Blog

By Jill K. Sanders, Esq.

Many people have heard of the President of the United States granting clemency. But individual state Governors can grant pardons as well. Here, we discuss the difference between a pardon, commutation, and restoration of rights – all which fall under the umbrella of clemency.

What is Clemency?

Clemency is the power of the Governor to pardon a person who has been convicted of a state crime. This is the legal equivalent of vacating a conviction.

It also can be commuting a sentence. This means that term of incarceration will be less than what was initially imposed.

Another type is restoration of rights. In May of 2018, for example, Governor Cuomo restored the right to vote to more than 24,000 people on community supervision. These are often called conditional pardons. There are other civil disabilities that can accompany a conviction which can be restored through clemency.

Note that only those convicted of a state crime in New York can receive a pardon from the Governor. Those with federal convictions need to apply for a pardon from the President of the United States.

The Types of Cases Considered

New York’s Governor considers clemency applications to:

• Set aside a conviction when overwhelming evidence and convincing proof of innocence becomes available;
• Relieve a disability that is imposed because of a conviction; or
• Prevent deportation from or permit re-entry into the United States.

There are also special pardons for those who were convicted of non-violent crimes when they were 16 and 17. There are several requirements for this type of pardon:

• At least 10 years have passed since you were convicted or released from incarceration;
• There were no subsequent convictions;
• The crime was a non-violent offense;
• The crime was not a sex offense;
• You are a current New York resident;
• Your taxes are paid; and
• You are a productive member of your community.

How to Apply for Clemency

In New York, an application is first reviewed by the Executive Clemency Bureau of the Department of Corrections and Community Supervision (DOCCS). Review will include compiling past criminal records, including prison, probation, and parole records. Completed applications are then sent to the Governor for review.

In general, to qualify, applicants must show they have been upstanding members of society and are current residents of New York. You can include a proof of your accomplishments, reference letters from those who know you, and other things which demonstrate your good character.

For a pardon, the person must wait a minimum of five years since they were convicted. If the applicant was a minor at the time of conviction, then he/she must wait at least 10 years before applying. For a sentence commutation, he/she must serve at least one year incarcerated and can’t be eligible for parole within one year of applying for clemency.

More information, including application forms, is available online at https://www.ny.gov/services/apply-clemency.

References:

• New York State, Apply for Clemency. Available at: https://www.ny.gov/services/apply-clemency (last accessed Aug. 17, 2021).
• United States Department of Justice, Clemency Forms & Instructions. Available at: https://www.justice.gov/pardon/clemency-forms-instructions (last accessed Aug. 17, 2021).