The Politics of Grace: On the Moral Justification of Executive Clemency

Abstract

The retributive critics of the pardon power typically maintain that the institution of executive clemency is little more than an archaic relic of our distant monarchical past, which functions at the mere political whim of the chief executive, and is thus without any substantial rational justification. For these reasons, they argue that it should either be abolished or reformed in order to comport more closely with the procedural requirements of due process and the substantive norms of justice. I argue, however, that the chief executive's discretionary prerogative to grant mercy is best understood, in broadly Kantian terms, as an imperfect duty, namely a duty that assigns to the president a moral end (i.e., to act mercifully by granting clemency in appropriate cases), but one that allows him wide latitude in the time and manner of its fulfillment. As such, he is not (as the critics suggest) under a moral obligation to grant clemency in any particular case or even in all relevantly similar cases, at least in the absence of a clear miscarriage of justice. At the same time, the clemency power is not for that reason beyond the reach of critical moral scrutiny, since it remains a duty that attaches to the office of the chief executive, and he is thus morally accountable for its use (or misuse). In particular, if a chief executive refuses to exercise the clemency power at all, perhaps to insulate himself from potential political criticism for being soft on crime, he would be properly subject to moral condemnation for being merciless.