69 Tex. L. Rev. 569 (1990-1991)
Quality of Mercy Strained: Wresting the Pardoning Power from the King

handle is hein.journals/tlr69 and id is 591 raw text is: The Quality of Mercy Strained: Wresting the
Pardoning Power from the King
Daniel T. Kobil*
Since ancient times the power of the executive to suspend the operation of the justice
system by extending clemency to an accused or convicted criminal has been a funda-
mental part of criminal justice systems. It continues to figure prominently in the
American system despite its discordance with the checks and procedures that charac-
teristically attend other executive powers In this Article, Professor Kobil examines the
modern use of the clemency power in the United States in light of its historical origins
and philosophical underpinnings. He concludes that exercises of the clemency power
can usefully be divided into those that further principles of retributive fairness and
those that are unrelated to principles ofjustice. Professor Kobil argues that the consis-
tent, principled administration of clemency can best be realized by making this bifur-
cation explicit and removing the former category of clemency decisions from the
unguided authority of the chief executive. He proposes a set of procedures and stan-
dards to divest clemency decisions from the individual discretion of the executive and
insulate them from unwarranted political pressure&
I.  Introduction  ..............................................        571
II.  The Nature and Origins of Clemency: What's Justice Got
to Do With It? ........................................... 575
A.   Defining Clemency, and its Relationship to Notions of
Justice  ...............................................       575
B.   Early Origins of the Clemency Power .................. 583
C.   The Development of the Clemency Power in England ... 585
D.   The Clemency Power in the United States .............. 589
1. Federal Clemency Power .......................... 589
2. The Clemency Power in the States ................. 604
III. A Proposal for Bifurcation of the Clemency Power:
Replacing Politics with Justice ............................ 611
A. Limitations on the Exercise of Executive Clemency
Power  ................................................        614
1. The Legislature ................................... 615
2. The Judiciary ..................................... 616
* Assistant Professor of Law, Capital University Law School. B.A. 1978, J.D. 1983, Univer-
sity of Toledo. I would like to thank Emily Dargatz for her invaluable contributions to the research-
ing and writing of this Article, and for becoming as interested in the clemency power as I am. I am
also grateful to Carl Beckman, Arthur Collier, Jeff Erickson, Mike Gerhardt, Katherine Korda,
Susan Looper-Friedman, Thomas Tucker, and Dean Rod Smith for their insightful comments on an
earlier draft of this Article. Finally, I would like to thank my wife, Janet Lewis, for all of her
support and encouragement. Funding for the writing of this Article was provided by a Faculty
Research Stipend from Capital University.

569

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