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THE QUALITY OF MERCY: On the Role of Clemency in the Apparatus of Justice Author(s): OTTO KIRCHHEIMER Source: Social Research

, Vol. 28, No. 2 (SUMMER 1961), pp. 151-170 Published by: The New School Stable URL: http://www.jstor.org/stable/40969368 . Accessed: 08/06/2013 10:40
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THE QUALITY OF MERCY*
in theApparatus On theRole ofClemency ofJustice
BY OTTO KIRCHHEIMER
a courtmustsomeon a convictedprisoner N imposing sentence JL - as expressedin how tie togetherthe requirementsof society codes and rules regardingexpected behavior,and behind these - withthe experienceit has had in official and unofficial pressures withtheman in thedock. The courtmaygauge society's requireand it may misinterpret mentsincorrectly, the recordchalked up but it cannotjust shoveaside eitherof them. againstthedefendant, In granting the powerholder is not necessarily however, clemency, to these considerations. He indeed be influenced subject may by the requirements of society, but clemencyis not intrinsically, as for serving the public is a judicial procedure,an instrument interest.And while his decisionmaybe affected by actionsof the of the prisoner,it also may be wholly unrelated to the affairs the once the offense Moreover, prospective beneficiary. prisoner, is enteredinto the books against him, findshis chance of selfdetermination and lessened,his physicalmovements considerably outsidecontacts almostcompletely subjectto thecontrolof others; he may still retain some means of influencing those who hold over but the of these means is uncertainand him, sway efficacy theirpricemaybe prohibitive. In short, unlike judicial clemency, contains of both elements arbitrariness and purposeprocedures, fulness. What role does this aspect of power perform in the apparatus ofjustice? Does it,despiteits place outsidethe established instrumentsof control, servea function in the social order? In particu♦ Editors' Note - This essay formspart of a chapter in a book prepared by the author under a grant from the Rockefeller Foundation; under the title Political - The Use of Legal Procedure for Political Ends, the book will be Justice published shortlyby Princeton UniversityPress.

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the cause of those who were deemed for the World War I effort. Somehow that opinion failed to go beyond puttingDebs' demeanor and remarksinto of the incitement-to-insubordination the framework provisionof from refrained it the June 1917 Espionage Act.152 SOCIAL RESEARCH lar. 3 See Mark de Wolfe Howe. 2Schenck v. proach questionsfirst i so ironic of clemency The history probablyknowsfewrencontres as one thatoccurredin the springof 1921. 11. 190.vol. testingthe facts of the case againstHolmes' own "clear and presentdanger" docearlier. Ohio. iDebs v.S. together General. of this provisionof the both in termsof the constitutionality of wartime Espionage Act and with regardto the circumstances and of the prosecution. 211 (1919). 15. This content downloaded from 201.235. Holmes' private correspondencesuggeststhat he had some doubts about the case. 1941) pp.somewhat disturbed Holmes. 2 (Cambridge.bringing and symbolic who was PresidentHarding'sAttorney HarryDaugherty.S. society. Mass. 7.and man Friday. 249 U.8 He consideredthe decision justifiable. political mentor.the resultsof the conviction. To his mind bya seriesof political carriedon afterthe businessof war to which they prosecutions were relatedhad come to an end.and Eugene Debs.. Holmes-Pollock Letters. United States. 1918. 8 Jun 2013 10:40:19 AM All use subject to JSTOR Terms and Conditions . But he questioned the wisdom that Oliver Wendell Holmes as juror might gave an impression conclusions from those of Mr.151. ed. sustained for Federal Penitentiary having speech of June 18. 47 (1919).. 1953) pp. 203. what is its role in the area of political offenses against the that has the power of decision? I propose to apveryauthority these by way of illustration.1rendered by JusticeHolmes. of Americansocialism. At variety symbolof the last homegrown sentence in Atlanta that moment Debs was servinga ten-year in his Canton. United States.214 on Sat. 249 U. Mass.2 enunciateda fewmonths trine. and Holmes-Laski Letters (Cambridge.. Justice have reached different .His to have obstructed recruiting convictionhad been upheld by a unanimous Supreme Court opinion.

ed. he felt that the discrepancy called for a Presidentialpardon "for a lot of poor devilsthatit was mymisfortune to have to writeopinions condemning. at his behest. 2nd Session." Senate Document No.THE QUALITY OF MERCY 153 thoughit had passed both the sieve of a wartimejury and the of the highercourts. 121. The Inside Story of the Harding Tragedy (New York 1932) pp. Harry M. L. Mencken.as of mending by December31. Debs. 8 Jun 2013 10:40:19 AM All use subject to JSTOR Terms and Conditions .whose million votes at the 1920 SocialistPresidential candidate election had betokenedhim as a faint beacon or. 26.foundno favor withWoodrowWilson. accordingto a picayunenuisance. Debs' release commutation of his sentence. HarryDaugherty."the great mass of plain people in all such melodramatic affairsare almost unanimously on the side of the prosecution": H. Daugherty. devolved on the incomingPresidentand. 113. In fact.324- This content downloaded from 201. 115.in collaboration with Thomas Dixon.on his confidant.214 on Sat.were not compatiblewith patrioticreflexes thechangedrequirements of thepostwar situation. «Letter from the AttorneyGeneral to the President. The tale of thepersonalrencontre of the Attorney General and the prisonerof Atlanta hailed into his office was twice told by ß once in his recomDaughertyhimself: reportto the President. "Application for Pardon of Eugene V. p. by Malcolm Moss (Baltimore 1956) entry for October 18. in A Carnival of Buncombe.sharedby small but vocal minorities4 and by many outstandingindividuals not necessarilyin withDebs' cause." But fulfillment of thisdesire. 1921. 1922. A Man Unafraid (New York 1930) P. and once in his memoirs.235. sympathy the incumbentPresident.but scarcely a dangerto the realm others. see McAllisterColeman.by ingrainedstubbornness and loss and by the political benefit end of his career he would not even retroapproaching political the sins of thosewho had resistedhis policies. Doubly removedfromthe calculus of . Eugene Debs. 1920. having made a promise of silence to the prison warden. has not left an account of his conversation with Daugherty. Debs himself. The first and conversion.151. than the mentored * As for the majority. 67th Congress. even if probably not entirelyDaugherty's temporary has a greaterring of authenticity brain-child. spectively forgive Thus the decision on what to do with the Atlanta prisonerand .

