Four Models of Clemency

Abstract

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.

Justifying leniency at a time of punitiveness: Federal clemency narratives in the United States

“…At a time of punitiveness, rather than reinventing the wheel, presidents have continued to offer established justifications to validate clemency grants. While some evidence indicates that a retributivists conception prevails in the recent practice of clemency (Sarat, 2005), this study found, similarly to Pascoe (2019), that none of the administrations fit with one of the three rationales of clemency. Statements often draw from multiple rationales at the same time and reveal significant variation in how clemency follows such logics.…”

“…Legal theorists have explored the development, organization and practice of clemency in a comparative perspective in modern common-law democracies (Novak, 2016). This research found that clemency performs three main functions: redemption, utilitarianism, and retributivism (Pascoe, 2019). Clemency as redemption is granted in light of individuals’ character and commendable behaviour.…”

“…This is mostly evident with commutations because changes in sentences are perceived as challenging the ordinary process of justice. The secrecy of the deliberation process, the limited publicization of decisions (Pascoe, 2019), and controversial grants to political supporters also contribute to this lack of public confidence towards clemency.…”

“…Finally, retributive clemency challenges undeserved or disproportionate sentences to enhance justice. More recent comparative scholarship has examined clemency when sparing individuals from capital punishments (Pascoe, 2019; Pascoe and Novak, 2020).…”

“…Obama emphasizes how the lengthy separation from their incarcerated loved ones is ‘damaging families’ as ‘kids are growing up without parents’. According to this retributivist logic for compassionate family grounds, clemency becomes admissible because the original sentence would result in disproportionate punishment not only to the convicted individuals, but also to their families (Pascoe, 2019). Rather than merely describing individuals as people with a history of crime, emphasis is placed on their relationships with others.…”