New Comparative and Empirical Approaches to Clemency

In 1977, Israeli academic Leslie Sebba published two articles comparing constitutionalarrangements for executive clemency the world over (Sebba 1977a & 1977b). Despitesome thematic coverage in comparative constitutional law or death penalty textbooks,and several smaller-scale comparative studies, Sebba’s work remained the leadingscholarship on executive clemency across national borders for almost 40 years, untilProfessor Andrew Novak (the Principal Investigator’s proposed Collaborator) publishedhis ambitious new monograph ‘Comparative Executive Clemency: The ConstitutionalPardon Power and the Prerogative of Mercy in Global Perspective’ in 2016.There are good reasons for the historical scarcity of empirical literature on executiveclemency across national borders, clemency being broadly defined as the executivebranch reducing or abrogating lawfully-imposed punishment. Unlike judicial decisions,clemency deliberations by executive decision-makers are usually performed in secret,with public justification for clemency grants rarely given. Aggregate clemency statistics,while more widespread than any official reasoning, tend only to be released toresearchers and the public in democracies. Moreover, interviews with the final decisionmakerson clemency petitions are exceedingly difficult to arrange, given their usualexalted status in the political hierarchy. Accordingly, pardons and commutations arerarely analysed in any systematic way within a single jurisdiction, let alonecomparatively.However, despite the lack of information about how clemency decisions are made, howmany are made, and the factors that contribute to their frequency or scarcity, theyusually determine whether or not a prisoner sentenced to death ultimately lives or dies,and hence are vitally important in criminal justice systems that retain capitalpunishment. Moreover, even for abolitionist jurisdictions, clemency may operate as afinal level of ‘appeal’ in cases of innocence or excessive punishment, or as a means toshow leniency for reasons outside of those permissible by parole.In this context, the Principal Investigator’s plan for a three-year Early Career Schemeproject involves composing several research pieces that will expand on the scarce globalcomparative and empirical literature on executive clemency. The project’s centralresearch question is: “what accounts for similarity and difference in clemency laws andpractice across different jurisdictions?”. In greater detail, the project’s three mainresearch objectives are as follows:1.To compare constitutional provisions on clemency on a global scale;2.To juxtapose jurisdictions where clemency is very often granted with those where it isnot; and3.To account for variation and similarity in clemency laws and practice across the globe,employing empirical research methods.