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Daniel Pascoe - One of the best experts on this subject based on the ideXlab platform.

  • making sense of the victim s role in Clemency decision making
    International Review of Victimology, 2020
    Co-Authors: Daniel Pascoe, Marie Manikis
    Abstract:

    This article discusses victim engagement with the executive Clemency process from a normative perspective. The authors’ aim is to explore the existing models of victim participation in Clemency dec...

  • Last Chance for Life: Clemency in Southeast Asian Death Penalty Cases - Federation of Malaysia
    Last Chance for Life: Clemency in Southeast Asian Death Penalty Cases, 2019
    Co-Authors: Daniel Pascoe
    Abstract:

    As with Chapters 3 and 4, the case study on Malaysia begins with a thorough description of the country’s death penalty laws and practice, and Malaysia’s publicly known Clemency practice over the period under analysis (1991–2016). Thereafter, for both the Malaysian (Chapter 5) and Indonesian (Chapter 6) cases, the potential explanatory factors for Clemency incidence are more complex than for Thailand and Singapore, given these two jurisdictions’ more moderate rates of capital Clemency and fluctuating political policies on capital punishment over time. Available statistics suggest that Malaysia’s Clemency rate is moderately high, at between 55 and 63 per cent of finalized capital cases. Malaysia is a federal state where pardons are granted by the hereditary rulers or appointed state governors in state-based cases, or by the Malaysian king (Yang di-Pertuan Agong) in federal and security cases, all on the advice of specially constituted Pardons Boards. Chapter 5 presents the following two explanations for Malaysia’s restrictions on death penalty Clemency: prosecutorial/judicial discretion and detention without trial in capital cases, and the Federal Attorney-General’s constitutional role on the State and Federal Pardons Boards. As to why Malaysia’s Clemency rate has not then fallen to the miniscule level seen in neighbouring Singapore (with both nations closely comparable, as they were once part of the same Federation of Malaya), Chapter 5 points to the relevant paperwork placed before each Pardons Board, the merciful role played by the Malay monarchy, and the impact of excessively long stays on death row before Clemency decisions are reached.

  • Last Chance for Life: Clemency in Southeast Asian Death Penalty Cases - Kingdom of Thailand
    Last Chance for Life: Clemency in Southeast Asian Death Penalty Cases, 2019
    Co-Authors: Daniel Pascoe
    Abstract:

    Chapter 3, the first of the book’s four case study chapters, provides an outline of the death penalty laws and practice of Thailand during the period 1991–2016, describes Thailand’s Clemency laws and accumulated practice in death penalty cases over the same period, and most importantly provides several theoretically supported hypotheses potentially explaining Thailand’s extremely ‘high’ Clemency rate of 95 per cent or more. This structure is reprised in each of the four case study chapters, leading to a comparative analysis of the respective explanatory factors in Chapter 7. In Thailand’s case, suggested factors explaining the overwhelming likelihood of capital prisoners to obtaining capital Clemency over the aforementioned twenty-six-year period are the following: Thailand’s Buddhist monarchy, headed from 1946 until October 2016 by King Bhumibol Adulyadej; the drawn-out royal pardon process leading to excessively long stays on death row; the practice of arbitrary and extrajudicial executions against criminal suspects over the years; and the special treatment enjoyed by foreign prisoners to safeguard Thailand’s international relations.

  • Last Chance for Life: Clemency in Southeast Asian Death Penalty Cases - Republic of Singapore
    Last Chance for Life: Clemency in Southeast Asian Death Penalty Cases, 2019
    Co-Authors: Daniel Pascoe
    Abstract:

    Against the jurisdiction with the highest rate of capital Clemency from 1991 to 2016 (Thailand), Chapter 4 juxtaposes the jurisdiction with the lowest (Singapore). Here, a mere 0.6 per cent of prisoners who exhausted their judicial appeals received death row commutations between 1991 and 2016. In Singapore’s case, again the chapter opens with a summary of relevant death penalty laws and practice, and a summary of the six cases where a capital prisoner has been granted Clemency since Singaporean independence in 1965. The five theoretically informed hypotheses set out to explain the Singapore Cabinet’s overwhelming reluctance to grant capital Clemency over many decades are as follows: Singapore’s rule of law ‘brand name’; the government’s public justifications for retaining the mandatory death penalty; strong deterrence in drug-trafficking cases; prosecutorial discretion supplanting executive discretion, and particular aspects of the Cabinet’s decision-making processes.