who put his 1851 "confession" forNicholas I in termsallowing the czar to dwell on the indubitablycommon .Slav patriotism and contemptof things ground between them . vol. 1 See Bakunin. revealingthe honestincomprehension of a totalstranger to the world of ideas and convictions. 1921.214 on Sat.6 President. Confessions. 8 Jun 2013 10:40:19 AM All use subject to JSTOR Terms and Conditions . that "So faras he thinkscorrectly he mightbe conscientious."Respect for the Law.otherwiseknown to his conthe disreputehe broughtto his office. 505.thusnot only contriving German a stratagem foradvancinghis own case but maintainingeven in abject submissionsome semblance of a political position.235. The job of searching latterdid little to help Daughertytowardformulating favorable conclusions on thecustomary basis thattheprisoner underresting stood and sincerelyrepented his previous wrongdoing.who his doctrineand basis of political action drove Daugherty . Daughertyand his chief.to was highlyimpressedby the prisoner'sdignifieddemeanor the exasperated conclusion. 508-09.154 SOCIAL RESEARCH ofa decade later. However ironical thispositionmust look when taken at the time it was propoundedit aggravated the by a Daugherty. had alreadypubliclytaken the position that there could be no distinctionbetween political and genuine a theoremthat Daughertyreiterated in his reportto the crime." and on What then to do with a man who thinksincorrectly whose "principles man would set up a government"? no thinking of sentence the reasonswhy a commutation Gatheringtogether « H. but he does and apparently not thinkcorrectly cannotdo so on the questions involved in his case. fora rationaleunderwhichto releaseDebs.151. temporaries only through At the time of theirmeeting. Debs' expositionof . Daugherty. Few political prisoners have the imagination and intelligence of Michael Bakunin. 7 (1921) pp.April 19. There thenote ofcondescending autobiography and at the same time chivalrousbenevolencefor the valiant but errantsoul was overplayed to reflect a kind of posthumous credit on AttorneyGeneral Daugherty. M.translated by Paulette Brupbacher (Paris 1932).Harding." in American Bar Association Journal.7 In contrast. This content downloaded from 201.

.the repeal of the personality.his advanced age and weakenedhealth.214 on Sat.ed.a refusalor delayingof pardon.151. the conviction thatneitherimprisonment nor clemency could reform Debs seemed in the final analysisless importantto Daugherty than the factthatmanyothersthought his punishment unjustifiof imprisonment on able. section under which he had been convicted. This content downloaded from 201. 8 Jun 2013 10:40:19 AM All use subject to JSTOR Terms and Conditions . and in otherless publicized instanceshas been. effects on potentialoffenders.but could not getawayfrom ofhis lifeexpectancy theconviction thatan act ofclemency would not restore therecipientto whathe had never been. Of course. by HarveyGold1903-1933." berg(New York 1957). Nevertheless.the Debs filmcould be. a good citizen and patriot.the excessiveness of the sentencein terms . an advocate could invoke the need to overawe potentialenemies in the face of threatening political situationsas an argumentto justify the opposite course. played backward. Afterward he took care of the matterwith the politician'sknack. "The Ideologyand in American Techniqueof Repression. or one can savor the deeper irony: a Daugherty a chance to be himselfremembered.Debs' apparently selfless Daugherty enumerated the obvious his exemplaryconduct in prison.235.releasing Debs in a mannernicely calculated to balance the expectations »See the discussion and the materialin William Preston. Thus fromthe admittedly scanteffect on the prisonerthe scene shiftsto its possible adverse effects others.8 One can see in therencontre betweenDaugherty and Debs just one of the endlessabsurdities of history. because given forthe betterpart of a day he constituted a sortof captive and somehowalso captivatedaudience for Eugene Debs.THE QUALITY OF MERCY 155 (not a full pardon restoringcivil rights) should be granted. Radicals. Instead of emphasizing failureto convinceothersas an argument forclemency. Daugherty's accurateperception of the degreeof momenin favor of Eugene Debs' releasecan be rationalized tary pressures as whattheorists would call a kind of application-in-reverse of the doctrineof criminallaw's general preventive function in other a as belief that enforcement fail would to have beneficial words.

