BILL NUMBER: S4572

SPONSOR: KAMINSKY
 
TITLE OF BILL:  An act to amend the criminal procedure law, in
relation to presidential reprieve, pardon or other form of clemency and
previous prosecution

 
SUMMARY: OF SPECIFIC 'PROVISIONS:

Section 1 of the bill amends the criminal procedure law by adding a new
section 40.51 establishing additional circumstances under which a prose-
cution is considered not to have occurred for the purposes of criminal
procedure law section 40.20's bars on successive prosecutions.

The new section states that, despite the occurrence of proceedings
otherwise constituting a prosecution, as described in subdivision 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 President of
the United States, and:

1) such person served in or was employed by the executive branch of the
              

government of the united states on the executive staff of the president,
in the executive office of the president, or in an acting or confirmed
capacity in a position subject to confirmation by the united states
senate, was directly or indirectly employed by, or acted as an agent of,
the election, transition, or re-election campaign of the president, or
any for-profit or not-for-profit entity owned or controlled by the pres-
ident granting such reprieve, pardon or other form of clemency;

2) such person is related by consanguinity or affinity within the sixth
degree to the president granting such reprieve, pardon or other form of
clemency;

3) such person bears accessorial liability or conspiratorial liability,
for such offense with one or more persons described in subdivisions one
or two of this section;

4) the president who granted such reprieve, pardon or other form of
clemency to such person was thereby aided in avoiding potential prose-
cution or conviction, or knowingly obtained a benefit from such offense,
or knowingly obtained a tangible, material benefit from or on behalf of
such person; or

5) such person possessed or possesses information material to the deter-
mination of any criminal or civil investigation, enforcement action or
prosecution of the president granting such reprieve, pardon or other
form of clemency, or of one or more persons described in subdivision
one, two or three of this section.

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 in specific instances where the President has a
clear conflict of interest. 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
would not interfere with a President's ability to issue good faith
pardons to those who have repaid a meaningful debt to society for their
federal offenses, the exception only applies to instances where a Presi-
dential pardon represents a clearly defined conflict of interest.

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.

S.8236-2018/A.10422-2018

 
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.