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Various countries have pardoning powers given to either the president or the governor, this is secured as a constitutional right of the president and governor.
What is the purpose of such powers? Is there a special reason why are they handed to a president or governor?

brhans
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    The better question is not the purpose but the origin - which directly leads to the purpose. – Trish Apr 26 '23 at 11:39
  • Perhaps it should be differentiated here between original intention for this law and how they are used by acting presidents and the interest which uphold this power. For example, Richard Nixon was pardoned by his successor. https://en.wikipedia.org/wiki/Pardon_of_Richard_Nixon#:~:text=I%20didn't%20think%20it,that%20Ford%20and%20Nixon%20shared. – Sybille Peters Apr 27 '23 at 06:35
  • It is generally not acceptable to post similar questions to multiple SE sites. The Politics SE question could be deleted if you're looking for an answer on Law. – doneal24 Apr 29 '23 at 01:18

3 Answers3

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They are the modern legacy of the Royal prerogative of mercy

Or in Commonwealth countries that still have a monarch, it is the Royal prerogative of mercy.

Its modern functional purpose is to provide justice beyond the law. Its historical purpose was to allow the monarch to commute automatic death sentences in a legal system that did not, at that time, have an appeals process to correct miscarriages of justice, either through mistake or in a system that was not as flexible as it is today.

It exists as the ultimate backstop against injustice. Ultimately, exercise of the power is a political rather than a judicial one and, as such, any limits on misuse come through the ballot box, not the court.

Dale M
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  • what baffles me is why is the power to pardon rested in a single person "president" and "governer" isnt a process like this bound to be highly discriminatory as in why parodon one person based on the same facts and not the other ? –  Apr 26 '23 at 11:49
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    @OldAccount2005 because King is a single person. When the US left Britain they gave their President many of the powers they felt a King should have unrestrained by Parliament. Since then, the King’s powers are almost all exercised by their councillors (aka the government) but the President kept theirs. – Dale M Apr 26 '23 at 12:01
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    what is the basis on which pardons are usually given ? it seems like a dead end power that would be excercised on the basis of political considerations alone. –  Apr 26 '23 at 12:09
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    Spain, The Netherlands, Denmark, Norway, Thailand, and many other countries are not members of the Commonwealth, but at least Norway still has a royal pardon. – Martin Bonner supports Monica Apr 26 '23 at 13:00
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    Germany vested pardon power into the president after they de-royaled after WW1 – Trish Apr 26 '23 at 15:30
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    I find examples helpful. In Western Australia the Governor exercised the royal prerogative of mercy in the case of an indigenous woman who had killed her abusive partner. IMHO this was the "least worst" outcome. I can think of two other ways the situation could have been handled; strict legalism, or trying to establish criteria where spouseicide would be OK. – Simon Crase Apr 26 '23 at 21:39
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    It's worthwhile to note that the King had the power of mercy because they were his courts originally. At the time my favourite English Monarch, Henry II, reformed the legal system following the Anarchy, each baron had his own court. Henry set out to establish a superior system: people could appeal from a baron's court, and have their case heard, without having to worry about the baron's thugs (Henry had his own thugs, and they were tougher). Since the judges were Henry's men, he could overrule them if he saw fit. – Simon Crase Apr 26 '23 at 21:48
  • @SimonCrase Interestingly the linked story explicitly says this is not a pardon. It is rather a commutation, ending the woman's sentence early without lifting her conviction. IIUC, most executives who have the power to pardon also have the power to commute (together these powers could be called the power of clemency). – Lee C. Apr 26 '23 at 22:25
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    @LeeC. Currect: as I noted, this is the royal prerogative of mercy. – Simon Crase Apr 26 '23 at 22:31
  • @SimonCrase I think the modern thinking tends to be that its problematic to have circumstances where murder is OK but its also somewhat of an injustice to subject a battered spouse to the worst penalties on offer for it. So where theres a self-defence claim to be made that is the defence however when that reasonable force cant be justified (and some qualifying mental illness cant be shown), it can be mitigating (as opposed to a complete defence) – Shayne Apr 27 '23 at 07:48
  • @OldAccount2005 Suppose a person is convicted of a crime with no procedural or other errors, that conviction becomes final, and then there's evidence that the person was in fact not guilty. There has to be some mechanism to handle that case and there are very good reasons why it's not the justice system. – David Schwartz Apr 29 '23 at 07:05
  • why is it not the justice system ? –  Apr 29 '23 at 07:18
  • and why is it someone that is politically elected ? since a fair justice system isn't their concern ? –  Apr 29 '23 at 07:24
  • @DavidSchwartz many jurisdictions do have “innocence projects” that do allow judicial review in the case of clear and compelling evidence of innocence – Dale M Apr 29 '23 at 09:10
  • Maybe worth noting that in the UK, it is not compulsory to capitalise 'king' when using the word generally, (e.g. 'the king is aged 75') except when using it as the title before the name (e.g. 'King Charles'). – Michael Harvey Apr 29 '23 at 14:07
  • @DaleM Right, but that's not a substitute for pardons. That kind of process can only void a conviction when the interest of justice exceeds the executive's interest in the finality of criminal verdicts. That's why you need such high standards as clear and compelling evidence. I don't think you'll find anyone who thinks it's a complete solution to the problem of later-discovered evidence of innocence. Pardons involve no such trade-off. (See Herrera v. Collins for part of the US take on why this solution is inadequate.) – David Schwartz Apr 29 '23 at 14:54
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The purpose was to place in an individual person, independent from the judiciary, the power and individual agency to provide mercy for outcomes that have resulted in "unfortunate guilt." See generally, "The Constitution Annotated", and Federalist 74.

