Four Models of Clemency

2019 ◽  
pp. 39-65
Author(s):  
Daniel Pascoe
Keyword(s):  
Decision Making ◽  
Criminal Justice ◽  
Death Penalty ◽  
Separation Of Powers ◽  
Theoretical Framework ◽  
Political Regime ◽  
Empirical Literature ◽  
Monitoring Group ◽  
Executive Clemency ◽  
System Time

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.

scholarly journals Sentencing and Plea Bargaining

2016 ◽  
Author(s):  
Cyrus Tata ◽  
Jay M. Gormley
Keyword(s):  
Decision Making ◽  
Criminal Justice ◽  
Plea Bargaining ◽  
Empirical Literature ◽  
Future Research ◽  
Presumption Of Innocence ◽  
Daily Work ◽  
Justice Process ◽  
Moral Arguments ◽  
The Relationship

In the daily work of criminal justice, the relationship between plea decision-making and sentencing is important. Meanwhile in the academic and policy literatures, it is one of the most controversial. This essay appraises the international empirical literature and the moral arguments surrounding this plea-dependent (guilty/not guilty) “sentence differential.” Sentence differential is the morally neutral term used here to denote practices variously termed as “sentence discount,” “trial tax/penalty,” “guilty plea discount/reduction,” and “sentence bargain/negotiation.” Section II analyzes whether the sentence differential undermines the presumption of innocence. Section III investigates whether the sentence differential violates legal equality. Section IV assesses the three main justifications for the differential. Section V scrutinizes measurement of the sentence differential. Section VI proposes an agenda for future research, including the need for deeper research into the experiences of and interpretations by defendants of the justice process.

Predictions of Dangerousness: An Argument for Limited Use

1988 ◽  
Vol 3 (4) ◽  
pp. 263-283 ◽  
Author(s):  
Marc Miller ◽  
Norval Morris
Keyword(s):  
Decision Making ◽  
Criminal Justice ◽  
Supreme Court ◽  
Criminal Justice System ◽  
Justice System ◽  
Theoretical Framework ◽  
Court Decisions ◽  
Preferable Alternative ◽  
Supreme Court Decisions ◽  
Intense Debate

Intense debate has focused on the use of statistical predictions of dangerousness in the criminal justice system. Two conflicting positions maintain wide support: that such predictions are never appropriate in criminal justice decision-making, and that they should be used far more often. Recognizing the fact that implicit and intuitive predictions are made every day in police, prosecutorial, sentencing, and other decisions, and explicit but unscientific predictions are common, this article suggests a theoretical framework justifying limited use of statistical predictions. Statistical predictions may present, in some instances, a morally preferable alternative to biased nonscientific and implicit judgments. Development of a sound jurisprudence of predictions faces major hurdles given the trend toward unscientific predictions in the law and the enormous judicial confusion in dealing with predictions. The concept has contributed to a string of notably poor Supreme Court decisions.

Gender and Racial/Ethnic Differences in Criminal Justice Decision Making in Intimate Partner Violence Cases

Partner Abuse ◽  
2012 ◽  
Vol 3 (4) ◽  
pp. 501-530 ◽  
Author(s):  
Stan Shernock ◽  
Brenda Russell
Keyword(s):  
Decision Making ◽  
Intimate Partner Violence ◽  
Criminal Justice ◽  
Ethnic Differences ◽  
Partner Violence ◽  
Intimate Partner ◽  
Empirical Literature ◽  
Court Records ◽  
Protective Orders ◽  
Racial Ethnic

This literature review examines the existing empirical literature on gender and racial/ethnic differences in issuance of protective orders, arrest, prosecution, and simulated jury verdicts in intimate partner violence cases. An evaluation of the methodologies employed found that some studies have used surveys of reactions to simulated scenarios, others official data sources, such as police reports and court records, and others interviews or surveys of victims or suspects; but few have used triangulation of different types of sources. Most studies on differential treatment in arrest and prosecution have focused on gender and then race, whereas studies on differential decision making in the issuance of protective orders and jury decision making have focused primarily on gender. In terms of the differential criminal justice response regarding demographic categories, it appears that there is the less favorable treatment of males but more impartial treatment toward racial/ethnic minorities regarding the issuance of protection orders, arrest, and prosecution.

