Pardon

Criminal procedure
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Indictment  · Plea bargain
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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 or 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.

Pardons and clemency by country

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 two, 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 pardon 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, 7819 people were pardoned, while 3046 people's appeals were declined.

• Lech Wałęsa
  • approved - 3454
  • declined - 384
• Aleksander Kwaśniewski
  • approved - 3295 (the first term); 795 (the second term); total - 4090
  • declined - 993 (the first term); 1317 (the second term); total - 2310
• 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

{{#invoke:Message box|ambox}} 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 offences after a period of 10 years has elapsed since the relevant conviction.

For many serious offences (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.

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 18th 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 Defence 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 offence (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 recognised 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 ten 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]

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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