March 14, 2019
Digest: A judge may not suggest or recommend that an inmate make an application to the governor’s office of clemency nor may the judge take affirmative actions in furtherance of that suggestion or recommendation.
Rules: 22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); 100.3; 100.3(B)(7); 100.3(B)(12); 100.4(A)(1); 100.4(G); Opinions 19-03; 16-27; 15-197(A); 14-87; 09-02; 08-192; 07-41; 95-14/95-21; 90-36; 88-36.
A full-time judge of a court with appellate jurisdiction asks if he/she may, on becoming aware of an eligible inmate – whether through participating in an appeal, visiting a correctional facility, or reading newspaper articles – take steps to make the inmate aware of the governor’s clemency office. Specifically, the judge asks if he/she may do any of the following: (1) advise the inmate or his/her counsel of the clemency office’s existence and that application forms are available online; (2) send application forms to the inmate or his/her counsel; (3) advise the inmate or his/her counsel of specific pro bono organizations that could assist with a clemency application; or (4) “[i]nform pro bono organizations of the identity of an inmate who might benefit from assistance with a clemency petition.”
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). Among other restrictions, a judge’s extra-judicial activities must not “cast reasonable doubt on the judge’s capacity to act impartially a judge” (22 NYCRR 100.4[A]). While a judge may, in discharging his/her adjudicatory responsibilities, “make reasonable efforts to facilitate the ability of unrepresented litigants to have their matters fairly heard” (22 NYCRR 100.3[B]), he/she also must perform them impartially (see 22 NYCRR 100.3; 100.2[A]) and dispose of all judicial matters “promptly, efficiently and fairly” (22 NYCRR 100.3[B]). In addition, a full-time judge may not provide legal advice to non-family members (see 22 NYCRR 100.4[G]).
While we have advised that a judge must not interject him/herself into an inmate’s efforts to gain clemency (see e.g. Opinion 16-27), this judge instead proposes to provide information concerning the clemency process. We have said a judge may provide litigants before him/her with information about possible resources available to them, where the reference to such resources does not constitute an official recommendation of the court nor does it appear that the judge is recommending any particular resource or organization (see e.g. Opinions 14-87; 09-02; 08-192; 07-41; 95-14/95-21).
Here, however, the actual suggestion or recommendation that a specific inmate make an application to the governor’s clemency office and any affirmative steps or actions by the judge in furtherance of that suggestion or recommendation goes beyond the judge’s role as a neutral arbiter (see Opinions 90-36 [“judges may not give legal advice to any litigants, including pro se litigants”]; 88-36 [town justice who will decide a proceeding to recover possession of real property must not assist a party in preparing the petition commencing the proceeding]; 15-197[A] [unless legally required, a town justice may not assist prosecutors by arranging meetings with the prosecutor’s prospective witnesses and/or instructing them to bring lab reports or other possible evidentiary materials to court]; 19-03 [a judge may not email governmental agencies to obtain evidence in a disputed litigation, even if the parties consent]).
We therefore conclude that for a judge to take any of these proposed actions would create an appearance of partiality and risk casting the judge into an inappropriate advocacy role (see 22 NYCRR 100.1; 100.2).1
1The present inquiry does not address the actions of a part-time lawyer judge in representing an incarcerated client.