156 SOCIAL RESEARCH of Debs' specializedconstituency of the againstthe requirements official credo. In this instance. forherbrother Claudio. like man new-made" (11.4)." His head. But Isabella has a different. confesses or thathis appetiteis moreto bread than stone" (r. to plead mercy who has been sentencedto die forfornication.should but judge you as you are? O. 4).clemency to Claudio is a meremeans forsatisfying his lust. For Angelo. deputyoftheabsentDuke. to redeem him give up your body to such sweetuncleannessas she that he hath stain'd?" (11. Isabella comes to Angelo.235. more highminded understandingof clemency: "Ignominy in ransom and free pardon are of two houses.151. Angelo is known as a man of probity. lawful mercy is nothingakin to foul redemption" (11. To thather brotheris "a forfeit of the law" she Angelo's statement once. As the Duke has earlier said of him. of clemencyis "an accident that Heaven provides. whichhas become available throughnatural causes. 8 Jun 2013 10:40:19 AM All use subject to JSTOR Terms and Conditions . Of what nature is the clemencyultimatelyextended by the Duke in his triple grant of mercy? even his availability as an object As forthe ruffian Barnardine.How would you be if He." last minuteis replacedby a moresuitableone. think on that. he will refrainfromexercisinglawful authorityif in exchangeIsabella grantsher favor. and not denied forcause "mostmanifest. To furtherillustratethe ways of clemencyI turn next to Shakespeare'sMeasure for Measure. "Lord Angelo is precise.all the souls thatwere were forfeit thatmight thevantagebesthave tookfoundout theremedy. or. to have been lostanyway a but in the was goingto be used for necessary project.standsat a guard withenvy. an offense punishable under an enactmentthat has long gone unenforced. which is the top of judgment. eventually thatthe mostjust law now tookyourbrother's life. 4).scarce thathis blood flows. and He replies: "Why.2).clemencyis This content downloaded from 201. byhimself. and mercythen will breathe within your lips. But he falls victimto Isabella's beauty and comesround to askingher: "Which had you rather.214 on Sat.

though it could well be rationalized by reference to the Eighth Amendment'sprovision against cruel and unusual punishment. case. 459 (1947).THE QUALITY OF MERCY 157 a productof fortuity. It is a dubious argumentfor forestalling to what natural-lawtheorycalled conviction. 1). vol.214 on Sat. 1). are no subjects. 42.yet. it carriescogencyin any clemencyproceedings. But this construction. from his even audible. fulfilled herselfbut by Mariana. Resweber. bk. xx. and of promise-breach tion of sacredchastity thereondependent. 3 on Pardon (Washington 1939) pp.an Angelo for Claudio.9 element carrythrough in the decision is the Duke's pronouncement:"Thou'rt condemn'd: But. 16. lieves her brotherdead. 1). Nevertheless.put it in the following "Who is it that hath died for this offence?There's many have committed it" (11.2). and even thoughshe bedeath fordeath" (v. This content downloaded from 201.intentsbut merely perish'dby the way: thoughts which ignoresAngelo's thoughts"(v. See Francis v. 10"Instrinseca cum si non injusta dura tarnen est poena ad factum comparata": Grotius. The Duke's determinationto effectClaudio's release from Angelo'sharshsentenceis fullymotivated. note. clemency in double violaof whomthe Duke himself says:"Being criminal. 8 Jun 2013 10:40:19 AM All use subject to JSTOR Terms and Conditions . and pray thee take thismercyto provideforbettertimesto come" (v. 11. for those earthlyfaults.De jure belli. in a legal formula: "His act did not and mustbe buried but as an intentthat o'ertakehis bad intent.S.151. Isabella. . She triesto cloak his proposedclemency-chastity not by deal. 329 U. when pleadvein: ing with Angelo forClaudio's life. » See the historical account in the AttorneyGeneral's Survey of Release Procedures. 25.eh. Modern American usage does not honor this custom. There remainsthemostproblematic forAngelo.the verymercy of the law criesout most foryourbrother's life. This is an affirmation of the sovereign's rightto grantclemency withoutfurnishing an explanationwhy it has been exercisedin the particularinstance. conforming 10 "intrinsic" cause forclemency. Isabella asks clemencyfor Angelo.I quit themall.235. proper tongue. derived fromthe same roots as the mediif an attemptto aeval practiceof rescinding capital punishment an has Another execution miscarried.

