jciprod01productnBBIN341BIN104txtunknownSeq 115FEB161053 - PDF document

1 \\jciprod01\productn\B\BIN\34-1\BIN104.t
\\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 115-FEB-1610:53 ...................................................150I.BACKGROUNDON...................................152.................152.........................154II.TRACTICEOF.................157................................157.......................158III.D “C “P.........162.............162....................................163IV.VARIETIESOFAKERSBEHINDLEMENCYOR.................................................166V.DIFFERENCESANDSIMILARITIES.............167.167..169IMPLICATIONSFORHUMANRIGHTSLAWANDSCHOLARLYDISCOURSE...................................176clemency or pardon — that is, a final non-judicial relief against adeath sentence, commonly granted by the executive — is an importantLaw or by scholars of capital punishment. In this Article, I argue that *Assistant Professor, School of Law, City University of Hong Kong. Email:dcpascoe@cityu.edu.hk. An earlier version

2 of this Article was a joint winner of th
of this Article was a joint winner of theprize for Best Paper at the 12th Asian Law Institute Conference (Taipei, 2015). I \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 215-FEB-1610:53 BOSTONUNIVERSITYINTERNATIONAL LAWJOURNALJOURNAL34:149empirical study of Islamic law. The clemency literature may begin todiya constitutes an amalgamation of civil and criminal law — a sui is the payment of “blood money” to a victim or a victim’s family The question of whether murder case constitutes a form of clemency or pardon — that is, a final— is an important issue that has not been sufficiently Duncan specifically argued that “[t]he fact that the ultimate Likewise, Amnesty International and two scholars Les- J. W & L. 507, 517-18,ERCYONTOPAN 19RIMINOLOGYINSSAYSINONOUROF 230 (Simha F. Landau & Leslie Sebba eds.,1977). For the complete definitions of “clemency” and “pardon,” see Section & CDoc. A/6316, Dec. 16, 1966, in force March 23,

3 1976). Roger Hood is apparently the has
1976). Roger Hood is apparently the has actually “replaced” commutation in 167 (3d ed. 2002). Note here that I have relied exclusively note 3, at 47. \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 315-FEB-1610:53 observes fundamental human rights, it raises a number of concerns. Thisnational human rights law. First, if to interpret their observations. Adding a different theoretical paradigm, may be practice, but not through executive clemency, may be contravening As I will show below, Article 6(4) may feasibly apply to XECUTEDIN 31 (2011), http://www.amnesty.nl/sites/ 31 (2011), http://www.amnesty.nl/sites/(International report).See also Leslie Sebba, 83, 84 (1977); Alison M. Madden, L.J. 1, 52 (1993). However, these articles may have been suggesting that in nearly every country of the pardon exists within every discussion Section V.U.N.T.S. 407. (“Anyone sentenced to death shall have the right to seek pardon or (“Anyone

4 sentenced to death shall have the right
sentenced to death shall have the right to seek pardon or8See infra note 115. As will be discussed below, Article 6(4) may be passed into \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 415-FEB-1610:53 BOSTONUNIVERSITYINTERNATIONAL LAWJOURNALJOURNAL34:149In this Article, I argue that the characterization of diya as pardon isother. While should not exclu-study of Islamic law. The differences in the kinds of participants involveda closer, more careful examination. The clemency literature may begin to— that is, a institution of Islamic Sharia law. as well as its positionwithin classical Islamic law. Part II summarizes the contemporary prac- and the trends in several countries that have incorporatedSharia law. Part III explains the doctrines of clemency and pardon, pro-viding definitions for the ambit of synonymous terms. Part IV brieflydon. Then comparing the two doctrines, Part V clarifies the similarities and clemency. This

