NCJ Number
45557
Date Published
1977
Length
20 pages
Annotation
THE HISTORICAL USE OF CLEMENCY IS EXAMINED IN AN ATTEMPT TO DISCOVER WHETHER THE INSTITUTION IS NOT ANCIENT BUT ALSO ARCHAIC.
Abstract
GROUNDS OF ATTACK ON THE CLEMENCY POWERS MAY BE CONSIDERED UNDER TWO HEADINGS: POLITICAL THEORY AND PENAL POLICY. FROM THE VIEWPOINT OF POLITICAL THEORY, THE CONCEPT OF AN OMNIPOTENT SOVEREIGN TEMPERING JUSTICE WITH MERCY IN A 20TH CENTURY CONSTITUTIONAL DEMOCRACY IS QUESTIONED. FROM THE PERSPECTIVE OF PENAL POLICY, IT IS EVIDENT THAT THERE WAS A NEED FOR CLEMENCY IN AN EARLIER AGE, WHEN JUSTICE WAS EITHER ARBITRARY OR RESULTED IN HARSH AND OPPRESSIVE PUNISHMENT BEING AUTOMATICALLY INFLICTED WIHOUT REGARD TO THE CIRCUMSTANCE OF THE OFFENSE OR THE PERSONALITY OF THE OFFENDER; IN THE PROFESSIONALIZED 20TH CENTURY SCHEME OF CRIMINAL JUSTICE, HOWEVER, THE COURTS AND OTHER QUALIFIED BODIES ARE EXPECTED TO INDIVIDUALIZE JUSTICE AND TO DETERMINE A SENTENCE BASED ON A DELICATE BALANCE OF THE NEED TO PROTECT SOCIETY AND THE NEED TO REHABILITATE THE OFFENDER. A HISTORICAL REVIEW OF THE CLEMENCY OR PARDONING POWER SHOWS THAT ITS EARLY MANIFESTATIONS GO BACK TO BIBLICAL TIMES; THE ANCIENT GREEKS AND ESPECIALLY THE ROMANS DEVELOPED SOPHISTICATED DIFFERENTIATIONS BETWEEN TYPES OF CLEMENCY, AS DID THE FRENCH AND ENGLISH IN LATER TIMES. THE PARDON SERVED IN EARLY TIMES TO COMPENSATE FOR THE STRICTNESS OF THE CRIMINAL LAW, TO RID AN OFFENDER OF THE STAIN OF CONVICTION, AND TO INDUCE AN ACCOMPLICE OF A COPRINCIPAL TO TESTIFY AGAINST THE PRINCIPAL OFFENDER. OPPOSITION TO CLEMENCY WAS INTRODUCED DURING THE AGE OF ENLIGHTMENT BY SUCH PHILOSOPHERS AND GREAT THINKERS AS CESARE BECCARIA, IMMANUEL KANT, AND HENRY FIELDING; SUPPORTERS OF THE INSTITUTION INCLUDED MONTESQUIEU, BLACKSTONE, AND JEREMY BENTHAM. THE FRENCH REVOLUTION OF 1789 BROUGHT ABOUT THE OVERTHROW OF THE INSTITUTION OF CLEMENCY BY WAY OF REACTION TO THE REPRESSIVE MEASURES OF THE 'ANCIENT REGIME.' HOWEVER, THIS ABOLITION OF CLEMENCY, UNIQUE IN HISTORY, WAS SHORT-LIVED, AS THE PARDONING POWER WAS RESTORED BY THE FRENCH CONSULATE IN 1802. MODERN CRIMINAL LAW HAS ELIMINATED THE NEED FOR THE PARDON IN SEVERAL INSTANCES, E.G., AS A MEANS TO AVOID THE CRIMINAL SANCTION WHERE THE DEFENDANT WAS INSANE OR ACTED OUT OF SELF-DEFENSE, OR AS A MEASURE FOR DEALING WITH A WRONGLY CONVICTED DEFENDANT, THROUGH THE IMPLEMENTATION OF DEFENSE PROCEDURES AND THE CONCEPT OF APPEAL. CLEMENCY HAS BEEN EXERCISED IN MODERN TIMES PRINCIPALLY TO COMMUTE SENTENCES OF CAPITAL PUNISHMENT, TO REMEDY MISCARRIAGES OF JUSTICE, AND TO EXPUNGE RECORDS OR RESTORE RIGHTS. GENERAL PARDONS DURING TIMES OF CELEBRATION OR IN SITUATIONS ARISING WHEN SOCIAL, ECONOMIC, OR MILITARY CHANGES CAUSE A CHANGE IN PUBLIC ATTITUDE TOWARD AN OFFENSE (E.G., CLEMENCY PROGRAMS FOR DRAFT EVADERS AND DESERTERS) ARE ALSO POSSIBLE IN MODERN SOCIETY. THE AUTHOR FEELS THAT ALTERNATIVE SOLUTIONS (E.G., LEGISLATIVE MEANS) ARE BOTH AVAILABLE AND PREFERABLE TO RELIANCE ON THE CLEMENCY POWER; THE SOLUTION ADOPTED, HOWEVER, MAY NOT BE TOTALLY COMPREHENSIVE, AND SPECIAL CASES MAY STILL CONTINUE TO REQUIRE A SPECIAL SOLUTION. NOTES AND REFERENCES ARE PROVIDED. (DAS)