CLEMENCY

Leniency or mercy. A power given to a public official, such as a governor or the president, to in some way lower or moderate the harshness of punishment imposed upon a prisoner.

Clemency is considered to be an act of grace. It is based on the policy of fairness, justice, and forgiveness. It is not a right but rather a privilege, and one who is granted clemency does not have the crime forgotten, as in amnesty, but is forgiven and treated more leniently for the criminal acts. Clemency is similar to pardon inasmuch as it is an act of grace exempting someone from punishment. Commutation of an offender's sentence, however, is the lessening of the punishment based on the offender's own good conduct subsequent to his conviction.

Although clemency is a privilege and not a right, questions have arisen as to whether a prisoner sentenced to death is entitled to certain constitutional rights during a clemency proceeding. States that impose the death penalty require a clemency review before a prisoner is executed. For example, Ohio requires the state parole authority to conduct a clemency review 45 days before the date of execution and file its report with the governor. As part of the review the prisoner may request an interview with a parole board member but the prisoner does not have the right to have an attorney present.

An Ohio death row inmate objected to the interview on two grounds, contending it violated his fifth amendment right against self-incrimination and his fourteenth amendment right to due process. He insisted that he should not have to make a choice between seeking clemency and remaining silent about the crime he had been convicted of, and of other crimes he may have committed. A federal appeals court agreed with the inmate that the process violated his Fifth Amendment right, but the Supreme Court reversed the decision in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998).

The Supreme Court found that the inmate did not have any due process rights because clemency could only be given at the discretion of the governor. Moreover, the executive branch, not the judicial branch, conducted the process. In addition, the Court cited prior rulings where it had stated that pardon and commutation proceedings have not traditionally been the business of courts and are rarely, if ever, appropriate subjects for judicial review. As to the Fifth Amendment argument, the Court ruled that the inmate had to exercise the same choice he had made at trial: to testify or to remain silent. In the Ohio clemency process, the inmate has a choice of providing information—at the risk of damaging his case for clemency or for post-conviction relief—or of remaining silent.

Acts of clemency are usually issued in isolated cases. In 2002, however, outgoing governor George Ryan announced that he had concerns about the fairness of Illinois judicial proceedings against 160 death row inmates, which compelled him to begin clemency review proceedings into their crimes. During the fall of 2002 a special review board conducted public hearings and private reviews concerning each inmate's case. Relatives of victims gave emotional testimony, while attorneys for the inmates pointed out troublesome charges, including the use of torture on suspects to make them confess. In January 2003, Governor Ryan took the unprecedented step of granting clemency to all the death row inmates. He pardoned four inmates who he believed were not guilty; the remainder of the inmates were given life sentences. Ryan concluded that the legal process surrounding capital punishment had become so corrupted that he had no choice but to grant clemency.

further readings

Burnett, Cathleen. 2002. Justice Denied: Clemency Appeals in Death Penalty Cases. Boston: Northeastern Univ. Press.

Davey, Monica, and Steve Mills. 2003. "Ryan Issues Blanket Clemency." Chicago Tribune (January 11).

Gagne, Patricia. 1998. Battered Women's Justice: The Movement for Clemency and the Politics of Self-Defense. New York: Twayne.

cross-references

Due Process of Law; Prisoners' Rights.

CLEMENCY

Clemency is a virtue whose act is to moderate punishment. In a spirit of leniency it would lessen punishment as far as the demands of justice permit. Clemency does not seek to mitigate punishment contrary to the order of justice or the dictates of right reason. Rather, considering the circumstances of fact, person, manner, place, etc., it judges that right reason does not require the guilty one to be punished as severely as the words of the law or custom would otherwise demand. To be good, the act must proceed from a virtuous motive. The mitigation of punishment because of sentimental considerations, fear, or bribery would not be an act of clemency, except in material sense.

Clemency is related to severity as epikeia is to legal justice. But it differs from epikeia. In the latter there is a diminution of penalty because it is supposed that the mind of the legislator did not intend the severity expressed in the words of the law to be applied to a given case; this is probable where there are notably extenuating circumstances. Clemency, however, brings about the diminution because the one whose duty it is to impose the penalty has a certain tenderness or consideration toward the offender and is therefore unwilling to inflict punishment to the full extent of his authority.

Clemency and mildness are the same as far as the virtue of temperance moderates the feelings and their external expression; but in spite of a certain affinity, they differ, clemency being a virtue proper to superiors while mildness is something that should be common to all. Cruelty, which is a savage readiness to inflict punishment, is the direct opposite of clemency.

Bibliography: thomas aquinas, Summa Theologica, 2a2ae, 157.4. h. d. noble, Dictionnaire de spiritualité ascé et mystique. Doctrine et histoire, ed. m. viller et al. (Paris 1932–) 2.1:944–947. l. desbrus, Dictionnaire de théologie catholique, ed. a. vacant et al., 15 v. (Paris 1903–50; Tables générales 1951–)3.1:45–47.

[w. herbst]