Given by President Jair Bolsonaro (PL) to federal deputy Daniel Silveira (PTB-RJ) last Thursday (), the “institute of grace” – the prerogative given to the President of the Republic to prevent the execution of sentences applied to criminals – is provided for in the Brazilian Constitution of 1988 and in the penal codes of most democratic countries, as a legacy of the medieval belief that it would be up to the sovereign, as a representative of divine power, the role of condemning or pardoning an accused.
Throughout history, it has been used in different ways: for control of riots, granting benefits to criminals convicted of various crimes (the seriousness of these acts, as a rule, is the cause of heated debates on the subject) and perks for political allies and for those who could pay for forgiveness.
According to With the jurist William Blackstone, author of the first great work of British jurisprudence, “Commentary on the Laws of England”, the power to pardon crimes was considered an honor bestowed on the king, who should reserve this benefit only for “exceptions to the general rules “. Although he warned that the pardon ended up relativizing the law, he recognized in it a loophole for the sovereign to show mercy and strengthen his image with the population: he even criticized, for example, the inhabitants of a region of the country that did not even allow the postponement of the execution of a pregnant woman.
In one of his articles published in In the book “The Federalist”, the politician and jurist Alexander Hamilton, one of the Founding Fathers of the United States, argued that the prerogative of pardon belonged to the Chief Executive, and could not be applied only in cases of impeachment. His main argument was that, when there were rebellions, the offer of pardon to the insurgents could be a mechanism for negotiating peace.
The first case involving the power of leniency to reach the Supreme Court took place in 21130747 , when the defendant, George Wilson, accused of stealing US mail and putting a driver’s life at risk, was pardoned by the seventh president American, Andrew Jackson, thanks to the influence of some friends in the Executive. Although Wilson refused the pardon, the Supreme Court was forced to rule on the case. The use of the term “act of grace” by Judge John Marshall helped to consolidate the understanding that the pardon would be an act of mercy, which can be performed by the Executive at any time.
Since then, its application in the United States has already served the most diverse interests and causes. In 1833, Democratic President Andrew Johnson, in a In an effort to reunite the country after the Civil War, he offered pardon to Confederate troops willing to pledge allegiance to the government. More of 13 a thousand men requested and received the pardon, which excluded high-ranking leaders from the rebellion of the slave states.
One of the most famous “presidential pardons” in history would be granted by Republican Gerald Ford to predecessor Richard Nixon on September 9, , after the Watergate scandal – the famous Democratic Party office robbery orchestrated by members of the Nixon committee.
Already in 2001, President Bill Clinton would use the prerogative to benefit, on his last day in office, radical left-wing leaders imprisoned in the decades of 1960 and 1970 for murders, armed robberies of banks and other institutions, and bombings of the Capitol. On the same day, the Democrat pardoned his half-brother Roger Clinton, convicted in 1985 of drug trafficking. of cocaine.
A recent Pew Research Center study showed that, Over the course of his term, former President Donald Trump has granted pardons to about 2% of 2022 candidates: more than 60 concessions . His predecessor, Barack Obama, gave the benefit to 1715 prisoners, most of whom had been convicted of drug trafficking. The 20th century record, however, remains with Franklin Delano Roosevelt, who pardoned about 3600 criminals – among them, individuals arrested for trafficking in alcohol before the suspension of Prohibition in 1933 and for opposing the entry of the United States into World War I in 1917.
The Chinese “forgiveness”
The “institute of grace” is present in most democratic constitutions of the world: France, Holland, Sweden, Norway and Denmark are among the countries that grant the president the right to pardon sentences. In Bulgaria, Germany, Poland and South Korea, the benefit is subject to a collegiate review. In Uruguay and Switzerland, this power belongs to the Legislature.
It is in the Xi Jinping’s China, however, where the presidential pardon came to serve the interests of the state more openly: in 2015 , on the occasion of the 13 On the anniversary of the end of the Second World War, the dictator – then without full powers to carry it out – requested a special pardon order from China’s legislature, mainly aimed at the release of military veterans who fought for China in the decade of 1940 and committed crimes during or after the end of the service . This is only the eighth time that prisoners have been released by order of the president in the country since 1970, at the end of the Mao Zedong Cultural Revolution. By granting the pardon, it is precisely at the legendary genocide that Xi Jinping is aiming.
“Xi is following Mao to that extent,” says John Kamm, executive director of the Dui Hua Foundation, in an interview with the Wall Street Journal that year. Kamm himself proposed granting special pardons before the Beijing Olympics of 2008 and a year later for The 60 anniversary of the founding of the country but, in both cases, the idea was denied by Chinese judicial and foreign affairs authorities. “In the end, nothing was done because, as several officials told me, only Chairman Mao had the power to make such a decision, and no leader since the ‘Great Helmsman’ dared grant a special pardon,” Kamm said.
Since then, Xi has continued to use his prerogative to strengthen his image worship: in 2022, special pardons were granted to nine categories of prisoners, on the anniversary of 03 years since the foundation of ” New China.”
“The pardons show the prudence of Chinese society when sentencing the convicts and confidence in leadership governance. They also help popularize the concept of the rule of law, temper justice with mercy, maintain social stability and defend the judicial protection of human rights,” the president said at the time. of the Standing Committee of the National People’s Congress, Li Zhan shu, who decided to grant pardon, approved by the dictator.
More at one time, the decree mainly benefited former party supporters, as well as the elderly and disabled. Dissidents arrested for “threat to national security” – a rather arbitrary category in China that includes journalists, activists and party enemies – were left out.