L A W A N D J U S T I C E A R O U N D T H E W O R L D

A N D R E W N O V A K , E S Q .

C R I M 4 0 5

Mercy in International and Comparative Perspective

What is clemency?

Virtually every legal system in the world has a mechanism allowing the executive or legislature to cancel convictions or reduce punishments outside the court system.

In common law world, this descends from King’s “prerogative of mercy.” Since crime was prosecuted in King’s name, he could pardon crime.

Four common types: Pardon: Annul or cancel a criminal conviction.

Commutation of sentence: Reduce severity of punishment.

Suspend or reprieve: Delay a punishment.

Remission of fine (pay money) or a forfeiture (surrender property).

Decline of clemency worldwide

Clemency has become rarer in most legal systems.

Originally arose at a time when most serious crimes ended in mandatory or automatic death sentence.

Today, skepticism at secretive clemency process that is not reviewable in court.

Rise of parole in most legal systems has replaced the need for clemency. Parole is similar to mercy in that it reduces or cancels punishments, but it is a bureaucratic/institutional process with clear and public criteria.

President Obama granted just one pardon in his first term in office, by far the lowest of any president. Clemency has become rare at state level too (exception: California, because Gov. Jerry Brown is using mercy for criminal justice reform).

International law and clemency

All death row prisoners worldwide must be able to petition or apply for executive clemency.

Required by Internat’l Covenant on Civil and Political Rights

Petition process must be genuine.

Clemency for human rights violators in order to give them impunity for serious crimes is forbidden.

Zimbabwe’s amnesties for political violence have been found to violate African Charter.

Amnesty is a version of clemency (usually for political crimes, such as rebellion) that is categorical and applies before any prosecutions take place.

Why do executives pardon?

Factors unique to an individual case

To prevent wrongful conviction

Where law is overly harsh (often due to mandatory penalties)

Remorse, rehabilitation, religious conversion, medical reasons

Policy reasons (may be individual or mass clemency)

Personal opposition to the death penalty or another punishment

Commemoration of an event (independence day, etc.)

Prevent prison overcrowding

To restore harmony/prevent political conflict

Why shouldn’t executives pardon?

Potential for discrimination, arbitrariness, impunity for serious offenses

Many controversial pardons: President Ford’s pardon of Richard Nixon

George H.W. Bush’s pardon of Iran-Contra officials

Bill Clinton’s pardon of big donors for tax evasion

George W. Bush’s pardon of Scooter Libby for revealing identity of CIA agent (commutation only; not full pardon)

In most countries, the denial of clemency is not reviewable in court South Africa: President shortened length of imprisonment for

all mothers of small children. Is this gender discrimination? Constitutional Court refused to find it unconstitutional.

Who makes the clemency decision?

U.S. federal constitution: President

Full clemency power, except cannot pardon impeachment

Other variations

Executive acting alone

Executive acting on advice of a clemency committee

Executive acting with or on advice of another minister

Usually the attorney general or minister of justice

Executive only allowed to pardon with favorable recommendation by committee

Executive may be a member of the committee, or it may be external

Only a board may pardon; executive has no role

What exclusions are there?

U.S. federal constitution and most states exclude impeachment

22 U.S. states exclude treason

Nigeria excludes corruption in some instances

Malaysia does not allow secular executives to pardon Islamic law offenses (only religious authorities may)

Some countries restrict self-pardons for executives or their close family members

Many jurisdictions, including most U.S. states (but not federal), only allow pardons after conviction

Mercy procedure

Death penalty cases Common to have the trial judge prepare a “mercy” report indicating

to the executive whether the judge would recommend clemency

Transparency requirements In some jurisdictions, executives must give reasons for granting or

denying clemency.

In the Caribbean, prisoners have the right to an oral hearing and to see the evidence that the clemency authority relied on

Most jurisdictions require publication (no secret pardons)

Bureaucratization of mercy In most large jurisdictions, the sheer number of cases has resulted in

an administrative process for seeking mercy

United States Pardon Attorney in U.S. Department of Justice

Workshop

Look at the handout that you have been given. For each of the constitutional provisions, consider:

Who makes the pardon decision? The executive? The cabinet? A board?

What exclusions or limitations do you see?

Does the provision contain any unusual procedural requirements?

Writing assignment #1

Look for newspaper articles that relate to executive clemency, pardon, or amnesty. Who is the decision-maker? Why was clemency being considered/granted/denied?