Four Models of Clemency

Abstract

Abstract Chapter 2 provides the theoretical framework for a comparative study of clemency in death penalty cases. It begins by clarifying the terminology used throughout the book, including the local terms used in Southeast Asian legal systems for executive ‘clemency’. Then, drawing in particular from the work of Douglas Hay et al (1975), Leslie Sebba (1977a; 1977b); Kathleen Dean Moore (1989), Daniel Kobil (1991; 2003; 2007), Elizabeth Rapaport (1998–2000; 2001), and Austin Sarat (2005; 2008), Chapter 2 suggests four models of clemency in death penalty cases, based upon the previous academic literature: (1) ‘mercy from the sovereign’ granted solely for the ruler’s benefit; (2) retributivist clemency; (3) redemptive clemency; and (4) clemency for political benefit or utilitarian reasons. Finally, Chapter 2 also summarizes the results of the few multi-jurisdictional studies on capital clemency conducted in the past (e.g. Turrell 2000; Pascoe 2017b; Sebba 1977b; Baumgartner and Morris 2001; The Parliamentary Monitoring Group 2004; Dascalu 2012; Novak 2015; Strange 1996; Tait 2000–1), together with factors that the theoretical literature suggests may contribute to clemency frequency or scarcity. In summary, the theoretical and empirical literature points to the following potential determinants of death penalty clemency: political regime, separation of powers, clemency decision-making structure, structural opportunities for leniency at earlier phases, procedural idiosyncrasies in the criminal justice system, time spent on death row, and predominant religion.