Comparative Executive Clemency

The Constitutional Pardon Power and the Prerogative of Mercy in Global Perspective

Andrew Novak

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317602644
• Edition: 1
• Topic: Droit
• Subtopic: Droits civiques en droit

Virtually every constitutional order in the common law world contains a provision for executive clemency or pardon in criminal cases. This facility for legal mercy is not limited to a single place in modern legal systems, but is instead realized through various practices such as a law enforcement officer's decision to arrest, a prosecutor's decision to prosecute, and a judge's decision to convict and sentence. Doubts about legal mercy in any form as unfair, unguided, or arbitrary are as ubiquitous as the exercise of mercy itself.

This book presents a comparative analysis of the clemency and pardon power in the common law world. Andrew Novak compares the modern development, organization, and practice of constitutional and statutory schemes of clemency and pardon in the United Kingdom, United States, and Commonwealth jurisdictions. He asks whether the bureaucratization of the clemency power is in line with global trends, and explores how innovations in legislative involvement, judicial review, and executive consultation have made the mercy and pardon procedure more transparent. The book concludes with a discussion on the future of the clemency and pardon power given the decline of the death penalty in the Commonwealth and the rise of the modern institution of parole.

As a work concerned with the practice of mercy in the common law world, this book will be of great interest to researchers and students of international and comparative criminal justice and international human rights law.

1 Introduction

Executive clemency in global perspective

DOI: 10.4324/9781315747873-1

Most of the world's legal systems have a provision for mercy in criminal cases to temper the overly harsh application of law without undermining the law's deterrent potential. In the common law world, this power was traditionally exercised by the monarch, and delegated to colonial governors. Outside the common law world, however, constitutional mechanisms for mercy vary more widely. In most of continental Europe, the traditional manner of dispensing mercy was through a legislative amnesty, though many civil law countries today also have at least a limited means of executive pardon. Variations include requiring legislative approval of mercy decisions or requiring a minister accountable to the legislature to countersign a pardon in countries where the head of state is not directly elected. Clemency also existed in non-Western legal traditions, including under Islamic and precolonial law, where it was viewed as a traditional power of a chief or ruler.

Legal mercy is not limited to a single place in modern legal systems: it exists in a law enforcement officer's decision to arrest, a prosecutor's decision to prosecute, and a judge's decision to convict and sentence, to name a few. Doubts about legal mercy in any form as unfair, unguided, or arbitrary are as ubiquitous as the exercise of mercy itself.¹ The mercy power possesses an inherently contradictory nature: it is a discretionary instrument, often subject to the control of a single individual, yet used simultaneously to proclaim the law's impartial, determinate, and otherworldly nature. To be merciful is to forgive, a concept central to many global religious traditions. This book is about a specific type of mercy: the clemency and pardon power. Punishments are often delineated by legislatures and imposed by judiciaries; the clemency power, by contrast, is typically exercised by the third branch, the executive. The opacity of an executive clemency decision, outside of public view, allows a harsh sentence to be modified after the fact without undermining any deterrence impact of the original sentence.² Although the traditional exercise of the clemency and pardon power has declined in world-historical terms over the past several centuries, the use of parole – a bureaucratized form of sentencing mercy – has become more common, despite occasional attempts to restrict it.³ In many developed countries, the most commonly used form of “mercy” is dispensed by correctional authorities and parole boards in decisions that are mostly invisible.

¹ Austin Sarat, When Can or Should Legal Judgment Be Merciful? An Introduction, in Merciful Judgments and Contemporary Society:Legal Problems,Legal Possibilities 1 (Austin Sarat ed., 2012). ² Anthony N. Doob, Punishment in Late-Twentieth-Century Canada: An Afterword, in Qualities of Mercy: Justice, Punishment, and Discretion 166, 172–3 (Carolyn Strange ed., 1996). ³ Paul J. Larkin, Clemency, Parole, Good-Time Credits, and Crowded Prisons: Reconsidering Early Release, 11 Geo. J. L. & Pub. Pol'y 1, 7 (2013).

Mercy tempers justice. Historically, mercy had powerful resonance where the rigors or harsh applications of the law were perceived to cause injustice. Although it plays a small role in modern criminal law, the pardon looms large in historical memory as evidenced by the quest for posthumous pardons, especially in cases with overt political overtones such as sympathetic rebellious leaders or wrongfully convicted political prisoners.⁴ The philosophical underpinnings of mercy have been explored in Western popular culture, not least through William Shakespeare's three plays The Merchant of Venice, Measure for Measure, and The Tempest. Shakespeare famously provides a nuanced portrait of mercy, one in which legalism or leniency may triumph with a fair amount of unpredictability thrown in.⁵

⁴ Barry Wright, “Harshness and Forbearance”: The Politics of Pardons and the Upper Canada Rebellion, in Qualities of Mercy: Justice, Punishment, and Discretion 77, 77 (Carolyn Strange ed., 1996). ⁵ Robert A. Ferguson, The Place of Mercy in Legal Discourse, in Merciful Judgments and Contemporary Society: Legal Problems, Legal Possibilities 19, 43 (Austin Sarat ed., 2012).

As Sarat writes, clemency exists on the borderland between monarchical privilege and democratic rule of law. The United States constitution, for instance, imports the prerogative of the British monarch into a document otherwise constructing a government of limited powers. Alexander Hamilton's defense of clemency in the US constitution included recognition that the law of England was too harsh, where even minor offenses carried death sentences. He highlighted the awesome responsibility of the constitutional pardon power concentrated in one person and the possibility of restoring order after civil strife through pardons and amnesty, even for treasonous conduct.⁶ Still the debate rages. Crouch argues that the clemency power is being abused by modern presidents in the United States, who have used it to protect themselves or their subordinates, or to reward supporters. The most famous pardon in modern history – US President Gerald Ford's pardon of President Richard Nixon – initiated a recent trend toward use of the pardon not merely as an act of grace or for the public welfare, but as a political weapon used to interfere in the justice system.⁷

⁶ Austin Sarat, At the Boundaries of Law: Executive Clemency, Sovereign Prerogative, and the Dilemma of American Legality, 57 American Q. 611, 614–17 (2005). ⁷ Jeffrey Crouch, The Presidential Pardon Power 4 (2009).

