While some clemency reforms quietly take shape, advocates look to gov for more
/
Governor Kathy Hochul said clemency reforms were coming. A year later, several have quietly begun to materialize but the most important reform, advocates say, has yet to be implemented. File photo by Mike Groll/Office of Governor Kathy Hochul
By Jacob Kaye
Clemency seems to never come quickly.
Much like the process imprisoned New Yorkers go through to get their applications for clemency granted, a series of clemency reforms promised nearly a year ago by the governor have also proven to be sluggish.
On Christmas Eve of last year, Governor Kathy Hochul announced that she was aiming to reform the state’s clemency process, one which advocates have long said is antiquated and opaque. And while a number of those reforms have begun to take shape in recent months, others, including the one advocates say is the most important, have yet to see the light of day.
Clemency, a power granted only to the governor, can take one of two forms – a pardon or sentence commutation. New Yorkers seeking a pardon have previously been convicted of a crime and are looking for formal forgiveness of the conviction from the state. New Yorkers seeking a sentence commutation are still serving time on a conviction and are seeking release from prison.
It’s estimated that hundreds of New Yorkers currently have clemency applications pending with the governor’s office, some of which have been on the governor’s desk for years.
Both forms of clemency offer New Yorkers a path to clear their names that doesn’t involve the courts, which are often difficult to navigate and time consuming.
But advocates who have been pushing for reforms for years say the clemency process has proven to be no different.
They say the process isn’t transparent – historically, applicants have not been told whether or not their application was received, let alone the reasons for its approval or, more commonly, its rejection. They also say it's built on a warped sense of justice and argue that there’s no good reason as to why applications are only granted during the holiday season and not at other points during the year.
Last year, Hochul said she agreed.
Last December, Hochul granted 10 clemencies – nine were pardons and the other was a sentence commutation. That month, she also announced a number of reforms that she promised to make to the clemency process.
“I am committed to increased transparency and accountability in this process going forward,” she said in a press release announcing the granted clemencies and reforms last year.
However, with no formal deadline attached to the reforms, changes to clemency have been slow.
Included among those reforms was a new advisory board dedicated to reviewing applications and making clemency recommendations to the governor – those duties are currently carried out by a group of executive office staffers. Hochul also said her office would begin informing those with pending applications about the status of their bid for clemency and would also provide detailed guidance on how to submit a clemency application.
While those reforms have, to varying degrees, begun to be put to practice, the most meaningful reform, according to advocates, has yet to be implemented – the granting of clemency on a rolling basis.
Hochul has yet to grant a single clemency application since the 10 she approved last December.
“While we cannot comment on pending clemency applications as the process is confidential, Governor Hochul is committed to improving justice, fairness, and safety in the criminal justice system, and we are reviewing applications in that context,” Avi Small, a spokesperson for the governor, told the Eagle in an emailed statement.
Steve Zeidman, a CUNY School of Law professor who leads the Queens law school’s Criminal Defense Clinic, said that while he appreciates the changes to clemency Hochul has begun to roll out, they fail to hold as much meaning if people aren’t being released from prison.
“She commuted one sentence in 11 months – that's hardly rolling and ongoing,” Zeidman said. “You set up a framework [for applications], there are people working hard and looking at applications and reaching out to people with pending applications, but the one thing that's missing is the most important thing, which is granting clemency.”
Clemency infrastructure
In March, a spokesperson for the governor said the office was on track to share news related to the creation of a Clemency Advisory Panel at some point in the spring. Hochul has yet to formally share news of the panel but one has been created, according to the governor’s office.
The panel first convened in October, and is currently in the process of scheduling regular meetings, according to the governor’s office. It includes members representing law enforcement, the courts and criminal justice and victim services advocates.
The governor’s office has also made two recent hires to fill two new positions – the director and deputy director of Clemency Programs, both of which will be dedicated full-time to assisting the governor’s office clemency program.
Zeidman, who’s clemency program has accounted for the vast majority of granted clemency applications in New York, said working with the governor’s office since the two positions have been filled has been a positive experience.
“The people filling those roles clearly take clemency very seriously,” he said. “It's certainly a statement – and there's a lot of work and a lot of effort being put into clemency review, but in the end, the question becomes, is the governor going to actually sign the applications?”
The governor’s office has also recently launched several web pages that help potential applicants submit their application properly. They include templates for both pardon and sentence commutation applications and describe the criteria for each.
However, Zeidman said that while the templates – much like the other reforms – are a step in the right direction, they have their flaws.
Former Governor Andrew Cuomo – who granted a slew of clemencies just prior to stepping down amid a sexual harassment allegations last year – created a clemency program several years ago aimed at connecting applicants with pro-bono attorneys. The program ultimately failed because there weren’t enough attorneys to service the population of potential applicants, according to Zeidman.
While it isn’t impossible to submit a successful clemency application without the aid of an attorney, it’s far more difficult, Zeidman said, adding that he first learned about the templates when he began receiving an unusual amount of calls and emails from incarcerated people seeking his help in filling out the application.
“It's just so hard to do it by yourself, to gather all the documents, to track down comments from the trial judge, the trial prosecutor, to get a hold of the appellate record to see if there are any issues there, to get all your medical records, to get all the letters of support from inside and outside – it is an enormous task,” he said.
In addition to the templates, the panels and the new hires, the governor’s Executive Clemency Bureau has also begun sending out letters twice a year to people with pending applications. The letters detail the status of the applicant’s request and includes information about how one can submit supplemental information related to their bid for clemency.
“A review of records indicates that your clemency case remains open and under review, and a final determination has not been made,” a template of one of the letters reviewed by the Eagle reads. “Please know that executive clemency is a matter within the sole discretion of the Governor and as such, we are unable to provide an estimated timeframe of when a decision will be reached. However, once a final determination has been made, you will be notified directly.”
‘Hope and expectations’
While some of the reforms have shown promise, advocates have demanded they come at a quicker pace.
Last week, Hochul beat out Republican Congressman Lee Zeldin in the race for the governor’s office. Zeldin, who hails from Long Island, put crime at the center of his campaign.
Advocates have said they believe one of the reasons for the delay in implementing the reforms is because Hochul didn’t want to fuel allegations of being soft on crime by releasing New Yorkers from prison.
“To the extent that crime and safety policies were on the ballot in this recent election, reforms to achieve real safety and chip away at mass incarceration won the day,” Jose Saldana, the director of the Release Aging People in Prison Campaign, said in a statement last week.
“A year ago, Governor Kathy Hochul pledged to grant more clemencies on an ongoing basis to imprisoned New Yorkers,” Saldana added. “Her vow gave hope to tens of thousands of predominantly Black and Latinx families torn apart by the racist policies of mass incarceration that one day their incarcerated loved ones will return home rather than die in prison. Now is the moment to act.”
In July, Hochul called granting clemency a “challenging responsibility,” which would take time.
“It is not an overnight process, but it's one that's going to be thoughtful and one that'll be long-term and enduring,” she said in response to a question about the reforms from the Eagle.
With the holiday season approaching, it’s likely news of granted clemencies will be coming out of the governor’s office soon.
Zeidman said that he’s hopeful the clemency reforms promised will begin to take root in the coming weeks, now that the election is over.
“There are hopes and expectations that any day now we will be hearing of granted clemencies,” Zeidman said. “It would be profoundly disappointing if, once again, nothing was done until Dec. 24.”
