April 2, 2019

S.4572 (Kaminsky)/A.6653 (Lentol)

AN ACT to amend the criminal procedure law, in relation to presidential reprieve, pardon or other
form of clemency and previous prosecution

The New York State Trial Lawyers Association (NYSTLA) supports this legislation, which would
protect the rule of law in New York State by strengthening the ability of New York’s prosecutors to
hold powerful wrongdoers accountable in certain narrow circumstances where jurisdiction is otherwise
determined.

The Supreme Court of the United States has found that “double jeopardy” does not apply when a state
employs its’ prosecutorial powers against an individual for a state offense arising from the same
wrongful conduct that was already the subject of a prosecution for a federal offense.1

In instances where a President may have the incentive to pardon a possible co-conspirator to avoid
accountability, current New York law allows a key component of the search for truth around potential
serious presidential misconduct – a state prosecution of a pardoned individual – to cease.

This legislation would reinforce the exceptions that New York has already implemented to its’ law
extending double jeopardy to federal convictions by clarifying that under certain circumstances,
powerful individuals suspected of wrongdoing who received presidential pardons for their federal
convictions are still subject to accountability in New York.

In closing the “double jeopardy loophole,” New York would join other states that already allow for
exactly this type of state prosecution as a matter of states’ rights.

While NYSTLA’s membership includes attorneys who work on behalf of criminal defendants, we base
our support for this legislation on the overarching principles of accountability and justice.

NYSTLA supports this legislation and urges its prompt enactment. In both the civil and criminal
arenas, no entity or individual should be “above the law.”

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1
United States v. Lanza, 260 U.S. 377 (1922)
NEW YORK STATE TRIAL LAWYERS ASSOCIATION
132 Nassau Street, New York, NY 10038 Phone 212.349.5890 Fax 212.608.2310 www.nystla.org