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Examples of amnesty and pardon are as ancient as the records of organized society, and these institutions are recognized in almost every contemporary legal system. This universality may be seen as a reflection of the desire appertaining to all systems to ‘‘temper justice with mercy.’’ More specifically, it signifies the need for any formal system to maintain a residual power to introduce occasional modifications in implementing its formal norms in order to meet the exigencies of unforeseen situations.
Terminology and Etymology
The term pardon is first found in early French law and derives from the late Latin perdonare (‘‘to grant freely’’), suggesting a gift bestowed by the sovereign. It has thus come to be associated with a somewhat personal concession by a head of state to the perpetrator of an offense, in mitigation or remission of the full punishment that he has merited. Amnesty, on the other hand, derives from the Greek amnestia (‘‘forgetting’’), and has come to be used to describe measures of a more general nature, directed to offenses whose criminality is considered better forgotten. Yet, it is interesting to note that in ancient Greece, amnesties were in fact called adeia (‘‘security’’ or ‘‘immunity’’), and not amnestia. Moreover, the term pardon fell into disuse in French law, to be replaced by the term grâce.
Clemency is a broader term, often encompassing both amnesty and pardon (Weihofen). Gerald Ford’s U.S. Presidential Clemency Board, on the other hand, specified that it was concerned with granting ‘‘clemency, not amnesty.’’ Clemency, however, is not usually employed as a legal term.
Commutation and remission refer to a lowering of the severity of a penalty, for example, commuting a death sentence into life imprisonment, or remitting a portion of the prison term imposed. Reprieve refers to the postponement or temporary suspension of a penalty.
The roots of pardon and amnesty are found in ancient law. References to institutions somewhat resembling the modem pardon appear in ancient Babylonian and Hebrew law. The first amnesty is generally attributed to Thrasybulus in ancient Greece (403 B.C.E.); but fifteen centuries earlier the Babylonian kings, on accession to the throne, would declare a misharum, involving a general discharge from legal bonds of both a civil and a penal character. (An analogy may be found in the biblical ‘‘jubilee laws.’’) The Romans, on the other hand, developed a number of forms of clemency, and these influenced subsequent developments in European law.
In medieval Europe the power to grant pardon was held by various bodies, including the Roman Catholic Church and certain local rulers, but by the sixteenth century it usually was concentrated in the hands of the monarch. In postReformation England, the royal prerogative of ‘‘mercy’’ was used for three main purposes: (1) as a precursor to the as-yet-unrecognized defenses of self-defense, insanity, and minority; (2) to develop new methods of dealing with offenders unrecognized by legislation, such as transportation or military conscription; and (3) for the removal of disqualifications attaching to criminal convictions.
Legislative amnesties were frequent in certain civil law countries, such as France, where they were used as an instrument of pacification after periods of civil strife (Foviaux). In England, however, this institution did not take root. The last ‘‘Acts of Grace’’ took place after the Jacobite risings of 1715 and 1745.
The Eighteenth Century: Pardons and The Classical School
During the eighteenth century the sovereign’s power to grant pardons in individual cases came under attack, notably by Cesare Beccaria in his famous essay On Crimes and Punishments. Permitting the sovereign to interfere with the implementation of the laws was perceived as a threat to the concept of the separation of powers in derogation of the autonomy of both legislature and judiciary—although Montesquieu, with whom the concept of the separation of powers is associated, did not oppose the pardoning power. Such interventions were also seen as detrimental to the deterrent powers of the law, which were predicated on the inexorability of its implementation. Finally, the rampant use of pardons (particularly with respect to accomplices to crimes who informed against the principal perpetrators) was seen as a source not only of uncertainties but also of corruption and abuse.
These criticisms bore fruit after the outbreak of the French Revolution with the adoption of the Penal Code of 1791, which abolished all powers of pardon in relation to offenses triable by jury. However, the critics’ victory was short-lived, for the pardoning power was revived when Napoleon Bonaparte became consul for life in 1802. Echoes of the eighteenth-century controversy, however, still reverberate today.
The Nineteenth Century: Amnesty and The American Civil War
Article II, Section 2 of the U.S. Constitution bestows upon the president the power to ‘‘grant Reprieves and Pardons for offences against the United States, except in Cases of Impeachment.’’ The first important questions arose in this regard when, in the wake of the Civil War, President Andrew Johnson purported to grant amnesty or a general pardon in favor of southern loyalists. The president was bitterly attacked, it being argued that the power he asserted was in the exclusive purview of Congress, and very different from that specified in the Constitution (L.C.K.). President Johnson seems, however, to have been vindicated in retrospect (at least as regards his constitutional position) by later measures of this type—notably, President Jimmy Carter’s general pardon of the Vietnam draft evaders—which have gone unchallenged.
