During his 22 years in prison, Juan Serrano kicked a heroin addiction and learned plumbing, electrical and masonry skills. He also became a devout Christian, working as an assistant to the prison chaplain, setting up religious services, and cooking for large groups of prison congregants. But the transformation in his life and reformation of his character couldn’t change Serrano’s sentence: 35 years to life for burglary and robbery.
Serrano’s first parole date was still more than a decade away when the then-58-year-old got a break in June.
“Clemency,” Serrano said in a phone interview. “It’s like hitting the lottery.” He spoke with Gothamist/WNYC from his Flatbush apartment, where he now lives with his wife. “Let me put it that way. To me it’s a miracle.”
It was less a miracle, however, and more an act of mercy from Governor Andrew Cuomo, who granted Serrano’s clemency petition.
Monarchs used to grant clemency to celebrate a birthday, field an army or even populate a colony, as often noted by the late professor Phillip Ruckman who was a leading expert on the pardon power and executive clemency. Now, the president of the United States and all 50 governors, including Cuomo, still have a derivative of this same form of power.
But it’s a power Cuomo uses sparingly. Over the last four years, Cuomo received 6,405 clemency petitions. He granted clemency in 95 cases. Of those, only 14 have been commutations, one subset of clemency which shortens a person’s prison sentence. The other subset, the pardon, which expunges a person’s criminal record altogether, typically happens after they’re released.
As COVID-19 pummels prisons across the state, there has been an 80% increase in attorneys and their clients racing to file petitions for clemency and appealing to governor Cuomo for mercy.
For every person like Serrano, who had his sentence commuted, there are hundreds vying for Cuomo’s attention.
[After publication of this story Governor Andrew Cuomo granted clemency to 21 people, seven of which were sentence commutations, bringing the total number of sentence commutations this year to 12, of the 2,518 people who applied for the relief this year.]
“It’s Been A Disappointment.”
Clemency petitions can be granted at any time, but are most often granted at the end of the year. This year, with COVID-19 tearing through state prisons, clemency took on a whole new meaning, with incarcerated people and their families flooding the state with 2,518 new applications, an 80% increase over last year.
Despite the pandemic, however, New Yorkers have thus far been just as unlikely to be granted clemency this year. The governor has commuted five sentences, including Serrano’s, three of which took place after COVID-19 bore down on the state. That’s fewer than the state has granted in prior years. In 2018, for example Governor Cuomo commuted seven sentences.
For a time, it seemed as though the clemency process was a priority for Cuomo. In 2015, Cuomo announced an initiative that would connect incarcerated people with pro bono attorneys to help them prepare clemency petitions. In 2017 he expanded the program.
“Today we are taking a critical step toward a more just, more fair, and more compassionate New York,” the governor said at the time. “With this new initiative, we are seeking to identify those deserving of a second chance and to help ensure that clemency is a more accessible and tangible reality.”
“We really thought this was a real opportunity for the governor to grant relief to a significant number of individuals who really deserved a second chance,” explained Lawrence Houseman, a supervising attorney at the Legal Aid Society’s criminal appeals bureau, who’s handled more than 100 of these petitions, just three of which have been successful.
“We had hoped the governor was going to be a leader on this issue,” he said. “It’s been a disappointment.”
Waiting For Review
In 2016, the year after the initiative was announced, the state received 4,666 new applications, the news site The CITY reported. There was major buzz about the new initiative in prisons at the time, recalls Hector Martinez, who says he saw a flyer about it hanging in the law library of Eastern Correctional Facility in 2016, where he was serving 20 years to life for burglary, under the state’s persistent violent felony offender.
“Albany doesn't invite you to apply for clemency out of the blue,” Martinez said. “So, seeing this memorandum, we said, OK something’s going on.”
Martinez says he applied right away but heard nothing for a year. Eventually he says he got a letter saying they were still reviewing applications and hadn't gotten to his yet.
“I pretty much knew this was bogus,” he said, speaking to Gothamist/WNYC from Adirondack Correctional Facility where he’s still serving out his sentence. “I’m not holding my breath waiting for this.”
Clemency typically comes in two forms. Pardons erase a person’s criminal record and usually take place after a person has been released from prison. Cuomo has used that power to restore voting rights to 63,044 people on parole and to pardon 237 others over the course of his tenure, many of whom were immigrants facing deportation due to past criminal convictions.
Commutation on the other hand, doesn’t erase the conviction, it just mitigates the sentence. In some cases the person has a chance to go before the parole board before the mandated minimum sentence, in other cases the board is bypassed and the person is released. To apply for clemency you send a letter explaining your criminal record and your accomplishments while incarcerated. Attorneys can help the applicant bolster the application with legal arguments, documents and letters of support from friends and family.
Listen to reporter Arun Venugopal's radio story for WNYC:
At a press conference on April 26th, Cuomo was asked if he was considering granting more clemency petitions this year due to the raging COVID-19 outbreak in prisons.
“Based on what?” he replied. “How about if they are violent and they just started their sentence?”
When the reporter followed up specifically about clemency for pregnant people and those within a year of their release date, he cut the reporter off.
“We’ve been doing that. We’ve been doing that,” he insisted.
The state had not been granting clemency, however. Cuomo has instructed the Corrections Department to waive certain technical parole violations, and to free certain people within 90 days of release. Over the course of the pandemic, that’s meant more than 3,500 people were released from prison early. But that’s different from clemency.
What Happens Now?
Granting clemency requires walking a fine line between punishment and absolution. Even in this moment of protest and the push for criminal justice reform, Cuomo must balance justice for both the offenders and their victims. And while some victims’ families will want clemency for the petitioners in their cases, most will not. So, in addition to the clemency petition itself, victims are another consideration for Cuomo.
When asked to comment for this story, Cuomo’s office deferred to the Corrections Department. Thomas Mailey, a spokesman for the Corrections Department pointed to statistics showing fewer COVID infections and deaths in New York prisons per capita than most other states. (Twenty inmates, and six corrections officers have died from COVID-19 since the start of the outbreak, and according to Correction Department data there are 560 active COVID infections in state prisons as of Christmas Eve.)
Since Cuomo took office, O’Malley said, there has been a 39% reduction in the prison population to just under 35,000 people as of mid-December, with the fewest people incarcerated in more than 30 years. The state announced this week it is closing three upstate prisons by March 31st -- not because of COVID, but due to the looming budget deficit and the decline in overall prison population.
Gwynne Hogan and Arun Venugopal report for the Race & Justice Unit at Gothamist/WNYC.