5 Article then in future academic studies
Article then in future academic studies.I.BACKGROUNDON (also spelled a violent crime. For the purpose of this analysis, it is important to first and its development under Islamic law. is a pre-Islamic tribal custom that has been integrated into classi- During the ancient times of pre-Islamic Arabia, for homicide . . . [which] was taken not only against the discussion and accompanying text L.J. 149, 154 (1994) (citing RINCIPLESOF 285 (1991)). \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 515-FEB-1610:53 emerged as the peaceful The paternal relatives of the mur- to the heirs of the murdered member of to the heirs of the murdered member of14 In those specific instances, how- “was often paid by the entire tribe from a special fund,” and was rooted in both fear and administrativedifficulties. As one scholar observed, “entire clans and tribes could per- In light of the merits of — of both preventing inter-tribalwarfare and u

6 nifying various tribes — was integrated
nifying various tribes — was integrated into Islam. to As such, is men- B. HAKEEMETAL 14 (2012).EUDSANDTHEAYMENTOFONEYINTHE 37 (1963).AKEEMETAL note 11, at 14. L. Q. 3, 3-4, 13 (2007). tribal practices: “In most cases it is not the culprit himself but his ‘ whomust pay the blood-money. The payment is made in three yearly installments, with has to pay not more than 3 or 4 altogether. If the amount is less than one-twentieth of the blood-money, not the but the culprit himself must pay. The ‘ consists of those who, as members of of his patron. This institution has its roots in the pre-IslamicNTRODUCTIONTO 186 (Oxford note 14, at 13. (“By providing protection to one of its members, the tribe not only (citing Koran 4:92) (emphasis added). \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 615-FEB-1610:53 BOSTONUNIVERSITYINTERNATIONAL LAWJOURNALJOURNAL34:149tioned throughout Islamic jurisprudence, but it is principally regulated by

7 Islamic criminal law.20B.Diya in Classic
Islamic criminal law.20B.Diya in Classical Islamic LawAs an initial matter, I must provide an overview of the structure of theIslamic legal system, which starkly differs from common law and civil lawsystems.21 Under the Islamic system, the Sharia is the code of conduct forMuslims, governing both private and public spheres, and the Sharia is“neither subject to development through a hierarchy of judicial decisionsnor developed primarily by written law” but is based on “divine revela-tion.”22 The main sources of Islamic law are the Koran, (sayings and practice of the Prophet); the (juristic analogy). Addi- (equity), (custom and usage). the structure of the Islamic criminal legal L. & 145, 146-47 (2000). at 147 (citing YSTEMSINTHEAKEEMETAL note 11, at 12. The Koran is considered to be the word oftowards his friends. Azizah Y. al-Hibri, 492, 500 n.43(1999). However, the term clemency in this analysis has a particular political note

8 21, at 147-48 (citing Farooq Hassan, -
21, at 147-48 (citing Farooq Hassan, - ARINCIPLESOFURISPRUDENCECHS note 3, at 238-39. note 21, at 152. \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 715-FEB-1610:53 Classical qisas. These crimes are considered and hence, forgiveness For these crimes, forgiveness Considered the most serious of the three punishment for is “the right of Allah” and As such, the practice does not apply in the involves discretionary punishment for crimes of embez- No punishment is specifically and it covers criminal acts of corporal violence, such as murders A. BIGHTSAND 73 223, 231-32 (2000) [hereinafter Schabas, note 30, at 145. 4 E. & I L. 35, 55 (2011). 7(1) J. C 487, 491 (2012).See id.See also Mashood A. Baderin, & M E. L. 135, 145 (2005); Evan Gottesman, 433, 444 (1991). note 32, at 54 (citing HEORYOFRIMINALRESPONSIBILITYIN 35, 55 (1991)). (citing AWOF 86 (S. Zakir AijazAXIMSIN 99 (2015). note 32, at 55. note 30, at 73. note 32,