that the Venetian law cannot impugnyou of the bond is imposas you do proceed" (iv. Duke with a curt "Your suit's the awayby unprofitable. once affianced to Angeloand now wed to him on theDuke's orders? Or in Angelo'sremorse:"I am sorry does he findreasonforclemency thatsuch sorrowI procure: and so deep sticksit in my penitent heart that I crave death more willingly than mercy.12It is a clemency of either touched by any bond to the particularcircumstances of benefactor or beneficiary. Finally. If performance 11Ibid. symmetry case and thatof Claudio? is in reality What looks like a plethoraof possibleexplanations much closer to the opposite.151. is somewhat of Venicethe focusof clemency Clemency itself. 8 Jun 2013 10:40:19 AM All use subject to JSTOR Terms and Conditions .11 reeds to build on. betweenAngelo's degreeofapparent. The two lattergroundsfor deserving.214 on Sat. 282. by the loyaltyof Mariana." Yet in The Merchant different. it droppethas the gentlerain fromheaven. 'tis my and I do entreatit" (v.SOCIAL RESEARCH 158 intentto renegeon the deal and have Claudio killed despite it. This content downloaded from 201. Clemencyto Barnardinemay be the styledmerelythe caprice of the prince.is the Duke's reasoningbased on the but onlyapparent. 24 and 26. and it is waved does not exculpateAngelo forhis abuse of office. It appears as a humble recognition the universality of human abjectnessand the infinite possibilities forredemption. In this respectthe clemencygrantedAngelo is in line with Portia's admonition "The quality of mercyis not strain'd. 1).235. 1). But clemencyto Angelo corresponds unto what Hegel called die grundloseGnade. xx.Unrelatedto ulteriormotives. ch..Philosophy of Law. 12Hegel." Is the Duke moved.may be both probable and inclemency hope and repentance trinsiccauses in natural-law but theyremain slender doctrine. . addendum173 to par. it proceedsfrom theDuke's all-embracing. all-forgiving mercy.which in confirming outcome of an accidentalconstellation gives a new lease on life to the riotous underdog. then. bk. here for of the as legal system appears remedy imperfections natureis the suit you folAs Portiasaysto Shylock:"Of a strange low: yetin such rule. 11.

child of the benign second half of the nineteenth to Hegel in viewingclemency century.. This content downloaded from 201.14 Still. see his Rechtsphilosophie. 1*Josef vor dem Forum der Jurisprudenz.and the . no alternativelegal remedy or substitutionis at hand.with his a concept of grace. Augustine.he knowsquite well thatthis holds true only if the regentis able to avoid the temppremise tations ofprivateinterest and concentrates on "the holiestconcern of law and social order.214 on Sat. interest? JosefKöhler. To St. The philanthropy exercisedby the . correctingstructuralinadequacies of the judicial process. 2nd ed. (Berlin Kohler. of clemency is emphasized who has producedfar the best and most by Radbruch. payshis respects as the intellectualfeat through which the powerholderennobles the highest aims of culture. 5th ed.13 n of theseexamplesforour centralprobWhat are the implications in a social order? What is the use of clemency lem: the function a balance sheetand of chalkingup good againstevil.THE QUALITY OF MERCY 159 sible. 178.151.vol. (Stuttgart 1956) pp. succinct discussion of thisissue.Shakespeare 1919)p.3rd ed.thus constibelief in salvation Christian's forhis receivingit." of history.as stressed is That thesafety-valve and corrective function of mercy forexample . Over the stretches clemencyhas taken many forms and servedmany purposes. establishing around accountsuntil a small positivebalance appears? shuffling as an antidoteto the meaningIs clemency to be regardedmerely lessnessof earthlyexistencein general? In implyingas much.235.it Whetheror not we accept this interpretation must be grantedthat the powerholder's position in the process of extendingclemencyis problematic. 333 byJhering. tutesno more than a precondition of clemency. Who is the guarantorof and where lie the limits of his justifiable his disinterestedness. Thereforeclemencywould serve the functionof a safetyvalve for justice.in gratia cooperans . 1 (1916)p. 276 and 337. 8 Jun 2013 10:40:19 AM All use subject to JSTOR Terms and Conditions . Shakespearestands on the shouldersof St.God's freedomsignifies choice to select for salvation whomeverHe deems fit. Augustine.is onlyone component in Zweckim Recht.or unjust individual resultsthat it mightlead to.

214 on Sat. This bon plaisir of those who had but small controlover man or mind. existingoutside the plans and schemesof major powerholders. as when the criminarsostentatiously chance encounterwith a to cause his release. 81-96. as a rule it disappearedwhen power became centralized.of calculating schemes and .more politicallytinged malefactors. connotea new departurein the exercise ie The and usagesofclemency? pointis at bestarguable.but were still able to play providence. tary of interceding with the local authoritiesfor the release of convicted criminals. In vestalvirginor a cardinal was sufficient entailed activeintercession: the extramural otherinstances usages of a a condemnedman mightbe saved throughthe good offices in a active somewhat less who was willingto marry him.235. i« See the interesting in WilhelmGrewe.but even for lottery-like remainedat bestin thenatureofan arcanum him Henry'spractice 15See the accountin HeinrichGwinner.thus differing fromthe practicesin earlier boundlessliberality Greek and Roman periods. servedas an antidote to a brutal and haphazard exercise of power.as a rule.but also thus some more dangerous.Gnade discussion thoughinconclusive und Recht (Hamburg1936)pp.however.there has been an undercurrent of magical. These usagessometimes functioned withouta mediator. religious. virgin an of formof intervention. the word ecclesiastical dignithrough a privilege had inherited whoseoffice or family or a nobleman. 150-58. 8 Jun 2013 10:40:19 AM All use subject to JSTOR Terms and Conditions . Many a poor and hungryvagrant. Francis in Henry VIFs Bacon triedhard to finda principleof statecraft alternationof pardons and executions. fewinterruptions.151.when the course of the legal order and then only.i6o SOCIAL RESEARCH Hellenic ruler and the well advertiseddementia of the Roman emperorwere products of civilizationsthat made for a rapid alternationof crueltyand civility. was allowed to suffer for weighty political reasons. In many periods.15 of antiquity's fromthe deifiedpersonality Does the transition be to rulerto the Christian dependenton the grace prince. escaped the hangman.or even social usages.or. Strafrecht (Breslau1934)pp. This content downloaded from 201. des Standesim gemeinen Der Einfluss 247-59.styled and benevolenceof God.

