Cole Blease’s Pardoning Pen

examines prison reform efforts in South Carolina under the governorship of Cole Blease in the 1910s to argue that Progressive-era prison reform played out in distinct ways in the South due to the region’s class and racial politics. Despite his fierce racism, Blease, in the name of reform, pardoned or paroled more criminals, many of them African American, than any previous governor. Yet, Blease’s use of executive clemency had much more to do with imposing an authoritarian and pre-modern form of power onto state bureaucracy than it did with progressive ideals about the promise of the regulatory state. His approach to prison reform illuminates larger tensions within southern progressivism

Last Chance for Life: Clemency in Southeast Asian Death Penalty Cases

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.

What Accounts for Southeast Asia’s Diverse Clemency Practice?

Chapter 7 draws together the findings of each of the preceding four case studies to discuss common patterns and ultimately develop a three-part hypothesis to explain clemency frequency in Southeast Asian death penalty cases over the period of study. The first limb of the hypothesis suggests that jurisdictions whose police, prosecutors, and judiciary are initially able to exercise a great deal of lenient discretion in converting potential capital charges into non-capital sentences (or into acquittals) are not the kind of systems where executive clemency thrives as a remedy against unfair or excessive punishment. The second theoretically supported explanation deriving from the four jurisdictions under analysis is that unelected decision makers are more likely to grant clemency than the elected leaders of democratic or semi-democratic governments. Where unelected final decision-makers such as the king of Thailand, Indonesian presidents Suharto and Habibie, or the Malay hereditary rulers grant clemency, often to bolster their own power and legitimacy before domestic constituents and the international audience, their mass grants of commutation or pardon can greatly increase the historical clemency rate vis-à-vis executions. The third explanatory factor posits that the longer prisoners remain on death row without being executed or removed for other reasons (e.g. escape, or death by natural causes), the more likely they are to be granted clemency. Independent of the political elite’s preferences for or ambivalence over capital punishment, inefficient judicial appeal and clemency petition systems that do not resolve a prisoner’s fate for many years on death row may actually create the conditions for clemency success.

Four Models of Clemency

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.

I Cannot Allow This Boy to Be Executed

This chapter explains how executive clemency—the state governor’s power to reduce a death penalty to a lesser sentence—helped make capital punishment function in North Carolina. With mandatory death sentences for four serious crimes (murder, rape, burglary, and arson), judges had no choice but to pronounce a death penalty upon conviction. This left it up to the governor to decide whether or not the convicted person would be executed. Although this power was reserved for the governor, it was soon transferred to a parole board, which reviewed each death sentence and invited community comment. This process most benefitted teenagers and women. Perversely, more African Americans received commutations than whites because of the high rate of error in their trials.

Making sense of the victim’s role in clemency decision making

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 decision making in common law jurisdictions, in order to determine whether these possess any sound theoretical basis. The article brings together the academic literatures on victim participation and clemency functionality in order to ground the analysis. In brief, the authors' main finding is that victim involvement in clemency decision making can indeed be supported by the theoretical literature, albeit to a more limited extent than is currently practised in some common law jurisdictions. In light of the theoretical underpinnings of clemency in democratic societies and the literature on victim participation, the authors conclude by making several ‘best practice’ recommendations for future policy-making.