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Cuomo the Merciless

New York's Democratic governor has granted only a trickle of commutations, fewer than many of his Democratic and Republican predecessors.

Chris Hondros / Getty

Cuomo the Merciless

New York's Democratic governor has granted only a trickle of commutations, fewer than many of his Democratic and Republican predecessors.

In 2015, New York’s governor, Andrew Cuomo, announced the creation of an Executive Clemency Bureau to identify people in the state’s prison system who might be worthy of commutation. The announcement sparked hope among the system’s approximately 50,000 prisoners, their families, and advocates that they might soon rejoin their families.

Clemencies can take two forms. There’s a commutation, or the shortening of a person’s prison sentence, which allows an incarcerated person an earlier parole hearing or an immediate release. The other form is a pardon, which expunges a person’s criminal conviction altogether (which governors have used to prevent people from being deported). Governors have the power to issue an unlimited number of clemencies.

What does being worthy of commutation entail? According to Cuomo’s criteria, an applicant must prove that he or she has  “has made exceptional strides in self-development and improvement; has made responsible use of available rehabilitative programs; has addressed identified treatment needs; and the commutation is in the interest of justice, consistent with public safety and the rehabilitation of the applicant.”

Cuomo’s criteria also requires that a person have been sentenced to at least one year in prison, that they had already served at least half of that sentence, and are not scheduled to appear before the parole board within the next year.

Cuomo encouraged attorneys and law firms to donate pro bono hours to help incarcerated people prepare their petitions. Many heeded the call and devoted significant time and resources to helping dozens of people imprisoned across the state.

But these efforts have not proved fruitful.

In December 2016, Cuomo had granted only seven commutations. One was to Judith Clark, a former Weather Underground member initially sentenced to 75 years to life; her commutation allowed her to appear before the parole board immediately instead of waiting until 2056. (Clark was denied parole and remains in prison.) Another commutation granted an immediate release to Valerie Seeley, a domestic violence survivor sentenced to 19 years to life for the fatal stabbing of her abusive boyfriend in 1998, an act that she has always maintained was in self-defense.

About one year later, Cuomo’s office announced more commutations—this time, it was only to two men. He has not granted any clemencies since then. His office did not respond to The Appeal’s queries about the possibility of future commutations.

Cuomo has, however, issued a greater number of pardons to those who have already served their time. He has granted 140 pardons to adults who were convicted of nonviolent felonies as 16- and 17-year-olds, thus expunging their felony records. He also granted pardons to 18 others who might face deportation because of a criminal record.

Kathrina Szymborski oversees the pro-bono commutation efforts at the law firm Patterson Belknap Webb & Tyler, which has donated the equivalent of $1.5 million in pro-bono hours to clemency applicants. She and her colleagues rejoiced when one client, 42-year-old Michael Flournoy, who had served 21 years of a 25-to-50-year sentence, received clemency in December 2017. But, she told The Appeal, “we have many deserving clients whose applications are still pending.  Our clients are dedicated and hard-working, so they continue to gather letters of support, receive stellar job reviews, and complete rehab and educational programs.  They’re trying to be part of society and enrich their communities as best they can from where they are, some by mentoring other prisoners, others by writing articles for publication in various newspapers and magazines. We feel that they’ve served their time and their further incarceration serves no purpose, so we find the lack of action on these applications disappointing.”

While Szymborski notes that her clients remain hopeful, Cuomo’s lack of action has disillusioned others. Steve Zeidman is the director of the Criminal Defense Clinic at the CUNY School of Law as well as Clark’s attorney. While the clinic is working with about 25 people on clemency applications, he has received hundreds of requests for help. “For so many people, clemency offered the hope that after decades of punishment their quantifiable and undeniable evidence of personal growth and transformation would be recognized,” he told The Appeal, “that they would be given the chance to live outside the prison walls. As I have now been told on several occasions by those who have had their hopes of clemency reduced to pipe dreams, false hope is cruel; it is worse than no hope.”

Some advocates charge that Cuomo’s criteria are too stringent. “Cuomo, under the state constitution, has complete discretion and ultimate power to commute people’s sentences at any time and for any reason,” points out Mariame Kaba, a founding member of Survived and Punished, a network that works with criminalized and imprisoned survivors of gender-based violence. “We are perplexed by the rules he set for himself. They’re incredibly narrow and leave out an incredible number of people.”

