in New for the project, and the NACDL and FAMM hoped the proj for the project, and FAMM and the NACDL Executive Clemency Bureau, NACDL committed to using its committed to Clemency NACDL Bureau, Executive (i.e. commutations per 1,000 incarcerated persons) incarcerated between commutations per 1,000 (i.e. 2015 and 2018 was roughly one sixth of the average commuta one sixth of the average 2015 roughly and 2018 was 0.095 commutations per 1,000 individuals were granted. were individuals commutations per 1,000 0.095 1,000 persons incarcerated. From 2015 to 2018, approximately approximately persons 2015 2018, to From incarcerated. 1,000 The NACDL for its part “agreed to assist to in the implementa for its part “agreed The NACDL As of March 2020, returns have been underwhelming. have returns As 2020, March of are issuedcommutations 2015 21 the Although 2019 from to York’s prison efforts population. current Notwithstanding York’s

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The project, which 48 The Pardoning Power:The Pardoning . 149, 176 (1976). . 149, By comparison, between 2007 and 2013, 46 Meah Dell Rothman, see

The purported “help[] goal is to of the program incar . 49

Office of the New York State Comptroller, New York State’s York State’s New York State Comptroller, New Office of the See id See Successful Pro Bono Clemency Initiative, https://www.governor.ny.gov/ Successful Bono Pro Clemency Initiative, zations listed in connection with the Governor’s 2015 announcement the-Nation State Partnership with National Organizations to Expand Organizations to Partnershipthe-Nation State with National tional-organizations-expand. those applying for clemency between 1967 and 1973 compared 1973 and those clemency for between 1967 applying granted from a poola from success granted a applicants, to amounting 391 of 50 cerated individuals get accesscerated individuals the resources to they need to of his administration, was expanded a newof his administration, in 2017 through was defense Lawyers (NACDL) along with several local bar asso (NACDL) defense Lawyers ciations and legal aid organizations. creation of a pro bonocreation of a pro clemency out program, which grew Association a partnershipof National the with Criminal of news/governor-cuomo-announces-first-nation-state-partnership-na individuals-and-launches-pro-bono-clemency-program. The organi apply for clemency, make the case andfor their rehabilitation for clemency, apply partnership with the NACDL, Against Mandatory Families Prisoners’ Legal Services of New York and the NACDL. Prisoners’ Legal Services York of New Four Individuals and Launches and Individuals Bono Pro Four Clemency Program, https:// rate of roughly 11%. of roughly rate increased significantly in recent years,increased while grantsremainrecent in significantly were the New York City Bar Association, the New York County Lawyers County Lawyers City Bar Association, York the New York the New were www.governor.ny.gov/news/governor-cuomo-grants-clemency-four- Cuomo announcedCuomo commutations firstthe with along two 5 of 2,059 applicants received clemency—a 0.2% success rate. clemency—a 0.2% applicants received 5 of 2,059 have the opportunityand re-enter to contribute to have society.” historically low. Between 1967 and 1973, 43 commutations were 1973, and Between 1967 low. historically (excluding 1970), 1970), (excluding Project Project Trends and Governor and Governor Trends Cuomo’s Clemency Part Part Four Recent Clemency In October of 2015, Governor Cuomo announced Andrew the Minimums (FAMM), and the Foundation for Criminal Justicefor Foundation the and (FAMM), Minimums Historical Perspective & Case Study of New York & Connecticut Perspective York Historical & Case of New Study with those who applied between 2007 and 2013. (FCJ). 12 colum. j. l. & soc. probs j. 12 colum. The likelihoodThe times50 among successgreater of therefore was The number of applications for clemency in New York has York The number of applications for clemency in New Association, the New York State Bar State Association, Association, the Legal York Aid Society, the New Aging Prison Population, 6 (April 2017). 49 Press Release (Aug. 21, 2017), Governor Cuomo Announces 21, Press First-in- Release (Aug. 49 48 Press Release (Oct. 2015), Governor 22, Cuomo Grants Clemency to 47 46 For data on the number of applications between 1967 and 1973 and 1973 data on the number of applications between 1967 46 For Other Other Fairness

* Community Involvement

of Crime of Crime Circumstances Circumstances Circumstances Circumstances

Vocational Development Record No Prior

Record Institutional Record

Institutional : 1

Educational Assisted Achievement Achievement Law Enforcement Law

Reasons cited for granting clemency granting for cited Reasons Appendix Appendix *The category “other” refers to factors such as religious activity, status as a military veteran, and rehabilitation from substance from status and rehabilitation as a military abuse. *The veteran, category factors “other” activity, to refers such as religious

State Clemency Project Clemency State 1960-1979 1960-1979 1940-1959

Taking Stock of Clemency in the Empire State: A Century in Review 10 Taking Stock of Clemency in the Empire State: A Century in Review 11 Other Other

Record No Prior Vocational Vocational Development

Remorse Community Involvement

Record Institutional Vocational Development

Record Community Involvement Institutional

Educational Achievement Achievement Educational Achievement Achievement

2000-2019 Reasons cited for granting clemency clemency granting for cited Reasons

1980-2000 139 MacDougal Street, Room 307 New York, New York 10012 [email protected] www.prosecutioncenter.org

Acknowledgements This report was drafted by Research Fellow Ben Notterman and edited by the Center’s Executive Director, Courtney M. Oliva. The Center thanks the Vital Projects Fund for its financial support. The report was designed by Michael Bierman. About the Center The Center on the Administration of Criminal Law analyzes important issues of criminal law, with a special focus on prosecutorial power and discretion. It pursues this mission in three main arenas: academia, the courts, and public policy debates.

Through the academic component, the Center researches criminal justice practices at all levels of government, produces scholarship on criminal justice issues, and hosts symposia and conferences to address significant topics in criminal law and procedure. The litigation component uses the Center’s research and experience with criminal justice practices to inform courts in important criminal justice matters, particularly in cases in which exercises of prosecutorial discretion create significant legal issues. The public policy component applies the Center’s criminal justice expertise to improve practices in the criminal justice system and enhance the public dialogue on criminal justice matters.

To contact, contribute to, or read more about the Center, please visit www.prosecutioncenter.org or write to [email protected]

This report has been prepared by a Center affiliated with New York University School of Law, but does not purport to present the school’s institutional views, if any.

March, 2020