Clemency Powers in The Twentieth Century
The Constitutional Nature of The Clemency Powers
Such conflicts in this area between the president and Congress have been symptomatic of the uncertainty attached to the constitutional nature of the clemency powers. Another example, the corollary of the Civil War issue, occurred in 1939 when California’s legislature debated the grant of an individual pardon (to former labor leader Tom Mooney), and its legal powers to do so were challenged by some academic jurists (Radin).
Traditionally, these powers have been associated with the sovereign authority, and today they are most frequently entrusted to the head of state. This office is generally associated with the executive branch of government, particularly in presidential systems of government. For this reason, the exercise of pardon is often referred to as executive clemency. This, too, is the reason why impeachment has been excluded from the purview of the pardoning power in many jurisdictions: such a power might enable a chief executive to protect his ministers from parliamentary control. It is not altogether clear, however, whether it was in his executive capacity that the sovereign historically exercised these powers; he generally stood at the pinnacle of all three branches of government—legislative, executive, and judiciary—and the precise role of each branch in the decision-making process is controversial. Thus, the mechanism of decisionmaking, and the involvement of ministers and executive officials, judges, and sometimes even legislators in this process, have varied widely from one jurisdiction to another (Sebba, 1977; Stafford). Furthermore, although acts of clemency are in general immune from judicial review, the grounds for this immunity are sometimes stated to be the executive nature of the act—and sometimes its judicial nature.
Clemency powers extend to individual state governors in the United States, who occasionally exercise these powers to reflect contemporary changes in legal norms at the state level.
Contemporary Functions of Pardon and Amnesty
The term pardon is often used generically to describe the power vested in the head of state to grant clemency in individual cases. In this sense it includes such subcategories as full pardon, conditional pardon, commutation, remission, and reprieve. Sometimes, however, it refers only to certain categories. Thus, the U.S. Constitution refers only to pardons and reprieves, the first term incorporating the remaining subcategories.
In recent times, pardons have served three main functions: to remedy a miscarriage of justice, to remove the stigma of a conviction (and the disabilities thereby entailed), and to mitigate a penalty. The first two objectives are usually achieved by means of a full pardon; the other forms are employed for the purpose of mitigating the sentence. These very different objectives have resulted in some confusion as to the legal effects of a pardon. Thus, a pardon is sometimes held to ‘‘blot out guilt’’—a necessary outcome where the pardon was brought about by a miscarriage of justice, but an inappropriate result in other cases. A commutation substitutes one recognized form of penalty for another. A conditional pardon is more flexible, the only usual requirement being that the condition attaching to the pardon be reasonable. A remission simply implies cancellation of the penalty, wholly or partly. Finally, a reprieve denotes the deferment of a sentence’s execution. This mode is typically adopted in capital cases; the penalty is then commuted to a prison term.
An amnesty typically (1) is enacted by legislation instead of being a purely executive act; (2) is applied generally to unnamed persons, that is, to persons who fulfill certain conditions or a description laid down by the law; and (3) is designed to remove ex post facto the criminality of the acts committed. Amnesties are deemed appropriate after a political, economic, or military upheaval. A newly installed regime may hold a different perception of conduct penalized by its predecessor, whereas a consolidated one may wish to indicate its self-confidence by forgiving its erstwhile opponents. These characteristics differentiate amnesty from pardon, which issues from the head of state rather than the legislature, impinges upon the penalty rather than the conviction, and is granted on an individual basis.
Pardons and Amnesty Compared
The above distinctions are difficult to apply in the United States and many other countries in the common law tradition, for three reasons. First, amnesties are rarely resorted to, and few conventions exist in this matter. Second, as noted above, the distribution of power between the legislature and executive in this area is unclear. Third, granting an individual pardon may, in removing the effects of the conviction, have effects as far-reaching as those of a European amnesty. Thus, the United States Supreme Court once went so far as to say that ‘‘the distinction between amnesty and pardon is one rather of philological interest than of legal importance’’ (Knote v. United States, 95 U.S. 149 (1877)). In at least one other case, however (Burdick v. United States, 236 U.S. 79, 95 (1915)), the Court has indicated the differences between these two concepts, and a state court once declared that ‘‘amnesty is the abolition or oblivion of the offence; pardon is its forgiveness’’’ (State v. Blalock, 61 N.C. (Phil. Law) 242, 247 (1867)).