Survived & Punished protest outside a Cuomo fundraiser.
Survived & Punished

Moreover, outreach has been haphazard. While word of Cuomo’s commutations initiative spread quickly in some men’s prisons, many incarcerated in women’s prisons were unaware of it. “We’re in direct contact with 30 people inside women’s prisons,” stated Kaba, who noted that three-quarters of those women had not heard of the governor’s clemency initiative. Seeley, the only adult domestic violence survivor among the governor’s 12 commutations, told The Appeal that, between 2015 and her release in January 2017, she had seen no posters or announcements about the clemency project. More recently, 61-year-old Melisa Schonfield, who is serving a five-year sentence after attempting to hire an undercover officer to shoot her daughter’s abusive ex-husband, only learned about the governor’s project—and the possibility of pro-bono assistance—after her family paid a private attorney to help with her clemency petition. Schonfield, whose health has been declining while in prison, told her daughter that there were no announcements about the governor’s project in the prison’s common areas or even in the law library, where she recently spent many hours working on her application.

Cuomo’s record on commutations contrasts poorly with that of another governor of a deep blue state. In 2017 and 2018 alone, California’s departing governor, Jerry Brown, issued 49 commutations, enabling more than a dozen people sentenced to life without parole to become eligible for parole and—for at least two women who survived domestic violence —walk out of prison after decades behind bars. Even John Bel Edwards, Democratic governor of the very red state of Louisiana, has issued 22 commutations during his first year in office, 10 more than Cuomo has issued during his entire 7½ years as governor.  

Perhaps most notably, the number of Cuomo commutations are small by his state’s historical standards. During his two terms from 1975 to 1982, Governor Hugh Carey granted 155 commutations. While the number of commutations went into steep decline after Carey’s tenure, his successor, the current governor’s father, Mario Cuomo, still issued 37 commutations. Even Republican governor George Pataki, who eliminated parole for violent felonies and reinstated the death penalty, issued 32 commutations. In other words, not that long ago, commutations were much more commonplace than Cuomo is allowing them to be now. And advocates are pushing for them to become more routine again. “The governor can free anyone at any time for any reason,” Kaba reminded. She notes that although Survived and Punished focuses on supporting survivors of gender-based violence, “we would be happy to see him free anyone at this point.”

“Surely, there are numerous people among the 52,000 in New York State prison who merit clemency; who are deserving of that measure of mercy,” said Zeidman, Clark’s attorney. “Consider the 630 people serving life sentences for crimes committed when they were 17 or younger.  Or the more than 9,000 people serving life sentences, many of whom will die long before they ever see a parole board.  Or the many elderly and infirm people behind bars.  Or those who endured years of intimate partner violence.”

Seeley, who endured eight years of abuse from her boyfriend before stabbing him in self-defense, agrees. “I appreciate that Cuomo granted me clemency in 2016,” she said. If not for the governor’s action, Seeley would still be in prison awaiting her first parole hearing, which was scheduled for September 2018. Instead, in January 2017, she was able to reunite with her daughter, two grandchildren, and 90-year-old mother. But, continued Seeley, noting that the governor’s last commutations were for men, “I would like to see him grant more clemency to women and really give them a second chance.”

Responses to Violence Must Move Beyond Policing

The solution to problems like unsolved homicides, especially in communities of color, cannot be reinvestment in institutions that wage violence against them.

Demonstrators confront police during a protest over the death of Laquan McDonald on November 25, 2015 in Chicago.
Scott Olson / Getty

Responses to Violence Must Move Beyond Policing

The solution to problems like unsolved homicides, especially in communities of color, cannot be reinvestment in institutions that wage violence against them.

Responses to failure often take the form of reinvestment in what is failing. When Wall Street fails, the banks receive support in the form of bailouts; when the healthcare system fails us, the insurance companies get to shape the system’s “reform.” So when police fail to solve crime, they get usually get even more support, more funding, more “manpower.” Name a crisis in policing—from police killings of civilians to corruption to high rates of homicides—and policing itself is always held up as the answer. After the killing of Freddie Gray in Baltimore, amid skyrocketing homicide rates, officers robbing residents, planting drugs, and even selling them, the police union said that the cause of the city’s grave “tipping point” was too few cops.

Language also has everything to do with how we understand this predicament. What we describe as failing is often working just as it has been intended to. Unfortunately, policing provides us with countless examples of this, among them low clearance rates for unsolved crime. “Clearance” refers to a crime cleared by arrest or cleared by “exceptional means” such as when an the perpetrator of the offense is identified but “elements beyond law enforcement’s control prevent the agency from arresting and formally charging the offender.”