by Speeding. 1»Beccaria. thefilling ofhis exchequer. vi. and expeditious went to theomniscient proceedings. pp. 8 Jun 2013 10:40:19 AM All use subject to JSTOR Terms and Conditions .bk."The English Solomon:FrancisBacon on HenryVII. 11. vol.19 The French Criminal Code of 1791 did away with the practiceof clemency.Dei delittie delle pene. White. Beccaria. restedon clemency's as an individualdispensation character outsidethe generallaw. and Kant. or. 20Part 1. 4 (Winter 1957)PP. Under thecriticism of Filangieri. eighteenth century quest the rationalism of the by Enlightenment. 736-38.A clemency prerogative . De l'esprit des lois.457-81.the expectation 17 betterkingdom.Metaphysische Anfangsgrunde der Rechtslehre. art.with God as the freedisconstruedafterthe Jansenist concept with sovereign penserof grace. 7. was mainly withcurtailing concerned the king'sprerogatives. Jesuitdoctrine in the eighteenth construedGod's grace as a calculable century rewardowed by God. eh. 1 E 11. n. Kant.347.generalpardon. and Heath. lementaires. This content downloaded from 201." in Social Research. In Beccaria's choice between the "noble prerogative" and theperfect withits "mild punishments and regular legislation. no.as withhis of "a securercoronationin a last. 18Montesquieu.THE QUALITY OF MERCY 161 it was alwayscalculatedto imperii." reactionsagainstthe AugustinTheological and constitutional unchecked ian-Jansenist conceptof grace and the corresponding of the in are but privilege sovereign grantingclemency expressions of one and the same phenomenon:a middle-class quest for In the this was characterized certainty. 5. Ellis.the "mostslippery eignty 18 of all rights of sovereignty.halfa century later. clemency became outmoded. 36.20 it See Bacon's History ed. see Archives Parvol. 24. be it through the ostentatious showing ofhis feeling ofsecurity. The argument in the Constituent which Assembly. titlevii." victory easily law. also Howard B. pp. 274-75." For the dangersof the sovereign's benevolencethe certainty of a good and wise law was to be substituted.214 on Sat. 26.235. of the Reign of Henry VII. What Montesquieu still regardedas the "most beautifulattribute"of the prince'ssoverbecamewith Kant.owed to nobody and distributed independence became inadmissible. When Henrychoseclemency turnto his own advantage. In contrast. vol.151. in Works.

Since thenit has been agreed thata procedurefor of clemency is necessary. 22An exampleof the mostdestructive exerciseof such a judicial fiat was the of his five-year he had spentsix months sentence.A solutionis to put the rightof pardon excludubious intermediate equipping with a sivelyat the disposal of the judiciary. But whatever an the need for with allocation instrument changing principles.for the of individual pardons theyoscillatebetweena number granting thispoweras a prerogative of of solutions.has now settledboth individual and son's bout with Congress the generalpardonsin the hands of the executive.to be exercised prescribed to puttingit at the disposal of parliamentary form. Bayernzwischen with the Council 292-302. Jeremy his age and calling clemencya "veritablebetrayalof trust. 21Bentham. The FrenchFourthRepublic associatedthe President that arose In spiteof the difficulties of clemency. majorities.i62 SOCIAL RESEARCH illusion thatan omniscient But the rationalist legislatorcould instruct and enlightenthe judge enough to avoid any need for of the case did not survivethe emergence further consideration of Napoleon.witnessAndrewJohntweenKing or Presidentand parliament .while sharingthe illusions of mightbe added."re.withthe resultsof the conallocations.thereby the membersof an organization outside the political prerogative circuitof any political responsibility.21 as to the ultiTo be sure. Some Euflictmirroredin changingconstitutional assignto the legislaturethe businessof general ropean countries amnestiesfor whole categoriesof crimesor defendants.The returns the prerogative to the FifthRepublic (see Article65 of the Constitution) President.our main interest garded pardon in the marginalpolitical field here as a necessary part of the legal system. and theshareof theMinistry to theministerial in regard countersignature this practiceamountedto a balancingof judicial and political influence. 8 Jun 2013 10:40:19 AM All use subject to JSTOR Terms and Conditions . in the exercise of the Judiciary of Justice. vol. 2 (London 1914)p. assigning rangingfrom in theconstitutionally thehead of state.it the granting Bentham. 1924releaseof AdolfHitlerafter Monarchieund Diktatur(Munich 1954) pp.151.22 Anglo-American usage. 171. see Karl Schwend.therehas been intermittent struggle mate locationof the pardoningpower.235. while its history has not been freeof jealousies and disputesbe. Theoryof Legislation. onlytherightto be heard. And even at that time.214 on Sat. leavingthe Councilof theJudiciary This content downloaded from 201.

