Pardon

Definition - the article should have in its first section (after the "First 100") a clear definition and discussion thereof. Sometimes needs subsections on the different Types. History - this should cover the development of the law or issue from its early beginnings (or precursors) through to the pretty much current situation. Good to make sure different cultures/nations are included since things often developed in several distant places, even extinct cultures, long before arriving in modern society. World situation - overview the status/practice of the law or issue around the world today. Social issues - how the law impacts society, issues of prevention and punishment, etc. Notables - these can be notable people who did the deed (see Piracy and Confidence game), notable applications of the law, or even in popular culture (see Conspiracy).

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Self-incrimination
Sentence (law)
Post-sentencing
Pardon
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Definition

A pardon is the forgiveness of a crime and the penalty associated with it. It is granted by a sovereign power, such as a monarch, chief of state, or a competent church authority. Clemency is an associated term, meaning the lessening of the penalty of the crime without forgiving the crime itself. The act of clemency is a reprieve. Today, pardons and reprieves are granted in many countries when individuals have demonstrated that they have fulfilled their debt to society, or are otherwise deserving (in the opinion of the pardoning official) of a pardon or reprieve. Pardons are sometimes offered to persons who claim they have been wrongfully convicted. Some believe accepting such a pardon implicitly constitutes an admission of guilt, so in some cases the offer is refused (cases of wrongful conviction are nowadays more often dealt with by appeal than by pardon).

Clemency is often requested by foreign governments that do not practice capital punishment when one of their citizens has been sentenced to death by a foreign nation that does practice it.

History

The act of pardoning someone has biblical origins. In Luke's account of the crucifixion of Jesus, Jesus says from the cross: "Father, forgive them for they do not know what they are doing." In speaking such, he requested a pardon for those responsible in his death.

In Western civilization, pardons and clemency resulted from tyrannies claiming the “divine right” to rule. Roman dictaorships (Nero, Caligula, Julius Caesar), which exercised the absolute right of life and death over their subjects, were replaced in Europe by hereditary royalty (with the exception of the Republic of Venice). During the Middle Ages, monarchs goverened under the notion of the “Divine Right,” with their subjects meant to believe that God personally authorized the right of their kings to rule.

With such divine power, such "perfect" monarchs had the absolute right to decide who was, and was not, to be arrested, tried, convicted, tortured, and executed. At times, a king could publically demonstrate his benevolence by pardoning individuals.

The notion of the Divine Right of Kings began to break down with the first English Civil War. The national conflict had the English middle class fighting against the arrogant monarch, William I, and his supporters. This was the first time in history that policy and politics were openly debated during a war. During the Putney Debates, Oliver Cromwell on behalf of the king argued against the Levelers faction of the army. While the army proposed an undoing of the Divine Right of Kings and a new government based on representative democracy fostering equal rights for the people, Cromwell prevailed.

Although the American Revolutionary War was inspired in part by the stance previously taken by the Levelers, a leftover from the British period of Divine Right was retained by the American Forefathers—the absolute right to pardon criminals of all sorts. Therefore, even today an American poltical leader can evoke executive privilege—like the Roman emperors once did—and exerise the right to pardon someone without having to justify the action to anyone.

World situation

Nations around the world have their own rules, laws, and procedures for granting pardons and reprieves. Much of these differences stem from the nations' varying histories and cultural make-up. The following are examples of how the act of granting pardons and reprieves are accomplished in different nations:

United States

In the United States, the pardon power for Federal crimes is granted to the President by the United States Constitution, Article II, Section 2, which states that the President:

shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

The Supreme Court has interpreted this language to include the power to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, and remissions of fines and forfeitures, respites and amnesties. All federal pardon petitions are addressed to the President, who grants or denies the request. Typically, applications for pardons are referred for review and non-binding recommendation by the Office of the Pardon Attorney, an official of the Department of Justice. The percentage of pardons and reprieves granted varies from administration to administration (fewer pardons have been granted since World War II).

The pardon power was controversial from the outset; many Anti-Federalists remembered examples of royal abuses of the pardon power in Europe, and warned that the same would happen in the new republic. However, Alexander Hamilton defends the pardon power in The Federalist Papers, particularly in Federalist No. 74. In his final day in office, George Washington granted the first high-profile Federal pardon to leaders of the Whiskey Rebellion.