The Washington Post  recently “identified the places in dozens of American cities where murder is common but arrests are rare.” The Post further noted that:

Police blame the failure to solve homicides in these places on insufficient resources and poor relationships with residents, especially in areas that grapple with drug and gang activity where potential witnesses fear retaliation. But families of those killed, and even some officers, say the fault rests with apathetic police departments. All agree that the unsolved killings perpetuate cycles of violence in low-arrest areas.

Detectives said they cannot solve homicides without community cooperation, which makes it almost impossible to close cases in areas where residents already distrust police. As a result, distrust deepens and killers remain on the street with no deterrent.”

Unsurprisingly, the overwhelming majority of the low-arrest zones are primarily low-income Black areas. This is inseparable from the legacy of intentionally withholding resources from Black communities and constricting their growth. Discriminatory practices like redlining and Jim Crow laws may not look like they did decades ago, but their effects are still being felt to this day. Thus, we can see the intention to let crime go unsolved not as just a faulty aspect of policing, but as an inherent characteristic of policing in a society predicated on racial capitalism. It’s not the work of policing to solve crime as much as it’s the work of policing to solve crime according to the racial guidelines by which this society criminalizes and otherizes. This takes shape in oppressiveness like the conflation of Black people with gangs, Islam with terrorism, or Latinx people with cartels. Crime is something that has always been associated with blackness and therefore being Black has become a crime. And when blackness is a crime, “solutions” for the Black community are focused on criminal justice, like clearance rates.

“Chicago’s education advocates use a phrase suitable for this [policing] context: ‘broke on purpose,’” Stephanie Kollmann of Northwestern University’s Pritzker School of Law, told me. “It means the government misdirects its resources in order to achieve and justify its policy objectives—cutting some programs, demanding resources for others. Austerity rhetoric is very favorable to policing: Programming, youth recreation, and community services will always be able to be cut back as luxuries, while enforcement is increasingly viewed as a necessary investment as conditions continue to deteriorate. Here in Chicago, scarcity logic was also used in order to simultaneously starve police misconduct investigations and invest in suppression squads and surveillance activities. Pouring more money into a structure like that only makes those problems bigger: more reliance on abusive tactics and less oversight, resulting in more mistrust and fewer closed cases. Then you’re right back to saying you need more.”

Measuring the health of a community on metrics like crime rates and criminal convictions is problematic. In 1975, there were nearly 2,000 murders in New York City but the city’s poverty rate was 15 percent which, as Harper‘s notes is “a figure lower than it has ever been since then.” It is also problematic because such metrics function under the same racist framework in which policing is grounded. This is part of the reason we need to delegitimize the police. It doesn’t make any sense to argue that the same police who are failing by not arresting enough are arresting too much in the communities that they treat like occupied territories. It’s contradictory to say that we have a problem with racism in policing and then say that the solution to low clearance rates is more policing. We cannot fix what was made to be broken or reform what is purposefully violent against us. If we do so, we increase the legitimacy of the institution of policing.

The mythology of the criminal justice system misleads us to believe it is driven by a desire for justice. But discussions around safety that pull us away from the crime of policing under racial capitalism are not true to actual progress. By moving beyond thinking about issues like clearance rates, we can start thinking about providing resources for communities. That would be a world where crime decreases because people have what they need instead of one in which police are something people think are so necessary. Furthermore, we should ask ourselves why such conversations about crime don’t include the police themselves, who absolutely murder with impunity. We shouldn’t have conversations about murder going unpunished that do not include the police because they provide a model of unaccountable violence in our society.

More policing and more surveillance are not solutions to violence. Carceral logic does not address the problems our communities face. Responses operating outside the institution of policing and in the interest of the material well-being of the people are needed. This means not relying on police to solve conflict or social problems but instead pushing to divest funding from them and putting those funds into education, mental health, and other resources for the places we live. Abolition is necessary, but for it to happen we must be willing to do the work of ensuring our communities have what’s needed. Without that, the possibility of achieving something better than what we know now is compromised by what we lack. The answer lies in destroying inequality through resource reallocation, not reinvestment in the violence waged against us that we’ve long been told is necessary for our well-being. What’s truly necessary is attaining the resources that our suffering communities need to thrive, and since we know policing has not brought us that, we should forgo what’s not working and create a world anew.  

