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.

Background:

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.

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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

April’s focus – Criminal Justice Reform

There are a lot of serious considerations around the question of impeachment, but the basic technicality is the Congress has a constitutional responsibility to investigate and pursue impeachment.  Starting from that obligation, I ask this week that you:

1 – Take the time to read the redacted Mueller report (link here).  I admit, I haven’t started, but I plan to make the time this week.  Why should you read it when it seems like so many journalists and lawyers and politicians already have?   While I trust the opinion of many who have already read the report and spoken out, it’s important to form our own opinions of what is on the table.  This is a serious matter, there is evidence of both Russian interference in our elections, as well as U.S. citizens encouraging and/or aiding those endeavors.  It’s not just about the current president, it’s about finding out what more is happening that could impact future elections as well.

2 – At a MINIMUM: Contact your House representative to ask your representative to support efforts for the Judiciary Committee to have hearings on the contents of the Mueller report, take depositions, and issue subpoenas to determine if the Administration has violated the Foreign Emoluments clause, or if further criminal activity has occurred.  This is not asking for impeachment directly, but it is a completely reasonable and necessary set of steps given the information published in the Mueller report.

3 – If you’ve already read the report, or based on the many evaluations already presented, ask your representative to support impeachment proceedings.

No matter where you stand on the pros/cons of impeachement – we need to continue the conversation about what the behavior of both foreign and domestic actors means to the strength of our democracy.  Should we put aside constitutional obligations because it won’t change votes, because it will get in the way of other priorities in our country?

Contact your representatives:

Paul Tonko: (202) 225-5076
Elise Stefanik: (202) 225-4611

April’s focus – Criminal Justice Reform

While I’m still pleased with the criminal justice reforms passed in the most recent New York State budget, it’s been well over two years that we’ve been waiting for the results of an investigation into racial bias in New York prisons.  The investigation ordered by Governor Cuomo was due to the reports of significantly higher punishments for Black and Latino prisoners.  We need to see the findings to get a better understanding of how people are being mistreated, how much of it is due to racial bias, and what can be done to address this problem.   Read more about this here.

Contact the New York Inspector General’s office at 1-800-367-4448 to demand that this investigation be finished and published.

April’s focus – Criminal Justice Reform

Saratoga Springs added a much-needed Citizens Advisory Board in the past couple months.  Prompted by concerns of inconsistent answers from our city regarding the death of Daryl Mount, Jr., the board is a positive step forward to engage both city government and residents in discussing concerns over policing practices in Saratoga Springs.

That said, the Citizen’s Advisory Board is extremely limited in scope and impact, and we need to continue to press for a committee with more of the oversight suggested here.

In the meantime, all residents are welcome to attend the Citizen’s Advisory Board meetings – and in the first several sessions, attendance has been extremely low.  Do we want to see more transparency and accountability in our local government?  Show up and participate!  The next meeting is scheduled for April 18; if you’re in the city of Saratoga Springs, please make a plan to attend.

If you’re outside of the city of Saratoga Springs, what is the relationship of your police and the community?  What more can be done to ensure that there is strong engagement and dialogue between those who have signed up to protect and serve our communities?

April’s focus – Criminal Justice Reform

We have been seeing much-needed reforms to the New York State criminal justice system in recent years – and the agreed 2020 budget just this past weekend highlighted even further reforms (source):

• Reforming Bail and Pretrial Detention Reform: As part of a groundbreaking plan to modernize New York’s bail system, cash bail will be eliminated for misdemeanors and non-violent felonies, alongside a new requirement that police officers must issue desk appearance tickets to most people charged with misdemeanors and Class E felonies, rather than making a custodial arrest. Together, these reforms will ensure approximately 90 percent of people charged, but not yet convicted of a crime, are not sitting in jail awaiting trial solely because they do not have the economic resources to meet bail.
• Transforming the Discovery Process: In order to overhaul New York’s antiquated discovery process by which prosecutors were able to withhold basic evidence until the day the trial begins, legislation included in the FY 2020 Enacted Budget will require that both prosecutors and defendants share all information in their possession well in advance of trial. Defendants will also be allowed the opportunity to review whatever evidence is in the prosecution’s possession prior to pleading guilty to a crime. In addition, the legislation will ensure that victims and witnesses are protected from intimidation and other forms of coercion by providing prosecutors with the ability to petition a court for a protective order, shielding identifying information when necessary to ensure the safety of witnesses and the sanctity of the judicial process.
• Ensuring the Right to a Speedy Trial: Under New York State law, misdemeanors are required to be resolved within 90 days and felonies within 180 days, however, the average length of pretrial detention is far longer. To address this injustice, the FY 2020 Enacted Budget includes legislation that requires courts to take a proactive role in advising litigants on how time will be charged. When appropriate, courts will also inquire into the government’s readiness to proceed to trial and require that the government file all appropriate paperwork before a statement of readiness is accepted, ensuring that the government is not able to proceed to trial until the defendant has been provided with all of the information in the case against them.

While these are great steps forward, we must continue to pressure our representatives to address further reforms, specifically an end to solitary confinement.

Contact your State Senate and Assembly representatives and ask them to support the following bills and end the inhumane practice of solitary confinement.

Senate Bill S.1623
Assembly Bill A.2500

Assemblywoman Carrie Woerner: (518) 584-5493
State Senator Daphne Jordan: (518) 455-2381

Not your representative?  Find your State Assembly representative here, and State Senate here.