  • Last Chance for Life: Clemency in Southeast Asian Death Penalty Cases
    2019
    Co-Authors: Daniel Pascoe
    Abstract:

    All five contemporary practitioners of the death penalty in the Association of Southeast Asian Nations (ASEAN)—Indonesia, Malaysia, Thailand, Singapore, and Vietnam—have performed executions on a regular basis over the past few decades. Amnesty International currently classifies each of these nations as death penalty ‘retentionists’. However, notwithstanding a common willingness to execute, the number of death sentences passed by courts that are reduced to a term of imprisonment, or where the prisoner is released from custody altogether, through grants of Clemency by the executive branch of government varies remarkably among these neighbouring political allies. This book uncovers the patterns which explain why some countries in the region award commutations and pardons far more often than do others in death penalty cases. Over the period under analysis, from 1991 to 2016, the regional outliers were Thailand (with more than 95 per cent of condemned prisoners receiving Clemency after exhausting judicial appeals) and Singapore (with less than 1 per cent of condemned prisoners receiving Clemency). Malaysia, Indonesia, and Vietnam fall at various points in between these two extremes. This is the first academic study anywhere in the world to compare executive Clemency across national borders using empirical methodology, the latter being a systematic collection of Clemency data in multiple jurisdictions using archival and ‘elite’ interview sources. Last Chance for Life: Clemency in Southeast Asian Death Penalty Cases will prove an authoritative resource for legal practitioners, criminal justice policymakers, scholars, and activists throughout the ASEAN region and around the world.

Paul J. Larkin - One of the best experts on this subject based on the ideXlab platform.

  • Focusing Presidential Clemency Decision-Making
    2021
    Co-Authors: Paul J. Larkin
    Abstract:

    The Article II Pardon Clause grants the President authority to grant Clemency to any offender. The clause contains only two limitations. The President cannot excuse someone from responsibility for a state offense, nor can he prevent Congress from impeaching and removing a federal official. Otherwise, the President’s authority is plenary. The clause authorizes the President to grant Clemency as he sees fit, but does not tell him when he should feel that way. As a matter of history, Presidents have generally used their authority for legitimate reasons, such as freeing someone who was wrongfully convicted, who is suffering under an unduly onerous punishment, or who deserves to be forgiven. Nevertheless, neither any President nor the Department of Justice Pardon Attorney, who is ostensibly responsible for managing the government’s Clemency process, has recommended a rigorous standard for Presidents to use when making Clemency decisions. The Pardon Attorney has compiled a list of relevant factors, which is quite useful, but that list does not identify which factors are necessary and sufficient, nor does it assign those factors an ordinal relationship. The result is that a President is left to act like a chancellor in equity by relying on his subjective assessment of the “the totality of the circumstances.” This Article offers a way to make Clemency decisions in a reasonable, orderly manner that would systematize and regularize the Pardon Attorney’s recommendation process and Presidential decision-making. Pardons and commutations differ from each other in material ways, and Presidents should analyze them separately. In the case of pardons, Presidents should answer a series of questions—an algorithm, if you will—that would guide them when deciding whether to forgive an offender. In the case of commutations, Presidents should make decisions on a category-by-category basis, rather than try, in effect, to resentence each offender. Together, those approaches would help Presidents make objectively based decisions that are consistent with longstanding rationales for punishment and the purposes of the criminal justice system. The hope is that, in so doing, Presidents will be able act justly as well as to persuade the public that the federal Clemency system is open to all, not merely to the President’s financial or political allies, cronies, supporters, or people he knows. The focused approaches suggested here should help Presidents create the fact and appearance of objectivity in Clemency decision-making.

