April’s focus – Criminal Justice Reform

As we wrap up April, we have one last action on Criminal Justice Reform.  New York State has been considering legislation S04572/A06653 – Close the “double jeopardy” loophole and enable prosecution in the event of certain Presidential pardons.


The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution prohibits individuals from being prosecuted twice for the same offense. However, the U.S. Supreme Court has repeatedly held that the Double Jeopardy clause does not prohibit prosecutions for the same criminal act by the federal government and a state, or by two different states, under the Dual Sovereignty Doctrine.  Despite that doctrine, NY’s criminal procedure law prevents prosecution for crimes under New York law once jeopardy has attached in a federal action based on the same act or criminal transaction.

An unintended consequence of that law is that New York cannot prosecute an individual under NY state law once jeopardy has attached in a federal action based on the same criminal act even if the defendant receives a pardon from the President. This is known as the “double jeopardy loophole.”

While the President has broad power to grant pardons for federal crimes, this power does not extend to granting pardons for state crimes. However, until the double jeopardy loophole is closed, New York will not be able to prosecute any individual associated with the President if that individual has been pardoned by the President for a federal crime arising out of the same act or criminal transaction.

Summary of Bill:

The proposed bill would close this loophole, ensuring that New York has the power to advance our State’s substantial interest in enforcement of criminal laws for conduct within its borders in the rare case when the President nullifies the consequences of a federal prosecution by granting a pardon if the individual pardoned: 1) worked in the executive branch, executive staff or a position confirmed by the Senate while the president granting the pardon was president or vice president; 2) worked on the president’s election, transition, or re-election campaign; 3) worked for a for-profit or not-for-profit entity owned or controlled by the president; 4) is related to the president by blood or marriage; or 5) was an accessory to or conspired with any such individual. Furthermore, New York would also be able to prosecute an individual who receives a presidential pardon if such individual possesses information material to an investigation or prosecution of the president, or if the president granting the pardon was aided in avoiding potential prosecution or conviction by granting the pardon or obtained a benefit from such individual.


At this time, there are still questions being raised in the Assembly about the bill – show your support by contacting your Assembly member and ask them to vote for this  bill.  It’s important to move this forward, particularly given the indictments at the federal level of individuals meeting the definition in the bill.

Contact your Assembly member:

Carrie Woerner, District 113: (518) 584-5493
Mary Beth Walsh, District 112: (518) 884-8010