his in the one the state is most in interested yet point vitally from to refrain thepresent willingness opposing political system .214 on Sat. irrespective of his beliefsand probable future extramural activities).suggesting This content downloaded from 201. especially the letter of General von Reichenau to Scheringer. In a masssociety like ours. involvingboth good conduct while under detentionand insightinto the illicit character of the act.It mayevenbe that tiesare notlikely .however.THE QUALITY OF MERCY 163 whichto correct theactionsofcourtshas neverbeen doubtedsince the rationalist intermezzo of the Enlightenment. Bauern und Rebellen (Hamburg 1959) pp. dereleaseof its prisoners makes the Usuallysociety premature pendenton theircontrition.235. as one ofthebestoverall forcooperative risks existence. and somehow makingit a built-inpart of the sentencing system akin to the mediaevaljudging by mercy." by "good-conduct give right prisoner statutory to have a certainpart of his sentenceset aside forgood conduct while servingit. conditionalrelease has often becomea generaland fairly bothforeconstandardized procedure. contriCorrespondingly. preserving meansof effective controlover the prisoner's activities post-release release as used here differs from the release (conditional provided a which the laws. 279-85.151. prisoner .with the sum total of postmaking serving releaseexpectations calculatedfroma parole chart.theauthoriin andfrom the direction of itsdestruction working to getmuchcooperation.Das grosse Los unter Soldaten. in of clemency to political The granting is especially enprisoners The parole chart may show the meshedin cross-currents. tion becomesformalized too reduced to an absence of troublewhile the sentence. official more for efforts some and. omizing important.to signtheofficial mental reservations and petistrongest papers tionsneededto put clemency intomotion.23 Thus proceedings 23See the exhaustive discussion and material on a 1933 German case in Richard Scheringer. 8 Jun 2013 10:40:19 AM All use subject to JSTOR Terms and Conditions . This practiceservesto give clemencythe qualitativelydifferent aspect of a generalizedlegislativepolicy.exceptat best under the the prisoner himself is not willing .

includingmoral indignation. Histoire des dix ans. February 16. the experience of John Gates. i960.the regime'sfoesmay wantto avoid anything thatcould even remotely be interpreted as of the title for recognition present powerholders' proceeding In them. 8 Jun 2013 10:40:19 AM All use subject to JSTOR Terms and Conditions . or for a similar Swiss case see the storyof Pierre Nicolle as seen fromthe viewpoint of the Swiss authorities. 331- This content downloaded from 201. Prince Polignac had similar troubles when deciding whether to accept clemency from the hands of Louis Philippe.in Bundesblatt (1952) vol.excluding only Ledru-Rollin. 5. 182. The Wobbly (Chicago 1947) p.In short. may well tend to exhaustall the punitivepossibilities opened up by thereare manyand the judicial sentence.however. As Barbes put it when revolt appearingbeforethe FrenchSenate afterthe unsuccessful of 1839: "If the Indian is vanquished. 191-92. in his The Storyof an American Communist (New York 1958) p. among fused to avail themselves of the offer. For recent United States policies in this direction see the Letter to the Editor. "To Free Gold and Sobell. p. Equally often. captureand conseor exile connotepurelyphysical withevents. p. vol.the state authorities have scaled down or even relinquished their claim. sate forweakness." in New York Times. the minds of such against prisoners. possiblycontradictory and even a desireto compena feelingof overwhelming strength.he will not ventureto defend himselfwith empty words. 139. Le Prince Jules de Polignac (Avignon 1950) pp.235. quent imprisonment out any greaterdignityor justification. 322. a commoncriminal.if the accidentof war delivershim into the hands of his enemies.i64 SOCIAL RESEARCH in 1856Napoleon III offered to the left-wing repatriation republicans-in-exile on the conditionthat theypetitionthe government and recognizethe establishedregime. but offerhis head to be 24 scalped. instead waiting another decade forthe fall of the regime. p. Nevertheless some of the outstanding styled them and Victor Hugo.151. see Pierre RobinHarmel.25For such tendencies motivations. 25See.214 on Sat. forexample. 2. More than a century earlier. reLouis Blanc political figures. They can to do this if a formulais available more easilybring themselves a petition for mercy." Those in power. 36. see also Ralph Chapin.if unable to obtain theirfoes'submission. 24See Louis Blanc. his 1859 amnestyomitted even the need for an application.

175. 183.of course. A ruler may. VictorHugo. vol. tried to put the call forclemency towardBarbes into the conventional framework thathad long markedthe sovereign's completediscretion in granting two clemency.be beyondcaringwhat impression his action will make. This content downloaded from 201. clemency. By evokingboth the plenarypowerof the King and basic reasons motiforgeneralhumancompassion. though 26See Georges Weill.to membersof the Black Hundred.235. Though Nicholas II of Russia would grant even full pardons. in a poem dedicated to the memory of the Princessd'Orléans. 1 (London 1950) p. 8 Jun 2013 10:40:19 AM All use subject to JSTOR Terms and Conditions . 27See for example the text reprinted in Edward Hallett Carr. in theirearlydays. nom au de la tombe grâce Grâceau nomdu berceau. the King's daughter. of Jewsor of moderatepoliticians.THE QUALITY OF MERCY 165 Barbes thatseemsto uphold theirfreedom. When thatself-same had been sentenced therewas to deathforhis partin the uprising. a considerable amountofpressure on Louis Philippe'sgovernment to commutethe sentence.in the case of to murderers attackers of military men he saw no cause to social-revolutionary arrestthe courseof the law. doux et frôle roseau Grâceencoreune fois. And Nicholas' Bolshevist successors. by evoking major eventsin the 26 King's family death and birth: Pourvotreangeenvoléainsiqu'une colombe Pour ce royalenfant. Histoire du parti républicain en France (Paris 1900) p.151.214 on Sat.had such a small marginof security and cared so littleforthe meaningof legal formsthat theylooked on the ofa deathpenalty as a normalobject forhorse-trading: imposition werewillingto remitthe sentencein exchangeforpledgesof they to whichtheconvicted good behaviorby thepoliticalorganization personbelonged. Hugo put in the foreground that the was vationsthatcould efface anyimpression King yielding to the clamorof the street.27 In cases involvingpolitical offensethis use of the clemency as an opportunity for making a deal is not infreprerogative the connection between the pardon and its calcuquent. The Bolshevik Revolution.