  • Guiding Presidential Clemency Decisionmaking
    SSRN Electronic Journal, 2019
    Co-Authors: Paul J. Larkin
    Abstract:

    The Article II Pardon Clause grants the president authority to grant Clemency to any offender for any reason he deems justified. The clause contains only two limitations. The president cannot excuse someone from responsibility for a state offense, nor can he prevent Congress from impeaching and removing a federal official. Otherwise, the president’s authority is exclusive and plenary. It is, perhaps, the only surviving aspect of the royal prerogatives. What the clause does not do is give the president a standard, a guideline, or a decision tree for making Clemency decisions. Presidents have used that power for legitimate, traditionally accepted reasons, such as freeing someone who was wrongfully convicted, who is suffering under an unduly onerous punishment, or who has atoned for his crimes and turned his life around. Nevertheless, neither the president nor the Department of Justice Pardon Attorney, who is responsible for managing the government’s Clemency process, has devised a standard for the president to use when making Clemency decisions. The Pardon Attorney has compiled a list of relevant factors, but has not identified which ones are necessary and sufficient, nor has that official assigned those factors an ordinal relationship or different weights. The result is that a president is left to act like a chancellor in equity by relying on his subjective assessment of the “the totality of the circumstances.” This Article discusses the need to make pardon and commutation decisions in a reasonable, orderly manner that would systematize and regularize the Pardon Attorney’s recommendation process and the president’s decision-making. An objective approach would help the president make decisions consistent with longstanding rationales for punishment. The hope is that, in so doing, the president will be able act justly as well as to persuade the public that the federal Clemency system is open to all, not merely to the president’s financial or political allies, cronies, supporters, or people he knows. At one time, presidential Clemency was a way to wipe the slate clean and give the average person a second chance. It no longer serves that role. Clemency is a subject where we should turn back the clock.

  • 'A Day Late and a Dollar Short': President Obama's Clemency Initiative 2014
    2018
    Co-Authors: Paul J. Larkin
    Abstract:

    Over his last two years in office, President Barack Obama used his Article II Pardon Clause power to commute the sentences imposed on more than 1,700 drug offenders. In a 2017 law review article, he congratulated himself for reinvigorating the federal Clemency process. His Clemency initiative, however, was hardly the unqualified success that he claims. Obama waited far too long before undertaking his effort. He should have started it in 2010, rather than in 2014. That would have allowed the thousands of Clemency decisions he made to be handled at a more reasonable pace and probably more accurately. He also should have issued a general conditional commutation order rather than undertake a case-by-case re-examination of the sentence each Clemency applicant received. That would have allowed district court judges, who are far better than any president could be at making sentencing decisions, to resentence each offender. Finally, he should have reformed the clear structural defect in the federal Clemency process. The Department of Justice controls the Clemency application process even though, as the agency that prosecuted every Clemency applicant, the department suffers from an actual or apparent conflict of interest. In sum, Obama could have done far more by doing far less or by doing something far different than by acting as the Resentencer-in-Chief.

  • Reorganizing the Federal Clemency Process
    2017
    Co-Authors: Paul J. Larkin
    Abstract:

    The President relies on the Department of Justice to filter out ineligible applicants and recommend from the remainder which ones should receive Clemency, but the department suffers from an actual or apparent conflict of interest. One proposed remedy would be for Congress to create an independent advisory board like the U.S. Sentencing Commission to review every Clemency application and offer the President its recommendations. A better alternative would be for the President to move the Office of the Pardon Attorney into the Executive Office of the President and use the Vice President as his principal Clemency adviser. The Vice President can offer the President several benefits in the Clemency decision-making process that no one else in the government possesses.

  • A Proposal to Restructure the Clemency Process - the Vice President as Head of a White House Clemency Office
    Harvard Journal of Law and Public Policy, 2017
    Co-Authors: Paul J. Larkin
    Abstract:

