1. No category

RESEARCH MEMORANDUM
Using Collective Pardons to
Address Prison
Overcrowding
April 2015
Drafted By:
Ena Dion
!
!
!
INPROL - International Network to Promote the Rule of Law!
RESEARCH MEMORANDUM
Using Collective Pardons to
Address Prison
Overcrowding
April 2015
Drafted By:
Ena Dion
Note:
All opinions stated in this consolidated response have been made in a
personal capacity and do not necessarily reflect the views of particular
organizations. INPROL does not explicitly advocate policies.
!
2
INPROL - International Network to Promote the Rule of Law!
Table of Contents
!
I.!INTRODUCTION*AND*OVERVIEW*...............................................................*4!
A.!GOAL!OF!THIS!MEMORANDUM!....................................................................................!4!
II.*CLEMENCY,*PARDONS*AND*AMNESTIES*.................................................*5!
A.!INDIVIDUAL!PARDONS!.................................................................................................!5!
B.!AMNESTIES!.....................................................................................................................!6!
C.!COLLECTIVE!PARDONS!.................................................................................................!6!
III.!HOW*CLEMENCY*PROCESSES*WORK*......................................................*8!
A.!NATIONAL!CLEMENCY!PRACTICES!.............................................................................!8!
Individual)Pardons)......................................................................................................)8!
Amnesties)........................................................................................................................)9!
Collective)Pardons).......................................................................................................)9!
B.!LIMITATIONS!AND!OVERSIGHT!FOR!INDIVIDUAL!AND!COLLECTIVE!PARDONS!.!9!
Legal)Sources)and)Limitations)............................................................................)10!
Administrative)or)Ministerial)Oversight).........................................................)10!
Legislative)Oversight)...............................................................................................)11!
Judicial)Consultation)...............................................................................................)11!
Loss)of)Popular)Support).........................................................................................)11!
IV.*COLLECTIVE*PARDONS’*IMPACT*..........................................................*12!
A.!IMPACT!ON!PRISON!OVERCROWDING!....................................................................!13!
B.!IMPACT!ON!THE!RULE!OF!LAW!................................................................................!14!
C.!IMPACT!ON!PERCEPTIONS!OF!THE!JUSTICE!SYSTEM!............................................!15!
D.!COLLECTIVE!PARDONS!AND!INTERNATIONAL!STANDARDS!...............................!17!
V.*CONCLUSION:*IMPROVING*USE*OF*COLLECTIVE*PARDONS*..........*18!
VI.*ENDNOTES*....................................................................................................*20!
!
!
3
INPROL - International Network to Promote the Rule of Law!
I.
INTRODUCTION AND OVERVIEW
A. Goal of this Memorandum
Prison overcrowding is an increasingly prevalent problem, particularly in
countries emerging from conflict. Overcrowding leads to serious
humanitarian concerns, creating “substandard and inhumane conditions of
detention,”1 that may rise to the level of human rights abuses.
As the problem of prison overcrowding grows, countries have tried a range of
practices intended to reduce inmate populations. This research
memorandum explores one such practice, collective pardoning, or the mass
release specified categories of prisoners before they have completed their
judicially mandated sentences. The memorandum was prompted by a query
posted in the INPROL Rule of Law Discussion Forum, in which a member
sought information on the use of pardons to relieve prison overcrowding.
This memorandum seeks to provide information on the following:
Despite their relatively widespread use, there is very little written about the
process leading to the issuance of collective pardons or their impact on
prisons and the broader criminal justice system. This memorandum is
intended to serve as a very preliminary survey of how collective pardons are
used, their impact on prison populations, and their effects on the rule of law.
In order to provide a basic understanding of the practice, it describes
collective pardons in generalized terms, drawing from several country
examples. In reading the memorandum, however it is important to
remember that pardon practices vary widely between jurisdictions.
The information contained in this memorandum was gathered through a
literature review, member responses to a query posted in INPROL’s Rule of
Law Forum, and discussions with experts on prisons and pardon practices.
Because of the dearth of literature on collective pardons, and because of their
close relation to individual pardons and amnesties the memo includes
information on the latter two practices where helpful. The first section
describes three related forms of clemency; individual pardons, amnesties and
collective pardons. It provides an understanding of their basic features and
the distinctions between them. In the second section, the memo maps
common processes for issuing individual pardons, amnesties and collective
pardons, and describes typical limitations placed on the power to issue
pardons. The following section describes the impact of collective pardons in
easing prison overcrowding, and on the rule of law and perceptions of the
justice system. The fourth and final section presents suggestions for
improving the use of collective pardons.
4
INPROL - International Network to Promote the Rule of Law!
II.
Clemency, Pardons and Amnesties
The power to grant pardons is part of a larger set of political powers called
“clemency” powers. Clemency refers to “the political capacity to reduce or
remove any lawfully imposed punishment.”2 Historically the power to grant
clemency was a prerogative of the head of state. Today, these mechanisms
survive as a method for justice systems to “maintain a residual power to
introduce occasional modifications in implementing its formal norms in
order to meet the exigencies of unforeseen situations.”3
The exercise of clemency takes many different forms across legal systems.
Two of the most common forms of clemency are pardons and amnesties.
Pardons can be further broken down into individual pardons and collective
pardons. Pardons and amnesty share several features in common, but can
also be distinguished on important points described below. In practice, the
distinctions between individual pardons, amnesties, and collective pardons
are not always clear. Laws may allow for hybrid forms of clemency, and news
reports and academic literature often use the terms interchangeably.
