Andrew Cuomo to Pardon All Parollees to Restore Their Vote

Unable to get his way with the legislature, New York's governor is taking a provocative step.

NYT (“Cuomo Plans to Restore Voting Rights to Paroled Felons“):

Gov. Andrew M. Cuomo announced on Wednesday that he intends to restore voting rights to felons on parole, a move that would open the ballot box to more than 35,000 people.

The mechanism through which Mr. Cuomo plans to do so is unusual: He would grant pardons to all 35,000 people currently on parole in New York, as well as any new convicted felons who enter the parole system each month.

The move amounts to a legal sidestep of the State Legislature, where the Republican-controlled Senate has opposed many of Mr. Cuomo’s proposed criminal justice reforms. It does not change state law, which currently bars convicted felons from voting unless they are on probation or have completed parole.

Mr. Cuomo made the announcement at the National Action Network’s annual convention in New York City, where he was introduced by the group’s founder, the Rev. Al Sharpton. The governor said he had proposed legislation to allow parolees to vote, but that it had not won the support of the State Senate.

“I’m unwilling to take no for an answer,” Mr. Cuomo said. “I’m going to make it law by executive order,” he said, adding, “With active intervention, we can bend the arc toward justice.”

Alphonso David, the governor’s counsel, said Mr. Cuomo would issue an executive order requiring the commissioner of the state’s Department of Corrections and Community Supervision to submit a list of every felon currently on parole, as well as a list of those newly eligible for parole, beginning May 1. The commissioner would continue to submit an updated list each month, with each parolee “given the consideration of a pardon that will restore voting rights without undue delay,” according to a draft of the executive order.

Anyone on the list would be eligible for a pardon, Mr. David said, so long as law enforcement had not flagged any special concerns.

At first blush, this strikes me as an outrageous abuse of the pardon power. It has been given to chief executives to right particular wrongs, not to enact broad policy preferences—much less those they’ve failed to get through the constitutional process.

As a policy matter, I don’t have a strong view on whether parolees—who by definition have not yet paid their debt to society—ought to have their voting rights restored. But the legislature of New York, a co-equal branch of government, has spoken on this.

That said, this isn’t as unusual as it first appears. First off, this is a partial pardon of a form with which I’m unfamiliar:

The pardon would not expunge a felon’s record nor would it restore other rights stripped from them, such as the right to serve on a jury. Richard Azzopardi, a spokesman for the governor, called the executive order a “narrow use of power.”

I’ve never heard of such a thing but presumably, it’s how the pardon power works in the Empire State. Second, this move is not a total outlier:

Mr. Cuomo’s plan would bring New York in line with 18 other states and Washington, D.C., which allow parolees to vote, according to the governor’s office. Fourteen states automatically restore felons’ rights when they are paroled; two never remove them in the first place; and two — Iowa and Virginia — also use executive orders to issue pardons.

I was unaware that Virginia, where I live, was doing this.

Beyond that, while Cuomo’s move feels to me like an abuse of executive power, presidential scholar Andrew Rudalevige notes that blanket pardons are not unprecedented even at the highest levels:

Most presidential powers come with an asterisk of sorts. Appointees require Senate confirmation, for instance; vetoes can be overridden. The pardon power does not. Justice Stephen Field, writing for the Supreme Court in the 1866 case Ex parte Garland (not Merrick), held that the pardon power was, except as already noted, “unlimited. … It extends to every offence known to the law, and may be exercised at any time after its commission.” Thus pardons can indeed be issued even before someone is formally charged with an offense. And the pardon “cannot be fettered by any legislative restrictions.”

[…]

[A]s Jeffrey Crouch’s 2009 book about the pardon power notes, “mercy” is not the whole story: The other traditional rationale for including the power in the Constitution is as a tool to serve a broader public interest. Hamilton covered this, too, with the example of a “well-timed offer of pardon” to insurgents that “may restore the tranquillity of the commonwealth.” George Washington used the power in this manner when in 1795 he set aside the death sentences of two ringleaders of the Whiskey Rebellion.

In a rather different application, Thomas Jefferson pardoned all those convicted under the Alien and Sedition Acts. Both Abraham Lincoln and Andrew Johnson issued proclamations of amnesty relating to the Civil War. Jimmy Carter granted a blanket pardon to more than 200,000 men charged with evading the Vietnam draft.

And much more recently, in lieu of hoped-for legislation on criminal sentencing reform, Barack Obama used his clemency powers to shorten more than 1,700 prison terms he thought were harshly skewed by mandatory minimum sentences that punished nonviolent crimes.

In a similar vein, Illinois Governor George Ryan famously commuted the sentences of all 167 people on his state’s death row back in 2003 (and pardoned another 4 outright) two days before leaving office under corruption charges that would ultimately land him in prison:

”The facts that I have seen in reviewing each and every one of these cases raised questions not only about the innocence of people on death row, but about the fairness of the death penalty system as a whole,” Governor Ryan said this afternoon. ”Our capital system is haunted by the demon of error: error in determining guilt and error in determining who among the guilty deserves to die.”

Mr. Ryan acted just 48 hours before the end of his term and one day after he took the extraordinary step of pardoning four condemned men outright. Three of those inmates spent their first afternoon of freedom attending the governor’s speech at Northwestern University Law School, whose Center on Wrongful Convictions led the call for blanket clemency.

