Almost every constitution in the world confers a power to pardon. Pardon powers are found in the constitutions of old states and new states, Western states and non-Western states, states with a Christian tradition and states without one. Pardon powers are part of the constitutions of states as diverse as France, Indonesia, Peru, Russia, the United Kingdom, and the United States.
Pardon powers share several features. First, the exercise of the power has the result of lifting or lessening criminal liability. Second, the power achieves this result not by changing the law, but by setting it aside in a particular case. Third, the power is held by a branch of government other than the judiciary – the executive, normally, or the legislature, less commonly. Finally, in its traditional mould, a pardon power is wholly arbitrary. Its use is unreviewable and unconstrained. (For recent departures from this traditional form of the pardon power, see my post here.)
So understood, pardon powers seem to conflict with two of the most basic principles of constitutionalism. Contrary to the separation of powers, a pardon power gives to a branch of government other than the judiciary a role in determining criminal liability in particular cases. Contrary to the rule of law, a pardon power is traditionally neither controlled by nor ruled by law.
Hence the pardon paradox: one of the most common constitutional power is at odds with some of the most fundamental constitutional principles. Pardon powers are everywhere but seem to properly belong nowhere. I argue that the paradox has a solution. Appearances notwithstanding, pardon powers threaten neither the separation of powers nor the rule of law. My argument has three steps.
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I’ve been working on a series of papers about mercy. My latest is a discussion of when the government acts mercifully, if indeed it ever does.
Here’s the abstract:
A pardon is an act of mercy according to the law, but is a pardon mercy in an ordinary or genuine sense? What distinguishes a pardon from a lenient judicial sentence, which is not mercy by the law’s lights? These are questions about what mercy as it is understood in law has to do with mercy as it is understood outside of law, and about who in government acts mercifully and when, if indeed anyone in government ever does. Here I propose a general analysis of mercy, then bring that analysis to bear on government action. Three features of my analysis are noteworthy. First, almost all existing analyses say that mercy is unconstrained in a normative sense, but I argue that mercy is unconstrained in the way that arbitrary power is unconstrained. Second, although it’s often assumed that mercy must be motivated by compassion, I show that mercy only requires acting with the intention to benefit the recipient. Third, my analysis says that mercy requires the giver of mercy to overcome a motivation to treat the recipient harshly. Given this analysis, few government acts are merciful, but pardon is an institutional approximation or analog of mercy.
Read the full paper here.
The paper is a draft, and comments and suggestions, no matter how small, are very welcome!
If one is allowed to have a favourite prerogative power, the prerogative of mercy is mine. The prerogative of mercy’s only uses are to lift punishment and to lessen suffering. Who could object to that? Yet this “most amiable prerogative” is often under attack. Continue reading →
Judges in Commonwealth jurisdictions are increasingly willing to review the executive’s decisions to grant or refuse mercy (ie, decisions to grant or refuse a request for a pardon or remission of a sentence for a criminal offence). Here I want to sketch the developments and mention a few interesting differences and commonalities. I’ll focus on the Caribbean States and India, where most of the action has been.
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