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Eric Holder May Be Considering a Presidential Run. But Has His Time Passed?  

As voters begin to realize that prosecutors in the world's most incarcerated nation may not be the best people to run the government, the era of the prosecutor politician could be on its way out.  

Attorney General Eric Holder testifying in 2012 before the House Oversight and Government Reform Committee. He served as AG from 2009 to 2015.
Mark Wilson / Getty

Eric Holder May Be Considering a Presidential Run. But Has His Time Passed?  

As voters begin to realize that prosecutors in the world's most incarcerated nation may not be the best people to run the government, the era of the prosecutor politician could be on its way out.  

Eric Holder’s recent visit to New Hampshire has sparked speculation that he might mount a presidential run in 2020.

During a June 1 visit  at the “Politics and Eggs” series at Saint Anselm College in Goffstown, the former U.S. attorney general blasted gerrymandering—“I think our democracy is under attack”—but puzzlingly endorsed the restrictive voter registration law that New Hampshire Republicans have pushed through the state legislature that now awaits review in the state’s highest court.

A 2020 run for Holder is a long shot but it’s this sort of mushy centrism that probably  dooms his chances at the White House. “The Democratic Party is being pulled left … by the Bernie [Sanders] crowd,” Boston University political science professor Thomas Whalen told the Boston Herald. “They probably don’t want a moderate like Holder.”

If Holder does run, it would be on his record as head of President Barack Obama’s Department of Justice, a position he held through April 2015. It’s a record based on his toughness on crime and terrorists but also on Holder’s embrace of criminal justice reform, a matter of growing importance to the Democratic primary voters ill at ease with our world-beating incarceration rate and extremely punitive response to seemingly everything.

Holder’s credibility as a tough prosecutor is merited but his reputation as a reformer is, alas, largely nonsense despite his widely reported public statements against mass incarceration. “It’s both jaw-dropping and heart-warming to see that an issue that is that important can get people from such disparate political views together,” Holder said in 2014, “We have 5 percent of the world’s population, 25 percent of the people in incarceration. That’s not something that we can sustain.”

Holder is obviously more progressive than current Attorney General Jeff Sessions—who isn’t?—but his leadership of the DOJ was marked by risk-aversion and conservatism.

For starters, when Congress enacted the Fair Sentencing Act of 2010 which reduced the sentencing disparity between offenses for crack and powder cocaine from 100:1 to 18:1, Holder’s DOJ sent its prosecutors to court to argue against its retroactivity.

“President Obama’s Department of Justice has adopted the advocacy policy that the unfair and now reformed old crack sentencing statute should and must be applied for as long as possible to as many defendants as possible,” wrote Douglas Berman, a professor at Ohio State University’s Moritz College of Law. According to a recent autopsy of Obama-era criminal justice reform efforts by law professors Rachel Barkow and Mark Osler, Holder often seemed more concerned with placating the hardline career prosecutors within DOJ than granting the scope of clemency intended by Congress. “The Obama Administration’s failure to accomplish more substantial reform, even in those areas that did not require congressional action,” Barkow and Osler wrote, “was largely rooted in an unfortunate deference to the Department of Justice.”

The Holder DOJ was also aggressive in pursuing whistleblowers like Edward Snowden but also less controversial figures like Thomas Drake, who exposed National Security Agency dragnet surveillance, and John Kiriakou, a CIA torture whistleblower. Holder’s DOJ fought to uphold the broad and vague statute against “material support” for terrorism, thereby criminalizing a surprising amount of charitable giving abroad. Tarek Mehanna received a 17-year sentence for running a militant-sympathizing website that didn’t contribute to any specific crime. These and similar cases were small in number, but as law professor and formal federal defender Wadie Said argued, such national security and terrorism prosecutions cast a long shadow over the entire justice system, shifting the parameters for what is procedurally acceptable in the state’s treatment of more run-of-the-mill criminal defendants.   

If Holder’s DOJ showed little mercy to drug offenders and whistleblowers, his DOJ was tender and mild with big banks after the financial asset bubble collapse. “There were no subpoenas, no document reviews, no wiretaps” is how one DOJ source described Holder’s approach to Wall Street crime. At the end of 2014, Columbia Journalism Review business reporter Ryan Chittum observed that “Holder leaves office having been far outclassed by the Bush administration even in prosecuting corporate criminals, despite overseeing the aftermath of one of the biggest orgies of financial corruption in history.”

