Journal of Criminal Law and Criminology Volume 68 Article 5 Issue 1 March Spring 1977 The aP rdoning Power--A World Survey Leslie Sebba Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Leslie Sebba, The aP rdoning Power--A World Survey, 68 J. Crim. L. & Criminology 83 (1977) This Criminology is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 68, No. 1 Copyright © 1977 by Northwestern University School of Law Printed in U.S.A. CRIMINOLOGY THE PARDONING POWER-A WORLD SURVEY LESLIE SEBBA* The resilience of the power to pardon of- abolition of this institution, a path which was fenders is a remarkable phenomenon, in view followed in France for a number of years in the of some seemingly powerful reasons for the wake of the revolution of 1789. disappearance of this institution. These reasons If the ideological reasons for doing away with are both ideological and practical in character. the pardoning power are rooted in constitu- The ideological grounds derive from the fact tional theory, the practical reasons are related that the pardoning power appears to be an to the development of modern penal systems. archaic survival of an earlier era, during which The pardoning power has historically served a the State was governed by an omnipotent ruler, number of functions, most of which are ade- who might have an occasional urge to demon- quately provided for today by other legal insti- strate his benevolent disposition. This seems tutions which have been developed to meet something of an anomaly in a twentieth century these needs. For example, the avoidance of constitutional democracy having a commit- imposing criminal liability on persons lacking in ment-at least in principle-to a delicate sepa- mental capacity or acting in self-defense is now ration of powers designed to ensure the inde- governed by the penal code itself. The need to pendence of the judiciary. This independence assuage doubts regarding the possibility of a would appear to be threatened by vesting in a miscarriage ofjustice is now commonly met by a non-judicial authority the power to pardon of- system of appeals and rehearings before the fenders duly convicted and sentenced in the courts. The individualization of punishment is course of ajudicial process. It is no coincidence provided for within the framework of the sen- that the ideological controversy regarding the tencing discretion now generally bestowed desirability of the pardoning power reached its upon the courts, and subsequent developments peak during the eighteenth century,' when the can be taken into consideration by parole groundwork of much of our prevailing political boards. Even the most dramatic use of clem- theory was being laid. Thus while Montes- ency powers, viz., the commutation of capital quieu 2 believed that there was room-at least sentences, has lost much of its importance in under a monarchical system-for the institu- view of the sparse use of the death penalty in tion of clemency, Beccaria3 advocated the total contemporary times. Finally, the use of par- dons to secure rehabilitation, by removing the * Institute of Criminology, Hebrew University, Je- stigma of a criminal conviction, has widely been rusalem, Israel; Visiting Fellow, Center for Studies in superseded by special laws providing for judi- Criminology and Criminal Law, University of Penn- cial or statutory rehabilitation, or for the ex- sylvania. 4 I See, Sebba, Clemency in Perspective, in ESSAYS IN pungement of the criminal record. HONOR OF ISRAEL DRAPKIN (S. Landau & L. Sebba It is not the intention of this survey to arrive eds., forthcoming) [hereinafter cited as Sebba]. at any conclusions as to the desirability or use- 2 DE IESPRIT DES Lois (G. Truc ed. 1944). 3 Let the laws, therefore, be inexorable, and fulness of the clemency power in the contempo- inexorable their executors in particular cases rary world; this is an issue which the writer has 3 •.. As punishments become more mild, clem- considered elsewhere. The main objectives of ency and pardon becomes less necessary. Happy the nation in which they might some day be Eden and Colquhoun, concentrated their attacks on considered pernicious. the abuses evident in the exercise of the pardoning C. BECCARIA, AN ESSAY ON CRIMES AND PUNISH- power, rather than its very existence. See Sebba,supra MENTs 58-59 (H. Paolucci trans. 