Pardon
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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, it is claimed, have been wrongfully convicted. However, 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 who don't use capital punishment when one of their citizens has been given the death penalty.
[edit] Pardons and clemency by country
[edit] Pardons and clemency in Canada
[edit] 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".
[edit] 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).
[edit] Pardons and clemency in 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 pardon. Sentenced criminals were routinely given a sufficient delay before execution so that their requests for pardons 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.
[edit] Pardons in 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.
[edit] Pardons in 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.
[edit] Pardons and clemency in 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 just prior to the handover from British to Chinese rule from inmates who had been given the death penalty (which was abolished in 1993) and did not have an alternative sentence from the court, and they, therefore, requested the Queen to exercise her power of mercy.
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".
[edit] Pardons in 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. The decisions involving pardoning by the president are based on the advice of the Central Government (Kehar Singh vs Union of India,1989).This power given to the president under Article 72 is also subjected to Judicial Review. Hence, this power is of an executive character.
[edit] Pardons in Islamic Republic of Iran
In the Islamic Republic of Iran, the Supreme Leader has the power to pardon and offer clemency under Article 110, § 1, §§ 11.
[edit] Pardons in 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".
[edit] Pardons in Italy
In Italy the President of the Republic can “ ... grant pardons, or commute punishments ...”, art. 87 of the Italian constitution. However, “ ... no acts of the President can come into force unless they are signed also by the Minister they are proposed by ... ”, art. 89 of the Italian Constitution. Concerning to the pardon, the proposing Minister must be the Minister of Justice, as we can understand by reading art 681 c.p.p. . The problem, at this moment, is related to the exact interpretation of the two articles of the Italian Constitution reminded above: do all of the acts of the President need a proposal and a sign of a Minister? or there are some acts that the President can take by himself, without any conditioning?. In other words, there are three different theories about the pardon in Italy:
- President can take the pardon decree without any conditioning, and the Minister of Justice is obliged to sign the act.
- President and Minister of Justice must agree to take the decree.
- President is obliged to take the decree, simply by signing the Minister's proposal.
The problem has been examined by the Constitutional Court of Italy, that ruled that the first theory is the correct one (the Minister of Justice is obliged to sign the act).
The Minister of Justice, nowadays, aided by his offices, collects information about the condemned to make a correct pardon purpose. With the pardon decree, President can either extinguish the punishment, or change kind of punishment in another one permitted by law. Pardon, unless is said otherwise in the decree, can't remove all the effects of a penal sentence (like the mention in the certificate of conduct), in fact, it extinguishes only the main punishment (prison or pecuniary sanction), 174 c.p.
[edit] Pardons in 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 is much more hesitant; in recent years he has not used pardon at all.
[edit] Pardons in South Africa
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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.
[edit] Process for Application For Presidential Pardon
A clearance certificate, must be obtained; this can be done at the nearest police station, from where the application will be sent to the Criminal Record Centre, and the certificate will be either mailed, or delivered to the police station concerned. A letter is then sent to the Department of Justice, Private Bag X81, Pretoria stating that it is an application for presidential pardon. A response can be expected within three months acknowledging receipt thereof, with attached forms from an Administrative Secretary of the Ministry of Justice and Constitutional Development. The process continues by completing and returning the application form.
[edit] Pardons and clemency in the 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.
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]
[edit] Pardons and clemency in the 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, remissions of fines and forfeitures, respites and amnesties.[1] 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. Since 1977, presidents have received about 600 pardon or clemency petitions a year[2] and have granted around ten percent of these[3], although the percentage of pardons and reprieves granted varies from administration to administration (fewer pardons have been granted since World War II).[4]
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 makes a strong defense of the pardon power in The Federalist Papers, particularly in Federalist No. 74. It is worthy of note that Hamilton called for something like an elective monarch at the Philadelphia Convention. 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. He was then narrowly defeated in the presidential campaign, two years later. 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.[5]
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.[6] 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.)[7]
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.
[edit] Pardon in Christianity
In Christian theology, a pardon is the result of forgiveness, extended by God through Jesus. A pardoned person is forgiven their sins, and thus experiences new birth, or is born again. For more information, see:
[edit] References
- ^ P.S. Ruckman, Jr. 1997. “Executive Clemency in the United States: Origins, Development, and Analysis (1900-1993),”27 Presidential Studies Quarterly, 251-271
- ^ http://www.rvc.cc.il.us/faclink/pruckman/pardoncharts/requests3_files/image002.gif
- ^ http://www.rvc.cc.il.us/faclink/pruckman/pardoncharts/perreqg_files/image002.gif
- ^ http://www.rvc.cc.il.us/faclink/pruckman/pardoncharts/all_files/image002.gif
- ^ Clemency Regulations. United States Department of Justice. Retrieved on 2007-03-08.
- ^ Burdick v. United States, 236 U.S. 79 (1915)
- ^ see Chapman v. Scott (C. C. A.) 10 F.(2d) 690)
[edit] External links
Canada
United States
- 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.
