any reason which the commission deems sufficient prior to the final expiration of his sentence. He is interviewed from time to time by a parole officer who will also make other occasional checks on his progress. At the final expiration of the period for which the parolee was sentenced he is given a formal certificate of final discharge.

EXECUTIVE CLEMENCY

*

Power in Governor with investigating board.-The Governor of New York has the constitutional power to grant "reprieves, commutations, and pardons after conviction, for all offenses except treason and cases of impeachment, upon such conditions * as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons." The division of parole, when requested by the Governor, is by law required to investigate "the facts, circumstances, criminal records, and social, physical, mental, and psychiatric conditions and histories of prisoners under consideration by the Governor as to pardon or commutation of sentence." In addition, the Governor may appoint a person to conduct a hearing and submit a report in a matter pertaining to an application for clemency.3

While the legislature may regulate the manner in which applications for pardon may be made, such regulation does not restrict the Governor's power; he may act even though the application is not made as required.*

The Governor is required to communicate to the legis lature each case of reprieve, commutation, or pardon."

Persons eligible.-The Governor may not grant a pardon in cases of treason or impeachment. However, in treason cases he can suspend the execution of sentence "until the case shall be reported to the legislature at its next meeting, when the legislature shall either pardon, or commute the sentence,

1 N. Y. Const. art. IV, § 5.

2 N. Y. Consol. Laws (Cahill, 1930) ch. 18, § 116.

3 Ibid. ch. 10-b, § 262. The Governor or the person thus designated by him may subpoena witnesses and administer oaths. Id. §§ 263–265. Tompkins v. Mayor, 14 App. Div. 536, 43 N. Y. Supp. 878 (1897). In re Edymoin, 8 How. Pr. 478 (1853).

N. Y. Code Crim. Proc. § 694.

direct the execution of the sentence, or grant a further reprieve."

The Governor's power to grant clemency can be exercised only "after conviction." "

Under rules adopted by successive governors, outright pardons are rarely granted except for absolute innocence. Restorations to citizenship or pardons to permit naturalization or to remove disability to enter the licensed professions or public service are not granted until a considerable time after expiration of the maximum sentence, and until the person has shown by good conduct that he is worthy of this clemency. Pardons are also sometimes granted to prevent deportation by the Federal Government. Usually such deportation is contemplated on the ground of two convictions for crime. Where investigation shows that deportation would separate a family and cause great hardship, the procedure is to grant a pardon for the first crime, usually many years past.

All forms of pardon are rarely used. The only form of executive clemency which is common is commutation, and this is used not as a method of release per se, but only to make the prisoner eligible for parole.

Procedure.-All applications for executive clemency are made direct to the parole board or to the Governor who refers them to the parole board. The prisoner whose sentence is commuted must accept the restrictions of parole until his maximum sentence has expired.10

When application for executive clemency is made, the trial judge and the district attorney are required to supply the Governor, on his request, with a statement of the facts proved on the trial, or if a trial was not had, the facts appearing before the grand jury, and any other pertinent facts.11

N. Y. Const. art. IV, § 5.

"Ibid.

Rules Governing Applications for Pardon, N. Y. Crim. Code p. 938.

It has been held that irrelevant statements in an application may form the basis for a charge of libel. Whether material allegations are privileged was not decided. Andrews v. Gardiner, 165 App. Div.. 595, 150 N. Y. Supp. 891 (1914).

10 Report of N. Y. Division of Parole (1935) pp. 31, 32.

11 N. Y. Code Crim. Proc. § 695.

Conditional pardon.-The power to grant a pardon includes power to grant a conditional pardon, and banishment from the United States may be one of the conditions imposed.12

Revocation on violation of conditions.-Breach of the conditions renders a parole, pardon, or commutation void and the prisoner "shall be remanded to the place of his former imprisonment for the unexpired term for which he had been sentenced." 18 If the person was released by commutation of sentence, but subject to the jurisdiction of the parole board, the determination as to whether he has breached the condition of his release is made by the parole board.14

Where the conditional pardon or commutation does not require that the person be under the supervision of the parole board, it is not clear what procedure must be followed in order to recommit for condition broken. Prior to July 1, 1930, there was explicit provision for trial on the question of violation of conditions; however, that provision has been repealed.15 The courts, before the enactment of the repealed provision, indicated that some judicial determination of the question of violation of conditions was necessary; presumably the same requirement obtains at the present time.

16

Commutation."-The power to grant commutations is expressly included in the constitutional provision for executive clemency. In one case, it was contended that since a com

12 People v. Potter, 1 Edm. Sel. Cas. 235, 1 Parker Cr. R. 47 (1846); People v. James, 2 Caines 57 (N. Y. 1804).

18 N. Y. Code Crim. Proc. § 696. See People v. Potter, 1 Edm. Sel. Cas. 285, 1 Parker Cr. R. 47 (1846).

14 N. Y. Correction Law § 218. Formerly, one who was released by conditional pardon or commutation but was not subject to the jurisdiction of the parole board, was entitled to a judicial hearing on the question of violation of conditions. See N. Y. Laws 1894, ch. 392, as amended id. 1921, ch. 478; People ex rel. Atkins v. Jennings, 248 N. Y. 46. 161 N. E. 326 (1928). This provision for trial was repealed in 1930. N. Y. Laws 1930, ch. 38.

