Clemency is the highest chevron in the ranks of justice. Traditionally, its hallmarks have been leniency and forgiveness. But it is more than noblesse oblige, it is a constitutional prescription for the inequities of a fallible due process.1 As Justice William Rehnquist observed in Herrera v. Collins, 506 U.S. 390, 415 (1993), clemency is the “‘fail safe’ in our criminal justice system.”2 Indeed, the central facets of this safeguard, fairness and forgiveness, are at the heart of the U.S. House Judiciary Committee’s current investigation into the clemency advisory process and its administration.
Clemency (mercy), pardon (absolution), commutation (substitution), amnesty (forgetting), and reprieve (suspension) are drawn from the language of compassion. And today, they operate in a scheme of constitutional rights that overarches and subsumes notions of mercy and leniency. Thus, it is the constitutional architecture of clemency that provides the basis of relief for the wrongly convicted as well as the rehabilitated.
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