Jump to content

Pardon

From Wikipedia, the free encyclopedia
(Redirected from Pardons)

A pardon is a government decision to allow a person to be relieved of some or all of the legal consequences resulting from a criminal conviction. A pardon may be granted before or after conviction for the crime, depending on the laws of the jurisdiction.[1][2]

Pardons can be viewed as a tool to overcome miscarriage of justice, allowing a grant of freedom to someone who is believed to be wrongly convicted or subjected to an excessive penalty.[3][4] The second-best theory of pardons views pardons as second-best to fair justice.[5] Pardons can be granted in many countries when individuals are deemed to have demonstrated that they have "paid their debt to society", or are otherwise considered to be deserving of them. In some jurisdictions of some nations, accepting a pardon may implicitly constitute an admission of guilt; the offer is refused in some cases. Cases of wrongful conviction are in recent times more often dealt with by appeal rather than by pardon; however, a pardon is sometimes offered when innocence is undisputed in order to avoid the costs that are associated with a retrial. Clemency plays a critical role when capital punishment exists in a jurisdiction.

Pardons can also be a source of controversy, such as when granted in what appears to be a political favor.[6] The arbitrariness[5] and limited political accountability[7] of pardons have been criticized.

By country

[edit]

Australia

[edit]

In Australia, the pardon power is referred to as the royal prerogative of mercy,[8] an executive power that is vested in the King and may be exercised by the governor-general.[9] The prerogative of mercy is a broad discretionary power that may be exercised by a state governor who is acting on the advice of the state executive council and the state attorney general.[10] Courts in Australia may also exercise their traditional power to exercise mercy when the circumstances of the defendant or offense warrant relief.[11]

In addition to the prerogative of mercy, Australia has passed legislation that creates additional avenues to seek a pardon, exoneration, reduced sentence,[12] or conditional release.[13][14]

Canada

[edit]

Pardons

[edit]

The Parole Board of Canada (PBC) is the federal agency responsible for making pardon decisions under the Criminal Records Act (CRA). Under the CRA, the PBC can issue, grant, deny, and revoke pardons.

In 2012, the Parliament of Canada passed the Safe Streets and Communities Act,[15] which changed many elements of the criminal justice system. The Act replaced the term "pardon" with "record suspension",[16] and the pardon system was similarly changed.[17]

A pardon keeps the police record of a conviction separate and apart from other criminal records, and gives law-abiding citizens an opportunity to reintegrate into Canadian society.

The Royal Canadian Mounted Police removes all information about the conviction for which an individual received the pardon from the Canadian Police Information Centre (CPIC). Federal agencies cannot give out information about the conviction without approval from the minister of public safety.

A pardon does not, however, erase the fact that an individual was convicted of a crime. The criminal record is not erased, but it is kept separate and apart from other (non-pardoned) criminal records.

A pardon removes disqualifications caused by a criminal conviction, such as the ability to contract with the federal government, or eligibility for Canadian citizenship.

If an individual in receipt of a pardon is convicted of a new offence, the information may lead to a reactivation of the criminal record for which the pardon was received in CPIC.

A pardon does not guarantee entry or visa privileges to another country. Before travelling to another country, individuals must still contact the authorities of the country in question to find out what the requirements are to enter that country.

Processing of pardons by the Parole Board of Canada generally takes six months for a summary offence and twelve months for an indictable offence. If the Parole Board proposes to deny the application, it can take 24 months to process.[18]

Individuals can apply for a pardon if they were convicted as an adult of a criminal offense in Canada, or of an offense under a federal act or regulation of Canada, or if they were convicted of a crime in another country and were transferred to Canada under the Transfer of Offenders Act or International Transfer of Offenders Act. Non-Canadian citizens are not eligible for a Canadian pardon unless they were convicted of a crime in Canada.

To be eligible for a pardon or record suspension, individuals must have completed all of their sentences and a waiting period.

Individuals are considered to have completed all of their sentences if they have:

Prior to 2012, following completion of all of their sentences, individuals must have completed a waiting period, as follows:

  • Three years for summary convictions under the Criminal Code or other federal act or regulation, except sexual crimes against children
  • Three years under the National Defence Act, if fined $2,000 or less, detained or imprisoned six months or less, or subjected to various lesser punishments for a service offence
  • Five years for indictable convictions under the Criminal Code or other federal act or regulation and summary convictions of sexual crimes against children
  • Five years for all convictions by a Canadian offender transferred to Canada under the Transfer of Offenders Act or International Transfer of Offenders Act
  • Five years under the National Defence Act, if you were fined more than $2,000, detained or imprisoned more than six months, or dismissed from service
  • Ten years for indictable convictions for sexual crimes against children and criminals receiving more than two years of imprisonment time for "serious personal injury offence" such as manslaughter or other designated offence under section 752 of the Criminal Code.[19]

Effective 13 March 2012, the eligibility criteria and waiting periods changed:

  • Five years for summary convictions under the Criminal Code or other federal act or regulation, except sexual crimes against children
  • Five years under the National Defence Act, if fined $2,000 or less, detained or imprisoned six months or less, or subjected to various lesser punishments for a service offence
  • Ten years for indictable convictions under the Criminal Code or other federal act or regulation and summary convictions of sexual crimes against children
  • Ten years for all convictions by a Canadian offender transferred to Canada under the Transfer of Offenders Act or International Transfer of Offenders Act
  • Ten years under the National Defence Act, if fined more than $2,000, detained or imprisoned more than six months, or dismissed from service
  • "Not Eligible" for indictable convictions for sexual crimes against children (Schedule 1 Offence under CRA)
  • "Not Eligible" for criminals with more than three offences prosecuted by indictment, each with a prison sentence of two or more years.[20]

Applicants for a record suspension must be able to show that they have completed their sentences in full and provide proof of payment.[21]

Individuals can apply for a pardon by filling out the application forms available from the Parole Board and by paying a $50 pardon/record suspension application fee.[22]

Clemency

[edit]

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 who has been prohibited from driving).

Chile

[edit]

In Chile, the institution of pardon (indulto) is regulated in the Criminal Code (article 93, Nº 4º),[23] which deals with the extinction of criminal liability. A pardon "only grants the remission or the commutation of the sentence; it does not remove the condition of having been condemned". The pardon may be either general, when it is granted to all those covered by a specific law passed by qualified quorum in National Congress, or particular, when it is granted by Supreme Decree of the president of the republic. In Chile's presidential regime, the president is the head of state; in this capacity, the president has the discretionary power to grant particular pardons and is not obliged to seek opinion or approval from other authorities, although, the granting of pardons is limited by the norms of Law No. 18.050 (1981),[24] and its Regulations (Decree No. 1542 of 1981 on particular pardons),[25] which forbid particular pardons for those convicted of a crime of terrorism.[26]

China

[edit]

The 1954 Constitution of China made provision for amnesties and pardons, both of which were to be powers of the Standing Committee of the National People's Congress. The amnesty or pardon would then be issued by the president. Chairman Mao Zedong and President Liu Shaoqi released the first-time pardon in 1959.[27]

The later three constitutions promulgated in 1975, 1978, and 1982 all removed provision amnesty and only kept pardons. In China, pardons are decided by the National Standing Committee of the People's Congress and issued by the president.

Egypt

[edit]

On 23 September 2015, President Abdel Fattah el-Sisi issued a pardon freeing 100 activists, including Al Jazeera journalists Mohamed Fahmy and Baher Mohamed.[28]

France

[edit]

Pardons and acts of clemency (droit de grâce) 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 their 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, all capital sentences resulted in a presidential review for a possible clemency. Executions were carried out if and only if the president rejected clemency, by signing a document on which it was written: "decides to let justice take its course".

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.

Germany

[edit]

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 of 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 the president 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, who was serving six consecutive sentences of life imprisonment, filed a petition for pardon. President Horst Köhler ultimately denied his request. Following a court decision, Klar was released on parole in December 2008.[29]

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.

Greece

[edit]

The Constitution of Greece grants the power of pardon to the president of the republic (Art. 47, § 1). The president 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.

Hong Kong

[edit]

Prior to the handover of Hong Kong in 1997, the power of pardon was the royal prerogative of mercy of the monarch of the United Kingdom. This was used and cited the most often in cases of convicts who had been given the death penalty: from 1965 to 1993 (when the death penalty was formally abolished) death sentences were automatically commuted to life imprisonment under the royal prerogative.

Since the transfer, 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".

India

[edit]

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. A similar and parallel power vests in the governors of each state under Article 161.

The Constitution of India vests sovereign power in the president and governors. The governance in the centre and states is carried out in the name of the president and governor respectively. The president is empowered with the power to pardon under Article 72 of the Indian Constitution, which says that the president shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. The meaning of these terms is as follows:

The pardoning powers of the Indian president are elucidated in Art 72 of the Indian Constitution. There are five different types of pardoning which are mandated by law.

  1. Pardon: completely absolving the person of the crime and letting him go free. The pardoned criminal will be treated like a normal citizen.
  2. Commutation: changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
  3. Reprieve: a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for a presidential pardon or any other legal remedy to prove his innocence or allow for successful rehabilitation.
  4. Respite: reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition to name a few.
  5. Remission: changing the quantum of the punishment without changing its nature, for example reducing twenty years worth of rigorous imprisonment to ten years.

Article 72 reads:

(1) The President shall have the power to grant pardons, reprieves, respites or remission of punishment or to suspend remit or commute the sentence of any persons convicted of any offence-

(a) in all cases where the punishment or sentence is by a court martial;

(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;

(c) in all cases where the sentence is a sentence of death.

