Legal Myths and Reality

By Judge Joan Shkane

MYTH: A Governor’s pardon in New York is always public, and the public has a chance to comment before a pardon or commutation is granted.

REALITY: In New York State the governor alone has the power to pardon a convicted person. This is given to the governor by the New York State Constitution. No one else can do this. The Governor does not need the permission of anyone to do so. In fact, (s)he may grant a pardon and then keep the names private from the public.

In 2017 the current Governor granted pardons and commutations to sixty people, including eighteen immigrants at risk of deportation and two men who had been imprisoned for murder and attempted murder. The latter was sentenced to a minimum of 25 years in prison. This is a number of pardoned or commuted sentences without precedent. Some suggest this action comes as a response to the current President’s plan to deport immigrants.

The Governor’s office has suggested that to publish the names of the immigrants would subject them to targeting for deportation. The remaining of the those pardoned were convicted of minor or non-violent crimes when they were 16 or 17 years old. Reasons given are, among others, it would be an invasion of the privacy of those pardoned to publish names. Governors in many states including New Jersey and California regularly release names of people who receive commutations or pardons.

MYTH: When an undocumented immigrant is in jeopardy of immediate deportation, regardless of the family in the U.S., lack of criminal record or work status, (s)he may seek asylum in a U.S. sanctuary city and remain safe from deportation.

REALITY: “Sanctuary” is an ancient right. At least as early as the year 1000 in Europe individuals and even whole families and communities could seek sanctuary in churches or cathedrals and be safe from authorities. This was before the days of separation of church and state.

Today we still call part of a church the “sanctuary”. In modern times certain US cities have sought to provide a safe haven (sanctuary) to undocumented residents and their families to be safe from deportation until all issues can be legally addressed and fairness applied to each individual case.

New York City Mayor Bill DeBlasio has narrowed the concept, stating that it is to make undocumented victims or witnesses to crimes feel safe to report crimes to the police without fear of deportation. Mayors of some sanctuary cities have vowed to resist the current U.S. administration’s goal of deportation of all undocumented immigrants regardless of individual personal lives and despite the federal government threatening to withhold millions of dollars in federal funding for law enforcement programs unless the cities comply with the deportation efforts.

New York State estimates that approximately 500,000 residents are undocumented. Now the proposal is that each resident must state under oath his (or her) immigration status in the upcoming census, thereby making it a crime if one lies on the governmental form. This may lead to criminalizing those heretofore not criminals or to seriously under-reporting in the census. Under-reporting has serious consequences, not the least of which is under-representation in elections.

Some argue that this serves some special interest purposes. Immigration officials have been appearing in courthouses, at residents’ front doors and at churches seeking those undocumented. Long established families in the U.S. are being torn apart, in some cases separating parents from young children born here, leading to family tragedy and children thrown into the foster care system to be supported by taxpayers.

Many people believe that New York City is not actually a sanctuary city since the immigration authorities have access to all personal data that can be used to find the undocumented. Immigration arrests of residents without criminal records more than tripled in New York in the last year. Of the 2976 arrest in 2017, 899 were of people without criminal convictions, up from 250 in 2016. (Source of statistics is the NYS Office of Court Administration.)

Some people believe that no one is above the law and there should be no exceptions. Others believe that sanctuary is an ancient human right and an important part of the people’s liberty and that sanctuary now joins the array of ancient liberties denied to residents of this country in modern times. They believe that fairness should be applied to each family individually.

The matter may need further clarification by the legislature. It is not likely that the courts can be involved since few undocumented are willing to risk deportation by bringing a lawsuit.

Giving attention to legal myths is not wrong. It can be a starting point for developing an interest in the law. However, if legal issues are important in your life, for instance regarding custody of your children or money paid for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths.

This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.

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