1963). Beccaria's fel- note 1. low critics included Filangieri and the philosopher 4 See text accompanying notes 42-70 infra. Immanuel Kant. English critics, such as Fielding, 5 Sebba, supra note 1. LESLIE SEBBA [Vol. 68 this comparative survey of clemency provisions THE COMPARATIVE TABLE throughout the world were to discover (1) the The schedule appearing below presents the extent to which the institution of clemency is a information obtained in a systematic fashion in universal feature of contemporary legal sys- the form of a table containing data relating to tems; (2) which bodies are formally invested one hundred jurisdictions. The table is con- with decision-making authority to grant par- fined to those items on which information was dons; (3) whether those or other bodies hold most forthcoming, namely: the legal source of the reality of power in this respect; and (4) to the pardoning authority; the mechanism determine the main types and functions of whereby pardoning decisions are made; cate- clemency under the various systems. gories of offences or penalties which are ex- METHOD & SOURCES cluded from the pardoning power or for which special provisions are made; and the types of The survey was conducted in the-following pardon available in the jurisdiction concerned. way: in 1970 a circular letter was sent by Profes- Certain points of clarification, as well as addi- sor Israel Drapkin, then Director of the Insti- tional information of interest, such as statistical tute of Criminology in the Law Faculty of the data, are presented in the right-hand column. Hebrew University of Jerusalem, to some sixty The salient features of the survey, as well as different countries around the world. The re- certain areas of interest not appearing in the quests were directed both to professional con- table (such as the relationship between the par- tacts in those countries, and also, with the as- doning power and amnesties) are discussed in sistance of the Israel Ministry for Foreign Af- the following text. fairs, to official agencies. By this means infor- mation was received from about fifty countries. THE EXISTENCE OF A PAIDONING POWER This information was later supplemented by a Responses to the circular revealed that a study of the constitutions of these and other power to pardon offenders existed in all the countries, using material available from such 6 jurisdictions from which responses were ob- compendia as Peaslee's Constitutions of Nations tained. Moreover, the original library survey of and Blaustein's Constitutionsof the Countries of the constitutions produced a similar result for World.' These sources were reexamined in 1976 other countries, and in only one recently to allow for subsequent developments, recent adopted constitution was no reference to clem- political events having been cross-checked with ency found. The 1975 constitution of the Peo- The Statesman's Yearbook 1975-1976.8 The mate- ple's Democratic Republic of China is somewhat rial compiled here is thus subject to the follow- skeletal in form and provides minimal informa- ing reservations: (a) the use of nonconstitu- tion on the functions of the various govern- tional sources -primarily the codes of substan- mental bodies. The Standing Committee of the tive and procedural penal laws of the respective National People's Congress, to which the par- countries-is selective, and is largely confined doning power was entrusted under the pre- to the countries from which responses to the vious constitution, has the power to "enact de- circular were received; (b) it may be that some crees ... and exercise such other functions and recent constitutional changes (especially in the powers as are vested in it by the National Peo- more politically volatile jurisdictions), have not ple's Congress," which is "the highest organ of yet appeared in the above-mentioned compen- State power under the leadership of the Com- dia, and thus will not be reflected in the analy- munist Party of China."'0 Whether the pardon- sis; (c) the nonconstitutional provisions gener- ing power has been deliberately and finally ally reflect the state of the law in 1970. These omitted from the state fabric is thus as yet provisions, however, being nonpolitical in char- unclear. acter, are less prone to rapid change than the Subject to this exception, the overall picture constitutions themselves. which emerges is that neither ideological nor 6 A. PEASLEE,CONSTITUTIONS OF NATIONS (3d ed. practical objections to the clemency power as a 1965) [hereinafter cited as PEASLEE]. legal institution in the modern age have re- 7 CONSTITUTIONS OF COUNTRIES OF THE WORLD (A. Blaustein & G. Flanz eds. 1971). I Constitution of the People's Democratic Republic 8 THE STATESMAN'S YEARBOOK 1975-1976 (J. Pax- of China, art. 18, (adopted 1954, repealed 1975). ton ed. 1975). 'OId., art. 16. 1977] PARDONING POWER 0.. v 0 0 = V. ' 0- $.~ u 00. 00 0u 010 ... 0o a ; r u du 0-- 0. >.t ( 0 0 ) Z 0' 0 . 94 :3 0.01 :0 C) 0:- 0 v Ei ~ ~ uto0o~~ z ~.Vr ~ C ZCL r C to 0 0 ZiC)z 0~ 0 >0.