In Matter of B* v New York State Department of Corrections and Community Supervision, Executive Clemency Bureau, the Appellate Division, Third Department, addressed a challenge brought by an incarcerated individual seeking judicial intervention in the clemency process. B*, who was convicted of first-degree murder in 1998 and is serving a life sentence without the possibility of parole, attempted to compel the state to process his clemency application on humanitarian grounds.
B* had submitted an application in 2018 and was advised that he was ineligible for clemency because he was serving a life sentence with no court-imposed minimum. In 2023, he filed a second application, again receiving notification from the Executive Clemency Bureau that he remained ineligible. Subsequently, B* wrote to the Governor’s counsel, pointing to language in DOCCS Directive No. 6901 which provided that humanitarian considerations might allow for clemency even in otherwise ineligible cases. Despite this request, no reply from the Governor was received, and B* then commenced a proceeding under CPLR article 78, seeking to compel the Executive Clemency Bureau to process his application based on these humanitarian considerations.
The court dismissed his petition, emphasizing that the power to grant clemency is constitutionally and statutorily vested solely in the Governor. The Executive Clemency Bureau functions as an administrative body that receives and organizes clemency applications, but it does not itself exercise the power to grant or deny such requests. The court reiterated that the Governor’s discretion in these matters is essentially absolute and not subject to judicial review unless it involves illegal or impossible conditions. Therefore, any request for intervention by the court to compel action on a clemency application is fundamentally at odds with the separation of powers embedded in New York’s constitutional framework.
Moreover, the court observed that B*’s clemency application did not invoke the humanitarian exception expressly nor was it addressed to the Executive Clemency Bureau. His follow-up request, which mentioned humanitarian grounds, was directed to the Governor’s counsel and not to the agency he sought to compel. Consequently, the Bureau could not be faulted for failing to act on a request it was never asked to undertake.
Finally, the court addressed B*’s claim from a due process perspective. It held that clemency is a privilege rather than a right. Because Executive Law section 15 and related guidelines merely create the possibility of clemency without establishing any mandatory procedures or entitlements, there is no constitutionally protected liberty interest in either receiving clemency or having one’s application reviewed in a particular manner. The United States Supreme Court has similarly recognized that no individual has a fundamental right to commutation or pardon, and state procedures relating to such requests do not create enforceable legal interests.
In affirming the lower court’s decision, the Appellate Division reinforced the principle that clemency remains an act of grace, not obligation, and that administrative procedures surrounding such applications are not subject to judicial oversight absent clear statutory violations or constitutional infirmities. B*’s appeal was therefore dismissed, and the court upheld the dismissal of his petition in full.
Executive silence is the loudest no.
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DECISION
Matter of B* v New York State Department of Corrections and Community Supervision, Executive Clemency Bureau