Executive Clemency During the Coronavirus Pandemic: A Global Analysis of Law and Practice

Abstract

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.

Clemency

“…In this category would be those who see mercy as a key feature of clemency (Osler 2017b). This is the original view of clemency in most common law countries, which followed British precedent and the monarch's royal prerogative of mercy by bestowing the mercy power to the elected head of state (Novak 2016). It is a core part of the clemency tradition in the United States and what the pardon power captures in the Constitution (Osler 2019).…”

“…The many valuable functions help explain why countries throughout the world and every state in America have some form of clemency dispensation as part of their governance structure. It also accounts for the fact that two major treaties, the International Covenant on Civil and Political Rights and the American Convention on Human Rights, both require a clemency or pardon mechanism in all death penalty cases (Novak 2016).…”

“…If clemency is seen as political in nature, that may be the basis for advocating to have other political actors besides the chief executive play a role in whether it can be issued (Kobil 1991, Larkin 2016. On the other hand, if it looks like politics is playing too central a role and leading to favoritism or clemency's desuetude, then it may mean that a more insulated board is the right model for clemency determinations (Barkow & Osler 2015, Novak 2016.…”

“…This key role for clemency as a regularly exercised presidential duty subsequently dissolved. Despite the valuable functions clemency performs and a robust history of use throughout the world, it has been in steady decline for several decades around the world and in the United States, even as other second-look sentencing mechanisms such as parole have withered (Barkow 2015, Novak 2016.…”

“…Whereas justice means due process, equal treatment under laws, and transparency, the dispensation of pardons or sentence reductions through clemency typically follows no rules, at least not enforceable ones, and usually comes with no explanations. Yet most countries in the world, as well as every American state, maintain some system of clemency as part of their governing structures even as other aspects of their criminal law change (Alschuler 2022, Novak 2016. A great deal of scholarship on clemency exists to catalog and describe the variations in these clemency regimes.…”