This distinction may be illustrated by the measures taken with regard to the Vietnam War evaders and deserters by Presidents Gerald Ford and Jimmy Carter, respectively. Ford established a clemency board to consider for a presidential pardon individual petitioners who were willing to fulfill certain conditions. Carter, on the other hand, proclaimed that all persons convicted of certain offenses under the Selective Service Act were to be unconditionally pardoned, and all pending cases closed. Although the latter measure originated with the president rather than the legislature, and was described as a pardon, its generality, purpose, and breadth of scope suggested an amnesty.
In continental Europe, on the other hand, the older distinctions are becoming increasingly blurred. So-called amnesty laws have been introduced for varied purposes, often to remit penalties rather than to remove the criminality of the offense, and sometimes merely as a device for the reduction of prison populations. In France, for example, amnesties have been frequently enacted in recent years; these statutes often cover a broad range of offenses, and have a major impact on pending criminal caseloads and inmate populations. Further, a hybrid institution has been introduced, the grâce amnistiante, whereby the president is empowered to grant pardon (amnesty?) to selected individuals who fall within certain categories designated by the law. Finally, in Italy, the government has been delegated the power to pass legislation granting either amnesty or pardon (indulto).
Amnesty and Truth Commissions
Since the early 1980s, amnesty has developed as a popular method of expediting the transition to representative government. Broad grants of amnesty often followed the establishment of a ‘‘truth commission,’’ organized by succeeding governments, nongovernmental organizations, churches, or the United Nations, and mandated to investigate human rights violations of a preceding regime. Used most frequently in Latin America, transitional governments have experimented with amnesty proceedings and ‘‘truth commissions’’ as an alternative to prosecution of human rights violations. However, some commentators have noted that broad grants of amnesty granted either before or after issuance of a truth commission’s investigative findings may not comport with customary international law developed since World War II imposing a duty upon states to prosecute human rights violations. Although truth commission findings have often detailed broad cases of human rights violations, these truth commissions often lacked judicial functions to investigate alleged human rights violators. South Africa’s Truth and Reconciliation Commission was the first government-initiated truth commission to be granted broad judicial investigatory powers, and also has power to offer conditional amnesty on narrow grounds. Suspected human rights violators who fail to apply for amnesty, which requires full disclosure of all such violations, are subject to investigation and prosecution.
The Future of Clemency
Although somewhat neglected by academic writers, clemency is clearly a perplexing area in the scheme of criminal justice. By their very nature amnesties tend to be controversial, since they denote a radical political reassessment of conduct previously designated as criminal. Constitutionally, however, they have presented less of a problem (outside the United States) because they are subject to the same processes and controls as other legislation. The pardoning power is considerably more problematic. The grant of relief from the processes of criminal justice to selected persons on an individual basis attracts criticism today no less than during the eighteenth century, especially where the decision-making process is often secretive and immune from judicial and political review. The suspicion of favoritism is thus frequently raised. Such criticism may be more vociferous when the pardon is a ‘‘blanket’’ one, unrelated to a specific indictment, as in the case of President Ford’s pardon of his predecessor, Richard Nixon.
The functions of the pardon, too, are in modern times seen to be largely anomalous; most of its traditional functions are fulfilled by alternative institutions. Justice is individualized by other methods, such as the discretion of the sentencing judge, parole, and ‘‘good time’’ laws that reduce prison terms for good behavior. Allegations of miscarriages of justice may now lead to a new trial. Removal of the criminal stigma is now achieved in some jurisdictions by restrictions on the disclosure of criminal records or by their expungement. Many European legal systems achieve the same result by ‘‘rehabilitation’’ proceedings. The residual power of the chief executive to modify the inexorable harshness of the law may seem to have been rendered superfluous.
However, at least two considerations seem to operate in favor of retention of the pardoning function. First, the movement away from the rehabilitationist ideal has resulted in a lessening of the power of other existing institutions to individualize the penalty. Mandatory minimum and determinate sentencing laws have reduced and sometimes removed the court’s discretion, and this is often coupled with the abolition of parole. Moreover, the death penalty, for which clemency powers have always been heavily used, is undergoing a resurgence. Paradoxically, the increasingly mandatory and severe character of the American penal system may necessitate the retention of the pardoning power for those exceptional cases which the formal norms of the written law prove unable to accommodate.
The second consideration in support of retention of the pardoning power is the evidence of history, which seems to indicate the inability of any legal system to survive without it.
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