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September 24, 2018

Unprecedented Pardons


A Legislative column by Assemblyman Will Barclay
Over the last week, my office has received several calls regarding Governor Cuomo’s recent “conditional” pardons of more than 24,000 convicted felons who are currently on parole.

The calls were prompted because it became known that at least 77 sexual predators where among the 24,000 felons who received conditional pardons.

Further, although unrelated to the 24,000 “conditional” pardons, the Governor also fully pardoned seven illegal immigrants who were facing potential deportation because of crimes they had committed while in the United States.

Everyone who reached out to my office was opposed to the pardons, however, there is confusion as to who is being pardoned, why they are being pardoned, and what the pardons mean.

ccordingly, the following is an attempt try to explain the power the governor has to grant pardons and how, in these latest cases, his exercise of this power differs from how pardon power traditionally has been used.

Pursuant to Article IV, §4 of the NYS Constitution, the governor seemingly has the broad power to grant reprieves, commutations, and pardons.

This power, in a more general sense, is known as clemency power and the federal government and all 50 states have some sort of clemency power enshrined in each of their respective constitutions.

A pardon is the broadest power of clemency and it has been defined as the official nullification of punishment or other legal consequence of a crime.

Clemency power in American law has its roots, like much of our legal system, in English law.

It likely came from the idea that because English monarchs had the absolute control over the power of punishment, they also had the power to remit punishment as an act of mercy.

After the American Revolution, the power of clemency, for the most part, was vested in the state’s chief executive officer aka the governor and in the case of the federal government, the president. Clemency was seen as sort of a last chance of mercy particularly when an injustice had occurred in the criminal justice process.

Today, clemency has been granted for several reasons among those being: to correct unduly severe sentences; for mitigating circumstances; for innocence or dubious guilt; to restore civil rights; and for services to the state.

In New York, there is an Executive Clemency Bureau where those seeking a pardon can apply for clemency. The bureau sends the applications to the Governor for his consideration.

For the most part, pardons have been granted on a case-by-case basis when the Governor feels justice will be served by granting clemency.

The recent “conditional” pardons of the 24,000 parolees is a substantial break from tradition in that the pardons are not made on a case-by-case basis but rather granted wholesale in effort to achieve a policy goal that apparently the Governor believes cannot be accomplished legislatively.

Pursuant to state election law, no person convicted of a felony can vote until he or she has served their prison sentence and has been discharged from parole.

The governor believes that parolees should have the right to vote.

However, instead of trying to change the law in a traditional way, i.e., by convincing the public and legislators that this is good public policy and the law should be changed, he, instead, unilaterally granted over 24,000 parolees “conditional” pardons granting them the right to vote.

Perhaps the Governor realized that trying to change the law legislatively would be a tough sell.

He may understand that the public might question why various convicted felon who have been released from prison by a governor-appointed parole board should now also be granted one of the most sacred rights in our country, the right to vote.

One beneficiary of the governor’s pardon is Herman Bell who was granted parole over the objection of many in law enforcement and his victims’ families. Bell was convicted after luring two NYPD officers to a housing project and shooting them from behind after they begged for their lives.

Another beneficiary is Hector Aviles, known as the voodoo rapist, who sexually assaulted three victims, the oldest of whom was 16. Indeed, the public might question why 77 sexual predators deemed too dangerous to be returned to the community and are subject to civil confinement are now being granted the right to vote by the unilateral largesse of the Governor.

The Governor’s power to grant clemency is broad power and not subject to checks from the other branches of government.

For these reasons, it should be used sparely and in the course of furthering justice.

Using it to set policy, as is the case with these pardons, is a terrible precedent that should be strongly pushed back against by the public and by the legislature.

If you have any questions or comments regarding this or any other state issue, please contact me.

My office can be reached by mail at 200 N. Second St., Fulton, NY 13069, by e-mail at [email protected], or by calling (315) 598-5185.

You can also friend me, Assembly Barclay, on Facebook.

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