9 at 56 n.93 (“[T]he term comes from the
at 56 n.93 (“[T]he term comes from the Arabic, which can mean either ‘he cut it,’ or ‘he followed his track in pursuit.’”). \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 815-FEB-1610:53 BOSTONUNIVERSITYINTERNATIONAL LAWJOURNALJOURNAL34:149or intentional killings, non-fatal bodily injuries,42 and unintentional kill- can be divided into two types: (1) homicides and (2) bodilywounds or injuries. Unlike for homicide, for bodily injuries iscan vary — usually involving usually involving 45In the context of intentional killings, or murder, which is the primaryfocus here, there are two types of available punishments: (1) the deathpenalty, imposed by Sharia courts as a form of atonement46 and carried or (2) the payment of though he or she still faces the possibility of and receives monetary compensation for and it is comparable to a settlement in a wrong- is set under classical Sharia law doctrine as 230 (M. Cherif Bassiouni

10 ed., 1982). 205-06 (M. Cherif Bassiouni
ed., 1982). 205-06 (M. Cherif Bassiouni ed., 1982); Sukvir Gossal, AKEEMETAL note 11, 15-17. note 14, at 14 n. 34.LACKETALERSPECTIVESONELIGIONANDTHE (Erik C. Owens et al. eds.,HAWKATEARCHFORARDONANDUNISHMENTINSLAMAND (2004); Robert Postawko, & N E.L. 269 (2002); 1082 1082Twins].47al-Alfi, supra note 42, at 232.R48See infra Section II(B) and accompanying text. note 43, at 20; Peiffer, note 1, at 517, 536. note 43, at 209.AWINASTAND 140 (2015). \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 915-FEB-1610:53 and All five schools prescribe that a woman’s blood price The final sum in settlement can be paid by the perpetrator As continues to “embod[y] a concept of collective responsibility” inII.TRACTICEOF as a pre- in classical Islamic law jurisprudence, and as a practice in modern Islamic criminal justice systems. To do so, I AKEEMETAL note 11, at 8. (“There were different schools of thoughtRIMEANDUNISHMENTINHEORYANDRACTICE

11 FROMTHEIXTEENTHTOTHE 50-52 (2006); (Sept
FROMTHEIXTEENTHTOTHE 50-52 (2006); (Sept. 18, 2015), http:// note 53, at 51. note 43, at 207; Qafisheh, note 33, at 489. For an 24/7N (Sept. 18, 2015, 9:38 PM), http:// note 43, at 207. Siti Zubaidah Ismail, L.Q. \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 1015-FEB-1610:53 BOSTONUNIVERSITYINTERNATIONAL LAWJOURNALJOURNAL34:149Pakistan, and Jordan.58 Of these countries, Saudi Arabia, Pakistan and and perform the Given thecomplex. The modern law of also results from the interplay between Thus, an appreciation is practiced today.crimes remains with the victim’s heirs — note 57, at 377-78 (discussing Saudi Arabia, Kuwait, Pakistan, Sudan,www.deathpenaltyworldwide.org. Although in several of these countries the 159, 164. See al-Alfi, note 42, at 230; Malone, note 53; Nesrine Malik, (Apr. 5,SSAYSIN 110 (Ian Cunnison & Wendy James eds., note 32, at 61; Ismail, note 57, at 364. Cunnison, note 34, at 457; note 53. \\jciprod

12 01\productn\B\BIN\34-1\BIN104.txtunknown
01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 1115-FEB-1610:53 over execution. However, the State may still encourage such is evidently no longer confined to “a hundred camels” as set by the For instance, Saudi Arabia’s supreme The price to $54,450, and For price is through negotiation For instance, in Paki- Iran also provides this right note 32, at 60. note 30, at 73. note 43; Gottesman, note 34, at 445, 448-49;NTRODUCTIONOFORMSOF note 30, at 140-41. 24/7 N (Sept. (Nov. 16, 2014), http://www.thenational.ae/ Gottesman, note 34, at 445. at 434, 441-42, 450; Guoping Jiang et al., J. C note 33, at 491.AWN (Sept.16, 2013), http://www.dawn.com/news/1043236/. Legal heirs of the deceased have the note 34, at 448-49 (for \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 1215-FEB-1610:53 BOSTONUNIVERSITYINTERNATIONAL LAWJOURNALJOURNAL34:149the sparing of 358 Iranians from execution in 2013.72 The government Alternatively, a mediato