15 N. Y. Laws 1930, ch. 38.

16 People v. Burns, 77 Hun 92, 28 N. Y. Supp. 300 (1894).

17 Until 1935, reduction of sentence for good conduct was termed "commutation." N. Y. Consol. Laws (Cahill, 1930) ch. 10-b, § 230 ff. But see id. (Cahill, Supp. 1935) ch. 10-b, § 230 ff. It should be pointed out that a number of cases which discuss "commutation" in fact involve only this statutory "good conduct" reduction. See People ex rel. Sabatino v. Lawes, 217 App. Div. 779, 217 N. Y. Supp. 63 (1926); People ex rel. Schlecter V. Jennings, 130 Misc. 748, 226 N. Y. Supp. 874 (1928).

mutation was only the power to change a greater to a lesser punishment, it did not authorize changing a death penalty to life imprisonment, for that was not necessarily a lesser punishment. This argument was rejected by the court, which held that death was generally regarded as the highest punishment, and the personal opinion or choice of the convict is immaterial. In the same case, it was also held that a commutation, relating only to the punishment, requires no acceptance by the convict to make it valid.18

As already stated, commutation is usually granted not as a method of release per se, but only to make the prisoner eligible for parole sooner than he would otherwise be.19 Duing the decade 1927-1936, an average of 38.6 such commutations have been granted annually.20

Conditions may be attached to the granting of commutation, and these may be of any nature so long as they are not illegal, immoral, or impossible of performance.21 Violation of such conditions is to be determined "in the manner prescribed in the correction law." 22 The particular provision of the correction law referred to is not clear.28

It has been held that a commutation, although delivered to the warden, may be revoked by the Governor any time prior to the actual discharge of the prisoner.24

Effect of pardon.-A pardon, although it implies guilt and not innocence, relieves the offender of all unenforced

18 People ex rel. Patrick v. Frost, 133 App. Div. 179, 117 N. Y. Supp. 524 (1909).

19 See, e. g., People ex rel. Atkins v. Jennings, 248 N. Y. 46, 161 N. E. 326 (1928).

20 Information from Gov. Herbert H. Lehman, in a letter to the editor dated Apr. 21, 1937.

21 People ea rel. Brackett v. Kaiser, 209 App. Div. 722, 205 N. Y. Supp. 317 (1924) (commutation conditioned on not committing felony during maximum period of sentence); Hammond v. Long, 212 App. Div. 213, 207 N. Y. Supp. 788 (1925) (semble); People v. Burns, 77 Hun. 92, 28 N. Y. Supp. 300, aff'd 143 N. Y. 665, 39 N. E. 21 (1894) (commutation conditioned on abstaining from intoxicants); People ex rel. Mark v. Lawes, 131 Misc. 426, 226 N. Y. Supp. 196 (1926).

N. Y. Code Crim. Proc. 696. Before 1930, the manner of trial was set forth in detail in this section. See People ex rel. Atkins v. Jennings, 248 N. Y. 46, 161 N. E. 326 (1928).

23 See N. Y. Consol. Laws (Cahill, 1930) ch. 10-b, §218 (dealing with parole violations only); id. (Cahill, Supp. 1935) ch. 10-b, § 242 (dealing with conditional reductions for good conduct).

24 People ex rel. Presser v. Lawes, 221 App. Div. 692, 225 N. Y. Supp. 53 (1927).

penalties annexed to the conviction.25 Thus a pardon restores competency to testify, and this has been held even where the Governor attached a proviso to the pardon that it should not relieve from legal disabilities.20

*

and

*

which

While a pardon "does reach the offense does blot it out, it cannot wipe out the act was adjudged an offense;" consequently, the act which constituted the pardoned offense may constitute sufficient cause for disbarring an attorney." The pardoned offense does not, upon a subsequent conviction of felony, relieve the person pardoned from a judgment of habitual criminality.25

Under an old statute declaring persons sentenced to prison for life to be "civilly dead," it was held that a pardon in such a case restores such convict to new credit and capacity "but cannot divest any person of any right or interest which the law had permitted to be acquired and vested in consequence of the judgment." It was, therefore, held that the pardon did not affect the second marriage of his wife, or the sale of his property by the administrator who had been appointed, or the vested interest which his heirs had acquired, but did restore his right to the custody of his children.29

Pardon obtained by fraud.—In a case decided in 1853, it was held that a court on habeas corpus will not go behind a pardon, fair on its face, even though the evidence shows it was obtained by gross fraud.so However, later cases indicate that this rule would not be followed today.31

25 Roberts v. State, 160 N. Y. 217, 54 N. E. 678 (1899). "People v. Peuse, 3 Johns. Cas. 333 (1803).

27 In re Attorney, 86 N. Y. 563, 569 (1881).

28 N. Y. Penal Law § 1022. See People v. Carlesi, 154 App. Div. 481, 139 N. Y. Supp. 309 (1913), aff'd 208 N. Y. 547, 101 N. E. 1114 (1913); People v. McIntyre, 99 Misc. 17, 163 N. Y. Supp. 528 (1917).

20 In re Deming, 10 Johns, 232, 483 (N. Y. 1813). See also Platuer v. Sherwood, 6.Johns, c. 118 (N. Y. 1822) (estate of one "civilly dead" which has vested in his heirs, is not restored to him by pardon).

30 In re Edymoin, 8 How. Pr. 478 (N. Y. 1853).

31 "The case of Edymoin (8 How. Pr. 483) is a county court decision way back in 1852, and follows no authority when it attempts to lay down the rule that records, deeds and papers, fair on their face cannot be impeached." People ex rel. Pickard v. Sheriff, 11 N. Y. Civ. Proc. R. 172, 180 (1886). See also People v. Hayes, 82 Misc. 165, 143 N. Y. Supp. 325 (1913), where a prisoner petitioned for release on habeas corpus, proving a pardon signed by William Sulzer as Governor and attested by the great seal of the State. The court inquired into the question whether Sulzer had been impeached at the time of signing this pardon, and held that he had been and that the purported pardon was therefore void.