The mercy power also triggers philosophical reflection. Any discussion of the mercy power must rest on the fundamental tension between a conception of clemency as a rarely used “act of grace” within the sole discretion of an executive, or a routine, rule-bound process, publicly transparent and amenable to judicial review. Max Weber's distinction between legitimate charismatic authority and bureaucracy may be relevant here: is a grant of clemency a form of charisma, an other-worldly power outside the rational world of legal rules, or a routine administrative decision that is repetitive, subject to explicit criteria, and consistent?⁸ Different legal systems have resolved this fundamental tension in different ways, and both have merits. Conceiving of clemency as a charismatic “act of grace” recognizes that clemency is a departure from the legal letter, an awesome power that can reverse or undo a decision of a court of law – a power that should be used sparingly and with flexibility. By contrast, imagining clemency as a routine, bureaucratic process ensures that grants of clemency are fair, impartial, and non-discriminatory, subject to due process rights and decision-making criteria.⁹ Whether an executive should use the clemency power as a form of curative legislation by making policy-based pardons, or whether this is best left to the legislative and judicial branches is a subject of perennial debate in many legal systems.

⁸ Max Weber, author, Hans H. Gerth and C. Wright Mills, trans., eds., From Max Weber: Essays in Sociology 196–97, 245–50 (1946). ⁹ Margaret Colgate Love, Fear of Forgiving: Rule and Discretion in the Theory and Practice of Pardoning, 13 Fed. Sent'g Rep. 125, 127–28 (2000).

Discretionary executive clemency sits uncomfortably in a legal system of objective rules and distinctions, and the pardon power has triggered different philosophical objections. For utilitarians like Cesare Beccaria, the penal code itself should be lenient, not the penal code's agents. If a pardon is just, the law must be wrong; if the law is just, a pardon must be wrong. For retributivists, the questions posed by Saint Anselm of Canterbury about the consistency of clemency might be more relevant: if God is merciful to some sinners, why not to all whose sins are similar?¹⁰ These philosophical questions about mercy have been fiercely debated over centuries. This includes the very nature of a pardon. Who or what is pardoned? The offender or the offense? Philosopher Jacques Derrida argued that the pardon power is intentionally ambiguous on this point and requires reference to both the act and the person.¹¹ Is it “merciful” to nullify a criminal punishment that is genuinely deserved? Is it right? This book explores the practice of clemency and not the theory, but the practice never completely escapes the moral and theoretical plane.

¹⁰ Nigel Walker, The Quiddity of Mercy, 70 Philosophy 27, 27 (1995). ¹¹ Sarat, supra note 6 at 614–15.

Defining terms

The royal prerogative of mercy is the residue of royal power that traditionally resided in the English sovereign, once expansive though today limited by convention and principles of administrative law, and, in the former colonies, by constitutional provision. In this book, “clemency” will be used as an umbrella term encompassing the four traditional forms of executive mercy: pardons, reprieves, commutations of sentence, and remissions of fines and forfeitures. The word “pardon” indicates a sentence or punishment that is fully cancelled, either freely or conditionally. A “reprieve” is a delay or suspension of punishment, while a “commutation of sentence” is a substitution of a greater sentence with a lesser one. In short, the mercy power allowed the sovereign unlimited discretion to replace one form of punishment with another, or none at all. Where all forms of clemency are being discussed, this book will frequently use the word “pardon,” the broadest form of clemency, as shorthand for the full mercy power. However, as many constitutional systems make distinctions among the four traditional mercy powers, or otherwise provide for slightly different definitions, these will be carefully noted throughout the text. Amnesty is a slightly different conception, one similar to the common law clemency power but with different origins in the civil law world. The word “amnesty” originates from the ancient Greek, in which it referred to amnesia or oblivion. Amnesties have sought to provide soldiers, rebels, and authoritarian government officials, for example, with incentives to stop fighting, surrender their might, and begin participating in a new political system. In this way, amnesties have historically been a frequent component of peace settlements and negotiated transitions.¹²

¹² Roman David, Transitions to Clean Government: Amnesty as an Anticorruption Measure, 45 Aust. J. Pol. Sci. 391, 395 (2010).

The clemency power in the common law world

Despite its uncomfortable and often controversial role in modern legal systems, virtually every common law jurisdiction has a constitutional provision for executive mercy, and even those few that do not nonetheless typically have a statutorily-enacted scheme that allows some executive input into criminal sentencing. The survival of executive clemency into the twenty-first century may be attributed in part to the fact that the power derives from the same source in the common law world, rooted in the British monarch's royal prerogative of mercy. Because the King was the sovereign, crime against the state was crime against the King himself, and he alone had the power to reprieve it.¹³ As the British Empire expanded globally, the pardon power followed, delegated to colonial governors on the King's behalf and later claimed by independent heads of state.¹⁴ Slowly, however, the prerogative of mercy became bureaucratized in Great Britain and later in most of its former colonies partially as a protection against arbitrary decision-making and partly to cope with the vast numbers of cases in large and complex societies. The United States is no exception here: a former British colony itself, it inherited the pardon power from the British sovereign, where the power was enshrined in the US constitution after vigorous debate by the constitutional drafters; today, all 50 state constitutions also possess some form of mercy mechanism.¹⁵ Although...