Clemency reforms wait in limbo

Governor Kathy Hochul has yet to implement a number of clemency reforms she announced in December 2021.  Photo by Darren McGee/Office of Governor Kathy Hochul

By Jacob Kaye

Robert Webster was 17-years-old when he was sentenced to 50 years in prison for a pair of arsons in Queens he says he didn’t commit. Having already served over three decades in prison and with two more to go, Webster submitted an application for clemency to the governor’s office last year.

In New York and in many other states, governors typically grant clemencies, whether they are sentence commutations or pardons, around the holidays. For Webster, Christmas came and went without news from Governor Kathy Hochul’s office.

There was, however, good news for Webster. In December 2021, as Hochul announced nine pardons and one commutation, the governor committed to reforming the state’s clemency process. The changes to the power granted only to the governor would increase transparency and potentially cause an increase in the number of incarcerated New Yorkers released from prison after serving decades of their sentences, the governor and advocates said.

“I am committed to increased transparency and accountability in this process going forward,” Hochul said in a statement in December.

Hochul promised to begin granting clemencies on a rolling basis, rather than all at once, at the end of the year. She also committed to dedicating more staff resources to parsing through the hundreds of application’s her office receives each year. She said she’d improve communication between her office and the applicants, who often don’t get word if their clemency application has been received, let alone granted or denied.

Additionally, Hochul said she’d be forming an advisory panel consisting of members pulled from across the criminal justice system, including law enforcement officials, public defenders, judges, clergy members and formerly incarcerated people.

But three months after the announcement, none of the changes to the clemency process outlined by Hochul have been formally shared. No pardons or commutations have been granted since December and no advisory board has been formed, though plans for the board are expected to be shared publicly at some point this spring, according to a Hochul spokesperson.

"Governor Hochul is committed to improving safety, justice and fairness in the criminal justice system and will continue working on much-needed improvements to the clemency process," said Avi Small, a spokesperson for the governor’s office.

Steve Zeidman, a CUNY School of Law professor and the school’s director of the Criminal Defense Clinic, has become very familiar with the state’s clemency process over the past 7 years. Alongside his students, Zeidman has submitted around 75 clemency applications on behalf of incarcerated New Yorkers dating back to 2015. Of the 41 clemencies granted by former Governor Andrew Cuomo during his years in office, 15 were Zeidman’s clients.

Zeidman and his students have submitted a handful of clemency applications this year, and the professor says he’s seen no change in the process.

The professor has been in contact with staffers in the governor’s office, who have called several times for more information about a number of his clients, which is not unusual, he says. The staffers who reach out are the same staffers who have reached out in the past during both the Cuomo and Hochul administration.

“If [Hochul] really was serious about ongoing clemency, there's nothing to stop her from doing it,” he said. “It's not like, ‘Well, I need to start reviewing applications.’ They've been reviewed.”

The governor’s office has received 39 clemency applications so far this year, according to Small. There are likely hundreds of other applications on the docket, carried over from years past. In 2020, the governor’s office saw a spike in applications, with over 2,150 people applying for either a sentence commutation or pardon during the first year of the pandemic, Gothamist reported.

Zeidman said increased communication between the governor’s office and clemency applicants would go a long way toward bringing transparency to the process. Currently, applicants are sporadically told they were denied, and many are never told, according to Zeidman.

“People have submitted applications three, four or five years ago, and they write to me and say, ‘Should I submit another one? Did anybody receive this?’” he said. “It's the not knowing that people find incredibly deflating and agonizing.”

When Hochul announced that her office would do more to share where in the clemency review process individuals are, she also announced that with each round of granted clemencies, she would share the number of applications that had been received and denied.

Zeidman said he thinks the increased transparency could lead to an increase in granted clemencies.

“[During the Cuomo administration,] nobody knew what was received, what they evaluated, who's looking at it – no way to keep track for an individual or someone trying to take a more macro view of what's going on with clemency,” he said. “The more transparent, the more it becomes regularized and I think that would end up ultimately leading to more grants.”

On Monday, the State Senate’s Committee on Crime Victims, Crime and Corrections, passed a bill that would codify many of the clemency promises Hochul made last year.

The bill, if passed, would establish a clemency application process and require the governor’s office to provide written notification that an application has been received, guidelines for supplementing the application and a notification when a decision is made. It additionally would require the governor to submit quarterly reports on clemencies to the legislature.

“The ability to commute or issue a pardon, I think, is one of the greatest powers that we entrust to our executive and that process should be as transparent as possible,” said State Senator Zellnor Myrie, who introduced the bill. “We should have the metrics to determine whether or not that power is being used in an appropriate and consistent way.”

Zeidman said that while he’s hopeful that Hochul will soon implement some of the changes she promised, he disagrees with some reforms and wishes she went further with others.

An advisory board, which Hochul’s spokesperson said is in the works, has been used in other states. According to Zeidman, the panels often take agency away from the governor, who can then blame the panel for any issues arising from clemency.

“They tend to be like dysfunctional parole boards and all they do is provide cover,” he said.

Additionally, Zeidman said he hopes Hochul will begin to change the conversation around clemency. A vast majority of the clemencies granted under both Cuomo and Hochul were pardons, or the erasure of a person’s conviction after they’ve already been released from prison.

But, according to Zeidman, the governor has an “obligation” to commute sentences and should think of it as such, instead of as an act of mercy.

“I think the governor has an obligation and a duty to use her clemency power to rectify,” he said. “We gave so many young people 50 to life, basically, sentencing them to die behind bars, and that grew out of the era of the super predator, the wolf pack and the wildling – all these racist tropes. Rectify, fix it, use your power.”

Webster, who is now 52, is one of Zeidman’s clients. His stiff sentence was handed down after a young police officer was fatally shot in relation to the arsons Webster was convicted of committing. The Queens man was being held at Rikers at the time of the shooting.

During Webster's trial, Queens Supreme Court Justice Thomas A. Demakos said that the crimes “remind me of the drug kingpins in South America who, by their killing of their judges and their prosecutors, have injected so much fear in their community that they are practically immune from prosecution and here in our own community, we've had the killing of a witness to a drug transaction and we've even had the killing of a police officer who was guarding a witness...and we have the same thing here,” according to court documents.

With his clemency application on the governor’s desk, he told the Eagle in January that he has remained hopeful that it will be reviewed and granted, despite the limbo he’s stuck in.

“This is like a marathon – I've been through court denials and all that, so I know what it's like to be rejected,” Webster said. “But I also know what it feels like to be resilient, and to just keep on going.”