Many pardons have been controversial; critics argue that pardons have been used more often for the sake of political expediency than to correct judicial error. One of the more famous recent pardons was granted by President Gerald Ford to former President Richard Nixon on September 8, 1974, for official misconduct which gave rise to the Watergate scandal. Polls showed a majority of Americans disapproved of the pardon, and Ford's public-approval ratings tumbled afterward. Other controversial uses of the pardon power include Andrew Johnson's sweeping pardons of thousands of former Confederate officials and military personnel after the American Civil War, Jimmy Carter's grant of amnesty to Vietnam-era draft evaders, George H. W. Bush's pardons of 75 people, including six Reagan administration officials accused and/or convicted in connection with the Iran-Contra affair, Bill Clinton's pardons of convicted FALN terrorists and 140 people on his last day in office—including billionaire fugitive Marc Rich, and George W. Bush's commutation of I. Lewis "Scooter" Libby's prison term.

The Justice Department recommends anyone requesting a pardon must wait five years after conviction or release prior to receiving a pardon. A presidential pardon may be granted at any time, however, and as when Ford pardoned Nixon, the pardoned person need not yet have been convicted or even formally charged with a crime. Clemency may also be granted without the filing of a formal request and even if the intended recipient has no desire to be pardoned. In the overwhelming majority of cases, however, the Pardon Attorney will consider only petitions from persons who have completed their sentences and, in addition, have demonstrated their ability to lead a responsible and productive life for a significant period after conviction or release from confinement.

It appears that a pardon can be rejected, and must be affirmatively accepted to be officially recognized by the courts. Acceptance also carries with it an admission of guilt. However, the federal courts have yet to make it clear how this logic applies to persons who are deceased (such as Henry O. Flipper—who was pardoned by Bill Clinton), those who are relieved from penalties as a result of general amnesties and those whose punishments are relieved via a commutation of sentence (which cannot be rejected in any sense of the language.)

The pardon power of the President extends only to offenses cognizable under U.S. Federal law. However, the governors of most states have the power to grant pardons or reprieves for offenses under state criminal law. In other states, that power is committed to an appointed agency or board, or to a board and the governor in some hybrid arrangement.

While a presidential pardon will restore various rights lost as a result of the pardoned offense and should lessen to some extent the stigma arising from a conviction, it will not erase or expunge the record of that conviction. Therefore, even if a person is granted a pardon, they must still disclose their conviction on any form where such information is required, although they may also disclose the fact that they received a pardon. In addition, most civil disabilities attendant upon a federal felony conviction, such as loss of the right to vote and hold state public office, are imposed by state rather than federal law, and also may be removed by state action. Because the federal pardon process is exacting and may be more time-consuming than analogous state procedures, pardon recipients may wish to consult with the appropriate authorities in the state of their residence regarding the procedures for restoring their state civil rights.

United Kingdom

The power to grant pardons and reprieves is a royal prerogative of mercy of the monarch of the United Kingdom. It was traditionally in the absolute power of the monarch to pardon and release an individual who had been convicted of a crime from that conviction and its intended penalty. Pardons were granted to many in the eighteenth century on condition that the convicted felons accept transportation overseas, such as to Australia. The first General Pardon in England was issued in celebration of the coronation of Edward III in 1327. In 2006, all British soldiers executed for cowardice during World War I were pardoned, resolving a long-running controversy about the justice of their executions. (See Armed Forces Act 2006, [1].)

There are significant procedural differences in the present use of the royal pardon, however. Today, the monarch may only grant a pardon on the advice of the Home Secretary or the First Minister of Scotland (or the Defense Secretary in military justice cases), and the policy of the Home Office and Scottish Executive is only to grant pardons to those who are "morally" innocent of the offense (as opposed to those who may have been wrongly convicted by misapplication of the law). Pardons are generally no longer issued prior to conviction, but only after conviction. A pardon is no longer considered to remove the conviction itself, but only removes the penalty which was imposed. Use of the prerogative is now rare, particularly since the establishment of the Criminal Cases Review Commission and Scottish Criminal Cases Review Commission, which provide a statutory remedy for miscarriages of justice.

To this end, the granting of pardons is very rare and the vast majority of recognized miscarriages of justice were decided upon by the courts. During the Birmingham Six controversy, then Home Secretary Douglas Hurd stressed that he could only make the decision for a pardon if he was "convinced of innocence," which at the time he was not.