this the need to reestablish alone does not explain the patternof his clemency consideration toward those sentencedby the civil courts on either practice. This content downloaded from 201.214 on Sat.and stereotype by pardon attorneys briefings triple-space and staffers phrases. He handled it accordingto his own deepof of the value of human life. The History of the Haymarket Affair. Yet Lincoln lived ment of reasonableness. And the withnumberof Irishsympathizers well as the as grantingof clemencycan be subject to holding Affair it apdevious political considerations. especially p.had relativelylittle to do with convictionof eitherthe defendants' repentanceor the governor's . While the Union in the heartsof his foes. executionsnow would save Sherman'squip that fortyor fifty of livesin thenext twelvemonths thousands mayhave had an elehoweverconjectural. 8 Jun 2013 10:40:19 AM All use subject to JSTOR Terms and Conditions .in a theirguilt. In the Haymarket he final determination. was not yet a matterof channels.though.235. ratherthan partners beneficiaries of politicalstrategies owed their After thatbloodyEasterSundayin Dublin in 1916 they to lives to the factthatthe Britishhad foundit politic take into and the considerable account Americanpolitical susceptibilities in the United States.where the category ing.151. treasonchargesor towardthosein the clutchesof courts-martial. (New York 1958). whereby rejected pearsthatthegovernor's defendants seven out of for five (amongthe fiveone who clemency declarationin regardto his had signedan attenuatedrepentance group's propaganda pattern). For him it was mouthingthe conventional a verypersonaldecision. It was rathera normal political compromise has little meanof compromise field. 457.witha consciousness seatedfeelings 28See Henry David.28 the controlling But politicalpurposeis not alwaysor exclusively never lost sightof Lincoln in extending factor clemency.2nd ed. on military effect of theproximate Fromtheviewpoint operations. De Valera and his Sinn Fein colleagues were to a deal.i66 SOCIAL RESEARCH lated effect may be a bit less crude than it was in the hands of the Bolshevists.under the burden of which he suffered considerable anguish. in a world in which clemency memos.

132. and political reasons against having the sentencescarried out. Schulz. Especiallywhen it is exertedby an organized will refuseto exercise propagandamachine. si L'Affaire Henri Martin(Paris 1953)p. Dorris. Sauer/ Die Nationalsozialistische Machtergreifung (Coione i960) p. p.morerecent. T. campaign communistnaval officer Henri Martin.5 (1957)pp."Der Fall Potempa. 1. Gerhard in Bracher/ and.vol. StateHistorical Abraham Society.. may ultimatelybe. Especiallyrelevant in is Lincoln'shandlingof the 313 MinnesotaIndians convicted this connection to vol. actingin his caforPrussia. convicted to long-term servitude for incitement to sabotageon a man-of-war.mayhave had a number pacityas Reich commissioner of strongmoral.for on the occasion of the for the release of the example.29 he owed to his office howeverlonely it The decision on the grantingof clemency.note29. 614). In August 1932 the bestialNational ofPotempabeat to deatha helplesspoliticalfoe Socialist murderers . Reel's literary the comparison gifts remains painful. he personally deathby court-martial reviewed the case history (ibid.THE QUALITY OF MERCY 167 natureof all politicaldecisionsand the duty both the contingent and the nation. but in commutingthem into life terms afterHitler had chosen the dispositionof this case as a battleground betweenhimselfand the authorities. And the more the clemency-dispenser is in the thickof the political fight. The Case of General Yamashita(Chicago 1949) ch. even if Mr.30 Often the pressureon public authoritiescan be expected to work in reverse.also Carl Sandburg. vol.81 In penal such cases it is quite immaterialto the propagandists whether 2»See J." in Journalof the Illinois vol. For an inkling ofevery of contemporary concerned. Chancellorvon Papen. Papen created the of having yielded to the most insolenttype of presimpression sure. the greaterthe pressurehe may be exposed to in regard to the exerciseof thisprerogative. 4 (New York 1939) p. practices are fullytakeninto consideration. 35. 278-97. 522.151. Schulz. 8 Jun 2013 10:40:19 AM All use subject to JSTOR Terms and Conditions . individual all but 38. 220."President Lincoln'sClemency. Lincoln: The War Years.many governments therightto grantclemency as did President VincentAuriol. 20 (1927-28)pp.235. is subject to manifold pressures.and weresentenced forthings of theirs a curtain-raiser to come to death fortheirdeed. This content downloaded from 201. 547-68. legal. soSee Paul Kluke. reprieving see FrankReel.214 on Sat."in Vierteljahrshefte für Zeitgeschichte.