13 r can negotiate the amount. For instance
r can negotiate the amount. For instance, in In Iran, For instance, in Saudi Arabia, the usual pun- In Inyears’ imprisonment — effectively becoming a punishment in such Certain northern Nigerian states have imposed substi- TOFUREAUOF 2013 H note 53. note 33, at 490. note 53 (for Saudi Arabia, Iran).When Blood Has Spilled: Gender, Honor, and Compensation in 308, 317 n.18 (2012). note 34, at 442. note 3, at 239; John Daniszewski, (Jan. 31, 1997), http://articles.latimes.com/1997-01-31/news/mn- 875, 900 (2012).Islamic Penal Code of the Islamic Republic of Itan – Book Five (July 18, 2013), http://iranhrdc.org/english/human-rights- & C 753, 775 (1993); Gunnar J. L. & 240, 249 (2007) (asserting that such substituted punishments would only be was paid). \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 1315-FEB-1610:53 and instead The consequences of accepting the payment or Otherwise, if neither nor However, Islamic law grants

14 of first incorporate Viewing the proce
of first incorporate Viewing the process as two separate acts — forgiveness, followed by pay-ment — casts the payment as a form of or restitution, However, scholars See United Arab Emirates – Retentionist, ANDSOFF (2015), http:// note 3, at 239 & n.36; Gottesman, note 34, at 434; note 33, at 494; Ben Hubbard, (Mar. 22, 2015), http://www.nytimes.com/2015/03/23/world/ note 43, at 209; Gottesman, note 34, at 451. Gottesman, note 34, at 442, 451; Shah, note 71 (for Pakistan). note 58.EUDSANDTHEAYMENTOFONEYINTHE 46 (1963); note 42, at 230. The fact that is 227, 243 (2007). 224 (Mahmoud C. Bassiouni ed., 1982); Bassiouni, note 43, at 206; note 34, at 447; Gunnar J. Weimann, L. & S 240, 254 (2007). \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 1415-FEB-1610:53 BOSTONUNIVERSITYINTERNATIONAL LAWJOURNALJOURNAL34:149The conceptual difference between afw and diya, as forgiveness versuscompensation, has some significance for

15 the way academics think aboutdiya, as di
the way academics think aboutdiya, as distinct from secular notions of clemency and pardons. I explorethis area in further detail below. Specifically, I consider the scope andIII.D “C “P To help define the terms “clemency” and “par- and it can be traced back to Roman The concept formally developed in England through the King The concept formally developed in England through the Kinghis subjects, and contribute[ed] . . . to root in their hearts that filial affec-tion, and personal loyalty, which [were] the sure establishment of aprince.”93 Parliament officially recognized but simultaneously limited the In light of the note 2, at note 2, at 230. In this section, I do. 569, 589 (1991). David Garland describes 445, 448 (1996). note 91, at 584 (“The judicious use of clemency was an effectiveThe Roman practice of disciplining mutinous troops through decimation — the killingof every tenth soldier — rather than executing an entire army o

16 f wrongdoers, isdiscipline while preserv
f wrongdoers, isdiscipline while preserving resources that could prove useful to the state.”). For aANDTHE (1989). note 91, at 584. \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 1515-FEB-1610:53 mercy, expediency, or personal whim dictated.”96 Though more nuanced Nearly every retentionist state worldwide as well as a or leniency. To avoid the terminological confusion sug- and to view “clemency” andin the same context. This variety reflects the broad array of nuanced at 578-79. Also, Kobil notes that “[h]istorically, the grounds for dispensing Id. at 578 note 5, at 31; Madden, & LUNISHMENTANDTHE 838 (2d ed. 2001); J. PNCYCLOPEDIAOFUNISHMENTINTHE 110 (2001). 136, 138 (1964); James R. Acker & Charles S. Lanier, May God – Orthe Governor – Have Mercy: Executive Clemency and Executions in Modern Death- 200, 204-05 (2000); James R. Acker et al., 183, 184 (2010). note 91, at 577 n.42 (relief of the legal consequences of an offe