One notorious recent case was that of the drug smugglers John Haase and Paul Bennett. They were pardoned in July 1996 from 18-year sentences, having served 10 months, by the then-Home Secretary Michael Howard. This was intended to reward them for information they gave to the authorities, but there was speculation about Howard’s motives. In 2008, they were given 20- and 22-year sentences after it was found that their information was unreliable.

According to the Act of Settlement, a pardon can not prevent a person from being impeached by Parliament, but may rescind the penalty following conviction. In England and Wales, nobody may be pardoned for an offence under section 11 of the Habeas Corpus Act 1679 (unlawfully transporting prisoners out of England and Wales). [2]

Canada

Pardons

Canadian Pardons are considered by the National Parole Board under the Criminal Records Act, the Criminal Code and several other laws. For Criminal Code crimes there is a three-year waiting period for summary offences, and a five-year waiting period for indictable offences. The waiting period commences after the sentence is completed. In principle, the information provided above is correct but most convictions have additional time allocated due to court imposed fines, probation, and other convictions.

Completing a Canadian pardon application is a complex and time-consuming process, and any error in the application may cause needless and costly delays. Processing time for each application depends on whether it qualifies as an emergency. For regular applications, the typical process can take a year, or more. Emergency Pardons are difficult to obtain, and are evaluated on a case-by-case basis by the National Parole Board. Once pardoned, a criminal records search for that individual reveals "no record."

Clemency

In Canada, clemency is granted by the Governor-General of Canada or the Governor in Council (the federal cabinet) under the Royal Prerogative of Mercy. Applications are also made to the National Parole Board, as in pardons, but clemency may involve the commutation of a sentence, or the remission of all or part of the sentence, a respite from the sentence (for a medical condition), or a relief from a prohibition (e.g., to allow someone to drive that has been prohibited from driving).

France

Pardons and acts of clemency (grâces) are granted by the President of France, who, ultimately, is the sole judge of the propriety of the measure. It is a prerogative of the President which is directly inherited from that of the Kings of France. The convicted person sends a request for pardon to the President of the Republic. The prosecutor of the court that pronounced the verdict reports on the case, and the case goes to the Ministry of Justice's directorate of criminal affairs and pardons for further consideration.

If granted, the decree of pardon is signed by the President, the Prime Minister, the Minister of Justice and possibly other ministers involved in the consideration of the case. It is not published in the Journal Officiel.

The decree may spare the applicant from serving the balance of his or her sentence, or commute the sentence to a lesser one. It does not suppress the right for the victim of the crime to obtain compensation for the damages it suffered, and does not erase the condemnation from the criminal record.

When the death penalty was in force in France, almost all capital sentences resulted in a presidential review for a possible clemency. Sentenced criminals were routinely given a sufficient delay before execution so that their requests for clemency could be examined. If granted, clemency would usually entail a commutation to a life sentence.

The Parliament of France, on occasions, grants amnesty. This is a different concept and procedure from that described above, although the phrase "presidential amnesty" (amnistie présidentielle) is sometimes pejoratively applied to some acts of parliament traditionally voted upon after a presidential election, granting amnesty for minor crimes.

Germany

Similar to the United States, the right to grant pardons in Germany is divided between the federal and the state level. Federal jurisdiction in matters of criminal law is mostly restricted to appeals against decisions of state courts. Only "political" crimes like treason or terrorism are tried on behalf the federal government by the highest state courts. Accordingly, the category of persons eligible for a federal pardon is rather narrow. The right to grant a federal pardon lies in the office of the President of Germany, but he or she can transfer this power to other persons, such as the chancellor or the minister of justice. In early 2007, there was a widespread public discussion about the granting of pardons in Germany after convicted Red Army Faction terrorist Christian Klar, serving a six times life imprisonment sentence since 1982 and not eligible for parole until at least 2009, filed a petition for pardon. President Horst Köhler ultimately denied his request. For all other (and therefore the vast majority of) convicts, pardons are in the jurisdiction of the states. In some states it is granted by the respective cabinet, but in most states the state constitution vests the authority in the state prime minister. As on the federal level, the authority may be transferred.

Amnesty can be granted only by federal law.

Greece

The Constitution of Greece grants the power of pardon to the President of the Republic (Art. 47, § 1). He can pardon, commute, or remit punishment imposed by any court, on the proposal of the Minister of Justice and after receiving the opinion (not the consent necessarily) of the Pardon Committee.

