BILL NUMBER: S85

SPONSOR: KAMINSKY
 
TITLE OF BILL:  An act to amend the criminal procedure law, in
relation to the prosecution of certain offenses when a reprieve, pardon
or other form of clemency for such offense has been granted

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 of the bill amends section 40.30 of the criminal procedure law
by adding a new subdivision five establishing additional circumstances
under which a prosecution is considered not to have occurred for the
purposes of criminal procedure law section 40.20's bars on successive
prosecutions.

The new subdivision five states that, despite the occurrence of
proceedings otherwise constituting a prosecution, as described in subdi-
vision one of section 40.30 of the criminal procedure law, a prosecution
is not considered to have occurred if a person has been granted a
reprieve, pardon, or other form of clemency for the offense by the Pres-
ident of the United States, unless the recipient of the reprieve,
pardon, or other form of clemency was convicted and sentenced for the
              

offense and the reprieve, pardon, or other form of clemency was granted
five years or more after entry of judgment.

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.