December 05, 2020

The authority of a governor of New York State to grant individuals reprieves, commutations and pardons

On October 16, 2018, New York Governor Andrew M. Cuomo signed into law as Chapter 374 of the Laws of 2018 a bill permitting the "people" of New York State to pursue state charges against individuals who were "accused of federal crimes and receive a presidential pardon."*

With respect New York State governors issuing a "state pardon or reprieve," Article IV, §4 of New York State's Constitution provides that the "governor shall have the power to grant reprieves, commutations and pardons after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations, as he or she may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons."

Clearly this power to pardon for offenses other than for treason and in cases of impeachment is not available to a sitting governor to grant in anticipation of an individual's being convicted of an offense at some date in the future in contrast to being available to a sitting governor after the individual has been convicted of the offense alleged or in the event the individual entered a plea of guilty to the offense alleged in open court.**

May a governor pardon himself or herself for an offense? 

If a governor were to attempt to do so it appears that in so doing he or she has created a "Catch 22" type situation -- a dilemma from which there is no escape because of mutually conflicting or dependent conditions -- made famous in author Joseph Heller's novel Catch-22.

Assuming, but not conceding, that a governor of New York State could pardon or reprieve himself or herself for an alleged offense, he or she could only do so after having been tried and convicted of the offense or had entered a plea of guilty of the offense before or in the course of a trial in the normal course of providing him or her with due process of law.

However, §30.1(e) of New York State's Public Officers Law provides, in pertinent part, that "Every office shall be vacant upon the incumbent's conviction of a felony, or a crime involving a violation of his oath of office."

As any person eligible for an Article IV, §4 pardon or reprieve is so eligible only by reason of his or her conviction or admission of being guilty of a qualifying offense, an effort by a governor to pardon or grant a reprieve to anyone, including himself or herself, following his or her conviction, or his or her entry of a plea of guilty of the alleged offense, may find himself or herself trapped in a "Catch 22" situation in the event his or her conviction or guilty plea of the offense charged results in his or her automatic "removal from office" pursuant to Public Officers Law §30.1(e) and thus his or her forfeiting any and all authority to grant a pardon or reprieve.

On the other hand, should an individual be found not guilty of the alleged offense, there appears to be no basis, or indeed reason, for a governor to issue a pardon or reprieve under the circumstances as the individual is not exposure to an action "by the people" for the same offense in the future as New York State's Criminal Procedure Law §40.20.1 provides that "A person may not be twice prosecuted for the same offense."

In any event, a pardon or reprieve by a governor is in the nature of "neutralizing a conviction for an offense" by the then sitting governor granted to an individual earlier found guilty of committing an offense in contrast to a sitting governor's effort to neutralize the conviction of an individual found guilty of an offense after such governor has left office.

* New York State's Penal Law was amended by adding a new section, §40.51, authorizing the prosecution of individuals "by the people" of New York State in the event an individual was "granted a reprieve, pardon or other form clemency" by the President of the United States for an offense pursuant to the provisions of §2 of Article II of the United States Constitution "when certain conditions are met" by deeming any federal prosecution of the individual not to have occurred.

** See Depamphilis v Kelly, 107 AD3d 611. A plea of guilty to the offense entered in open court is deemed to be a conviction of the offense.

 

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that neither the publisher nor members of the staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.