Executive Clemency in the United States: Origins, Development, and Analysis
1997; Wiley; Volume: 27; Issue: 2 Linguagem: Inglês
ISSN
1741-5705
Autores Tópico(s)Legal Systems and Judicial Processes
ResumoThe Constitution vests President of United States with to grant reprieves and pardons for offenses against United States, except in cases of impeachment (art. ii, sec. 2). The granting of pardons, reprieves, and other manifestations of clemency power have been variously described as entirely discretionary,(1) unilateral, notoriously non-reciprocal,(2) virtually unassailable,(3) absolute,(4) and perhaps most imperial of presidential, powers.(5) On other hand, these powers have also been described as anomalous,(6) delicate,(7) shrouded in mystery, and fraught with arbitrariness at a time when other aspects of our judicial system are becoming more open and fair pursuant to dictates of Due Process Clause.(8) Academic discussions of clemency power typically trace its interesting origins and transformation in common law, its brief consideration at Constitutional Convention, and subsequent developments in classic Supreme Court decisions.(9) Other scholars have focused on exercise of clemency in such areas of law as death penalty,(10) or have addressed more political concerns in highly publicized, controversial cases.(11) Current examinations of clemency power do however share two common characteristics. They usually appear outside social science journal format and rarely involve analysis, or even presentation, of data.(12) This study briefly reviews current literature with respect to origins and development of executive clemency in United States and explains procedural guidelines for federal clemency applications. An examination of literature's more prominent explanations for actions of president follows. Summary statistics on clemency from administration of William McKinley (in 1900) to that of George Bush are then provided. After a review of summary statistics more appropriate for comparative analysis (between administrations), attention is given to trends in clemency actions throughout century. Concluding remarks address importance of this study as well as need for (and appropriateness of) multivariate statistical analyses of clemency decision making. Origins and Development of Executive Clemency At common law, king possessed broad powers to pardon offenses, with or without condition, either before or after indictment, conviction, and sentencing.(13) Although clemency power ultimately became an exclusive royal prerogative, crown originally had many competitors vying for this power; including church, great earls, feudal courts, and Parliament.(14) David Gray Adler notes the pardon was not so much an act of grace as it was a tool of pecuniary and political aggrandizement. From outset, pardon was abused for personal gain.(15) The sale of pardons was a common abuse and pardons requiring fees occasionally allowed for possibility of deferred payments.(16) Conditional pardons were used as a means of populating colonies(17) and pardons were customarily issued subsequent to declarations of war. Armies were supplemented by forgiveness of homicides and felonies in return for one year's service in military.(18) On one occasion, Edward III granted a general and special pardon for all crimes, treason itself not excepted, without any fine, or paying of fees [and] set all debts to crown, and prisoners for criminal matters at liberty in order to celebrate his fiftieth year of rule.(19) The systematic abuse of pardoning power and arbitrary and irrelevant reasons supporting issuances provoked several complaints from Parliament.(20) Numerous defeats followed first formal complaint in 1309 but, in 1389, Parliament enacted a statute that forbade issue of pardons in case of serious crimes unless pardon specified nature of crime and contained name of culprit. …
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