All five contemporary practitioners of the death penalty in the Association of Southeast Asian Nations (ASEAN)—Indonesia, Malaysia, Thailand, Singapore, and Vietnam—have performed executions on a regular basis over the past few decades. Amnesty International currently classifies each of these nations as death penalty ‘retentionists’. However, notwithstanding a common willingness to execute, the number of death sentences passed by courts that are reduced to a term of imprisonment, or where the prisoner is released from custody altogether, through grants of clemency by the executive branch of government varies remarkably among these neighbouring political allies. This book uncovers the patterns which explain why some countries in the region award commutations and pardons far more often than do others in death penalty cases. Over the period under analysis, from 1991 to 2016, the regional outliers were Thailand (with more than 95 per cent of condemned prisoners receiving clemency after exhausting judicial appeals) and Singapore (with less than 1 per cent of condemned prisoners receiving clemency). Malaysia, Indonesia, and Vietnam fall at various points in between these two extremes. This is the first academic study anywhere in the world to compare executive clemency across national borders using empirical methodology, the latter being a systematic collection of clemency data in multiple jurisdictions using archival and ‘elite’ interview sources. Last Chance for Life: Clemency in Southeast Asian Death Penalty Cases will prove an authoritative resource for legal practitioners, criminal justice policymakers, scholars, and activists throughout the ASEAN region and around the world.
Chapter 2 provides the theoretical framework for a comparative study of clemency in death penalty cases. It begins by clarifying the terminology used throughout the book, including the local terms used in Southeast Asian legal systems for executive ‘clemency’. Then, drawing in particular from the work of Douglas Hay et al (1975), Leslie Sebba (1977a; 1977b); Kathleen Dean Moore (1989), Daniel Kobil (1991; 2003; 2007), Elizabeth Rapaport (1998–2000; 2001), and Austin Sarat (2005; 2008), Chapter 2 suggests four models of clemency in death penalty cases, based upon the previous academic literature: (1) ‘mercy from the sovereign’ granted solely for the ruler’s benefit; (2) retributivist clemency; (3) redemptive clemency; and (4) clemency for political benefit or utilitarian reasons. Finally, Chapter 2 also summarizes the results of the few multi-jurisdictional studies on capital clemency conducted in the past (e.g. Turrell 2000; Pascoe 2017b; Sebba 1977b; Baumgartner and Morris 2001; The Parliamentary Monitoring Group 2004; Dascalu 2012; Novak 2015; Strange 1996; Tait 2000–1), together with factors that the theoretical literature suggests may contribute to clemency frequency or scarcity. In summary, the theoretical and empirical literature points to the following potential determinants of death penalty clemency: political regime, separation of powers, clemency decision-making structure, structural opportunities for leniency at earlier phases, procedural idiosyncrasies in the criminal justice system, time spent on death row, and predominant religion.
Because of the threat that Covid-19 poses to incarcerated populations, executives around the world have used their clemency powers to commute sentences and grant freedom to prisoners in high-risk categories. Coronavirus pardons may be justified on several theories of punishment and have been exercised alongside bureaucratic forms of legal mercy such as parole and compassionate release. Although executive clemency is residual in most legal systems, the novel coronavirus has reactivated the pardon power in many jurisdictions, overcoming significant legal and procedural barriers, albeit with exclusions for particular crimes and categories of offender. This article relays recent global trends in executive clemency granted as a result of Covid-19, drawing out relevant lessons for the academic literature on the topic, as well as for policymakers dealing with future pandemics and other emergencies.
The South Pacific forms a cohesive region with broadly similar cultural attributes, legal systems and colonial histories. A comparative analysis starts from the assumption that these countries should also have similar criminal justice policies. However, until 2022, both Papua New Guinea and Tonga were retentionist death penalty outliers in the South Pacific, a region home to seven other fully abolitionist members of the United Nations. In this article, we use the comparative method to explain why Papua New Guinea and Tonga have pursued a different death penalty trajectory than their regional neighbours. Eschewing the traditional social science explanations for death penalty retention, we suggest two novel explanations for ongoing retention in Papua New Guinea and Tonga: the law and order crisis in the former and the traditionally powerful monarchy in the latter.
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