in a detailed report released early last year, the NYU Center for the Administration of Criminal Law documented the decline of clemency in New York state in modern time. This report, titled "Taking Stock of Clemency in the Empire State: A Century in Review," starts this way:
Clemency in New York has long been declining, while the state’s prison population has grown dramatically. Between 1914 and 1924, New York averaged roughly 70 commutations per year, equal to the total number granted between 1990 and 2019. In 1928, Governor Al Smith granted 66 commutations from a total prison population of 7,819. Had commutations been granted at an equivalent rate in 2019, there would have been approximately 373; in actuality, there were two.
The ugly modern New York clemency numbers were particularly disheartening given that former NY Gov Cuomo started talking big about NY clemency efforts in 2015 and again in 2017 (see prior posts here and here). But, after talking the talk, former Gov Cuomo thereafter never actually delivered significant results (see prior posts here and here).
But, as is depressingly common, former Gov Cuomo did deciding to go on a bit of a final (though still modest) clemency spree after announcing his resignation. This AP piece detailed that Cuomo granted five pardons and five clemencies last week, and this new local piece details that in his final hours in office, "Gov. Andrew Cuomo commuted the sentences of four individuals, referred one case to the parole board, and fully pardoned one individual." Given that there are well nearly 40,000 persons in New York prisons (with likely more than 10,000 over 50) and probably more than four million will some sort of state criminal record, a total of 16 clemencies on the way out the door seems more like a whimper than a bang.
That said, the one referral to the parole board will be sure to get attention because it involved a high-profile inmate with a high-profile son and it does not serve as a conclusion of the matter. This local article, headlined "Cuomo commutes sentence of radical who took part in '81 robbery; David Gilbert, imprisoned for four decades, can take case to parole board," provides the basics:
Just hours before leaving office, Gov. Andrew M. Cuomo granted clemency to five men, including the commutation of the 75-years-to-life sentence of David Gilbert, a former member of the radical Weather Underground who in 1981 took part in the robbery of a Brink's armored truck in Rockland County that left two Nyack police officers and a security guard dead.
Cuomo's action will allow Gilbert to make his case to the parole board. The 76-year-old has been incarcerated for four decades after being convicted of felony murder and robbery. He is currently confined at Shawangunk Correctional Facility, a maximum-security prison in Ulster County, 80 miles south of Albany.
Steve Zeidman, a CUNY Law School professor who began representing Gilbert in 2019, said Monday evening that his client is one of the oldest and longest-serving among the state's roughly 38,000 inmates. He said that Gilbert has expressed deep remorse for his role in the crime, and while behind bars has taken part in efforts such as the creation of an AIDS education program that became a statewide model as the epidemic was raging in the 1980s and '90s.
Zeidman, who directs the law school's Criminal Defense Clinic, said that beyond the impact on Gilbert personally, Cuomo's action sends a message to incarcerated people who fear they have no chance for release. "When a governor issues clemency, it echoes, it reverberates, it spreads hope," he said. Gilbert's son, Chesa Boudin, was elected district attorney for San Francisco in 2019. His mother, Kathy Boudin, was also incarcerated for decades for her part in the heist, and received parole in 2003.
The Times Union's Paul Grondahl wrote in November about the efforts of Chesa Boudin and Green Island's Jeff Jones, a family friend and former '60s radical turned environmental advocate, to press Cuomo to release Gilbert from prison — especially due to the COVID-19 pandemic. "As someone who has known David since 1966, I'm just ecstatic," Jones said Monday evening. " ... He's a guy who deserves to be out of prison."Gilbert and Kathy Boudin were in a transfer truck waiting for the getaway car carrying the robbers and the $1.6 million they had stolen from the Brink's truck at the Nanuet Mall. Boudin received a sentence of 25 years to life after hiring a lawyer, pleading guilty and accepting a plea deal; Gilbert defended himself and went to trial.
"My father was not present in the courtroom for much of the trial and nobody advocated for him, which is why it is a bad idea to represent yourself," Chesa Boudin told Grondahl. "My mother and father did the exact same thing and had identical culpability in the crime. My mother served 22 years in prison and was paroled 17 years ago, while my father is still in prison. It's an example of criminal justice imbalance."
Boudin noted that his father is perhaps the only person his age who has served as many years in state prison who was unarmed during the commission of the crime. Another Brink's robbery co-defendant, Weather Underground member Judith Clark, who drove the getaway car, was granted parole in 2019 after Cuomo commuted her 75-years-to-life sentence in 2016. Prosecutors and law enforcement bitterly opposed her parole and called it an insult to the victims' family members.
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