A. Individual Pardons
A pardon is “an official act that exempts a convicted criminal or criminals
from serving his, her or their sentence(s), in whole or in part.”4 The most
common form of pardon is the individual pardon, an act mitigating the
punishment of a named individual. Historically, such pardons were intended
for use in extraordinary circumstances to reduce an individual’s punishment
or to prevent a miscarriage of justice where there was doubt that the original
conviction was justified. Individual pardons are granted to convicts based on
a review of the facts of the criminal case underlying their punishment, and a
convict’s subsequent personal conduct, including behavior in prison and
other information on their circumstances. In general, individual pardons
affect only the punishment or sentence, and do not call into question the
criminality of the act underlying a crime. In most cases they do not expunge
conviction for the underlying crime,5 or remove any other effects of
conviction (e.g. curtailed voting rights or restrictions on employment).
Individual Pardons in Practice
After suffering a miscarriage, a young El Salvadorian woman known as
“Guadalupe” was convicted of having had an abortion, a crime under El
Salvadorian law. She was sentenced to thirty years in prison. Seven years
into her sentence, advocacy by human rights organizations prompted a
reconsideration of her conviction. After review of her case and sentence,
El Salvador’s Legislative Assembly voted to pardon Guadalupe.
5
INPROL - International Network to Promote the Rule of Law!
Source: El Salvador: Pardon for women jailed for miscarriage, a triumph of justice,”
Amnesty International, January 22, 2015, available at:
https://www.amnesty.org/en/articles/news/2015/01/el-salvador-pardon-woman-jailedmiscarriage-triumph-justice/.
B. Amnesties
Amnesties are granted to categories of convicts rather than to particular,
named persons. Whether an individual benefits from an amnesty depends on
whether they meet the conditions outlined in an amnesty law or decree.
Beyond whether one fits into a category to which the amnesty applies, the
facts or circumstances of an individual’s case are not considered. Rather than
simply reducing the punishment, amnesties remove all effects of conviction,
including a criminal record. Amnesties can also prospectively bar prosecution
or civil actions for acts that have already been committed.6 They are
frequently applied to political offenses, and may reflect a belief that the act
that gave rise to criminal prosecution is not or should no longer be regarded
as a crime. Amnesties are often used as part of reconciliation and state
building processes following conflict, and may be part of a peace agreement
or similar accord.7
Amnesties in Practice
After years of civil war, the Government of Sierra Leone and the
Revolutionary United Front of Sierra Leone signed The Lomé Peace
Agreement of 7 July 1999. Article IX of the Agreement grants “absolute
and free pardon and reprieve to all combatants and collaborators in
respect of anything done by them in pursuit of their objectives,” and
“ensure[s] that no official or judicial action is taken against any member
[of those forces specified in the Agreement].”
Source: Rule of Law Tools for Post-Conflict States: Amnesties, (New York and Geneva:
Office
of
the
High
Commissioner
for
Human
Rights,
2009),
7,
http://www.ohchr.org/Documents/Publications/Amnesties_en.pdf.
C. Collective Pardons
Collective pardons have features in common with both individual pardons
and amnesties. Like individual pardons, collective pardons are official acts
that exempt convicted criminals from serving part or all of their sentence.
They resemble amnesties in that they are granted to categories of prisoners,
6
INPROL - International Network to Promote the Rule of Law!
rather than being issued on an individual basis.8 This similarity means
collective pardons are often confused with amnesties. Collective pardons can
be distinguished from amnesties in their effects and underlying rationale.
Collective pardons mitigate punishment and do not expunge convictions or
speak to the criminality of the underlying offense.
Historically, collective pardons were an act of mercy from the sovereign or
head of state in honor of a national holiday or day of celebration. They reflect
the “special situation or mood of the benefactor.”9 In contemporary society
collective pardons are frequently issued on days of public celebration and
employ the language of mercy, but in many cases are used as a mechanism to
relieve prison overcrowding. Many collective pardons are explicitly or
implicitly justified on the grounds that the prisoners released will pose little
threat to public safety. Categories of detainees released often include
juveniles, the elderly, women, prisoners convicted of minor or non-violent
offense, and prisoners who have served the majority of their sentence.
Collective Pardons in Practice
Below is a selection of countries that have used collective pardons in the
past 60 years for the purpose of easing prison overcrowding:
7
•
Brazil: Brazil’s President has occasionally granted collective
pardons and sentence commutations for the purpose of reducing
prison overcrowding. Pardons are generally issued before the
Christmas holidays to allow those released to spend the holiday
with family. The largest release took place in 1996 when between
15,000 and 18,000 inmates were pardoned.*
•
Côte d’Ivoire: Each year on August 7th the head of state
pardons a number of prisoners to honor the anniversary of the
nation’s independence. In August 2014 the President pardoned
over 3,000 prisoners, nearly a third of the national prison
population.*
•
Italy: Since World War I Italy has granted a dozen collective
pardons. Initially intended to reconcile a divided nation, in the
recent past the main aim has been to reduce prison overcrowding.
Between 1962 and 2006 Italy periodically issued pardons
releasing up to thirty-five percent of the national prison
population.*
•
South Africa: South Africa has issued several collective pardons
or special amnesties by presidential decree, at least partially for
the purpose of reducing prison overcrowding.*
INPROL - International Network to Promote the Rule of Law!