17 nse at 575. \\jciprod01\productn\B\BIN\3
nse at 575. \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 1615-FEB-1610:53 BOSTONUNIVERSITYINTERNATIONAL LAWJOURNALJOURNAL34:149powers that an executive decision-maker has in its decision to reduce,substitute or abrogate a criminal punishment.Within the wide range of scholarly and legal discourse on capital pun-ishment and clemency, there are many other kinds of leniency in additionto the ones above, each with its own subtleties: commutation, amnesty,conditional pardon, reprieve and which I will discuss below. essentially has the same meaning as I have ascribed to That is, commutation “substitutes a milder punish- It is important to Thus, or respite means a temporary postponement or stay of execu- or Given the specified timeor pardon as a permanent alteration of sentence. In the U.S., for As such, is a sentence commutation or abrogation made for the benefit Although not completely erased, the crime of the defendants In a

18 t 575-76 (listing five types of leniency
t 575-76 (listing five types of leniency recognized under American law:XPERIMENTWITHEFLECTIONSONTHEUTUREOFTHE 532 (James R. Acker et note 100, at 184. note 91, at 575. note 7.PPEALSIN 14 (2002); Acker et al., note 100, at 184; Cathleen Burnett, 191 (2003). note 100.TRUGGLEFOR 296 (3d ed. 2006). note 91, at 576. \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 1715-FEB-1610:53 is a release from prison or from a death sentence is an overarching term relating to the exercise of leniency in the However, the notion of “mercy” is combined The typical case involves a substitution of the sen-tence of death with a term of imprisonment — such as a twenty-year sen- In the modern at n.47. 74 (Austin Sarat & Nasser Hussain eds., 2007) (using the term “extrinsic note 92, at 5-6. L. R 1501, 1503 (2000). note 100, at 184; Kobil, note 91, at 535; note 2, at 20, 113. note 100, at 138. R. D & E S. F 251 (3d ed. 2006); LLTHE 171 (1995) not

19 e 100, at 184; George Lardner Jr. & Marg
e 100, at 184; George Lardner Jr. & Margaret Colgate note 119, at 214. \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 1815-FEB-1610:53 BOSTONUNIVERSITYINTERNATIONAL LAWJOURNALJOURNAL34:149tenced to death, irrespective of the relevant jurisdiction,121 unless thereIV.VARIETIESOFAKERSBEHINDLEMENCYOR In the special case of amnesty, depend- The key similarity between clemency and amnesty is that appeal. As such, for clemency scholars Professors Nas- As such, for clemency scholars Professors Nas-polit-ical capacity to reduce or remove any lawfully imposed punishment.”case? It is instructive to begin with a list of clemency decision-makers bysentence to a lesser punishment by members of the judiciary. Instead, thejudiciary acts through the function of judicial appeals. Grants of clem-community. The former carries institutional backing and is governed by a rooted in the executive (or occasionally, whereas the latter usually does no

20 tresult in practical or legal ramificati
tresult in practical or legal ramifications. Likewise, although the very defi- note 100, at 205; Kobil, note 91, at 532. Austin W. Scott, Jr., 284 NNALSOFTHE 96-97 (1952). 200- 3 (Austin Sarat & Nasser Hussain eds., 2007) (emphasis added). note 100, at 138; Michael Heise, 239, Heise, note 126, at 240 \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 1915-FEB-1610:53 Nonetheless, at Depending on the juris- The key is that the decision to remit punishment In the following section, I touchV.DDIFFERENCESANDSIMILARITIESarise by attempting to place them in the same category. Most obviously, or by ency power. Indeed, some commentators have suggested that is or the result note 119, at 213; Sebba, note 111, at 147; Sebba, HANGEINEMOCRACYAND 73 (Kevin Hewison ed.,UBJECTSAND 234 (1998); note 3, at 47. note 34, at 143; Malone, note 53; Osanloo, \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 2015-FEB-1610:53 BOSTONUNIVERSI

