Clarify Clemency Prosecution Rules

Section 2 of the bill is the effective date.

Justification

The Double Jeopardy clause of the Fifth Amendment to the U.S. Constitu- tion protects individuals from being prosecuted twice for the same federal offense, an important principle of criminal justice with roots in common law. In 1969, the U.S. Supreme Court held in Benton v. Mary- land that the Double Jeopardy clause also applies to the states, through incorporation via the Fourteenth Amendment, prohibiting successive pros- ecutions of an individual for the same state offense. Article I, Section 6 of the New York State Constitution, enacted prior to the Benton deci- sion, similarly protects individuals from being prosecuted twice for the same state offense.

The U.S. Supreme Court has repeatedly held that the Double Jeopardy clause does not prohibit an individual from being prosecuted by two sovereign entities for the same criminal conduct (see, e.g. United States v. Lanza (1922)). This doctrine, known as the Dual Sovereignty Doctrine, means there is no constitutional bar under the Double Jeopardy Clause to an individual being prosecuted by the federal government and a state - or by two separate states for offenses arising out of the same conduct.

Notwithstanding the Dual Sovereignty Doctrine, Article 40 of New York's Criminal Procedure Law grants additional statutory protection to indi- viduals, shielding them from prosecution for state offenses if they have already been prosecuted for the same act or criminal transaction by the federal government or another state (CPL § 40.20) unless an exception applies. A prosecution is considered to have occurred when the elements of CPL § 40.30(1) have been met (i.e., when jeopardy attaches). Over the years, the Legislature has created several exceptions to this protection, allowing successive state prosecution in circumstances where statutory jeopardy would otherwise have attached. Some of these exceptions are located in subdivisions two through four of CPL § 40.30, whereas others are stated in paragraphs (a)-(i) of subdivision two of CPL § 40.20. The first set of exceptions generally focuses on the continuing validity of the prior proceeding: whether it has been nulli- fied by court order, lacked jurisdiction, or was for a lesser offense and procured by the defendant to avoid prosecution for a greater offense.

While the President has broad power to issue reprieves, pardons and other forms of clemency for federal offenses pursuant to Article II, Section 2 of the U.S. Constitution, the power does not extend to grant- ing clemency for state offenses. Article IV, Section 4 of the New York Constitution grants that power to the Governor.

The protection from successive federal and state prosecutions found in Article 40 of the Criminal Procedure Law was not intended to foreclose state prosecution in the rare occurrence of the President effectively nullifying federal criminal prosecution by granting executive clemency. It is appropriate, when the State's substantial interest in enforcement of criminal law within its borders is not advanced by a federal prose- cution because of a presidential pardon, that the State not foreclose itself from pursuing important prosecutions prematurely. Indeed, the U.S. Department of Justice's own policy-known as the Petite Policy-for deciding when to bring a federal prosecution after a state prosecution already has occurred focuses in large measure on whether the federal interest in a case has been left unvindicated by the prior state prose- cution.

This legislation would create an additional exception to Article 40's prohibition on successive prosecutions by allowing a state prosecution of an offense for which an individual has received a pardon, reprieve, or other form of clemency by the President under Article II, Section 2 of the U.S. Constitution. This statutory change would preserve the discretion of New York's prosecutors to pursue state prosecution arising out of criminal acts or transactions over which they otherwise have jurisdiction.

To ensure that Article 40's prohibition against successive prosecutions continues to protect those who have repaid a meaningful debt to society for their federal offenses, the exception created by this legislation would not apply to pardons, reprieves, or other forms of clemency grant- ed five years or more after entry of judgment in the federal criminal case. This standard is modeled on a federal regulation governing the U.S. Department of Justice's Office of the Pardon Attorney. That regu- lation states that no petition for pardon shall be filed until five years after a defendant's release from confinement or, in a case where no prison sentence was imposed, until five years after the defendant's conviction. (28 CFR 1.2).

Moreover, this legislation would not extend the statute of limitations for any offense under State law or change the elements of any criminal offense under State law.

Prior legislative history

S.8236- 2018

Fiscal implications

None.

Effective date

This act shall take effect immediately, and shall apply to offenses committed on or after the date this act shall have become a law, and shall also apply to offenses committed before such date, where the proceedings specified in subdivision one of section 40.30 of the crimi- nal procedure law have not occurred as of such date.