thisboon as a rewardforservice rendered. The to turninformer. Youth functionary releasedtheCommunist then JuppAngerforth. initiaespeciallyif theyonlyrespondto the prisoner's theinformation thaneliciting tiverather advances of their own.this action.235. If the offender is released. even thoughhe refusedto do so before. veryrefusalis made the pivotal point of a continuingand stepped-upcampaign. afterhaving refusedto accede to a demand for a general political amnesty. ch.151.i68 SOCIAL RESEARCH is granted. the shortcomings encyto correct 82See the story of the Prestonpardon by William III in 1691.214 on Sat.whether reactionto such pressure he yieldsor repowerholder's . they may advantageof such a situation. The convicted offering if to be willing especially sentenced death.however. 17. A government itselfmay exertpressurein regardto clemency. Communistpropaganda represented the rein lease as an important a it was well calcuvictory. the continuing by a desireto underscore and humanity of the government's reasonableness policyin political prosecutions. if be blamed be at cannot take stake.mayin extremis person. Yet powerholders. clemency refused.he has fallenvictimto a trialof strength sists betweenthe state and its foes. This content downloaded from 201. though reality motivated lated measure. Whateverthe . 8 Jun 2013 10:40:19 AM All use subject to JSTOR Terms and Conditions .32The judgmentof government and that of posterity may vary in regard to the contemporaries whose vital interests prisoner'shelpfulness. and efface of thejudicial process. An interesting case of this kind occurred authority in April 1957. when the West German authorities. 4. popular if is the action.irreclemency is ascribed to irresistible spectiveof its circumstances. manifest that in his danger of his servicelies in the possibility he make to assertions whose interest for the may anxiety please does not equal their accuracy.as narratedby Macaulay in his Historyof England. If it is one of the functions of clemof theclemency prerogative. by an inherent limitation to the properexercise There is. sentence a punishmentthat servinga five-year penal-servitude was out of line with both the typeof penaltiesand the lengthof sentencesusually meted out to communistfunctionaries in the Federal Republic.vol.

On the otherhand.even when sentence was passed. Post-conviction confession is nota properprerequisite forthe commutation of a death sentence. While the state had a legitimateinterestin findingout about of given the particularcircumstances accomplices.that of using the expectationof clemencyas reverseprocedure confession thatwould shoreup a problure fora post-conviction .83Such a coursewould have been indicatedin spite of the factthat the extentof the pro-Rosenberg campaign and the resultant made of counter-campaigns dispassionateconsideration the case especially difficult.or of the manywho entertained seriousdoubts about the decisiveassumptions thatenteredthe sentencing process(the factualbasis of whichwas known. to defend the inthe case. in the Rosenbergcase. one course emphatically should not have been taken: suggesting to thedefendants thatas a condition sine qua non forcommutation 33For a concisereviewof the mostimportant see the book reviewby problems WilliamH.It reflected by a conevirestedon circumstantial fessiona convictionthat essentially interested dence and on testimony by a highly accomplicewitness.151. vol.contradicts the veryessenceof both clemency lematicjudgment and justice.214 on Sat. however. it might have proceeded without on thebasis of thejury'sand thejudge's action. publicized factthat a wire fromthe White House to the death an invitationto incells was kept open at all timeswas formally to conform but it logicallyimpliedan invitation on accomplices. This content downloaded from 201. who had so farbeen completely fession on the partof defendants desireto strengthen the official recalcitrant. If theadministration sharedthedisquietofthefewwho believed itself thatthe basis of the conviction was debatable. nor believedclemency to be an indicatedpolicytowardthosewho had forsakennational allegiance. 67 (1958)p. The widely It was made one.THE QUALITY OF MERCY 169 . Mann in Yale Law Review. to be purelyconjectural). thena commutation of the sentence was indicated. if the administration neithersharedthesedoubts as to judgmentor sentence. should have yielded to the necessity of the tegrity judicial process.this interest.eitherin law or in fact. But obfuscation. 8 Jun 2013 10:40:19 AM All use subject to JSTOR Terms and Conditions . 528.235.

and forall the stature of the Rosenbergs of the judicial process. But itsassumptions and strategies. Not only was this a tacticalmistake.in the limitedbut highly a question area where such significant a could such under its would come function.exceptas specified need nor ofwhatby definition shouldneither confirmation: the finalverdict by the law itself accede to further of the jury and the sentenceof the judge.235. Clemencyis deeplyimmersed and symbols. This content downloaded from 201. itscampaigns tics.214 on Sat. we attempt the rationalrule whereby as it may be to theodistasteful Such an elementof subjectivity.SOCIAL RESEARCH 17O on which the verdict the assumption of the sentencetheyconfirm which settledonce rested. equal to the task. the Presidency. 8 Jun 2013 10:40:19 AM All use subject to JSTOR Terms and Conditions . theconof transcending thepossibility at thesame timeit provides a touchof subjectivity into of theday and introducing figurations to governhuman relations. is considered rists. by by manywho are leftunconvinced necessary The American of the present Presidency performance humanity.151. perform purview and within the basis its democratic of under the authority acting and both above for functioning frameof its vast potentialities moments within the political arena.by turningthe it devaluated the finality of clemencyinto a device for obtainingconfirmation possibility . but as authenticmartyrs. . unavoidable diaonce moreclemency's This case also illustrates in the substructure of polilectics. At one of its most trying found an officer as Lincoln demonstrated.