Clemency Essay ⋆ Criminal Justice Essay Examples ⋆ EssayEmpire

Clemency has been controversial in recent years as it appears that prosecutors are making more recommendations to the court for the life without parole option for serious offenses and therefore more offenders are seeking to get the benefit of this extraordinary assistance. Clemency is a designation used for reducing the penalties for particular crimes. It can be used to help the offenders’ future prospects for employment and other life experiences without clearing their actual criminal record. Clemency may be in the form of a pardon. A pardon means that an offender is forgiven and his or her sentence set aside. Clemency can also be given in the form of a commutation, which is the reduction of a sentence. It can also be a suspension or delay in punishment while the case is being reviewed further. In essence, a pardon is always clemency; however, clemency does not always mean an offender will receive a pardon.

Pardons can be used as legal forgiveness for a particular crime. This forgiveness can be used when a person is wrongfully convicted for a crime that he or she did not commit. This remedy can also be used in instances where the punishment was unreasonable for the crime. On the other hand, a commutation is also a compassionate legal response when it is determined that an offender was given a sentence that was too severe for the crime committed. One of the most common uses of the commutation option is when a person’s death sentence is reduced to life in prison. A reprieve might be given when more information is needed while the offender’s case is under review. This postponement is used to determine if the person should serve the sentence given by the court. It is in the best interests of all parties that a determination be made in advance of the offender serving a particular sentence as there is no remedy available to give a an offender the time back after he or she have served it. There are many cases where convicted offenders seek the clemency option if they have been sentenced to death; however, the criminal justice system rarely grants this remedy.

The power of giving pardons in state crimes is reserved to the governor of the state in which the offender was tried. The governor can give this power to the parole board and does so in certain states. In those cases the parole board is acting on behalf of the state and represents the governor’s office. The use of a parole board may represent a conflict of interest in some cases because the governor actually appoints the members to the board. In these cases the board can be seen as an actual extension of the governor and not an independent entity. Parole board members usually represent members of the criminal justice community. Some parole boards have members of the public who serve. If the parole board is not totally independent and the governor is reluctant to grant clemency, his or her position may be represented as a finality for the parole board. If there is no independence in decision making, there may be some difficulty in rectifying criminal justice court errors. This procedure may have a chilling effect on community members’ willingness to serve on the board. This may be true even in states that have the most death sentences each year, Texas and Virginia respectively. It has been reported that in Texas members of the parole board sometimes do not review the lengthy clemency petitions in making their recommendation to the governor.

Beginning in the early 2000s there was increased attention to the issue of mistakes in capital cases in the United States, particularly with the increased use of DNA testing. Despite this fact, clemency and pardon petitions were reportedly routinely rejected with a rare exception by Illinois governor George Ryan in 2003. According to published reports, Ryan commuted the sentences of every inmate on Illinois’ death row just days before he left office. The commutation option was used by the governor in 167 death cases. Commutation was not used to totally forgive the convicted offenders of their crimes as they were given a new sentence of life without the possibility of parole. There was a separate group of convicted offenders who were wrongfully convicted during this time period. They were exonerated or absolved of guilt in the crimes for which they were on death row. There was a suggestion by the American Bar Association in 2009 that the sheer number of wrongfully convicted persons on death row may have formed part of the basis for Governor Ryan’s commutation decision for all death row offenders.

There is yet another class of individuals that have gained renewed interest for clemency consideration and that is juvenile offenders. Roper v. Simmons (2005) and Graham v. Florida (2010) were two cases involving juveniles decided by the U.S. Supreme Court. Specifically in the Roper case, the court found the death penalty unconstitutional for offenders who were convicted of murder before their 18th birthday. After Roper some states changed their statutes to permit juveniles under the age of 18 to be sentenced to life without parole (LWOP). In Graham the court held that children should not be sentenced to life without parole in nonhomicide cases.

The key difference was the word should, which gives the states more options in imposing the LWOP option. In both cases the court acknowledged cognitive and developmental research that indicated that children lacked the ability to fully understand the implications of their choices and/or their actions. While the court acknowledged these fundamental flaws outright in Roper, it was not willing to go as far in Graham. In a research article, Anthony C. Thompson proposed the use of executive clemency to pardon or commute the sentence of children sentenced to life without parole. His suggestion is based on the original intent of clemency, which is exercised by the executive branch of government. The executive branch of government was designed in part to give a final check in the criminal justice system to redress errors or to enhance fairness. If adults committed violent offenses, the notion is that children should have the same opportunity in state court proceedings.

In the federal system, the presidential clemency power is found in Article II of the Constitution. It vests in the president the power of clemency in federal jurisdictions, much as governors have certain powers of clemency and pardons in their own states. From a historical perspective, the first president to use the pardon power was George Washington, who issued this remedy to pardon persons participating as Whiskey Rebels. His actions created a precedent for his successors to use the pardon option when they deemed it appropriate. Washington was not to be the last president to use his clemency powers. In more recent years, President Gerald Ford used the pardon power when he gave a full pardon to former president Richard Nixon before Nixon could be indicted on criminal charges associated with the Watergate scandal.

While the public had not been a supporter of pardons and commutations, it was thought that the public might embrace the decision to pardon Nixon as being in the best interest of the country. Ford sought to curtail the national disgrace by preventing the trial and possible conviction of a U.S. president. The pardon, however, sparked widespread public outrage. Later presidents have generally waited until the end of their presidential eligibility before granting their own controversial pardons. Since Watergate, several presidents have granted pardons and clemency.

Before the Watergate controversy, presidents appeared to be reluctant to grant pardons. As a result of Ford’s action pertaining to Nixon, presidents such as Bill Clinton and both Presidents Bush have granted clemencies and pardons. President George W. Bush commuted the 30-month prison sentence of his former White House aide Scooter Libby after Libby was convicted of perjury.

While the pardon power belongs to the president alone on the federal level, examples such as the Iran-Contra pardons and Libby commutation did not go through the normal process established by the Office of the Pardon Attorney. Under ordinary circumstances, applicants for pardons and clemency must wait a certain number of years before submitting an application. They must then wait while their application is processed, their case investigated, and a positive recommendation reached.

It is reported that many of the last-minute Clinton pardons were rushed through or even “rubber-stamped” at the last minute. Thus, it appears that the role of granting clemency and pardon is not a purely partisan issue on either federal or state levels but is exercised by all political persuasions. As a result of the selective use of clemency on the state and federal level, which can be based on economics, political power, age, and nature of offense, there may be some merit to the assertion that in the U.S. judicial system, there is not a level playing field for all.

Finally, it is important to note that in all cases of clemency or pardon the person’s conviction is not overturned or removed from the public record. Some people believe that accepting a pardon is tantamount to an admission of guilt. When individuals seek to have a criminal conviction removed from their record, they will need to pursue expungement. When a conviction is expunged, it is as if it never happened. There is no need for any kind of clemency because the crime is deleted from the record.

Bibliography:

Crouch, Jeffrey. “The Law: Presidential Misuse of the Pardon Power.”Presidential Studies Quarterly, v.38/4 (2008).
Ridolfi, Kathleen (Cookie), and Seth Gordon. ”Gubernatorial Clemency Powers: Justice or Mercy.” Criminal Justice, v.24/3 (2009).
Rosen, Richard, A. “Innocence and Death.” North Carolina Law Review, v.82/61 (2003).
Sarat, Austin. “Memorializing Miscarriages of Justice: Clemency Petitions in the Killing State.” Law and Society Review, v.42/1 (2008).
Thompson, Anthony C. “Clemency for our Children.” Cardoza Law Review, v.32/66 (2011).

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