Brian Lehrer: Brian Lehrer at WNYC. At the end of a presidential or gubernatorial term, it is typical for officeholders to exercise a special power, which very few people hold. It's called clemency. That's the power to wipe someone's criminal record clean, that's called a pardon, or to end a person's prison sentence early, that's called the commutation. Both are acts of clemency. Some use that power more than others. When Obama left office, for example, he granted clemency to around 1,900 individuals. Donald Trump, on the other hand, granted less than 150 acts of clemency.

Never mind how many of those were to imply that there they were injustices against him, but only two other presidents since 1900, George W and George HW Bush, granted fewer acts of clemency than Trump. The willingness to use clemency fluctuate with governors as well as presidents, especially changing with the times and how politically popular it is to be seen as tough on crime. In the 11 years that Governor Andrew Cuomo is in office tens of thousands of people applied for clemency. Just this week, as he nears the end of his tenure, obviously, Cuomo granted commutations to five more people, bringing his total to only about 35.

That's an approval rate way less than 1% of those who applied. For another blue state comparison, California Governor Gavin Newsom, who was sworn in in 2019, had granted around 90 commutations as of late May, according to his office, still, a low number compared to the amount of people who applied and not to imply that everybody who asked for it deserves it but still California higher than New York. Who are these New Yorkers who Governor Cuomo has now selected for clemency? Why did he choose some convicted of very serious, violent crimes?

We'll discuss a few of the individuals and their stories and why are some political figures more willing to use their clemency power than others? We'll talk about who gets clemency and is it just a distraction anyway from addressing more systemic problems of mass incarceration? With me now is Steve Zeidman, Professor, and Co-Director of the Criminal Defense Clinic at CUNY Law School. He has worked with many New Yorkers on their clemency applications, and urge Cuomo to use his power more aggressively. Professor Zeidman, thanks for coming on. Welcome to WNYC.

Professor Zeidman: Glad to be with you.

Brian: To start very basically, why do governors have clemency power?

Professor Zeidman: Well, traditionally, they have the power-- Let me put it to you this way because, Brian, that question, I know it sounds very open-ended but that's at the root of the issue about clemency. They have the power to correct injustices. They have the power to act mercifully. They have the power to release people who are ill. It's a vast, unfettered power to right wrongs. It's the best way to put it.

Brian: By the way, just one correction from my intro. I had said Trump offered around 150 acts of clemency. It was about 150 pardons, plus he commuted about another 100 people's sentences. It was more like 250 total. Just to be accurate about that. How does Governor Cuomo's track record on clemency compared to his predecessors in New York? I don't think any governor Democrat or Republican has granted more commutations than 40 since Governor Hugh Carey in the 1980s offered more.

Professor Zeidman: That's right. He's right in line with Pataki. He's right in line with his father and even Hugh Carey. Most of his sentence commutations had to do with people who were convicted for serving massive sentences for Rockefeller drug law violation. It was a different era. This is part of the problem that governors have this vast, unfettered power to grant clemency. It's the stroke of a pen. We don't need legislation, we don't need a task force, we don't need progressive prosecutors. We just need governors willing to exercise the power that's enshrined in the Constitution and they are across the board reluctant to use it.

Brian: By way of historical numerology, listeners, in 1982, Governor Hugh Carey granted 155 commutations. That was at the end of his two terms, total first two terms, Democrat Mario Cuomo commuted 37, just 37, during his three terms, Mario Cuomo. Republican George Pataki commuted the sentences of just 32 people and pardoned only one over his 12 years in office. Democrat Eliot Spitzer pardoned one person during his only 13 months. Governor David Paterson, during his nearly three years in office commuted the sentences of three and pardoned 35 people. I see there's going to be a protest in New York City today to urge Cuomo to grant more commutations.

Again, we'll get into some of these individual stories. I think we'll hear with some of these, the political at least political complexities of granting pardons and commuting people's sentences who were convicted of serious things. There's going to be this protest today urging Cuomo to do more in his final days in office, and there are apparently over 2,500 applications pending. Can you give us the range or is there a typical, I know so many, every individual story is different, every individual's crimes are different? What's the general lay of the land of who applies for various forms of clemency, and how many, in your opinion are good candidates?