•
Zimbabwe: Zimbabwe’s President periodically pardons large
numbers of prisoners. In 2014, 2,000 prisoners were released. The
pardon released nearly all female and juvenile prisoners, as well
as men who were not disqualified based on the type of their
conviction or certain other characteristics.*
Sources:
*Brazil – Behind Bars in Brazil, (New York: Human Rights Watch, 1998),
http://www.hrw.org/news/1998/11/30/behind-bars-brazil.
*Cote d'Ivoire - “Ivory Coast leader pardons third of prisoners,” Agence France Presse,
August 8, 2014, http://news.yahoo.com/ivory-coast-leader-pardons-third-prisoners174859730.html.
*Italy – Alessandro Barbarino and Giovanni Mastrobuoni, “The Incapacitation Effect of
Incarceration: Evidence from Several Italian Collective Pardons,” American Economic
Journal: Economic Policy, 6, no. 1 (2014) 7, 3.
*South Africa – Amanda Dissel and Stephen Ellis, “Reform and Stasis: Transformation in
South African Prisons,” (Centre for the Study of Violence and Reconciliation, 2002), 8,
http://www.csvr.org.za/old/index.php/publications/1359-reform-and-stasistransformation-in-south-african-prisons.html.
*Zimbabwe – Everson Mushava, “President Mugabe Pardons 2,000 Prisoners,” News Day,
February 17, 2014, https://www.newsday.co.zw/2014/02/17/president-pardons-2-000prisoners/.
III. How Clemency Processes Work
Very little has been written about the process of issuing and implementing
collective pardons. Most studies focus on individual pardons or amnesties,
which, while sharing certain characteristics, are analytically distinct from
collective pardons. What information is available on collective pardons often
assumes or implies that they are procedurally similar to individual pardons
or amnesties. For these reasons the following section will give an overview of
some of the most common features of processes leading to individual
pardons and amnesties, as well as what information is available on collective
pardon processes. It will then discuss some limits and oversights placed on
pardon powers.
A. National Clemency Practices
Individual Pardons
With some exceptions, the power to grant individual pardons rests with the
head of state.10 The process is usually initiated when a convict or other
interested party petitions for a pardon. An investigating body, which gathers
evidence related to the petition, initially processes petitions.11 Evidence
gathered by this body can include information about the criminal case
leading to sentencing, criminal records, and reports of conduct in prison.12
8
INPROL - International Network to Promote the Rule of Law!
The evidence is forwarded to one or more advisory bodies.13 After examining
the facts of the case the advisory body issues a recommendation as to
whether a pardon should be granted. In most cases, this recommendation is
only advisory in nature and is not binding on the head of state. After
receiving the advisory body’s recommendation the head of state issues a final
decision as to whether an individual will receive a pardon.
Amnesties
In most cases amnesties are granted by the legislature,14 frequently by
passage of a law. There are instances where amnesties have been granted by
executive decree or proclamation.15 Amnesties may also be agreed upon as
part of a peace agreement or other negotiated settlement between warring
factions, as between a government and rebel groups.16 Most amnesties are
issued in relation to a recent political or military crisis. Motivations for
granting amnesties include removing obstacles to reconciliation between
opposing factions, reintegration of combatants, or the desire of a new regime
to demonstrate “a different perception of conduct penalized by its
predecessor.”17
Collective Pardons
How collective pardons are issued is less clear than are the processes for
individual pardons and amnesties. The power to issue collective pardons is
sometimes given to the head of state and sometimes to the legislature.
Where this power rests with the legislature, the process of issuing collective
pardons is clearer, often requiring passage of a regular or special law. Many
sources seem to assume, incorrectly, that collective pardons follow the same
process as individual pardons. Unlike individual pardons, collective pardons
are not the result of a petition by interested parties. Most collective pardons
seem to be initiated by a political decision recognizing an urgent need to
relieve prison overcrowding. Prison administrators may play a role in
recommending when to issue a collective pardon.18 One prisons expert
described the typical process leading to a collective pardon thus:
[T]he usual way it works is that there is a committee that advises
the King or President. The committee reviews various potential
groups [of prisoners], aiming to ensure that undeserving or highly
political prisoners do not benefit from the pardon system. Usually,
those prisoners chosen for pardon: (1) have relatively short
sentences left; or (2) are prisoners who have grown old in prison
and do not represent a threat anymore; and (3) are individuals who
have a record of good behavior for at least the last two years.19
B. Limitations and Oversight for Individual and
Collective Pardons
9
INPROL - International Network to Promote the Rule of Law!
In most cases, there are few limitations on the power to issue individual
pardons. There is little oversight of the process, or recourse to challenge a
decision once it has been made. Countries have adopted a variety of oversight
mechanisms, but most are advisory in nature and their recommendations are
not binding. Except in countries where collective pardons are not permitted
or are the prerogative of the legislature, the literature implies that limits on
individual pardons also apply to collective pardons. Whether and how it
works in practice is not clear. Common oversight mechanisms include legal
limitations, administrative or ministerial oversight, legislative oversight,
judicial consultation, and loss of popular support.
Legal Sources and Limitations
The power to grant pardons is usually grounded in a country’s constitution,
but few constitutions describe in detail limits to the pardoning power.20 Other
legal sources that may ground, limit, or describe the pardoning powers
include: basic and organic laws, criminal codes, criminal procedure codes,
and legislation specifically addressing pardons.