21 TYINTERNATIONAL LAWJOURNALJOURNAL34:149o
TYINTERNATIONAL LAWJOURNALJOURNAL34:149of viewing murder as a “compoundable offence,”134 than a remission appears to operate at the intersection of civil law, which If the decision to grant remission from the starts to resemble com-pensation for a civil wrong. On the other hand, viewing as remission the payment of money seems to represent— which would be that extinguishes the right to demand authority. Though it remains controversial, a “private exercise of leni- note 34, at 437-38, n.17; Moeen H. Cheema, Patronage of ‘Honor Killings’ in Pakistan: The Supreme Court’s Persistent Adherence 51, 58(2008). However, at least has its effect on the subjected on the before release). Dropping the case before a finding of guilt oroffence”: a concept largely phased out in common law systems. Yash Vyas, 73, 98-99 (1995). note 34, at 143; Bassiouni, note 43, at 206; Osanloo,note 77, at 310; E-mail from Moeen Cheema, Lecturer, Austl. Nat’l

22 U., to note 34, at 143; Malik, note 60;
U., to note 34, at 143; Malik, note 60; al-Alfi, note 34, at 451 (“Most commentators. . . have argued that Diya kind of victim compensation scheme. Although victim compensation schemes also note 6.of a death sentence. In secular jurisdictions, compensation or restitution may be Stephen Schafer, 605 (1974). \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 2115-FEB-1610:53 . As a was utilized before the development of a As I have can generally be considered a form of “mercy,” giventhan state functionaries. Here, it is especially significant that even in preventing the enforcement of and pardon. By broadening the scope of clemency and pardon to mean or discretionary responses to a. Importantly, from this perspective, the decision-makers Section I(A). note 43, at 204; Gottesman, note 34, at 443-44;58 (for statistics on Kuwait, Yemen, Pakistan, Bahrain, Jordan, and Saudi Arabia). In crime,Sept. 25, 1997. This will be signific

23 ant for the purposes of compliancewith t
ant for the purposes of compliancewith the ICCPR. Jurisdictions which concurrently allow the Head of State to issue anote 58. The same note 34, at 440, 444-45. \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 2215-FEB-1610:53 BOSTONUNIVERSITYINTERNATIONAL LAWJOURNALJOURNAL34:149in both cases of diya and clemency or pardon are not members of thejudiciary. Although with the case of As discussed above, where as a resolution to a crime of intentional the requirement of official confirmation of the and the practice of Here, the predilections of note 43, at 209; note 92 (describing theusually regarded as mitigating. A pardon is an act one can perform only in a social orlegal role. This characteristic distinguishes it from forgiveness and mercy, which arevirtues that person exhibit as individuals. Anyone who has been injured can forgive, note 3, at 234; Winky So, U. H.K. L. R 261, 271 (2010); FFECTOFEGISLATIONONREVENTIONINROCE

24 EDINGSOFTHEELDIN note 79; note 59, at 1
EDINGSOFTHEELDIN note 79; note 59, at 163; Chibli Mallat, Saudi Arabia –ANDSOFF (2014) http://www.handsoffcain.info/bancadati/ note 43, at 206-07. note 34, at 446; Hascall, note 32, at 74-75; Peiffer, note 1, at 517. note 34, at 144; 9 (2008), https://www.amnesty.ie/sites/default/files/report/ \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 2315-FEB-1610:53 According toents. For example, Kathleen Dean Moore’s understanding of “mercy” is and clemencyon these grounds. First, as I have discussed above, according to certainried out at the same time). As such, a could not be seen to be “bought,” as part of a transaction., let alone to Islamic jurisdictions. Although it may not Examples ofDemonstrated rehabilitation, remorse and repentance by theEmbracing religion in prison; J. 1, 20 (2014). note 51. note 92, at 188-89. note 92, at 204-05; Jonathan Harris & Lothl´Executive Clemency: The Lethal Absence of Hope 2, 7, (2007);

