Making sense of the victim’s role in clemency decision making
| Published date | 01 January 2020 |
| Author | Marie Manikis,Daniel Pascoe |
| DOI | 10.1177/0269758018805567 |
| Date | 01 January 2020 |
| Subject Matter | Articles |
Article
Making sense of the victim’s
role in clemency decision
making
Daniel Pascoe
City University of Hong Kong, Hong Kong
Marie Manikis
McGill University, Canada
Abstract
This article discusses victim engagement with the executive clemency process from a normative
perspective. The authors’ aim is to explore the existing models of victim participation in clemency
decision making in common law jurisdictions, in order to determine whether these possess any
sound theoretical basis. The article brings together the academic literatures on victim participation
and clemency functionality in order to ground the analysis. In brief, the authors’ main finding is that
victim involvement in clemency decision making can indeed be supported by the theoretical
literature, albeit to a more limited extent than is currently practised in some common law jur-
isdictions. In light of the theoretical underpinnings of clemency in democratic societies and the
literature on victim participation, the authors conclude by making several ‘best practice’ recom-
mendations for future policy-making.
Keywords
Victims, participation, clemency, pardon, commutation, procedural rights, substantive rights
Introduction
The proper extent of victim participation in the criminal justice process remains disputed within
scholarship and practice. While a victim’s right to receive information about his or her case is
relatively uncontroversial within the prevailing academic literature and within the laws of many
common law jurisdictions, allowing victims an active voice at various stages of the criminal
process remains highly controversial. Indeed, criticism of victim impact statements in sentencing
Corresponding author:
Daniel Pascoe, School of Law, City University of Hong Kong, Tat Chee Avenue, Kowloon Tong, Hong Kong SAR.
Email: dcpascoe@cityu.edu.hk
International Review of Victimology
2020, Vol. 26(1) 3–28
ªThe Author(s) 2018
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DOI: 10.1177/0269758018805567
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persists (e.g. Ashworth, 1993; Bandes, 1996; Dubber, 1993; Hoyle, 2011), even if it has become
less prevalent over the years (e.g. Manikis, 2015; Roberts, 2009; Sarat, 2004). The role of victims
in parole decision making remains even more contentious, given a perceived conflict between
typical victims’ interests and the functions that conditional release is meant to play (Roberts,
2009: 386).
In common law jurisdictions, the next opportunity for discretionary release following parole is
clemency (Novak, 2016a: 4). Clemency is a power spanning the intersection of law and politics
(Acker and Lanier, 2000: 213; Moylan, 2009: 40), whereby the executive branch of government
lessens or abrogates punishment for a variety of retributive, redemptive, utilitarian or self-serving
political reasons (Pascoe, 2017: 4–6). Although its practice has declined in historical terms,
clemency still remains in use in almost all common law jurisdictions, even those which have
already abolished the death penalty (Novak, 2016a: 4–6).
1
And whether it is desirable or not,
more nation states and sub-national jurisdictions are considering the views of victims in executive
clemency decision making. A wide variety of different legal jurisdictions, including Canada, the
Cayman Islands, Cyprus, Fiji, Israel, Kenya, New Zealand, Pakistan, Sri Lanka, the US federal
jurisdiction and at least 16 US States
2
have all accorded victims a right to engage with the
clemency process via constitutional provisions or legislation. To date, a broad spectrum of legal
models exists, ranging from affording victims a right to receive notification if a perpetrator is
pardoned (New Zealand), all the way to the victim holding near-total control over the clemency
outcome in a death penalty case (Pakistan).
3
Nevertheless, victims’ engagement with and input into the clemency process have never prop-
erly been theorized, even as such contributions have become part of the positive law in so many
different common law jurisdictions (Giannini, 2015: 117). As Roberts (2009: 400) observes of the
criminal justice system in general:
The populist rush to exploit public and victim dissatisfaction with the criminal justice system has led to
a proliferation of ill-conceived and poorly administered victim impact regimes. These regimes are
often confusing and misleading for both victims and criminal justice practitioners.
Accordingly, this article discusses victim engagement with the clemency process from a normative
perspective. Our aim is to explore the existing models of victim participation in clemency decision
making in common law jurisdictions, in order to determine whether these possess any sound theo-
retical basis. The article brings together the academic literatures on victim participation and clem-
ency functionality in order to ground the analysis. In brief, we find that victim involvement in
clemency decision making can indeed be supported by the theoretical literature, albeit to a more
limited extent than is currently practised in some of the common law jurisdictions listed above.
Sequentially, the article contains a survey of the existing academic literature on models of
victim participation within various stages of the criminal justice process, followed by a summary
of the literature on the functions performed by executive clemency in democratic societies,
together with several examples of constitutional, legislative and policy models embedding victims
within the clemency process. In the final part, we argue that victim involvement in clemency
decision making can indeed be supported by the theoretical literature, albeit to a limited extent. In
light of our analysis of the theoretical underpinnings of victim participation in clemency, we end
by offering several ‘best practice’ recommendations for future policymaking.
Importantly, for now, we restrict our analysis to common law jurisdictions, given that the two
bodies of literature relied upon are themselves rooted in common law traditions. Indeed, as
4International Review of Victimology 26(1)
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