Professor Zeidman: The general lay of the land people who most urgently need clemency are those who were sentenced to perish behind bars. For example, people who their sentences are so long that they will never live long enough to see a parole board, 50 to life, 75 to life. Life without parole. To me, it's always been interesting that people think Blue State New York is somehow soft on crime. We have close to 9,000 people serving sentences with life on the back end. You take an 18-year-old who's given 50 to life, they won't see a parole board if they live that long till they're 68.

That's someone who turns to clemency as the only way to ever imagine living free again. By the same token, we doled out sentences like 25 to life left and right in courts across this state. You could have a young person get 25 to life and after 10-15 years, they're different. They've changed, they've transformed, they have a better sense of who they are, they've grown up, their family needs them, they will apply as well. I guess the short answer is typically it's people serving long sentences.

Brian: That brings us to some of the individuals who Cuomo granted clemency to this week. 10 people total, five pardons, and five commutations as I understand it. Of the people who were able to leave prison early, there was, for example, Nehru Gumbs, age 36, who's been incarcerated since he was 18 for shooting and killing a bystander in Canarsie in 2004. Gumbs is described as having been an exemplary prisoner, getting a college degree behind bars, skills as a plumber, and being the youth counselor. Another one was Jon-Adrian Velazquez, who has served 23 years of a 25-year-to-life sentence for murder and robbery.

There's a movement that says he was wrongly convicted in the first place. Do you know the Nehru Gumbs story? Is he a good example of one of the categories of people who get clemency who you're describing a minute ago?

Professor Zeidman: Yes, he's an example of somebody who was convicted when they were very young. We now have neuroscience, brain science experts testifying about brain development, that the prefrontal cortex without getting into the nitty-gritty of things I don't fully understand. The part we can understand is that our brains continue to develop into our 20s. You have experts testifying about the fact that young people, they tend to underappreciate risks, not appreciate consequences, act impulsively but over time, as we all age and grow into one of the most uncontroversial findings in criminology, is that people age out of crime.

We should be looking at people who were convicted when they were very, very young, recognizing who they are now, and giving them a chance to live a life on the outside. Nehru Gumbs fits right into that, so as well as Dontie Mitchell, one of the other people who was only 17. Our prisons are filled with people who were so young when they were convicted, and somehow, we are content. I say we, the collective, with making them languish in jail, never giving them a second look, never giving them an opportunity to argue that they merit release.

Brian: Go ahead.

Professor Zeidman: Yes, five people is great. Five people is wonderful. I know several of them very well. Represented Richard Chalk. My students' representative, Dontie Mitchell. Jon-Adrian Velazquez, I know very well. These are all people that if anyone met them, I'm hard-pressed to imagine anyone would say, "You know what? You should spend more time in state prison." They have so much to offer on the outside.

Brian: To stay on the Nehru Gumbs' story for a second, for him as an individual, and also as an example of a category, again, age 36, incarcerated since he was 18 for shooting and killing a bystander in Canarsie in 2004, described as an exemplary prisoner, getting a college degree, earning skills as a plumber and being a youth counselor. It really matters what he has done as he aged out, if you will, of the highest crime age. If he had been a different person, if he had a different attitude today, we wouldn't be talking about him in a clemency story, right?

Professor Zeidman: For sure. Some of the things that are looked at are how has somebody managed to comport themselves while in the harsh confines of prison, which you could think about it as it's understandable, but it's also very ironic. I say that because prisons are not the most forgiving places to put it mildly, they're not places that lend themselves to transformation and redemption, but people like Nehru Gumbs and Richard Chalk, and others will tell you that it was other than their peers inside that helped develop programs, create programs that got them to a place where they were better able to appreciate who they were and who they want to be.

Brian: You want to tell us more about Richard Chalk?

Professor Zeidman: Sure. Richard and he goes by Lee. Lee is just a beautiful person, sentenced to 50 to life, which I think we could stop right there and just say, "Where did these numbers come from?"

Brian: For what in this case? For what?

Professor Zeidman: He was convicted of second-degree murder. Two people were killed. Richard was in a car. He never entered the building where shots were fired. He was in a car, didn't have a weapon, didn't fire a weapon but frankly, and I know this is the hard part for a lot of people, when I minimize his involvement, I want to be very clear. There are other people involved. There's another person who was arrested with Richard named Lance Sessoms, who was convicted of firing the shots. He was given 80 to life.

