Executive clemency is the power of a head of state or similar official to grant a criminal pardon or other reprieve from criminal sanctions to a convicted individual. In the year 2010, a significant number of such cases have been newsworthy, in particular:
• After exhausting other avenues to have her conviction overturned, Laurie “Bambi” Bembenek”, who had maintained her innocence since being found guilty in 1981 of murdering her husband’s ex-wife, applied for a pardon to the Governor of Wisconsin. But the state parole board rejected the application, stating that Bembenek, who died shortly after, had not provided all the necessary documents.
• Whereas US presidents tend to be generous with their pardons, it took Barack Obama until the end of this year to grant his first nine – almost two years into his term of office.
• Right at year’s end, 1960s singer Jim Morrison was posthumously pardoned in Florida for exposing himself during a concert. But Morrison’s widow claims that he never actually bared his genitals and that therefore there is nothing to be pardoned; rather, Morrison should be exonerated.
• There was even talk about a pardon for Billy the Kid. Actually, only one of the many murders he committed was under consideration for the pardon, and only because of a claim that New Mexico Governor Lew Wallace had promised the famous outlaw one in exchange for testifying at a trial. But after considering the motion, Governor Bill Richardson decided not to act upon it, finding the claim that Wallace had promised the pardon to be historically ambiguous.
Whatever one makes of these particular cases, granting an executive reprieve for crimes is bound to arouse controversy sooner or later. The most general complaint may be that no politician should have an arbitrary power to erase sentences and convictions legitimately imposed by courts of law. In order to determine if this criticism is warranted, let us examine what a pardon entails in different jurisdictions. The first thing that should be clear is that cases like the ones above may not be typical, and may not reflect the normal process for obtaining a criminal pardon in a given jurisdiction. Even the purpose of a pardon varies: while often a “forgiveness” of a crime, it sometimes actually serves to quash a wrongful conviction, as in the case of Viola Desmond. Also, the procedure for obtaining a pardon is more arbitrary in some jurisdictions, and more based on the rule of law in others.
On top of that, as anybody versed in law can imagine, the process for obtaining a pardon is not the same in every jurisdiction:
• In Canada, the law on criminal pardons as a whole has little arbitrariness in it. First of all, the vast majority of pardons are not granted by any politician, but by the Parole Board of Canada. The pardons granted by the Board do not “forgive” a crime – they have the effect of sealing a criminal record so that it will not show up during a criminal record check. With some exceptions, any ex-convict can obtain this kind of pardon 3 to 10 years after serving their sentence, depending on the conviction, and if all conditions set by law are met, the Board will grant it as a matter of course. There is also “clemency”, a power exercised by the Governor General and Lieutenant Governors. Executive clemency includes the right to quash convictions and release prisoners. But the Governors cannot exercise this power in any manner that they see fit: they act on the advice of cabinet ministers and only in certain extreme cases when the normal avenues of justice of the courts have been exhausted. In Canada, an executive pardon is only exceptionally granted.
• In the United States, there are different criminal laws in each state, in addition to federal offences. Article II, Section 2 of the US Constitution authorizes the President to pardon federal offences; whom he pardons and for what reason is left entirely to his judgment. In the case of state crimes, the procedure for getting a pardon is more arbitrary in some states than in others. Typically, the Governor may grant them, but in some states, he shares these powers with a parole or pardon board; in some cases, it is the board that actually makes the decision.
When exercised by a Governor or President, the power to grant a criminal pardon will always be controversial. It is actually a carryover from past centuries, when the Monarch, as a near-absolute ruler, was the source of justice in the land, and could condemn a person, but also exercise mercy over a criminal. In my opinion, in jurisdictions where this prerogative is left completely up to the will of a politician, the law is inconsistent with the principles of democracy and of independence of the judiciary, and can actually serve to promote injustice, as in cases where someone is excused from responsibility out of nepotism or political reasons (case in point: US President Richard Nixon was never made to answer for his role in the Watergate affair, having been pardoned by Gerald Ford before having even been charged). Still, if the power is limited by law to specific cases, such as reviewing potentially wrongful convictions or reducing excessive sentences, the executive power to grant a criminal pardon may serve as a welcome last resort for the accused and a check on the justice system.