    In the midst of the recent presidential campaign, the president's Clemency power was a low priority issue. Neither candidate mentioned the subject during the debates or on the stump. The candidates' economic programs, foreign policy vision, and personal credibility outranked the importance of Clemency by a country mile. That is unfortunate for two reasons. Clemency is a prerogative that the president can exercise for any reason he or she deems appropriate without review, neither by Congress nor the courts. (1) How a president exercises that power therefore tells us a great deal about his or her view of the criminal justice system, as well as his or her character. (2) In addition, executive Clemency, as the saying goes, "ain't what it used to be." With the exception of President Barack Obama, who granted a large number of commutations to drug offenders, (3) over the past few decades chief executives have granted Clemency far less frequently than in years past. Various explanations have been offered for that decline: the increased accuracy of the trial process, the widespread use of plea-bargains, the institution of parole as an early release mechanism, the use of sentencing guidelines to prevent unduly harsh sentences, and fear by chief executives that an offender granted Clemency will reoffend, causing them embarrassment and voter retribution. (4) In addition, some chief executives have likely been reluctant to sign Clemency warrants because some warrants signed by predecessors have poisoned the well by resting on political or other ignoble considerations. (5) The bottom line is that Clemency no longer plays the historic role that it did for most of our history and thus desperately needs to be fixed. Two scholars--Professor and U.S. Sentencing Commissioner Rachel Barkow and Professor Mark Osier--have recently argued that the best solution is to create a formal Clemency board along the lines of the Sentencing Commission, consisting of judges, former prosecutors, defense counsel, penologists, religious authorities, and the like. (6) Aside from providing the president with a broad range of views, a bipartisan, diverse Clemency board would give the president any "cover" he may need to reform the Clemency process. Only such a board, the argument goes, can function as a political shield. That is a reasonable argument, although I find it ultimately unpersuasive because it would raise more problems than it solves. In my opinion, rather than create a formal Clemency board the president should appoint one person to head a White House Clemency Office and serve as his principal Clemency advisor. The vice president is the right person for that job. I. THE PROBLEM: AN INSTITUTIONAL CONFLICT OF INTEREST The willingness to mitigate punishment or forgive wrongdoing has been a revered feature of Western Civilization. (7) In America, executive Clemency was an accepted feature of colonial and early state criminal justice systems. (8) It was written into the text of the Constitution as the Pardon Clause of Article II, (9) and both the presidents and governors have granted Clemency throughout our history." (1) The extraordinary power to grant Clemency allows a chief executive to play God on this side of the River Styx by forgiving an offender's sins or remitting his punishment. Numerous commentators have recognized that the federal Clemency process, however, is no longer fulfilling its noble purposes. (11) There is a consensus that the chief problem is the placement of the Office of the Pardon Attorney in the U.S. Department of Justice. That office came into being in the nineteenth century to assist the Attorney General in managing the Clemency application process for the president, and it worked well for most of its history. (12) Recently, however, two factors have effectively torpedoed the effectiveness of that office: (1) the decision by Attorney General Griffin Bell to have the Pardon Attorney report to him through the Deputy Attorney General and (2) the post-1980 politicization of federal criminal justice. …

Jeffrey Crouch - One of the best experts on this subject based on the ideXlab platform.

  • President Donald J. Trump and the Clemency Power: Is Claiming “Unfair” Treatment for Pardon Recipients the New “Fake News”?
    Presidential Leadership and the Trump Presidency, 2020
    Co-Authors: Jeffrey Crouch
    Abstract:

    President Donald J. Trump commuted four prison sentences and pardoned seven offenders in the first half of his first term in office. He often justified his decision to grant mercy as his way to address “unfair” treatment by the federal judicial system. The word “unfair” has been repeated so frequently that one wonders whether it may be a calculated branding decision, much like Trump redefined “fake news” to describe not just untrue stories, but any unfavorable media reports. In this chapter, Jeffrey Crouch considers each of Trump’s Clemency decisions and then discuss the “self-pardon” question. He concludes with a look at several Clemency reform proposals.

  • The Law Barack Obama and the Clemency Power: Real Reform on the Way?
    Presidential Studies Quarterly, 2015
    Co-Authors: Jeffrey Crouch
    Abstract:

    In the United States, we constantly debate the proper extent of presidential power. The Bush administration's decision to conduct wars in Iraq and Afghanistan as a response to the 9/11 terror attacks spurred a number of recent scholarly works dedicated to exploring the limits of executive power (Fisher 2008; Pfiffner 2008; Rudalevige 2006). In just the past few months, we have weighed the ramifications of President Barack Obama's unilateral decision to allow roughly five million undocumented immigrants to remain on American soil (Shear and Pear 2014). While these and other discussions have been underway, many scholars have passed over another noteworthy story about presidential power. The Constitution entrusts the president with the all-but-unlimited ability to forgive federal crimes, but presidents have become increasingly reluctant to wield their Clemency power (Crouch 2009, 2). President Obama has been no exception and has generally continued a trend of fewer federal pardons and commutations. However, because Obama may secretly be planning to reduce the sentences of potentially hundreds of low-level drug offenders, now seems to be an appropriate time to review his Clemency record and search for clues as to what he might do. In the pages that follow, I will address the state of federal executive Clemency under President Obama, who so far has established a track record as one of the least generous presidents in modern history regarding pardons and (until recently) commutations. First, I note that several scholars in a variety of academic disciplines are contributing important work to the body of Clemency literature. Next, I look at the origins of the Clemency power and how it has fallen out of favor with recent presidents. Then, I consider Obama's sparse record on presidential mercy. I address each of the following questions: What types of criminal offenses has Obama deemed worthy of pardons? How has he used his power to commute sentences? What is the president likely to do with the Clemency power in his remaining time in office? Literature Review Federal executive Clemency, popularly referred to as the "pardon power, is a topic that attracts attention from scholars working in diverse fields. For example, a number of legal scholars have contributed to this particular literature. One of the most prominent attorneys working in the field is former Pardon Attorney Margaret Love (http://www.pardonlaw.com/), who has published several insightful pieces on Clemency (Love 2010, 2012). Former Pardon Attorney Office staff attorney Samuel Morison set up a professional website (http://www.pardonattorney.com/) that contains essays focusing on various aspects of the Clemency power. Law professor Douglas Berman maintains Sentencing Law and Policy, a blog that focuses in part on Clemency decisions (http://sentencing.typepad.com). Two law schools have developed federal Clemency--focused programs that allow their students to step outside academia and obtain practical experience. These programs train law students on the mechanics of Clemency and pass on strategies for assisting Clemency applicants with preparing the paperwork needed to request presidential mercy through the Pardon Attorney's Office--the president's administrative apparatus for Clemency applications housed in the Department of Justice. In 2011, Professor Mark Osier established the first commutation clinic in the United States at the University of St. Thomas School of Law (Metzger 2011). More recently, The Catholic University of America's Columbus School of Law started the CUA Law/Ehrlich Partnership on Clemency, thanks to the relationship between the law school and former Maryland Governor Robert Ehrlich (Catholic University 2013). Journalists and political scientists have also made valuable contributions. Retired Pulitzer Prize--winning reporter George Lardner Jr. won an important legal case against the Justice Department over public access to rejected Clemency applicants names (Doyle 2009) (1) and is cowriting a book on Clemency (Lardner and Ruckman, forthcoming). …

  • the toussie pardon unpardon and the abdication of responsibility in Clemency cases
    Congress & the Presidency, 2011
    Co-Authors: Jeffrey Crouch
    Abstract:

    On December 23, 2008, President George W. Bush pardoned Isaac Robert Toussie. The decision triggered an immediate media and public backlash, so Bush took back the pardon the next day. With scholars distracted by arguments that the pardon had not been “delivered,” and thus was ineffective and revocable, the Bush administration succeeded in obscuring a larger controversy: an abdication of responsibility by the president and the Department of Justice in Clemency cases. The following article considers Toussie's case, analyzes the “delivery” controversy, and then looks at how both the president and the Department of Justice have failed to maintain an active, vigorous program of federal executive Clemency.

  • The Toussie Pardon, “Unpardon,” and the Abdication of Responsibility in Clemency Cases
    Congress & the Presidency, 2011
    Co-Authors: Jeffrey Crouch
    Abstract:

    On December 23, 2008, President George W. Bush pardoned Isaac Robert Toussie. The decision triggered an immediate media and public backlash, so Bush took back the pardon the next day. With scholars distracted by arguments that the pardon had not been “delivered,” and thus was ineffective and revocable, the Bush administration succeeded in obscuring a larger controversy: an abdication of responsibility by the president and the Department of Justice in Clemency cases. The following article considers Toussie's case, analyzes the “delivery” controversy, and then looks at how both the president and the Department of Justice have failed to maintain an active, vigorous program of federal executive Clemency.

P S Ruckman - One of the best experts on this subject based on the ideXlab platform.