The punitive zeal that has dealt over 2,000 Americans federal life without parole sentences for nonviolent drug crimes was nowhere to be found in the Holder DOJ’s kid-glove treatment of the masters of the universe. Indeed, in a DOJ investigation of HSBC for laundering billions of Mexican drug cartel profits, Holder overruled career DOJ prosecutors who sought criminal charges against the big bank. HSBC eventually simply settled with the government for $1.9 billion which Rolling Stone rightly noted proved that “the drug war is a joke.”

What about clemency? Big, categorical amnesties have historical precedent at the state and federal levels, including Jimmy Carter pardoning the Vietnam draft evaders,  Woodrow Wilson granting clemency to Prohibition-law offenders, and Mississippi Governor Mike Conner’s “mercy courts” at Parchman Farm in the 1930s. Obama had the chance for bold and categorical measure here, but he blew it, largely because again he entrusted it to Holder’s DOJ which has hardwired institutional bias of prosecutors and former prosecutors.  The nearly 1,700 commutations granted by Obama may seem impressive, but this is a trickle amid an exponentially expanded federal prison population. The Federal Bureau of Prisons held 192,170 in Obama’s last full year in office; up from 50,513 in 1988. In fact, Ronald Reagan granted clemency to a higher percentage of the federal prison population than Obama. A recently published NYU Law School study on the Obama administration’s clemency initiative concluded that it was a “bureaucratic maze that was controlled by the Department of Justice, and this design increased the likelihood of a clemency petition being denied at any given point in the process.”

Holder may have mouthed the words “mass incarceration” to the likes of The Marshall Project and others, but when it came to actually delivering impactful and badly needed criminal justice reform, he was a failure.  

All of this may have less to do with Holder himself than with the inevitable consequences of putting a career prosecutor, and a federal agency full of career prosecutors, in charge of criminal justice reform. And this forces a bigger question: What structural biases are prosecutors bringing to American politics?

Unlike other wealthy liberal democracies, prosecutors play an outsize role in our political culture. From the early 20th century, the local district attorney’s office—all but four states elect their prosecutors—has been a frequent springboard to the state attorney general’s office, the governor’s mansion, the Supreme Court, the U.S. Senate. Today there’s no shortage of former prosecutors in American politics including the avuncular liberal Pat Leahy (D-Vermont) and the antediluvian Sessions.

According to a dataset made public by legal historian Jed Shugerman, who is writing a book on the rise of the prosecutor politician, our political class is saturated with crusading DAs. From 2007-17 in 38 states, his research shows that 38 percent of state attorneys general, 19 percent of governors, and 10 percent of U.S. senators have prosecutorial career backgrounds. The big presence of prosecutors in our politics goes a long way in explaining why our government has been so ready to see our collective problems (and even some non-problems) as criminal justice issues, always requiring the response of more police, prisons, and criminal law statutes.  

Have we reached peak prosecutor politician? It does seem like the bloom might be off the rose. Take Senator Kamala Harris, former California AG and San Francisco DA, who now clutches the mantle of reform like a high-end scarf as she possibly looks at a presidential run. But as her lackluster reform record becomes more widely known—opposition to state sentencing reform measure Proposition 66; punishing the parents of truant children with up to a year in jail; failure to prosecute OneWest, a foreclosure mill bank that until 2015 was run by Treasury Secretary Steve Mnuchin—she’s got a problem.

And so, too, will Eric Holder if Democratic primary voters learn that as U.S. Attorney for Washington, D.C., in the mid-1990s he initiated Operation Ceasefire “where police would stop cars on any pretext, of a minor traffic violation, speeding, tinted windows, you name it, because they wanted to search those cars for guns.” Such actions once signified  “toughness” to Democrats eager to wimp-proof their right flank, especially in the post Willie Horton-era. But now, nearly 30 years later,  for a growing number of Democratic primary voters, such prosecutorial harshness is, like mass incarceration and unjustified police shootings, a moral abomination. It might also be a political dealbreaker.

We surely haven’t seen the last of prosecutor politicians who grandstand and indict their way into cable news glory and donor-class cocktail parties. But a little light bulb is going on over an increasing number of Americans’ heads that ambitious prosecutors in the most carceral country on the planet are perhaps not the best people to put in charge of fixing our justice system, much less running our government.

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