Hong Kong

Prior to the handover of Hong Kong to China in 1997, the power of pardon was a royal prerogative of mercy of the monarch of the United Kingdom. This was used and cited the most often in cases of inmates who had been given the death penalty: from 1965 to 1993 (when the death penalty was formally abolished) those who were sentenced to death were automatically commuted to life imprisonment under the Royal Prerogative.

Since the handover, the Chief Executive of Hong Kong now exercises the power to grant pardons and commute penalties under section 12 of article 48 Basic Law of Hong Kong. "The Chief Executive of the Hong Kong Special Administrative Region shall exercise the following powers and functions... To pardon persons convicted of criminal offences or commute their penalties."

India

Under the Constitution of India (Article 72), the President of India can grant a pardon or reduce the sentence of a convicted person, particularly in cases involving capital punishment. A similar & parallel power vests in the Governors of each State under Article 161.

However, it is important to note that India has a unitary structure of government and there is no body of state law. All crimes are crimes against the Union of India. Therefore, a convention has developed that the Governor's powers is exercised for only minor offenses, while requests for pardons and reprieves for major offenses and offenses committed in the Union Territories are deferred to the President.

Both the President and Governor are bound by the advice of their respective Councils of Ministers & hence the exercise of this power is of an executive character. It is therefore subject to Judicial Review (Maru Ram v Union of India, confirmed by Kehar Singh vs Union of India,1989).

Iran

In the Islamic Republic of Iran, the Supreme Leader has the power to pardon and offer clemency under Article 110, § 1, §§ 11.

Ireland

Under the Constitution of Ireland Art 13 Sec 6, the President of Ireland can pardon convicted criminals "The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may also be conferred by law on other authorities."

Israel

In Israel the President of Israel has the power to pardon criminals or give them clemency. The pardon is given following a recommendation by the Minister of Justice.

After the Kav 300 affair President Chaim Herzog issued a pardon to four members of the Shin Bet prior to them being indicted. This unusual act was the first of its kind in Israel.

Italy

In Italy, the President of the Republic may “ ... grant pardons, or commute punishments ...” according to article 87 of the Italian Constitution. Like other acts of the president, the pardon requires the countersignature of the competent government minister. The Constitutional Court of Italy has ruled that the Minister of Justice is obliged to sign acts of pardon.^{[citation needed]}

The pardon may remove the punishment altogether or change its form. Unless the decree of pardon states otherwise, the pardon does not remove any incidental effects of a criminal conviction, such as a mention in a certificate of conduct (174 c.p.).

According to article 79 of the Italian Constitution, the Parliament may grant amnesty (article 151 c.p.) and pardon (article 174 c.p.) by law deliberated a majority of two thirds of the components.

Poland

In Poland, the President is granted the right of pardon by Article 133 of the Constitution of the Republic of Poland. As for October 2008, 7,819 people were pardoned, while 3,046 appeals were declined.

• Lech Wałęsa
  • approved - 3,454
  • declined - 384
• Aleksander Kwaśniewski
  • approved - 3,295 (the first term); 795 (the second term); total - 4,090
  • declined - 993 (the first term); 1,317 (the second term); total - 2,310
• Lech Kaczyński (until October 2007)
  • approved - 77
  • declined - 550

Russia

The President of the Russian Federation is granted the right of pardon by Article 89 of the Constitution of the Russian Federation. The Pardon Committee manages lists of people eligible for pardon and directs them to the President for signing. While President Boris Yeltsin frequently used his power of pardon, his successor Vladimir Putin was much more hesitant; in the final years of his presidency he did not grant pardons at all.

South Africa

Under section 84(2)(j) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), the President of the Republic of South Africa is responsible for pardoning or reprieving offenders. This power of the president is only exercised in highly exceptional cases.

To pardon a person is to forgive a person for his/her deeds. The pardon process is therefore not available to persons who maintain their innocence and is not an advanced form of appeal procedure.

Pardon is only granted for minor offenses after a period of 10 years has elapsed since the relevant conviction.

For many serious offenses (for example if the relevant court viewed the offence in such a serious light that direct imprisonment was imposed), pardon will not be granted even if more than 10 years have elapsed since the conviction.

