Explaining Clemency in Death Penalty Cases in Thailand Clemency is the commutation, or substitution, of a sentence of death with a sentence of imprisonment. In rare cases, clemency may also result in a prisoner sentenced to death being released from prison altogether, however usually the death sentence will be reduced to a lifewithout-parole term, or to 20 years in prison. The key attribute of clemency, as compared with the prisoner’s judicial appeals to reduce his or her sentence, is that the power to grant clemency lies with the executive branch of government. An appeal made to the relevant Head of State, Provincial Governor, Head of Government or specially constituted Clemency or Pardons Board (depending on the particular jurisdiction) is usually considered only after all judicial options have been exhausted. Historically, and across a number of jurisdictions around the world, there have been many different reasons why clemency has been granted in order to save a prisoner’s life. In some cases, the decision bears no real relation to the prisoner and his or her individual circumstances, but is instead intended to cast the granter of clemency in a benevolent light (as with clemency granted by a Monarch or authoritarian ruler in pre-modern societies). In the modern world, clemency of this type, as a form of ‘grace’ or when granted for utilitarian motives includes cases such as mass commutations in the name of national ‘healing’ after an internal conflict, clemency granted to the citizen of an abolitionist nation in order to maintain cordial international relations, clemency that demonstrates an official ambivalence about the appropriateness of death as a criminal punishment (for example, where US State Governors have ‘emptied death row’ shortly before leaving office), or in the most crude form, clemency granted purely to gain political or financial support. On the other hand, clemency can be thought of a quasi-legal remedy that takes account of a prisoner’s individual circumstances, and is granted where the punishment of death is considered to be undeserved. Such circumstances include cases of possible innocence, disproportionate punishment as compared with co-defendants, mitigating circumstances such as youth or mental illness, compassionate or medical grounds. A prisoner may also be seen to have ‘earned’ clemency through rehabilitation in prison, receiving the forgiveness of the victim’s family, testifying against an accomplice, or for previous national service of some form. The precise reasons that clemency is granted will vary from jurisdiction to jurisdiction, with the common theme that the Executive is not bound by its previous clemency decisions, and that (if so desired), no official reasons for the grant of clemency need to be given. The matter is entirely within the sovereign prerogative, or explicit constitutional power of the granter. In Thailand, clemency for death penalty prisoners is known as a ‘Royal Pardon’ and is granted by the reigning Monarch, King Rama IX. Prisoners can be granted an ‘Individual Royal Pardon’, whereby a petition is addressed to the Royal Household, or alternatively prisoners may receive clemency by way of the ‘Collective Royal Pardon’ scheme, which celebrates the King or Queen’s Birthdays or other important and auspicious dates concerning the Thai Royal Family with mass sentence reductions and releases from prison every few years. For both procedures, it is not only death sentence prisoners who stand to benefit, but also prisoners serving any length of prison sentence. Clemency for death penalty cases in Thailand is particularly notable for that fact that, at least since the end of World War Two, the King has commuted the vast majority of finalised death sentences (i.e. death sentences where the prisoner has exhausted judicial remedies) by the Individual or
Collective Royal Pardon procedures. In fact, in over 90 percent of finalised cases is the penalty of death commuted in Thailand. When compared with the approximate clemency ‘rates’ of its retentionist neighbours since 1975, Malaysia (25 to 40 percent), Indonesia (25 to 35 percent), Vietnam (under 25 percent) and Singapore (roughly one percent), Thailand’s policy appears extremely lenient. By way of comparison, the 20th century clemency ‘rate’ of pre-abolition Britain stood at approximately 40 percent, and the rate in the United States, after the reinstatement of capital punishment in 1976, stands at roughly 18 percent. Legal and political commentators have suggested a number of theories explaining Thailand’s extremely high clemency ‘rate’. Amongst the most plausible explanations are the maintenance of a long tradition of Royal Pardons granted by the reigning Monarch, extending even as far back as the Sukhothai period (ending in the 15th century AD), the devout Buddhism of the King and the Thai elite generally, the very large number of death sentences imposed at first instance (up to several hundred per year) together with the complicated and long-winded pardoning process, meaning prisoners may have as long as 10 years to demonstrate good behaviour in prison and benefit from a Collective Royal Pardon as their petition for Individual Pardon is being considered. Finally, although a number of Asian and Nigerian prisoners have been executed in Thailand since 2000, the country is notable for not having executed a Western prisoner during the present King’s reign (unlike some of its Southeast Asian neighbours), possibly accounted for by the dependence of the Thai economy on tourism, and a more general desire not to compromise international relations if a foreign embassy and/or Head of State supports a prisoner’s petition.
Daniel Pascoe The information above was collected as part of the author’s doctoral research at Oxford University’s Centre for Criminology
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