Common legal limits on pardons include:
•
Categories of pardons – some constitutions and laws describe
categories of pardons a head of state or other decision-making body
may and may not grant. Spain and Bulgaria both allow the head of
state to grant individual pardons but do not permit collective
pardons.21 Germany and Finland give the power to grant individual
pardons to the executive, but give the power to issue collective
pardons to the legislature.22
•
Categories of prisoners – constitutions and laws may explicitly
exclude certain crimes from eligibility for pardon. Impeachment
proceedings are often excluded from eligibility, or may require
legislative approval.23 Other legal systems do not permit pardons for
corruption. In Mexico, federal government officials convicted of acts
committed while in office and whose acts were “to the detriment of
the fundamental public interest, or to their own best interest,” cannot
benefit from a pardon.24 Some countries forbid pardons for
categories of violent or severe crimes. The Afghan Criminal
Procedure Code excludes intentional murder, kidnapping, hostage
taking and drug trafficking from the possibility of pardon.25
Additionally, as previously described, while research did not identify
a law on the matter, in practice collective pardons are nearly always
restricted in their application to prisoners who are thought to pose
little danger to the public.
Administrative or Ministerial Oversight
10
INPROL - International Network to Promote the Rule of Law!
In some cases, an autonomous board, committee, or other body reviews
individual pardon applications. It has been suggested that a similar practice
may hold for collective pardons, but confirming this assertion of this process
would require further research. In all cases studied, the reviewing bodies’
recommendations are not binding.
Another common practice is for pardons issued by a head of state to require
the “counter-signature” of a Minister such as the Minister of Justice. This
may or may not be necessary for the pardon to have effect. Whether the
counter-signature is required may not always be laid out in the law. This
issue can also be confused where, though not mandated by law, in practice
the counter-signature is needed before a pardon takes effect. The need for a
counter-signature is most common where the head of state issuing a pardon
is a figurehead lacking significant political authority.26
Legislative Oversight
Some countries, like Ireland27give the President the power to grant pardons,
but also require pardons be approved by the parliament. Others require
legislative approval for the pardon of certain types of crimes. Greece, grants
the president the power to issue pardons, but requires legislative approval of
the decision to pardon a Minister for crimes committed while in office.28 Still
others, including Germany, Finland,29 and Italy30give the power to issue
collective pardons to the legislature rather than the president.
Judicial Consultation
In no case identified did the judiciary have a determinative role in granting
pardons. In one case, Bulgaria, the Constitutional Court has held that the
President’s decision to pardon is not subject to review by any other
government body, including the courts.31 Some countries do require
consultation with a judicial body. Finland’s Constitution requires the
Supreme Court to provide a statement on individual pardons, but the Court’s
recommendation is not binding.32 Similarly, in Algeria the High Council of
the Judiciary provides a consultative opinion to the President before the
President issues a pardon.33
Loss of Popular Support
Where the head of state has issued an unpopular pardon (individual or
collective), he or she may lose public support, contributing to election losses.
Additionally, the head of state may be held accountable after the fact by other
legal or political methods. This was the case for former Czech President
Vaclav Klaus, who was the subject of two unsuccessful constitutional
complaints after issuing an unpopular collective pardon in 2013.34 While
neither of these examples directly limits pardoning powers, knowledge that
the decision to grant a pardon can have such consequences may provide
11
INPROL - International Network to Promote the Rule of Law!
some informal check.
IV. Collective Pardons’ Impact
The use of collective pardons is “a widespread and longstanding practice.”35
This is not however, an endorsement of the practice. As a policy tool
collective pardons are not recognized as a best practice, nor are there agreedupon best practices for their implementation. One of the few pieces of
research focusing on the topic of collective pardons notes “that there are
serious questions as to whether ad hoc pardons are a sustainable way to deal
with overcrowding, as well as whether pardons ensure the rights of all
detainees and manage safety and security issues.”36 The use of collective
pardons has also been criticized as being ineffective in achieving its aim of
reducing prison populations. The experience of several countries suggests
reductions in prison populations are extremely short in duration, a topic
further discussed below . Other commentary raises concerns about a lack of
transparency or clear formal process, and the potential for abuse. While there
are limited mechanisms for oversight and review of pardons, no consensus
exists as to the effectiveness of limitations and oversight or what mechanisms
work best. Additionally, no system of oversight or review has been endorsed
as adequate to ensure fairness or transparency.
When asked about collective pardons in relation to prison overcrowding most
experts interviewed instead recommended a range of reforms addressing
prison overcrowding which are recognized as best practices. These included
reducing the use of pre-trial detention, reforming sentencing practices to
decrease over-sentencing, and promoting the use of alternatives to
imprisonment.
While no source endorsed collective pardons as a best practice, a minority of
experts believe they can play an important role in some justice systems. One
commenter suggested there may be a role for something resembling
collective pardons where prison overcrowding “cannot be effectively
combatted in any other way.”37 Where alternatives to imprisonment and
sentence reduction have been “ineffective in reducing the prison population,
or cannot be applied, for example because they have not been legislated for or
because they would not be acceptable in a particular country, then
consideration can be given to the use of amnesty for less serious offenders
who are approaching the end of their sentences.”38 Another expert noted a
conflict between what could be described as humanitarian concerns and
concerns of justice. She conceded that mass pardons may not be “just”. They
allow prison administrators or politicians to determine who spends time in
prison and how much, usurping judicial decisions. However, holding
prisoners in overcrowded detention facilities creates a host of human rights
violations and other injustices requiring urgent remedy. Those justice
systems where prison overcrowding is worst may not have the “luxury” of
12
INPROL - International Network to Promote the Rule of Law!
waiting for reforms to take hold.39
A. Impact on Prison Overcrowding
Collective pardons may have limited effectiveness in reducing prison
overcrowding. Where a pardon is applied to a large group of prisoners, a
temporary significant drop in inmate numbers can be achieved.40 This can
make collective pardons attractive as the reduction is quickly attained.
