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39 Prison J. 3 (1959)

handle is hein.journals/prsjrnl39 and id is 1 raw text is: Pardon Policy in a Modern State CALE;B FooTE, Professor of Law University of Pennsylvania T E PowFR To PARDON as part of the proper executive function of government is such a familiar idea to us today that it would be 0r to imiaginc a state which did not provide for it in some manner. liis feeling is the product of a very long association, for reports of olcts Of clemency are found from very early stages of recorded history, While studies of the unrecorded customs of prinitive societies have revealed such curious analogous practices as the creation of places of r efge in which an offender is exempt from punishment and is offered t1nce to start his life anew. Most societies have felt a need to provide r1oald discretionary executive power to temper retribution with ercy, to correct error, to do justice where the rigorous inflexibility Judicial system has not adjusted to compelling social needs. Such power gives a needed flexibility to a system of justice, for lovides a remedy for the exceptional cases which no code of pro- hadures can reasonably anticipate. More important, however, it has e ignificant part in the development of our institutions of criminal tlent. The pardon was a germinal concept which helped shape evolution of modern parole systems, for before parole and proba- Were widely used the pardon served as an occasional if ineffective itte for these treatment methods. We sometimes forget that the 1poftunity to correct judicial error by appeal and by an expanded c'er of habeas corpus is a relatively recent (levelopment, so that for coituries executive clemency afforded the only opportunity to reopen i1ictions which might he proved to be erroneous or violative of due irocess. Pardon policy has served the invaluable function of spotlight- 111R tlhose areas where reform was needed and its role in a modern state 'Iuld be evaluated with that history in mind. Co Although the vast changes which have taken place in criminal t) ective procedure and in treatment policy and practice in the last ('leears have greatly reduced the necessity of reliance upon executive by )Iency as a corrective process, they have had relatively little direct 'l)act On the structure of American pardon procedure. The federal to ernmnent and most states still retain the traditional form: the power Pardon is in the sole discretion of the President or Governor. In attellpt to correct felt abuse or to protect the Governor against MItant and time-consuming pressures, other states have created o ton boards, usually (omlposed of high cabinet officers. The function these boards varies from that of a screening device (as in Pennsyl- 3

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