Opinion: If he can’t raise the age, Cuomo should wield his power to pardon

Albany’s failure to act on Gov. Andrew Cuomo’s “Raise the Age” initiative leaves New York and North Carolina as the only two states in the nation where the age of criminal court jurisdiction is set at 16. The question now becomes, where does the governor take his initiative from here? How does he move this agenda forward while building momentum for future legislative action?

In his memoir, “All Things Possible,” Cuomo writes, “A good governor is like a good baseball pitcher; you need a number of different pitches in your arsenal. When soft pitches don’t work, you sometimes need to throw one inside and tight.”

With the raise the age bill falling short with the Legislature, the governor now has another pitch in his arsenal: the capacity to advance the raise the age initiative by leveraging his constitutional authority to grant pardons.

Before introducing the bill, Cuomo appointed a commission of criminal justice experts who were tasked with developing this legislation. One of the central issues that the commission addressed was that minors in the adult court system were exposed to the lifelong stigma of a criminal conviction. The commission wanted to “provide meaningful opportunity for a life without the stigma of a criminal record for adolescents who turn away from crime.”

As such, the commission recommended that individuals who have one criminal conviction on their record incurred before the age of 21 would have an opportunity to get that record sealed after a number of years, as long as they are not convicted of any further crimes.

The wait time and subsequent sealing procedures would vary according to the seriousness of the offense. For a misdemeanor and a nonviolent felony, the wait time would be two years and five years, respectively, and the procedure would be administrative.

For a class of more serious offenses committed at the ages of 14 and 15, the wait time would be 10 years, and the sentencing court would make the decision. The sealing of the record would be “conditional,” meaning that the record would be unsealed if another crime is committed, and the sealed records could still be viewed by law enforcement agencies. 

Cuomo can act on the commission’s recommendation without any legislation because the state constitution vests him with the authority to relieve individuals of a criminal record by granting them a pardon. Indeed, the governor has the power to make pardons, just like the commission recommended, conditional on individuals not reoffending. He can also ensure that the pardoned convictions will be accessible to law enforcement agencies. The state constitution is clear about the governor’s power to tailor a pardon, which he can grant “upon such conditions and with such restrictions and limitations, as he or she may think proper.” 

The operational aspects of reviewing and determining the eligibility of a large number of pardon requests can be modeled after President Barack Obama’s effort to commute the sentences of federal prisoners who were convicted of nonviolent drug offenses. The governor could establish pardon application criteria for convictions incurred at a young age, consistent with his commission’s recommendations, and engage volunteer attorneys to help in the screening of cases and preparation of applications for expedited review by the executive.

By December, the governor could be in a position to grant a large number of pardons for individuals who were convicted at a young age and subsequently turned away from crime. Besides giving so many New Yorkers a true second chance, Cuomo would put a human face on the suffering of so many New Yorkers who are forever defined by mistakes they made as minors, and would regain momentum for his stalled legislative initiative. 

Instead of waiting another year for the Legislature, the governor could take his own advice and “throw one inside and tight.”

Yuval Sheer is an attorney and the former deputy director of the New York Center for Juvenile Justice.