25 note 115, at 1523.Staying Alive: Execut
note 115, at 1523.Staying Alive: Executive note 100, at 168; note 46, at \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 2415-FEB-1610:53 BOSTONUNIVERSITYINTERNATIONAL LAWJOURNALJOURNAL34:149Previous national service of some form;Service as an informant or as a witness in a case against his or herAny acts “to assist the prison authorities in preventing [another andA promise to act in the armed forces, to be deported to a penal or a form of in a secular legal system has granted clem- As such, while it still remains an 219, 222 (2003); note 92, at 204. note 150, at 21; Kobil, note 91, at 589; note 111, at 297; Sebba, INISTRYOFOVERNANCEOFEVIEWOFTHE note 114, at 74; note 92, at 199. 3-4 (2009); Heise, note 126, at 298; Todd David Peterson, Amnesty: Legislative Authority in the Shadow of Presidential Prerogative L. R 1225, 1238 (2003); Susan Trevaskes, & C 316 (5th ed. 2015); J. NOWERANDTHEREROGATIVEOFERCYIN 188 (Routl

26 edge, 2015). 6, 42 (Austin Sarat & Nasse
edge, 2015). 6, 42 (Austin Sarat & Nasser Hussain eds., note 100, at 209; note 92, at 146;, Jan. 30, 2008. A similar Robert Weatherley 39 277, 278 (2015). \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 2515-FEB-1610:53 or because of doubts over the propriety of convictions or the or even because of a utilita- AYETAL.,ARIMEANDOCIETYIN 42, 48 (1975); & E note note 2, at 16; Kobil, note 91, at 571, 582. Clemency V. BUNISHMENTANDOWERINTHEAKINGOF 45 (2005); Sebba,Conditions of Clemency: Justice from the Offender note 92, at 129. Pardons or grants of clemency in this context are retributive justice, rather thandetract from it. Acker et al., note 100, at 185; Meyer, note 114, at 86. & E note 99, at 843. note 156, note 92, at 97, 156-65, 208-09 note 111, at 147, 150 (mitigating factors making note 100, at 165-70 (mitigating 159, 164 note 115, note 150, at 968, 982, 987 \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 26

27 15-FEB-1610:53 BOSTONUNIVERSITYINTERNATI
15-FEB-1610:53 BOSTONUNIVERSITYINTERNATIONAL LAWJOURNALJOURNAL34:149rian benefit conveyed to the state or to the ruler.162 These can also bepolitical authority or even the family of the victim. In the latter cases,tence, if the prisoner is seen to deserve it. Therefore, the fact that on the conviction itself. Unlike compoundable offences or tort settle- relates to the remission of punishmentpreclusion of prosecution. The execution of punishment is at the discre-mined by the Sharia court on behalf of the state. As such, in the same asks the question of whether the case. Examples here are an amnesty granted to combatants on both sides of a civil & E note 99, at 842 (suggesting most clemency grants serve political goals); note 156, at 3, 20, 28-29 (describing Presidents George H.W. Bush, note 92, note 126, at 289 (examining political factors leading to executive note 77, at 222 (noting President Johnson pardoning prisoners note 46,

28 at 1086-87 (discussingFFICEOFTHEOMMISSI
at 1086-87 (discussingFFICEOFTHEOMMISSIONERFOR & IGHTSINTHEDMINISTRATIONOFANUALONIGHTSFORROSECUTORSANDAWYERS \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 2715-FEB-1610:53 of the Nevertheless, in settlement is that the While restorative jus-degree. In murder cases, both and clemency or pardon effectivelythan death. Outside of any pecuniary compensation for the victim,the propriety of conviction. For example, a prisoner may have alreadya relative. Significantly, before the advent of mass imprisonment in theexecutive leniency in secular legal systems with capital punishment. As note 122, at 96. Wing-Cheong Chan, 1 (2013); Hascall, note 32, at 61; Jiang et al., note 70; Qafisheh, note 33,Imprisonment: Toward a Christian Politics of “Good Punishment” in Civil Society & C 3 161, 176 (2007); AnnRestorative Justice as a Framework for Juvenile Justice Reform: A South 496, 505 (2002). . \\jciprod01\productn\B\BIN\34-1\BIN