By the same token, if you met Lance Sessoms, you would come to the same conclusion as you do with Lee Chalk is that he should be home. He served a lot of time. He served it admirably. He's done as well as anybody could be expected and he has a loving caring family pleading for his release. His daughter, Danielle Moore has been relentless. She's just one of many people, children, mothers, grandmothers, begging for the governor, begging for some relief saying, it's been 10, 20, 30, 40 years.

Brian: This is hard for a lot of people to hear. Okay, you could say Lee Chalk, all he did was drive the getaway car. I didn't have a gun. He didn't kill anybody. Nehru Gumbs did have a gun, did kill somebody, and there are critics of Cuomo, even as few as the number is of the pardons and commutations that he's handing out who say, "Oh, you should have pardoned the people in the nursing homes instead of murderers, soft on crime." You know we're hearing that.

Professor Zeidman: Yes, of course. By the way, he should. He should look, if the phrase mass incarceration is now it's on everybody's lips, everybody's aware of it, but the question is what are we going to do about it? What we need is we need massive large-scale industrial-strength clemency. From my perspective, sure, all the people, especially in the year of COVID 2020, there should have been massive clemency. Brian, it's an unusual thing if you think about it, the clemency application, you have this burden, it's a burden, it's opaque.

No, one's really sure how it's being analyzed, but you have to persuade the powers that be ultimately the governor that you merit clemency. It seems to me it would be much more logical if we flipped the script. In fact, we looked at people after they've been incarcerated for some period of time, say 10 years, and said, why should this person remain in prison? Is there a need? Is there anything other than vengeance and punishment, any other reasons for this person to languish in prison?

I think if we looked at it that way, we would finally address the crisis of mass incarceration because, in the majority of cases, I think people being objective and reasonable would say more and more people should be released.

Brian: Listeners, we're talking about the acts of clemency issued by Governor Cuomo on his way out of office and putting them into the context of a larger conversation about clemency, which includes both full part ins and just commuting somebody's sentence, shortening their prison sentence with Steve Zeidman, Professor and Co-director of the Criminal Defense Clinic at the CUNY law school. He has worked as you're hearing with many New Yorkers on their clemency applications and he's urging Cuomo to use his power more aggressively in his final days in office.

Can take a few phone calls in our remaining time in this segment, 646-435-7280, 646-435-7280, or a tweet @BrianLehrer. Before we take a call, out of these 10 acts of clemency, as I understand it, correct me if I got this wrong, five were full pardons. Granted after release from prison to wipe a criminal record clean, and as I'm reading it, these pardons were all to immigrants to avoid deportation. Compared to commutations, Cuomo has actually used the pardon power to let these five people basically stay in the country after they've served their prison terms. Is that your understanding?

Professor Zeidman: Yes, that's correct. He has certainly granted more pardons and sentence commutations and parties are actually much less controversial. A sentence commutation just raises the specter for a lot of people about, dangerous, violent people being released from prisons. It ultimately is not the case and just on that point, if I can mention one other thing, people talk about public safety. Frankly, if you looked at the people who were granted clemency just by this governor alone, you would see people who had just living full lives.

They're tending to their parents, grandparents, their children, they're working, they're contributing, they're just living their lives. There's been no hint of recidivism of any sort. In fact, the more people are out to help rebuild and repair families and communities, I think we become a safer community.

Brian: Rose in Harlem, you're on WNYC. Hi, Rose.

Rose: Hi, thanks for taking my call. I had heard about a bill in Florida. I think it got stalled. I don't think it passed, but that if someone were under the age of 23 when they were convicted of certain criminal offenses, they were to be released or to be considered into a special program for early release or something. Because if we say that their brain isn't developed until they're 25, someone who does something awful at 17, at 19, at 22, send away for life does not seem to make sense, is there any such thing happening in New York?

Professor Zeidman: In New York, yes, there are various what they call second look bills, where we're turning to the legislature, as opposed to relying on governors to use their clemency power. Certainly, if we want to address mass incarceration, you're right, that there has to be this multi-pronged approach. New York just has one version that should have been passed, was close to passage. It was called the elder parole bill. If you were over 55 and it served at least 15 years in prison, you would have the opportunity to make your case to the parole board.

