In January, New York Governor Andrew Cuomo vowed to reform what he called the state’s “antiquated criminal-justice system,” and proposed a series of new laws that he said would “continue our historic progress toward a more equal society for all.” But one strategy was missing from his plan—something he’d previously suggested would be central to his push for justice: clemency.
Back in October 2015, Cuomo announced an initiative to find inmates whose sentences he could commute, and encouraged attorneys and law firms to help prisoners prepare petitions. The governor raised the hopes of incarcerated individuals across the state, but so far Cuomo hasn’t fully delivered. In December 2016, Cuomo granted just seven commutations. Still it was a record for him, and it did include one for domestic-violence survivor Valerie Seeley, who had been sentenced to 19 years to life for killing her abusive boyfriend. But then this past December, he reduced only two prison sentences.
Under the clemency project, Cuomo said he was looking for people who had served at least half of their sentence but would not appear before the parole board within the next year. Gordon Davis is one of those prisoners working with lawyers to have his sentence cut short. Davis was 16 years old in 1995 when he participated in an attack on his foster sister’s ex-boyfriend, who she said had beaten her badly enough to cause a miscarriage. The man was killed, and Davis, his brother, and his foster sister were arrested. Davis initially agreed to a plea in which, if he testified against his foster sister, he would be sentenced as a youthful offender. While he was testifying, his foster sister burst into tears. Davis refused to continue, which nullified the plea. He was prosecuted as an adult, convicted, and sentenced to 25 years to life.
During his 23 years behind bars, Davis, now age 38, has participated in various prison programs. He obtained not only his GED, but also his bachelor’s and master’s degrees, rare accomplishments given that many college-in-prison programs have been cut. His childhood social worker, with whom he is still in contact, and his college adviser both attest that he has outgrown the impulsive judgement of his teen years. “This is the first time I have felt compelled to fight to get one of the young men or women released,” his social worker said. “I firmly believe that Gordon should not have been in prison in the first place, let alone for as long as he has.” Should he receive clemency, his college adviser has even offered to open her home to Davis.
Davis acknowledges that he can never bring back the life he helped cut short. But clemency would allow him a chance at a normal life, one that he never experienced as a kid first in foster care and then as an adult behind bars. “Getting a sentence commutation from the governor would mean I get to be part of their society. I would finally be able to give back to the people who invested so much in me.… And I definitely want to help other teens avoid the situation I ended up in, however I can.”
Three years ago, Cuomo said he would issue a number of pardons for people who had been convicted and sentenced for nonviolent crimes that they committed as 16 and 17-year-olds. On this account, Cuomo has done better. Since 2011, he’s granted 114 pardons, including more than 100 to adults who had been convicted as teenagers and have been out of prison for 10 or more years.
Still, other state governors have used their power of clemency more generously, particularly during their last year in office. Louisiana Governor Mike Foster granted 21 commutations during his last full year in office. His successor, Kathleen Blanco, granted 73 commutations in her last year. In spring and summer of 2017, California Governor Jerry Brown commuted the sentences of 16 people, including nine serving life without parole. For these five men and four women, commutation did not mean automatic release; instead, they are eligible to appear before the parole board, a chance that they would never have had otherwise. In December, Brown issued another 19 commutations, including nine people serving life without parole. Anticipating more clemencies this year, one woman currently imprisoned in California wrote that “everybody and their mother” (including herself) are struggling to fill out the paperwork, “because they believe Brown will continue his current path until he leaves office next year.”
Since 2015, there’s been a similar flurry of paperwork across New York State. Dozens of lawyers and law students have taken up Cuomo’s call to help with commutation applications. At the private law firm Patterson Belknap, for instance, attorneys have donated what would be $1.55 million in billable hours to work with 10 incarcerated men on their clemency petitions. Each applicant works with two or three attorneys, explained Kathrina Szymborski, who oversees the pro bono clemency project at Patterson Belknap and who helped Gordon Davis on his application. Each legal team spends hundreds of hours tracking down each and every program certificate and prison job evaluation, gathering support letters from family and community members, and conducting legal research, including why the initial sentence might now be considered inequitable.
She said these hundreds of hours would otherwise have gone to the pro bono efforts to challenge wrongful convictions, help clients file for asylum, and represent tenants facing eviction or senior citizens facing foreclosure. But in 2017, the majority of her 580 pro bono hours have been filled with clemency applications, an endeavor that she’s hoping Cuomo will make worthwhile.
In December, Szymborski and her colleagues were happy when one client—42-year-old Michael Flournoy, who had served 21 years of a 25-to-50-year sentence—received a commutation. At the same time, she was disappointed that Cuomo granted only two and is hoping that he will be more generous in the coming months. “He still has a chance to ensure that these pro bono hours have not been squandered,” she said. “We don’t expect him to grant clemency to every single one of our petitions, but we do want evidence that he’s taking his clemency initiative as seriously as we are. Two commutations just doesn’t do that.” But until that happens, she is not assigning any more clemency applications to the firm’s attorneys.
Perhaps Cuomo, running for a third term as governor, is trying to play it safe, not wanting to be painted as soft on crime by his political adversaries. But even if that’s the case, Szymborski said, he could issue commutations enabling people to appear before the parole board sooner. That’s what he did for Judith Clark, initially sentenced to 75 years to life. Without commutation, she would be 107 during her first parole hearing in 2056. With commutation, the 67-year-old appeared before the parole board 39 years early. (She was denied parole. Her next hearing will be in 2019.)
In the past, Cuomo’s counsel Alphonso David has told The Nation that the governor planned to give special consideration to domestic-violence survivors, people convicted as youths, and elderly inmates, but this year Cuomo’s office did not respond to repeated calls and e-mails for comment.
Meanwhile, most of the recipients of Cuomo’s clemencies are now out of prison rebuilding their lives. Michael Flournoy is home with his wife and daughters. Valerie Seeley recently celebrated the first anniversary of her return home, surrounded by family and friends. She said she hopes that Cuomo will extend that second chance to others. “I hope that before he comes out of office, he’ll consider other people,” she said. Seeley said she particularly wants the governor to look at the cases of incarcerated women, “because they always forget about us.” But, she added, “Everybody deserves a second chance.”