29 104.txtunknownSeq: 2815-FEB-1610:53 BOST
104.txtunknownSeq: 2815-FEB-1610:53 BOSTONUNIVERSITYINTERNATIONAL LAWJOURNALJOURNAL34:149such, that diya may result in a prisoner’s release does not distinguish itimprisonment. Indeed, in a jurisdiction where the prison sentence is (the payment, plus short to medium term prisoneral life-or-death scenario for other perpetrators. Overall, the formalfrom clemency and pardons in secular legal systems. Rather, the partici-IMPLICATIONSFORHUMANRIGHTSLAWANDSCHOLARLYDISCOURSEbe considered as a form of state-sanctioned “mercy” — an exercise ofthrough non-judicial or extra-legal means. As with some instances of is also arguably granted on a transactional basis: both par-tim’s heirs. Furthermore, in some jurisdictions prisoners paying may and clemency or pardon, which affect the interpretation of Ghodsi, note 75; Qafisheh, note 33. Baderin, note 34, at 143; Bassiouni, note 43, at 206; note 3, at 236 n.36, 239; Gottesman, note 34, at 43

30 4; Hubbard, note 84; Osanloo, note 33;
4; Hubbard, note 84; Osanloo, note 33; E-mail from \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 2915-FEB-1610:53 . The one falls outside a technical definition of clemencytive leader. This is particularly noticeable in countries where the secular in Jurisdictions that instead rely solely on and do not with deleterioustive — either a ceremonial leader or the head of state — and as a feature It is an important international Bassiouni, note 43, at 204; Gottesman, note 34, at 443-44; note 58 (for UAE, Saudi Arabia, andfor Sudan, Iran, Somalia, and Libya, who are all parties to ICCPR). There is also aOMMITTEEOFTHE (2015), https://www.icrc.org/ being notable exceptions, as this article hasdemonstrated. If the right to apply for clemency or pardon when sentenced to death note 5; Madden, note 3, at 247. crimes, where no remittance of punishment note 34, at 145; Gottesman, note 34, at 444; Qafisheh, note33, at 491. Nonethe

31 less, irrespective of the classical Shar
less, irrespective of the classical Sharia doctrine, certain note 58 (Iran, Pakistan, andnote 3, at 37; ADPAN, L. & P 361, 404-05 (1993). \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 3015-FEB-1610:53 BOSTONUNIVERSITYINTERNATIONAL LAWJOURNALJOURNAL34:149law safeguard on the execution of a death sentence because of the broadrange of reasons that a death sentence can be abrogated in this fashion.A murder victim’s heirs do not have the same level of detachment or thesame level of checks as the head of state; they are personally, emotion-ally, and financially invested in the decision to abrogate punishment fordiya.In contrast, a political decision-maker may take into account a range ofmerciful, retributive, transactional, and utilitarian factors, and will haveaccess to a full range of documentation on the prisoner and his or hercase. If Article 6(4) of the ICCPR was originally intended to offer pris-clouds the impartiality an

32 d public utility of the decision. Granti
d public utility of the decision. Granting “par- is presumably not what the drafters of Article 6(4)form of leniency satisfying this provision is erroneous. Thus, although share some of the characteristics of clemency and pardons, when conducting academic research on the topic, prompting is oftentimes arbitrarily granted diya tive theoretical paradigm. However, the distinct nature of institution within Islamic legal systems also requires a substantial victims’ note 30, at 74. based upon factors such as (a) the sum offered; (b) the nature of the note 70; Qafisheh, note 33. \\jciprod01\productn\B\BIN\34-1\BIN104.txtunknownSeq: 3115-FEB-1610:53 and compensation for civil wrongs where appropriate. A work- from the perspective of a secular common law forgiveness and reconciliation.” Hascall, note 32, at 37-38. finds analogous expression in the contemporary note 43, at 205. M. 380 (2014). \\jciprod01\productn\B\BIN\34-1\BIN104.tx