  • President-Centered and Presidency-Centered Explanations of Federal Clemency Policy
    SSRN Electronic Journal, 2013
    Co-Authors: P S Ruckman
    Abstract:

    This study revisits President-centered and Presidency-centered perspectives of Presidential behavior through an empirical analysis of federal executive Clemency policy in the United States. A review of the extant literature provides a framework within which to develop and test hypotheses. Specific variables are then tested in a multivariate model of Clemency policy from 1934 to 1994. The dependent variable (which measures degrees of leniency) is derived from a data set consisting of over 41,000 Clemency applications and over 11,000 'positive' Clemency decisions made in eleven administrations. ARIMA models of Clemency policy suggest that while some personal background characteristics of the president may be important considerations, the Clemency policy of administrations is best understood by the political environment and more administrative factors. Thus, with respect to Clemency, the Presidency-centered orientation appears to be more appropriate.

  • Seasonal Clemency Revisited: An Empirical Analysis
    SSRN Electronic Journal, 2013
    Co-Authors: P S Ruckman
    Abstract:

    While the notion of 'Christmas pardons' has been around for some time, there has been almost no empirical research on whether federal executive Clemency is in any way patterned in a manner that would legitimize the notion of 'Christmas' or even 'seasonal' pardons. Furthermore, previous research on Clemency from 1789 to 1933 suggests the months of May and June have been the favored months when it comes to the granting of presidential pardons. This analysis explores 'seasonal Clemency' in monthly data from January of 1931 to November of 2008. The 12 presidents covered have granted 10,626 individual pardons across 19 four year terms. The data show the largest number of pardons (2,453) has been granted in the month of December (more than two times the figure associated with the second highest month) and it is especially clear that more recent presidents (including George W. Bush) have skewed grants of Clemency toward this part of the year. Having presented the data, some discussion is provided regarding possible explanations for these trends and troubling ramifications for federal executive Clemency in the United States.

  • Federal Executive Clemency in the Administration of Barack Obama (2009-2013): A Pardon Power Report
    SSRN Electronic Journal, 2013
    Co-Authors: P S Ruckman
    Abstract:

    This paper provides a statistical examination and final overview of the pardon power as exercised in the first term of Barack Obama. In addition to aggregate data on applications (new and pending), pardons, commutations, and denials, original data is presented on individual applicants including: individual offenses, years (length of time) between offenses and Clemency, seasonal Clemency, geographic distribution of recipients and presence or absence of legal representation. The Obama administration is then placed in the context of history and, where appropriate, more recent administrations. Finally, some attention is given to Clemency-related issues which are likely to loom large in Obama’s second term and, perhaps, the terms of future presidents.

  • Bibliography and Classification of: Political Science Literature Related to State and Federal Executive Clemency, 1853-2012
    SSRN Electronic Journal, 2013
    Co-Authors: P S Ruckman
    Abstract:

    This document attempts to summarize the political science literature related to state and federal executive Clemency. In recent years, this literature has been described, by various authors, as thin, sparse, almost non-existent. This document reveals, however, that the discipline of political science actually has a long, rich tradition of interest in Clemency, an interest which has resulted in historical reviews, case studies, legal and descriptive analysis, aggregate data analysis and multivariate modeling. In creating this document, I have used the following guidelines for inclusion/exclusion: First, I located pieces that appeared in the professional journals of the discipline, of all stripes. I included such pieces even when "special issues" were involved and non-political scientists were the authors. Second, I tried to locate any and all instances where political scientists engaged in extensive commentary re Clemency outside of the confines of professional journals. These efforts included, of course, books, but also law review articles, essays and appearances in other journals of social science. Third, the pardon of Richard Nixon barely made a substantive dent in the journals of political science, but multivariate models of voting and public opinion would. on occasion, include a variable related to public views of Ford’s decisions. These pieces were not included in the creation of the listings below.

  • Federal Executive Clemency in the Administration of George W. Bush (2001-2009): A Pardon Power Report
    SSRN Electronic Journal, 2010
    Co-Authors: P S Ruckman
    Abstract:

    This paper will provide a statistical examination and final overview of the pardon power as exercised by George W. Bush. In addition to aggregate data on applications (new and pending), pardons, commutations, and denials, original data is presented on individual applicants including: individual offenses, years (length of time) between offenses and Clemency, seasonal Clemency, geographic distribution of recipients and presence or absence of legal representation. The Bush administration is then placed in the context of history and, where appropriate, more recent administrations. Finally, some attention is given to Clemency-related issues which are likely to loom large in the administration of Barack Obama and future presidents.

Marie Manikis - One of the best experts on this subject based on the ideXlab platform.