The US framers did not place the power in an individual simply for the reason that the "King is a single person." They did not inconsiderately replicate the U.K. approach. There was debate about whether the pardon power would be a step on path back to monarchy. There was debate about whether to include the legislature in the pardon power.

For one rationale for placing the power in an individual, see Federalist 74:

As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance.

Jen
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    It should be pointed out that the U.S., as a Federal Nation, only permits the executive of a jurisdiction to pardon criminals who were convicted for a crime in their jurisdiction. A president cannot pardon a person convicted in a State Court. They can only pardon those convicted in federal courts. – hszmv Apr 26 '23 at 16:16
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    @hszmv A US president can pardon any body for any and all offenses against the federal government except for impeachment. The individual need not be convicted and a presidential pardon precludes a trial if one has not already taken place. Without a trial, the offense could be purely in the president's mind. – emory Apr 28 '23 at 23:49
  • @Emory: Yes. However, most criminal convictions in the U.S. are not prosecuted by the Federal Government, but by the State Government the crime took place in. If someone kills someone in say, Texas and is tried by the state of Texas, the President cannot pardon them. That falls to Texas' own pardon powers, which are vested in the Governor of Texas. – hszmv May 01 '23 at 11:27
  • @hszmv that is true but if someone was so popular that prosecution of them risks the government of texas then it is unlikely the governor of texas will prosecute them. The power of the pardon just gives the prosecutor an out. It is the same principle whether the prosecutor is the President or the Governor. Most people are not that popular. Most (potential) defendants are not pardoned. Most politicians do not spend a lot of time thinking about the innocence or guilt of a particular defendant. They spend more time thinking about justifying prosecution. – emory May 01 '23 at 13:30
  • @emory I never said anything about popularity. The U.S. President is legally not allowed to Pardon people for crimes Prosecuted by State Governments. That state's governor holds that power. Pardon recipients typically have already been found guilty of a crime (at least in the eyes of the law) . – hszmv May 01 '23 at 14:23
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Under the rule of law, laws must not be retroactive and they should not be too specific. But sometimes, justice requires not applying the existing law in a specific case. By giving the power of pardon to the executive, and not the legislative or judiciary, there is no suggestion that a pardon creates a new law or judiciary precedent. It stands aside.

o.m.
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