As sources all over the country have been reporting, actor Mark Wahlberg is seeking a pardon for a crime committed in his youth. Wahlberg was convicted in (and seeks clemency from) the Commonwealth of Massachusetts, but the coverage piqued our interest, and we thought we'd take a brief look this week at pardons and the whole issue of executive clemency and then see how it works in New York.
Executive clemency has a long history, as noted in a very interesting essay in the London Review of Books. Prior to the American revolution, the British Crown had the power to grant reprieves, commutations and pardons, and after the revolution these powers were appropriated by US jurisdictions (and the federal government). According to Ex Parte Wells, a venerable Supreme Court case discussed in the essay, this was because
[w]ithout such a power of clemency, to be exercised by some department or functionary of a government, it would be most imperfect and deficient in its political morality, and in that attribute of Deity whose judgments are always tempered with mercy.
Here in New York, the 'functionary' who exercises the power of clemency is the governor. Our state constitution, in Article IV, Section 4, says that
[t]he 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.
The governor is required by Executive Law Section 17 to report any grant of clemency to the legislature. But Section 15 of the Executive Law just echoes the language of the constitution, so in practice the governor is restricted and limited only by what he or she "may think proper."
What the executive branch thinks proper is, in turn, set out in a small packet published by the Department of Corrections and Community Supervision. It's called 'Information Concerning Executive Clemency', and it includes the guidelines to be used by officials reviewing applications for a pardon or for commutation of a sentence.
An applicant for a pardon has to show a compelling need for a pardon and, unless the grounds for the request include actual innocence, had better be able to point to "a substantial period of good citizenship." The minimum period of incarceration might be reduced in response to a request for the commutation of an inmate's sentence. The inmate must show very exceptional circumstances, by clear and convincing evidence. The governor will not get involved in any area that is the responsibility of the parole board.
The procedure for requesting clemency seems very simple. Per the guidelines,
[a] formal application for executive clemency is not required; nor is an applicant required to retain an attorney. A written request for executive clemency consideration will suffice to cause a review and compilation of necessary information to determine eligibility, need for further investigation, scope of any investigation and eventual decision.
However, the applicant should not hold his or her breath while awaiting a favorable decision. The New York Times indicates that, as of January of this year, Governor Cuomo had granted a grand total of three pardons. Adding this number to figures provided by the New York State Defenders Association tor the years 1995 to 2010, we see that less than 75 people have obtained clemency in the last generation.