The constitutional nature of the clemency powers. Such conflicts in this area between the president and Congress have been symptomatic of the uncertainty attached to the constitutional nature of the clemency powers. Another example, the corollary of the Civil War issue, occurred in when California's legislature debated the grant of an individual pardon to former labor leader Tom Mooney , and its legal powers to do so were challenged by some academic jurists Radin.
Traditionally, these powers have been associated with the sovereign authority, and today they are most frequently entrusted to the head of state. This office is generally associated with the executive branch of government, particularly in presidential systems of government.
For this reason, the exercise of pardon is often referred to as executive clemency. This, too, is the reason why impeachment has been excluded from the purview of the pardoning power in many jurisdictions: such a power might enable a chief executive to protect his ministers from parliamentary control. It is not altogether clear, however, whether it was in his executive capacity that the sovereign historically exercised these powers; he generally stood at the pinnacle of all three branches of government—legislative, executive, and judiciary—and the precise role of each branch in the decision-making process is controversial.
Thus, the mechanism of decisionmaking, and the involvement of ministers and executive officials, judges, and sometimes even legislators in this process, have varied widely from one jurisdiction to another Sebba, ; Stafford. Furthermore, although acts of clemency are in general immune from judicial review, the grounds for this immunity are sometimes stated to be the executive nature of the act—and sometimes its judicial nature. Clemency powers extend to individual state governors in the United States, who occasionally exercise these powers to reflect contemporary changes in legal norms at the state level.
Contemporary functions of pardon and amnesty. The term pardon is often used generically to describe the power vested in the head of state to grant clemency in individual cases.
In this sense it includes such subcategories as full pardon, conditional pardon, commutation, remission, and reprieve. Sometimes, however, it refers only to certain categories.
Thus, the U. Constitution refers only to pardons and reprieves, the first term incorporating the remaining subcategories. In recent times, pardons have served three main functions: to remedy a miscarriage of justice, to remove the stigma of a conviction and the disabilities thereby entailed , and to mitigate a penalty.
The first two objectives are usually achieved by means of a full pardon; the other forms are employed for the purpose of mitigating the sentence. On the contrary, a pardon is given to persons who have been convicted. Amnesty has been mainly used as a political means to address certain issues of national importance.
In pardons, the criminal record of an individual is not wiped out as a court has already convicted that person. Difference Between Amnesty and Pardon. Difference Between Similar Terms and Objects.
MLA 8 S, Prabhat. Name required. Email required. Please note: comment moderation is enabled and may delay your comment. There is no need to resubmit your comment. Notify me of followup comments via e-mail. Written by : Prabhat S. It refers to the forgiveness of past criminal actions and thereby exempting from prosecution some criminal action[i]. Amnesty can be distinguished from pardon in that amnesty is extended to persons who are subject to prosecution but not yet convicted whereas, a pardon is granted to a person who has already been convicted.
Amnesty is usually provided for political crimes during a period of insurrection or revolt to subjects concerned in an insurrection. The criminals may be offered a promise of immunity from prosecution to abandon unlawful activities. A victorious side in a war may extend amnesty after a civil war to the losers.
It may not be extended to single individuals. It is also referred as a collective pardon as it is exercised in favor of a group of persons. A statute providing amnesty is to be construed to advance the remedy provided and protect persons coming within its purview[iii]. The spirit and policy behind the statute is to be given prominence.
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