However, not all justice systems will experience a dramatic drop in inmate
numbers. Due to public safety concerns collective pardons usually release
only prisoners with short sentences or less serious underlying offenses. In a
justice system like South Africa’s where many prisoners are serving long
sentences for serious crimes, the impact of a collective pardon is diminished.
Additionally, because most collective pardons only apply to sentenced
prisoners, their impact will be smaller where a large proportion of inmates
are pretrial detainees.41
Pardons do not address the root causes of prison population growth. In the
absence of other reforms they may result only in a very short-term reduction
in prison populations. There is no definitive answer as to how long the effects
last. Where the after-effects of large-scale collective pardons have been
tracked, however, statistics show that prison populations quickly rebound.
Collective Pardons’ Impact on Prison Populations
Between 1962 and 2006 Italy periodically granted collective pardons
releasing up to 35 percent of the national prison population*1 A study of
pardons issued between 1962 and 1995 found that within one year of a
collective pardon, prison populations had recovered more than half the
size of the initial release. Additionally, inmate populations grew nearly
three times faster than the average rate of growth in the year after a
collective pardon.*2 The study also suggests that collective pardons may
contribute to an increase in crime and criticized pardons for reducing the
deterrent power of the law.*3
Zimbabwe has been similarly unsuccessful in reducing prison
populations through large-scale release. In 1980, 16,172 prisoners were
released leaving 5,682 detainees, a population reduction of nearly three
quarters. By 1985 the prison population had rebounded to 14,755 inmates,
prompting a second release of nearly three thousand inmates. Within the
year prison populations had again climbed to over 14,000 inmates.
Despite additional mass releases in 1988, 1990, and 1993 the population
had reached 20,055 by 1994.*4
In 2000, South Africa implemented special measures releasing 3,000
sentenced prisoners and 8,541 prisoners awaiting trial for minor crimes
13
INPROL - International Network to Promote the Rule of Law!
who could not meet bail. By the end of that year the prison population was
higher than before the special release.*5
Two years after a pardon from the Czech President released 6,471
inmates in 2013, the state news agency reported that fifty-two percent of
those released were involved in criminal prosecution. Police attributed a
seven percent rise in the crime rate in 2013 to the mass release, with over
9,000 crimes being attributed to the released inmates.*6
Sources:
*1 Barbarino and Mastrobuoni, “Incapacitation Effect," 3.
*2 Ibid, 7-8, 5.
*3 Ibid 5, Leslie Sebba and Richard S. Frase, “Amnesty and Pardon,” in Encyclopedia of
Crime and Justice, ed. Joshua Dressler (New York: Macmillan Reference, 2002) 57.
*4 Vivien Stern, “Alternatives to Prison in Developing Countries,” Punishment and Society, 1,
no. 2 (1999) 236.
*5 Dissel and Ellis, “Reform and Stasis,” 8.
*6 “Most of those pardoned by Klaus are back in the system,” Prague Post, January 24, 2015,
http://www.praguepost.com/czech-news/43974-most-of-those-pardoned-by-klaus-areback-in-the-system.
Despite the brevity of relief collective pardons provide, one expert cautioned
against abruptly putting a stop to an established practice of using collective
pardons to reduce overcrowding in prisons. Where collective pardons are a
regular practice, prison administrators come to rely on the periodic outlet
they provide. Halting them without a plan to quickly deal with the effects of
this decision may do more harm than good. While acknowledging that
collective pardons are far from ideal, the expert pointed out that most
governments using the practice don’t have the “luxury” of considering
whether they are a best practice. The governments may believe they don’t
have the time to wait for more sustainable solutions to take hold, or the
capacity to make longer-term reforms effective.42
B. Impact on the Rule of Law
Collective pardons have been criticized as having several ill-effects on the
rule of law. Both individual and collective pardons have been criticized for
eroding the separation of powers. Giving the head of state the power to issue
pardons permits the executive branch to “interfere with or alter
implementation of the laws . . . [and] infringes on the autonomy of the
legislative and judicial branches of government.”43 Use of collective pardons
may be particularly damaging to the separation of powers. Individual
pardons justify allowing the executive branch to override court decisions and
the law on the basis of the extenuating, individual circumstances of an
individual case. Because they deal only with extraordinary cases, individual
pardons cast relatively little doubt on the fairness and validity of the content
14
INPROL - International Network to Promote the Rule of Law!
or application of the laws. Collective pardons, by contrast, often rely on the
rationale that releasing certain categories of prisoners is acceptable because
their confinement is not necessary to public safety. This may imply that the
laws and courts consistently over-punish large categories of prisoners, calling
into question the fairness and validity of judicial decisions and the laws
themselves.
