Towards a global theory of capital clemency incidence

As legal historian Carolyn Strange has written: ‘The most striking aspect of pardoning is that rates of commutation differed between jurisdictions and varied over time within jurisdictions’. Some death penalty retentionist nations grant executive clemency as a matter of course, whereas some grant it never or hardly ever. There are also nations which fall at every gradation in between, from capital clemency ‘rates’ of well under 1 percent to over 90 percent. Yet explanations for clemency incidence have received far less academic attention than typologies for and normative prescription of clemency justifications, or comparative study of constitutional provisions on clemency. To fill this gap in the literature, this chapter proposes a theoretically coherent account of why clemency is granted in greater or lesser proportions in different retentionist jurisdictions around the world. The most theoretically convincing factors contributing towards clemency incidence are the political status of the final decision-maker, the extent to which cases less deserving of death are filtered away from clemency or execution at earlier stages, how bureaucratized and regulated the clemency power has become and the length of time that death row prisoners spend incarcerated before they are assessed for mercy.