We have yet to address the situation of all the young people who were sentenced to massive prison terms. That's just a glaring omission in the legislature. One other example of that, by the way, just again, going back, if I couldn't have the public safety for people who have that concern, in Pennsylvania, which was the state with the most young people sentenced to life without parole because of Supreme Court cases, just like the caller mentioned are those kinds of issues about youth. They had to be re-sentenced and about 459 of those juvenile lifers as they were called were released.

The recidivism rate has been hovering at 1%. When I say recidivism, that's my conviction for even the most minor offense. The folks who were convicted when they were young, they've served decades, they get the lease. There's no threat to public safety. In fact, there's just a great game to families and communities.

Brian: Well, you're talking about parole. What an act of clemency from the governor does is bypass the parole board system. That process is also notoriously difficult, but supposedly there's something other than the politics or the individual morality of a governor at play. There's a system under which people are evaluated. What gives the governor the right? The law gives him the right, but what can the moral right to bypass the parole board?

Professor Zeidman: Well, first of all, the governor doesn't have to bypass the parole board. He can commute a sentence to make somebody immediately eligible to go see the parole board. In other words, instead of saying I commute your sentence, you're free to leave in two weeks, or whatever it takes for the Department of Corrections to complete their paperwork. He has done that in a number of cases. He said, "You know what? I'm going to reduce your sentence from 75 to life to the 35 years you've been in, but now you're going to have to make your case to the board."

As to why governors have this power, I think you just have to look at the problem we have across the country with parole boards, which are inevitably political appointees, risk-averse, and have histories in all 50 states of repeatedly denying parole to people based solely on the crime, the conviction, the one thing they can never change. To me, that's exactly a good reason to have a governor be able to have the power to step in and say, "Listen, you've denied parole to this person six, seven, eight times for no good reason.

They can't change the crime they committed but look at who they are now. Therefore, I'm going to grant them clemency."

Brian: Erol in White Plains, you're on WNYC. Hi, Erol, thank you so much for calling in.

Erol: Yes. Hi, Brian, I just want to address the victim part of this, especially for people who commit murder. Years ago, I had a cousin who was killed in a robbery attempt. That cousin was approximately 40 years old. He had a daughter, 12 years old, and 3 boys, 10, 8, and 7. This guy was doing great in life. He had bought a six-family house, him and his wife, and he was doing great. Make a long story short, all three boys ended up in the system.

I think one of them killed a man, they were drug dealers, drug addicts, and the girl was a mess. I guess I'd like more discussion on the victim versus the perpetrator.

Brian: What do you think in the horrific case that you were just describing for yourself, Erol? Are there any circumstances under which the perpetrator should get let out of prison after a certain time?

Erol: No. Maybe, yes, but only if and only if you would help give some restitution to a family. Maybe pay 20% of his income to the family or something. This family that I just described suffered in the worst way.

Brian: Professor?

Professor Zeidman: I hear that. To me, what it reveals is a failing on the part of-- It's frankly on all of us that we don't offer support to people who have suffered unknowable grief and trauma. That really the only thing that the criminal legal system offers then is we're going to give that person eternal punishment. Unless and until we figure out ways to support people, we fall back on. You know what? This person should just stay in a cage for the rest of their life. I just think it's a collective failing.

I know there is a movement afoot for restorative justice to reaching out to people, to trying to provide support, to think beyond punishment as the only answer. I think there's another part of it too. When you talk about clemency, for the most part, we're talking about people who have served decades. I know this will sound somewhat controversial or minimizing the role of the victims, and I don't mean to. The word victims, it's so loaded. From my perspective, when I meet the family of someone who's been incarcerated for 30 years, and they are filing their own clemency application, they're victims as well.

They're victims of a system that is so retributive, so punishment-oriented. Turns a blind eye to the devastating impact of what's been going on here in New York for 40 years. We've just wiped out communities of color. We've decimated communities by giving young men, overwhelmingly Black and Latino men sentences that have them in prison for life, families are crushed. You can just look at gentrification in areas.

I long ago lost track of how many people I've met in New York State prisons, serving massive sentences, who were teenagers from Bushwick, from Bed-Stuy, from Crown Heights. Somehow that I think has to be part of the equation of who exactly is a victim.

Brian: You understand that it's hard for somebody, let's say, whose cousin was murdered as we just heard to apply the same word victim to the murderer.