Using collective pardons to relieve prison overcrowding can distract from
efforts towards more sustainable reform of the justice system. Periodic use of
collective pardons as an “outlet valve”44 for prisons “may significantly delay
progress in discussing, adopting and implementing longer-term measures
such as developing alternatives to imprisonment in law and practice and
reforming sentencing policies.”45 Commenting on the 2012 collective pardon
in South Africa, a researcher at the University of the Western Cape noted
“our very high awaiting trial population means there’s a huge bottleneck and
the criminal justice system is broken. That’s where the problem is. If the
president wanted to focus our attention on something it should be that.”46
The pardon process has also been criticized as creating opportunities for
corruption, bribery, favoritism, and politicization of the justice system concerns of particular relevance in post-conflict settings. While individual
pardons make up the most high profile instances of corruption, collective
pardons are also susceptible to abuse. One prosecutor called Italy’s 2006
pardon law an "agreement between the government and opposition to resolve
the murky affairs of people close to them."47 Silvio Berlusconi, then leader of
the political opposition, was among the law’s beneficiaries as his sentence for
tax fraud was reduced from four years to one year.48 Observers speculated
that in issuing South Africa’s 2012 collective pardon President Jacob Zuma
was motivated in part by hopes of gaining popular support in the run up to an
election conference.49
C. Impact on Perceptions of the Justice System
Collective pardons are seen as a particular threat to the legitimacy of the
justice system as they lack the principled rationale justifying individual
pardons and amnesties. One expert notes “as somewhat arbitrary acts
designed to meet other exigencies, mass releases may simply reinforce the
view among those affected that the rules of the game can always be trumped
by external considerations.”50 Citizen confidence in the justice system may
drop following mass releases. The effects of prison overcrowding on inmates
is usually not of great concern to the public who are more interested in their
own safety and security. They see pardoned prisoners as criminals, arbitrarily
released despite a court-mandated sentence.51 Citizens’ negative reactions are
amplified by the media who find and report on crimes committed by those
released, as well as police, prosecutors and others involved in jailing convicts
who often voice strong public opposition. 52
15
INPROL - International Network to Promote the Rule of Law!
Public Reaction to Collective Pardons
Use of special amnesties in South Africa has come under fierce
criticism.*1 A 2012 proposal to release up to thirty-four percent of
prisoners raised concerns that releasing potentially un-rehabilitated
inmates could pose a danger to the public. Other critics said the plan
undermined the authority of the judiciary, and was an attempt by the
ruling political party to gain political points.*2
In the Czech Republic in 2013, outgoing President Vaclav Klaus issued a
pardon freeing almost a quarter of prison inmates, prompting a large
public backlash. In the ten days after an initial 6,000 inmates were
released police reported investigating 70 crimes, including one murder,
allegedly committed by released prisoners. The public was particularly
outraged at a provision giving amnesty to defendants whose court cases
had lasted more than eight years, allowing several politicians accused of
financial fraud to benefit from the decree.*3 The outcry resulted in “a vote
of no confidence in parliament, and two constitutional complaints,”
against the President.*4
Reaction to Italy’s 2006 pardon law releasing over 15,000 prisoners was
strongly negative among media and political leaders*5 and “raised
significant concerns in public opinion . . . commentators predicted that in
a few months the number of inmates would quickly return to pre-2006
figures.”*6 The pardon reduced sentences for all but serious crimes by
three years and applied to both tried and untried cases. The Italian
judiciary anticipated that the law would make ninety percent of trials to
be held in the next five years “pointless.” *7 A former prosecutor was
quoted as saying "Italy has slipped into a state of illegality . . . The rule of
law is in jeopardy."*8
Sources:
*1 Dissel and Ellis, “Reform and Stasis,” 8.
*2 Institute for Security Studies Blog, “What is the Value of the recent Presidential Pardon of
Inmates in South Africa?” blog entry by Hamadziripi Tamukamoyo, May 15, 2012,
http://www.issafrica.org/iss-today/what-is-the-value-of-the-recent-presidential-pardonof-inmates-in-south-africa.
*3 Leos Rousek, “Czech Freedom Rings Off-Key,” Wall Street Journal, January 10, 2013,
*4 “Vaclav Klaus’s controversial amnesty,” Eastern Approaches, The Economist, January 17,
2013, http://www.economist.com/blogs/easternapproaches/2013/01/czech-politics.
*5 Giovanni Torrente and Sara Mantovani, Punishment and Recidivism: The Italian Case
(Turin: United Nations Interregional Crime and Justice Research Institute, 2009), 25.
*6 Stefano Maffei and Isabella Merzagora Betsos, “Crime and Criminal Policy in Italy:
Tradition and Modernity in a Troubled Country,” European Journal of Criminology, 4, no. 4
(2007) 467.
*7 John Hooper, “Pardon makes a mockery of 90% of Italian trials,” The Guardian,
November 7, 2006, http://www.theguardian.com/world/2006/nov/08/italy.johnhooper.
16
INPROL - International Network to Promote the Rule of Law!
*8 Ibid.