Examination of Decision Making and Botched Lethal Injection Executions in Texas

2020 ◽  
Vol 64 (12) ◽  
pp. 1715-1732
Author(s):  
Talia Roitberg Harmon ◽  
Michael Cassidy ◽  
Richelle Kloch
Keyword(s):  
Decision Making ◽  
Criminal Justice ◽  
Death Penalty ◽  
Single Drug ◽  
Lethal Injection ◽  
Injection Protocol ◽  
The One ◽  
The Impact ◽  
The U.S ◽  
Analyze Data

This research examines the influence of lethal injection drug shortages on Texas criminal justice officials’ decision to change the state’s three-drug lethal injection protocol to the use of pentobarbital as a single drug protocol, without judicial oversight. We analyze data collected under the three- and one-drug protocols from 1982 through 2020 and compare differences in the length of time the lethal injection took, and complications reported by media witnesses. Findings suggest a higher rate of botched executions under the one-drug protocol than the three-drug protocol. We discuss the role compounding pharmacies may play in our results, the impact of this work on the U.S. Supreme Court’s death penalty jurisprudence, and implications concerning the unilateral decision making by Texas state officials.

Cumulative Racial and Ethnic Inequalities in Potentially Capital Cases

2017 ◽  
Vol 45 (2) ◽  
pp. 225-249
Author(s):  
Nick Petersen
Keyword(s):  
Decision Making ◽  
Criminal Justice ◽  
Los Angeles ◽  
Criminal Justice System ◽  
Death Penalty ◽  
Justice System ◽  
Ethnic Disparities ◽  
Race Ethnicity ◽  
Racial Ethnic ◽  
Multiple Stages

To understand how racial/ethnic disparities are formed and sustained within death penalty institutions, this study tracks homicide cases through multiple stages of Los Angeles County’s criminal justice system. Drawing upon cumulative disadvantage research, this study focuses on the accumulation of racial/ethnic biases across multiple decision-making points. Logistic regressions seek to answer the following questions: (1) does victim/defendant race/ethnicity influence prosecutorial decision-making? and (2) if so, do these racial/ethnic disparities accumulate across multiple stages of the criminal justice system? Results indicate that cases with minority victims are less likely to involve a death-eligible charge or death notice. Moreover, these racial/ethnic disparities increase as cases advance through the courts, producing a Whiter pool of victims at later stages in the process. Defendant race/ethnicity is not predictive of death penalty charging decisions but does moderate the influence of victim race/ethnicity such that cases with minority defendants and White victims are treated more punitively.

Justice, Mercy, and Caprice

2017 ◽  
Author(s):  
Ian O'Donnell
Keyword(s):  
Decision Making ◽  
Civil War ◽  
Criminal Justice ◽  
Death Penalty ◽  
Capital Punishment ◽  
Death Sentence ◽  
Religious Institution ◽  
Men And Women ◽  
National Archives ◽  
The Law

Justice, Mercy, and Caprice is a work of criminal justice history that speaks to the gradual emergence of a more humane Irish state. It is a close examination of what can be learned from the National Archives of Ireland about the decision to grant clemency to men and women sentenced to death between the end of the civil war in 1923 and the abolition of capital punishment in 1990. Frequently, the decision to deflect the law from its course was an attempt to introduce a measure of justice to a system where the mandatory death sentence for murder caused predictable unfairness and undue harshness. In some instances the decision to commute a death penalty sprang from merciful motivations. In others it was capricious, depending on factors that should have had no place in the government’s decision-making calculus. The custodial careers of those whose lives were spared repay scrutiny. Women tended to serve relatively short periods in prison but were often transferred to a religious institution, such as a Magdalen laundry, where their coercive confinement continued, occasionally for life. Men, by contrast, served longer in prison but were discharged directly to the community. Political offenders, such as members of the IRA, were either executed hastily or, when the threat of capital punishment had passed, incarcerated for extravagant periods. The issues addressed are of continuing relevance for countries that retain capital punishment as the ultimate sanction.

Capital Punishment in the Post-Civil War Years

2020 ◽  
pp. 31-62
Author(s):  
David M. Doyle ◽  
Liam O’Callaghan
Keyword(s):  
Decision Making ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Death Penalty ◽  
Capital Punishment ◽  
Decision Making Process ◽  
Law And Order ◽  
Government Officials ◽  
Death Sentences

This chapter examines the application of the death penalty in the first ten years of the Free State. Historians to date have argued that the relatively high number of civilian executions in the early post-independence years was symptomatic of Cumann nGaedheal’s broader anxieties with issues of law and order. This chapter revises that assessment and argues that those convicted of murder in the civilian courts in these years were no more likely to have their sentence carried out than those convicted in subsequent eras. By closely examining the decision-making process leading to the execution or commutation of death sentences, particularly the role of judges and government officials, this chapter argues that the death penalty, as imposed by the ordinary courts, was an example of the government’s efforts to restore peacetime civilian norms to the criminal justice system and was not used to any political end.

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