(2) Nothing in sub- clause (a) of clause (1) shall alter the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court Martial.

(3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.

Similarly, as per article 161, the governor of a state has the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the state extends. The president can grant a pardon to a person awarded death sentence; however, the governor of a state does not enjoy this power.

The question is whether this power to grant a pardon is absolute or this power of pardon shall be exercised by the president on the advice of the Council of Ministers. The pardoning power of the president is not absolute. It is governed by the advice of the Council of Ministers. This has not been discussed by the constitution but is the practical truth. Further, the constitution does not provide for any mechanism to question the legality of decisions of the president or governors exercising mercy jurisdiction. Nonetheless, the SC in the Epuru Sudhakar case has given a small window for judicial review of the pardon powers of the president and governors for the purpose of ruling out any arbitrariness. The court has earlier held that court has retained the power of judicial review even on a matter which has been vested by the Constitution solely in the executive.

However, India has a unitary legal system and there is no separate body of state law. All crimes are crimes against the Union of India. Therefore, a convention has developed that the governor's powers are exercised for only minor offenses, while requests for pardons and reprieves for major offenses and offenses committed in the union territories are deferred to the president.

Both the president and governor are bound by the advice of their respective Councils of Ministers and hence the exercise of this power is of an executive character. It is therefore subject to judicial review as held by the Supreme Court of India in the case of Maru Ram v. Union of India [1980] INSC 213, 1981 (1) SCC 107, Supreme Court. It was subsequently confirmed by Kehar Singh v. Union of India [1988] INSC 370, 1989(1) SCC 204, Supreme Court. In the case of Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors [2006] INSC 638, Supreme Court, it was held that "clemency is subject to judicial review and that it cannot be dispensed as a privilege or act of grace". The court made these observation while quashing the decision of then Governor of Andhra Pradesh Sushil Kumar Shinde in commuting the sentence of a convicted Congress activist.[30]

Iran

[edit]

In the Islamic Republic of Iran, the Supreme Leader has the power to pardon and offer clemency under Article 110, § 1, §§ 11.

Ireland

[edit]

Constitutional basis

[edit]

The Irish constitution states (in Article 13.6) that

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.[31]

The power of clemency is nominally exercised by the president. However, the president of Ireland must act "on the advice" of the Government (cabinet), so in practice the clemency decisions are made by the government of the day and the president has no discretion in the matter. The responsibility can also be delegated to people or bodies other than the president.

Amnesty and immunity, on the other hand, are usually dealt with by an Act of the Oireachtas rather than by a general form of pardon or a slate of individual pardons.

There are two methods by which a pardon may proceed:

Method I

[edit]

In the first procedure, aimed at miscarriages of justice, the minister for justice may recommend to the Government that they formally advise the president to grant a pardon, and any conditions along with it. The 1993 Criminal Procedure Act[32] provides the method by which a person convicted of an offence may apply for a pardon. Under this procedure, the person must:

  • Have already been convicted.
  • Have used up their appeals.
  • Allege a new fact (previously known and believed to be significant, but which he has a reasonable excuse for not having mentioned) or newly discovered fact (including a fact previously known which was not believed to be significant) showing a miscarriage of justice has taken place.

Then they can apply in writing to the minister for justice for a pardon. The minister may then "make or cause to be made such inquiries as they consider necessary" and may refuse to grant the pardon on his/her own initiative, or if they think the person should be pardoned, bring such argument to cabinet.

Method II

[edit]

Section six of the act allows a minister for justice to seek or receive a pardon request from someone whose case is not a 'miscarriage of justice', but has some other fault, such as an archaic law, a law being misapplied by a rogue judge, a reduction in the harshness of a sentence or a substitution of a sentence, without having to go through the procedure above, gone through appeals, or presented new facts. It also allows the minister to waive the procedure in a case of miscarriage of justice if the specific case warrants it. It may also allow prospective pardons as it allows the minister to pardon someone who has not been convicted yet, which the other procedure requires.

Committee of Inquiry

[edit]

The government itself may assemble a committee to study the case in more detail on their behalf. This may consist of anyone, and any number, but the chair must be:

  • A judge or former judge or
  • A barrister of at least 10 years standing or
  • A solicitor of at least 10 years standing.

This special committee may look to any material it sees fit to make its decision, even if it was not, or would not be, available to a jury or trial judge in a normal court. The government do not have to be bound by the committee recommendations.

Pardons under military law

[edit]

Under Section 7(5) of the act, the same powers of the minister for justice apply to the minister for defence in the case of military officers and enlisted convicted by courts martial.

Compensation

[edit]

The minister for justice or defence may also, in their absolute discretion, pay compensation, determined by them alone, to any person given a pardon, if this compensation is applied for. If they think the compensation is too low they may challenge for a higher figure in the High Court.

List of people who have received a presidential pardon since 1938

[edit]

The power is used very infrequently compared to, for example, pardons in the United States.[33]