While the majority of commentary on collective pardons’ effect on
perceptions of the justice system was negative, one expert felt that the subject
deserved more nuanced consideration than it generally receives. She
expressed some doubt that public sentiment was so strongly against
collective pardons. Where collective pardons are routinely used they are not
met with riots inside prisons or large-scale public protests. This, she noted
“says something about acceptance of the practice.”53 Undermining the
judiciary or legal system may be poor practice, from a justice perspective, but
the conditions created by prison overcrowding mean those sentenced are
punished far more harshly than the courts intended – a tangible and arguably
more urgent concern, particularly from a humanitarian perspective.54
D. Collective Pardons and International Standards
As collective pardons are not a recommended practice for prison reform,
there are no international standards for their use. A review of international
standards for amnesties, however, brings up a concern that may also apply to
collective pardons. Some human rights treaties require certain crimes to
carry a punishment that reflects the gravity of the crime. For example,
countries that are party to the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment are required to criminalize
torture, and ensure “these offenses [are] punishable by appropriate penalties
which take into account their grave nature.”55 A pardon that causes the
punishment for such crimes to fall below this threshold may violate
international law.56
Research also raised other possible areas of concern. Whether these rise to
the level of violating specific international norms requires further research.
In the meantime, it is worth noting the following:
17
•
It has been suggested that collective pardons may not adequately
protect the rights of detainees.57 Rehabilitating prisoners is a widely
acknowledged best practice. 58 Prisoners granted collective pardon
are released quickly, often without adequate rehabilitation, proper
preparation, or social support. Society can have a negative view of
those released as criminals who have not served their full sentence,
which can add to reintegration difficulties.59
•
Individual pardons have been criticized for creating disparities in
sentencing wherein similarly situated prisoners receive differing
punishments.60 This criticism could also be applied to collective
INPROL - International Network to Promote the Rule of Law!
pardons, where those who benefit from a pardon may serve
significantly less time in prison than others who complete a sentence
for the same crime.
•
V.
The impact of pardons’ impact on victims of crime may be of
concern. Victims may have a justified expectation that, barring
parole or similar individualized consideration of the case, an offender
will serve their full judicially determined sentence.
Conclusion: Improving the Use of
Collective Pardons
As collective pardons are not a recognized best practice there have been few
attempts to improve their use. No expert interviewed for this memo had been
involved in reforming pardon processes. Similarly, a review of literature
yielded little information on reforming pardon processes to promote the rule
of law. Instead, rule of law work has focused on implementing what are seen
as more sustainable solutions to prison overcrowding. However, the
widespread and persistent use of collective pardons to reduce prison
populations suggests there is value in exploring how to they might be used
more fairly, transparently, and effectively as an interim measure.
The following were suggested as ways to improve the use of collective
pardons to combat prison overcrowding. It is important to remember that in
relation to collective pardons, these suggestions are for the most part
speculative, and not drawn from experience with a comprehensive program
of reform.
18
•
Limits and Oversight - Legal limits and the use of oversight
mechanisms may help make pardon decisions more transparent, less
politicized or less subject to abuse. However, as previously stated, no
consensus exists as to the effectiveness of oversight mechanisms or
limits.
•
Frequency - Collective pardons should not be used routinely.
Frequent use is more likely to draw efforts and attention away from
efforts to address the roots of overcrowding such as excessive pretrial
detention, case backlogs in the courts, and overlong incarceration.61
Additionally, one expert suggested that while the public may accept
the use of collective pardons as a one-off measure under exceptional
circumstances, repeated use can erode trust in the justice system.62
•
Selection - Selection of inmates to be released should be as
individualized as possible, considering the history and circumstances
of the prisoner, and the risk his or her release poses to public
INPROL - International Network to Promote the Rule of Law!
safety.63
*
19
•
Transparency - The process and criteria for determining when
collective pardons are issued and who is pardoned should be made
clear. The public should be fully informed of the process and criteria
as well as the categories of prisoners released under each pardon. It
was also suggested that, where possible crime, victims should be
notified of the offender’s release.64
•
Reintegration – A transition plan should be put in place to
support prisoner reentry and reintegration. Measures should also be
put in place to provide adequate medical care for released detainees.
Prisoners should be referred to community services and those
services should be provided with prisoner information for follow-up.
Without medical care prisoners suffering from infectious diseases
such as HIV or tuberculosis may pose a public health risk.65
*
INPROL - International Network to Promote the Rule of Law!
VI. Endnotes
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1!Handbook on strategies to reduce overcrowding in prisons, (New York: United
Nations Office on Drugs and Crime, 2010), iii,
http://www.unodc.org/documents/justice-and-prisonreform/Overcrowding_in_prisons_Ebook.pdf.!
2
Austin Sarat and Nasser Hussain, Forgiveness, Mercy and Clemency. (Stanford:
Stanford University Press, 2006), 3.
3
Leslie Sebba and Richard S. Frase, “Amnesty and Pardon,” in Encyclopedia of
Crime and Justice, ed. Joshua Dressler (New York: Macmillan Reference, 2002) 56.
4
Rule of Law Tools for Post-Conflict States: Amnesties, (New York and Geneva:
Office of the High Commissioner for Human Rights, 2009), 5,
http://www.ohchr.org/Documents/Publications/Amnesties_en.pdf.
5
Ibid,12.
6
Rule of Law Tools, 5.
7
Ibid, 6-7.
8
Sebba and Frase, “Amnesty and Pardon,"57.
9
Leslie Sebba, “The Parvdoning Power – A World Survey,” Journal of Criminal
Law and Criminology, 68, no. 1 (1977) 118.
10
Pardons: European State Practice, Mreza Mira Peace Building Network, 7
http://www.mreza-mira.net/kontakt/.
11
Sebba, “Pardoning Power,”115.
12
Mreza Mira Peace Building Network, Pardons: European State Practice, 3.
13
Sebba, “Pardoning Power,”115, Mreza Mira Peace Building Network, Pardons:
European State Practice, 3.