Switzerland

In Switzerland, pardons may be granted by the Swiss Federal Assembly for crimes prosecuted by the federal authorities. For crimes under cantonal jurisdiction, cantonal law designates the authority competent to grant pardons (if any). In most cantons, the cantonal parliament may pardon felonies, and the cantonal government may pardon misdemeanors and minor infractions.

Social issues

The notion of forgiveness is most often considered a private matter between individuals, as well often being thought of an action taken by weak people, meaning those those who do not have the ability to get even or take revenge. Indeed, a person who forgives another might even be seen as a coward. In the greater contect, therefore, forgiveness is often viewed as unrelated to greater social issues or those social concerns that impact the lives of many people. This despite the fact that individuals seem to enjoy being in the position to judge others.

A key social component of forgiveness is that to forgive—or granting a pardon or reprieve to someone—does not remove the need for punishment and recompense. However, inherent in the notion forgiveness is intimately connecteds to the ideas of repentance and reconciliation. In the American legal system, among others, society has been stressing the rehabilitation of the wrong doer, even after pardoning or recompense occurs.

Although it is important to uphold the rule of law and to prevent the miscarriage of justice, society also seeks to avoid the rush to judgment. Whenever an act of pardoning occurs, socially debate invariably occurs on thees issues, and others.

Another constantly debated consideraion is whether partoning someone or granting are reprieve can change the behavior of the forgiven individual. Just as capital punishment has been shown not to have a significant effect on capital crimes, there is not cause-effect relationship between pardoning and future criminality. For this reason, social activists that rehabilitation and reconciliation is the best solution for discouraging criminal behavior. Yet for some, the act of pardoning the wrong doer is more effective than punishment.

Notable pardons

• In 1794, George Washington pardoned the leaders of the Whiskey Rebellion, a Pennsylvania protest against federal taxes on "spirits."
• In 1799, John Adams pardoned participants in the Fries Uprising, a Pennsylvania protest against federal property taxes.
• In 1869, Andrew Johnson pardoned Samuel Mudd, a doctor who treated the broken leg of Abraham Lincoln's assassin, John Wilkes Booth.
• In 1971, Richard Nixon commuted the sentence of union leader Jimmy Hoffa, who had been convicted of jury tampering and fraud.
• In 1974, Gerald Ford pardoned Nixon, who had not been convicted of Watergate-related crimes.
• In 1977, Ford pardoned "Tokyo Rose" (Iva Toguri), an American forced to broadcast propaganda to Allied troops in Japan during World War II.
• In 1979, Jimmy Carter commuted Patricia Hearst's armed-robbery sentence. She was pardoned by Bill Clinton in 2001.
• In 1989, Ronald Reagan pardoned New York Yankees owner George Steinbrenner for making illegal contributions to Nixon's re-election campaign in 1972.
• In 1992, George H.W. Bush pardoned six defendants in the Iran-contra investigation, including former Defense Decretary Caspar Weinberger and former national security adviser Robert McFarlane.
• In 2001, Clinton pardoned fugitive billionaire Marc Rich, his half-brother Roger Clinton, and Susan McDougal, who went to jail for refusing to answer questions about Clinton's Whitewater dealings.

References

ISBN links support NWE through referral fees

• Crouch, Jeffrey P. The Presidential Pardon Power. Ph.D. dissertation. Washington, DC: Catholic University of America, 2008. OCLC 263428239
• Dressler, Joshua (2002). Encyclopedia of Crime and Justice. New York: Macmillan Reference. ISBN 978-0028653198
• National Government Publication (2002). Justice Undone: Clemency Decisions in the Clinton White House: Second Report by the United States Congress, House Committee on Government Reform. Washington, D.C.: U.S. G.P.O. OCLC 49871132
• Sarat, Austion, and Hussain, Nasser (2007). Forgiveness, Mercy, and Clemency. Stanford, Calif.: Stanford University Press. ISBN 978-0804753326
• Sirica (1979). To Set the Record Straight: The Break-in, the Tapes, the Conspirators, the Pardon. New York: Norton. ISBN 978-0393012347

External links

• Pardon application for Canada
• List of pardon/clemency policies for various U.S. states
• Pardon Power Blog
• USDOJ Office of the Pardon Attorney
• Dershowitz, Alan M. (July 16 1989). What's Mercy Got To Do With It?. New York Times. Review of the book, Pardons: Justice, Mercy, and the Public Interest by Kathleen Dean Moore.

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