Professor Zeidman: Of course. By the way, I should also mention that in the work that we do in our clinic, we know that the governor's people are going to make efforts to reach out to the victims' families. We do the same. We do this and it is been so upsetting. I'm not naive. We expected this, but to a one, every person we've ever reached who said, "No one has reached out to me since this happened 30 years ago. You're the first person to pick up the phone and call." There have been people who've been supportive of clemency.

There're people obviously who said, "You know what? I don't want to relive this." The one consistent thing is they've received no help, no support from anybody to deal with the grief and trauma they've been carrying around for decades.

Brian: This is WNYC FM HD and AM New York WNJT-FM 88.1 Trenton, WNJP 88.5 Sussex, WNJY 89.3 Netcong, WNJO 90.3 Toms River. We are in New York and New Jersey Public Radio. We're finishing up on the 10 acts of clemency that Governor Cuomo has granted on his way out the door and the larger conversation about both pardons and commuting or shortening people's sentences, the two kinds of acts of clemency. We're going to finish up on Cuomo himself and one or two things about his own record that might surprise you in this respect.

We're going to start with a caller. I don't know what the caller is going to say. The caller is saying to our screener that he used to work for Cuomo and that he changed on this issue over time. Randy in Red Hook, you're on WNYC. Hello there.

Randy: Hello. Thank you, Brian, for taking the call and thank you Professor for doing God's work. I worked with Cuomo back in 2002, 2003, 2004 on the Rockefeller Drug Law Movement. I was running the [unintelligible 00:27:08] concert fund for racial justice. He parachuted in along with Russell Simmons, and he spent two and a half years making that a key issue. When his political career was really dead in the water, he got a lot of publicity out. Not only did he call for change in the Rockefeller, he was one of the few that call for repeal, full repeal. We were beating the streets all the time.

There's a documentary called Lockdown USA. He worked with prisoners. I have four or five of the people that work with me who got clemency under Pataki, including Jan Warren and Elaine Bartlett. We really believe when he got in, he would make some changes. Not only has he not made any changes, he hasn't given any clemencies out. You want to talk about clemencies, Al Smith, of course, gave the most clemencies out back when he was governor. Cuomo, Southern governors, Bilbo, all these others, George Wallace all gave out tons of clemency. Cuomo has been the tightest of them all, and it's really ironic and shameful.

Brian: Despite him running on reform, as you point out. Thank you for that call. Yet on the other side of the coin, Professor, I read that there's been a 45% reduction in the total prison population on Andrew Cuomo's watch, which is historically kind of ironic, or maybe it's just justice because maybe the biggest thing that his father, Mario Cuomo, did in office was to build so many more prisons, and have so many more people incarcerated in New York State on his watch when that was a big movement nationwide in the '80s. A 45% reduction in the prison population on Andrew Cuomo's watch. Is that worth a great deal of credit?

Professor Zeidman: A lot of it has nothing to do, frankly, with Andrew Cuomo. It's how many people are coming into this system on a regular basis. If crime or reported crime is down, then the numbers are going to go down. One thing that he really hasn't touched, and this is at bottleneck, is this idea of people and-- Just like victim is a loaded word, violent crime is a loaded phrase. That's the people who still remain. That's the people who are serving the 25, 50, 75 to life, the life without parole, and those who remain untouched. Those are the people who need clemency in the worst way. Sure, the numbers have come down. For anybody who was released in 2020 because of COVID, obviously, for them, it's a beautiful moment, but there's so much more that could have been done, should have been done. There's one other piece of this, Brian. The age piece. This is a plea again to the governor, but it's also something for people to understand. The Department of Corrections does its own mortality reports. From 2003 to 2012, the average age of death in New York state prison from natural causes, and this was hundreds of people, was between 53 and 57.

We have over 8,000 people who are 50 years old or older languishing in prison. It's a crisis. A lot of those folks, yes, were convicted of what would be deemed to be violent crime, no question, but those are the ones who are just crying out for clemency to be able to return home before they perish behind bars.

Brian: I know some of your work in this area helped change the course of the pandemic for some of those older people. I know you wrote an article last November that included the stat that COVID data received from the Department of Corrections and Community Supervision, revealed there were 114 people in prison who are at least 70 years old and have served at least 30 years. You were working to get many of those people out on COVID protection grounds. We leave it there, with Steve Zeidman, Professor and Co-Director of the Criminal Defense Clinic at the CUNY Law School. Thank you so much for coming on with us today.

Professor Zeidman: Thank you so much.

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