14
See Sebba and Frase, “Amnesty and Pardon.”
15
Rule of Law Tools, 6, 7.
16
Ibid, 7.
17
Sebba and Frase, “Amnesty and Pardon," 57.
18
International Prisons Expert, in discussion with the author, February 5, 2015.
19
Gary Hill (Training Chair, International Corrections and Prisons Association), in
discussion with Vivienne O’Connor (Director, International Network to Promote the
Rule of Law) and Christina Murtaugh (Deputy Director, International Network to
Promote the Rule of Law), January 22, 2015.
20
Sebba, “Pardoning Power,” 111, 116.
21
Mreza Mira Peace Building Network, Pardons: European State Practice, 14. 18..
22
Ibid 10-11, 22.
23
Sebba, “Pardoning Power,” 115.
24
POLITICAL CONSTITUTION OF THE MEXICAN UNITED STATES arts. 110-111.
25
CRIM. PROC. CODE OF AFGHANISTAN, chapter 10, art. 350.
26
Sebba, “Pardoning Power,” 114.
27
Henry McDonald, “Irish president urged to free ailing peace activist Margaretta
D'Arcy,” The Guardian, January 25, 2014,
http://www.theguardian.com/world/2014/jan/25/irish-president-free-margarettadarcy.
28
CONSTITUTION OF GREECE arts. 47, 86.
29
Mreza Mira Peace Building Network, Pardons: European State Practices, 10-11,
22.
30
CONSTITUTION OF THE ITALIAN REPUBLIC part II, title I, section II, art. 79.
31
Mreza Mira Peace Building Network, Pardons: European State Practices, 18.
20
INPROL - International Network to Promote the Rule of Law!
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
32
Ibid, 23.
CONSTITUTION OF THE PEOPLE’S DEMOCRATIC REPUBLIC OF ALGERIA, title II,
chapter II, art. 156.
34
“Vaclav Klaus’s controversial amnesty,” Eastern Approaches, The Economist,
January 17, 2013,
http://www.economist.com/blogs/easternapproaches/2013/01/czech-politics.
35
Open Society Voices; “Pardons are not a solution to prison overcrowding,” blog
entry by Kersty McCourt and Marina Ilminska, August 16, 2012,
http://www.opensocietyfoundations.org/voices/pardons-are-not-solution-prisonovercrowding.
36
Ibid.
37
Roy Walmsley, “Global Incarceration and Prison Trends”, in Forum on Crime and
Society, 3 no. 1 (2003) 65-78, 74,
https://iseek2.unodc.org/pdf/crime/forum/forum3.pdf#page=70.
38
Ibid.
39
International Prisons Expert.
40
Tomris Atabay (consultant to Penal Reform International, UNODC, ICRC,
Council of Europe and others), in discussion with Vivienne O’Connor (Director,
International Network to Promote the Rule of Law) and Christina Murtaugh (Deputy
Director, International Network to Promote the Rule of Law), January 22, 2015.
41
Martin Schönteich (Senior Legal Officer: National Criminal Justice Reform, Open
Society Justice Initiative) in discussion with the author, February 6, 2015.
42
International Prisons Expert.
43
Sebba and Frase, “Amnesty and Pardon,"58.
44
Martin Schönteich, Presumption of Guilt: The Global Overuse of Pretrial
Detention, (New York: Open Society Foundations, 2014), 127.
45
Handbook on strategies, 59, http://www.unodc.org/documents/justice-and-prisonreform/Overcrowding_in_prisons_Ebook.pdf.
46
Institute for Security Studies Blog, “What is the Value of the recent Presidential
Pardon of Inmates in South Africa?” blog entry by Hamadziripi Tamukamoyo, May
15, 2012, http://www.issafrica.org/iss-today/what-is-the-value-of-the-recentpresidential-pardon-of-inmates-in-south-africa.
47
John Hooper, “Pardon makes a mockery of 90% of Italian trials,” The Guardian,
November 7, 2006,
http://www.theguardian.com/world/2006/nov/08/italy.johnhooper.
48
“The many trials of Silvio Berlusconi explained,” BBC News, May 9, 2014,
http://www.bbc.com/news/world-europe-12403119.
49
Tamukamoyo, “Inmates in South Africa”.
50
Schönteich, Presumption of Guilt, 127.
51
Schönteich, Handbook on strategies, 60.
52
Schönteich.
53
International Prisons Expert.
54
Ibid.
55
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, art. 5, Dec. 10, 1984, 1465 U.N.T.S. 85.
56
Rule of Law Tools, p. 13.
57
McCourt and Ilminska, “Prison overcrowding.”
58
International Covenant on Civil and Political Rights, art. 10.3, Dec.16, 1966 999
U.N.T.S. 171 and 1057 U.N.T.S. 407, Standard Minimum Rules for the Treatment of
Prisoners, part II, art. 64, August 30, UN Doc. A/CONF/611, annex 1.
59
Handbook on strategies, 60.
33
21
INPROL - International Network to Promote the Rule of Law!
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
60
Daniel J. Freed and Steven L. Chanenson, “Pardon Power and Sentencing Policy,”
Federal Sentencing Reporter, 13, no. 3-4, (2001) 121.
61
Handbook on strategies, 59.
62
Schönteich.
63
Handbook on strategies, 60, Barbarino and Mastrobuoni, “Incapacitation Effect,"
22-23.
64
Schönteich.
65
Handbook on strategies, 60.
22