Clemency

The Power of Clemency

The power of clemency has had a long history in human societies. Wherever individuals or institutions have been granted power over others in relation to the punishment of offenders, that power has generally been supplemented by the power to pardon those offenders. The degree to which this power has been subject to political, legal, or other normative constraints has varied over time and across jurisdictions. In political systems governed by an absolute ruler, the exercise of this power was at the ruler's pleasure, unfettered by external constraint. Within modern democratic polities the executive's power is subject to varying degrees of legal regulation and review.

Today in most constitutional democracies, the power of clemency finds its source in the constitution of the jurisdiction governing the criminal offense in question. In the United States, for example, the power [Page 242]of clemency is exercisable either by the president or by the state governors, depending on whether the offender is liable for federal or state criminal punishment. In regard to federal offenses, the power is granted to the president pursuant to Article II, Section 2 of the Constitution. That section states that the president “shall have power to grant Reprieves and Pardons for offenses against the United States, except in cases of impeachment.”

In some jurisdictions, the executive power to pardon is subject to regulation or review by the judiciary. In other jurisdictions—including the United States—the exercise of the power is unrestrained by legislative provision or judicial review. It operates as a prerogative power exercisable at the sole discretion of the executive. The courts have no standing to review or overturn that exercise.

Notwithstanding the prerogative nature of this power, various countries have set up mechanisms to assist the executive in its exercise. For example, in relation to federal offenses in the United States, most applications for clemency are dealt with initially by the Office of the Pardon Attorney in the Department of Justice. Upon receipt of an application, that office conducts an inquiry into its merits. If the inquiry is favorable, the office makes a recommendation for clemency to the president, who may then agree to grant clemency. In addition, the president may independently inquire into the merits of an application and exercise clemency on that basis. Ultimately, the president has sole power to decide whether clemency will be granted. He or she is not bound by the recommendations of the pardon attorney or of any other officer of state.

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