Amnesty and Pardon

Although somewhat neglected by academic writers, clemency is clearly a perplexing area in the scheme of criminal justice. By their very nature amnesties tend to be controversial, since they denote a radical political reassessment of conduct previously designated as criminal. Constitutionally, however, they have presented less of a problem (outside the United States) because they are subject to the same processes and controls as other legislation. The pardoning power is considerably more problematic. The grant of relief from the processes of criminal justice to selected persons on an individual basis attracts criticism today no less than during the eighteenth century, especially where the decision-making process is often secretive and immune from judicial and political review. The suspicion of favoritism is thus frequently raised. Such criticism may be more vociferous when the pardon is a "blanket" one, unrelated to a specific indictment, as in the case of President Ford's pardon of his predecessor, Richard Nixon.

The functions of the pardon, too, are in modern times seen to be largely anomalous; most of its traditional functions are fulfilled by alternative institutions. Justice is individualized by other methods, such as the discretion of the sentencing judge, parole, and "good time" laws that reduce prison terms for good behavior. Allegations of miscarriages of justice may now lead to a new trial. Removal of the criminal stigma is now achieved in some jurisdictions by restrictions on the disclosure of criminal records or by their expungement. Many European legal systems achieve the same result by "rehabilitation" proceedings. The residual power of the chief executive to modify the inexorable harshness of the law may seem to have been rendered superfluous.

However, at least two considerations seem to operate in favor of retention of the pardoning function. First, the movement away from the rehabilitationist ideal has resulted in a lessening of the power of other existing institutions to individualize the penalty. Mandatory minimum and determinate sentencing laws have reduced and sometimes removed the court's discretion, and this is often coupled with the abolition of parole. Moreover, the death penalty, for which clemency powers have always been heavily used, is undergoing a resurgence. Paradoxically, the increasingly mandatory and severe character of the American penal system may necessitate the retention of the pardoning power for those exceptional cases which the formal norms of the written law prove unable to accommodate.

The second consideration in support of retention of the pardoning power is the evidence of history, which seems to indicate the inability of any legal system to survive without it.