Longitudinal Constitutional Trends in Clemency since Sebba (1977)

Dr Daniel Pascoe1, Dr Andrew Novak2
1School of Law, City University Of Hong Kong, Kowloon Tong, Hong Kong, 2Department of Criminology, Law and Society, George Mason University, Fairfax, United States

Nearly all legal systems throughout the world possess an executive clemency mechanism, though legal frameworks and empirical practice vary significantly between nation states.  The typical starting points for comparative legal research on executive clemency are Leslie Sebba’s now-dated 1977 articles comparing clemency mechanisms globally.  Forming part of a forthcoming edited collection, this co-authored paper will document changes in worldwide constitutional trends on executive clemency (and the reasons for these changes) since Sebba’s two original studies were published back in 1977,  based on a systematic collection of constitutional provisions from documents around the world.

Not only have the number of worldwide constitutions mushroomed since 1977 with the continued demise of colonialism and the breakup of the Soviet Union, but moreover there have been notable changes in the worldwide picture for the clemency categories that Sebba originally identified as relevant to his constitutional surveys.  These were the identity of the formal clemency decision-maker, any recommending or countersigning bodies, other advisory bodies, allowances for special categories of offender and offence, and the categories of clemency mentioned in each constitution.

Using the comparative constitutional law methodology, this paper will demonstrate that even at the constitutional level (let alone within legislation and formal administrative procedures), clemency decision-making has become increasingly bureaucratized since 1977 as a greater number of parties are afforded the opportunity to influence the final decision-maker.  Moreover, national constitutions now place greater restrictions on the head of state’s plenary power to grant clemency, as compared with the situation in 1977.


Biography:

Dr Daniel Pascoe has been an Assistant Professor at the School of Law, City University of Hong Kong, since 2014.  Dr Pascoe completed his undergraduate degrees in Asian Studies and in Law at ANU, and his MPhil and DPhil at Oxford.  His research interests include punishment and pardon in comparative perspective, Southeast Asian law, Islamic Law, Transitional Justice and Legal Pedagogy.  His first monograph is forthcoming with OUP in late 2018.

 

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