[…]

Governor Ryan told the sympathetic crowd: ”The Legislature couldn’t reform it, lawmakers won’t repeal it, and I won’t stand for it — I must act. Because our three-year study has found only more questions about the fairness of the sentencing, because of the spectacular failure to reform the system, because we have seen justice delayed for countless death row inmates with potentially meritorious claims, because the Illinois death penalty system is arbitrary and capricious — and therefore immoral.”

The decision brought elation and relief on death rows at Pontiac and Menard correctional centers, and among wives, mothers and children who had spent years fighting fate. But it left prosecutors, politicians and relatives of murder victims seething with anguish and frustration.

Some states have reduced or eliminated the pardon power of their governors for precisely this reason: it places far too much power in the hands of a single individual.

FILED UNDER: Crime, Law and the Courts
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. TM01 says:

    Obstruction of justice? Abuse of executive power? Pen and a phone? Sidestepping the wishes of the people and the legislature? Being a small-handed dictator?

    Setting up an example for Trump to follow?

    Come on guys. Where’s all that talk of impeachment and obstruction?

    A huge blanket pardon like this certainly does stink of a gross abuse of power, legal or not.

    Also…a correction, Mr. Joyner: Lyin’ Ryan was the governor of Illinois.

    4
    7
  2. Dave Schuler says:

    I have no opinion on whether the mass pardon is good, bad, or otherwise.

    It does not seem to conform to the standards the State of New York has established for pardons and is likely to be challenged if only for that reason.

  3. When he was Governor of Virginia, Terry McAuliffe tried to do the same thing. As a policy matter I supported the move, and still think it’s something that ought to be done for at least non-violent felons who have served their sentence and completed parole in the interest of justice.

    The Virginia Supreme Court eventually ruled that he lacked the authority to do it.

  4. Daryl's other brother Darryl says:

    This seems like the BS stuff that Republicanists pull on a regular basis, because they are unable to sell their radical ideology.
    The only good thing here is that it virtually guarantees Cuomo will never get thru the Presidential primaries.

    4
    1
  5. Kit says:

    @TM01: Come on guys. Where’s all that talk of impeachment and obstruction?

    This might have stung a bit more if you had actually waited to read the comments (of which there were none) in your rush to fire off your zinger.

    4
    1
  6. @Daryl’s other brother Darryl:

    Given the fact that measures such as this are very popular among Democratic voters and those inclined to vote Democratic, I don’t see how this hurts Cuomo in a hypothetical Presidential Primary. Even if he loses the legal battle that is likely to come, he’ll go down fighting and have earned brownie points for taking action on an issue that many on the left consider important.

  7. Daryl's other brother Darryl says:

    @Doug Mataconis:

    Given the fact that measures such as this are very popular among Democratic voters and those inclined to vote Democratic

    Which I am…especially in the current atmosphere of rampant Republicanism…but I guess I’m just more moderate.

  8. Kathy says:

    @Daryl’s other brother Darryl:

    This seems like the BS stuff that Republicanists pull on a regular basis, because they are unable to sell their radical ideology.

    That’s true.

    However, does it strike anyone else that Democrats tend to do such things in order to expand rights, rather than, as the GOP does, to restrict them?

    4
    1
  9. James Joyner says:

    @Doug Mataconis: I actually do remember that. I thought the NYT was referring to an ongoing policy.

    @Kathy: Not to be too cynical here but I don’t think Dems have a particularly soft spot for the freedoms of convicted criminals so much as a calculation that this yields more eligible Democratic voters. (Conversely, Republicans oppose it for the same reason as well as on ideological grounds.)

  10. Kathy says:

    @James Joyner:

    I don’t disagree. Pandering is a feature of politics. Nevertheless, Democrats tend to pander in the direction of expanding rights, and Republicans tend more towards restricting them. See DACA, support for marriage equality, and so on.

    If I may return to my favorite parallel, the Lex Agraria in the late Republican period in Rome. Many in the Senate thought it a ploy by Gracchus, Claudius and others to gain a constituency and thus a power base. That might have been so, but the dispossessed farmers would have wound up with lands to farm in regardless of the ultimate goal of the law’s sponsors.

    PS One cannot be too cynical in politics.

  11. Rick Zhang says:

    @Doug Mataconis:

    Careful, your reasonable side is showing through. You need to display more blatant partisan hypocrisy to remain a card carrying member of the GOP.

  12. Rick Zhang says:

    @James Joyner: This kind of policy works well until the electorate shifts under your feet. If Republicans become the party of the white working class and Democrats represent educated suburban globalists, we may see incentives and turnout patterns reverse for the parties.

  13. Tyrell says:

    Any politician who appears at a Rev. Sharpton event is getting desperate.

    1
    1
  14. Eric Florack says:

    Andrew Cuomo’s point-of-view dictates that Justice is anything that keeps Democrats in power.

    Let’s make no mistake about this. A little over half of the Parolees in New York state live in New York City which is the only part of the state that voted for Cuomo, and outside of the 5 boroughs every area of New York State voted against him.

    Do you have a better picture of what’s driving this now?

    This is political calculation on his part pure and simple. The question becomes whether or not to legislature will have the stones to block this move. Given the history of the last 60 some odd years, I rather doubt it

  15. Eric Florack says:

    @Rick Zhang: that’s already happened or he wouldn’t be making this move.