Clemency guidance

This is a copy of a document published by the Magistrates in Summer 378.

CLEMENCY – A GUIDE FOR PRIESTS

by Magistrate Reinholz

This guide is intended to provide additional guidance to priests to assist them in making pleas for clemency. I stand as the author of this document which will provide you with insights into the established legal processes in this area, as described by a serving magistrate.

THE BASICS

When a person who is charged with a crime comes before the Court they have a choice – to plead guilty or not guilty. If, and only if, they plead guilty then they may ask for a priest to plead for clemency on their behalf.

Normally the accused will have been given time before the trial to find a priest, to make their confession and to explain their actions. If this time has not been given the defendant should ask the Court for a short adjournment to make such arrangements.

No priest is obliged to make a plea for clemency. If the priest accepts this duty then they should take care to examine the facts of the case in detail. The priest must then use their own judgement of the virtues of the act in question. They will be called as a witness to present a short plea for clemency to the Court. Precisely how the priest deals with this is entirely up to the priest – indeed if the priest feels there is no virtue in the act then there is nothing wrong with the plea stating exactly that. The priest is not obliged to only present a case in support of the defendant. Priests should be aware that they will need to persuade the magistrate as to the virtues of the act in question.

WHAT IS THE MAGISTRATE LOOKING FOR IN A CLEMENCY PLEA?

The magistrate is looking for facts which substantiate the defendant's actions as being virtuous. They are interested in the actual reasons in the mind of the defendant at the time of, and before the crime (rather than rationalisations afterwards). Talking about the motivation and pre-meditation of the defendant may well help the plea by demonstrating the argument within the defendant's mind about the virtues of the act.

Magistrates appreciate it when the priest is as concise as possible, and does not dwell on the agreed facts of the case. They should avoid re-arguing the facts of the case as if they were now trying to prove the defendant not guilty (it is too late for that!) It is generally better to focus on one or two of the most appropriate Virtues, rather than many. If there is a relevant historic example of Virtuous behaviour which addresses the same issues then referring to this may also be persuasive.

WHAT CLEMENCY IS NOT

A plea for clemency in no way obligates the magistrate to release the defendant. There is no automatic immunity for the defendant, just because a priest says the act was virtuous. Normally one might expect to see a direct effect from a successful plea– such as the commutation of a death sentence to a lesser punishment. However, this is not always the case. This may not mean the plea was unsuccessful, but it may have had insufficient weight to reduce the appropriate punishment below the threshold for execution. The more heinous the crime, the harder it will be for the clemency plea to have an actual effect on the outcome.

SOME NOTES ON “THE HERO'S BURDEN”

A common subject of a plea is that the crime was necessary for the greater good. Magistrates are likely to consider persuasive, arguments which satisfactorily address the following sorts of issues: 1) Why was due process unable to deal with the situation? 2) Why did the burden fall upon this individual? 3) Was the crime proportionate to the burden?

The fact alone that due process has not dealt with the issue is not enough. There must be an element of urgency – a deadline of some sort that prevents the due process from being effective in addressing the situation.

Magistrates will also consider why it fell to this person to break the law to deal with the situation. Why them and no one else? Did the urgency of the situation demand it, was there no one else they could turn to for help?

The third point is simply that this burden does not permit the hero to justify anything they want. Their actions must be proportionate to the circumstances. As a further aside it should be noted that magistrates may view with suspicion those necessary “acts of virtue” which leave the only other witness dead and therefore unable to defend themselves.

CLEMENCY EXAMPLE CASE STUDY

Alyosha, a simple farmer, has been accused of the theft of 2 bags of grain from the barn of a near neighbour. Alyosha accepts the facts of the case, and his guilt, and asks a priest to plead for clemency at his trial.

Without clemency, the full weight of the law will bear down upon him since the assumption by the court will be that there is no mitigation. The priest needs to convince the magistrate that the act was virtuous, or had at least aspects of virtue for any lessening of sentence. The better the plea, the greater the reduction in sentence.

Example 1 The priest simply informs the court that Alyosha stole the grain to feed his family, a necessary act for their prosperity.

Result: Minimal, if no effect on the outcome. The priest has not elaborated on the reason for the need for the act. Even a career criminal needs to feed their family. That does not make his thefts virtuous.

Example 2 The priest argues that Alyosha's family were on the brink of starvation and that he acted out of Loyalty to them and for their Prosperity. He acted Courageously, seizing the chance to take the grain in knowledge that he could be punished if caught. He was wise because it would be foolish to allow his family to starve. He had shown Ambition by the audacity of the theft And finally the act of saving his family gave him, and his family, Pride that he had been Vigilant in his duties as head of the household for them to survive.

Result: Minimal. Whilst the priest has elaborated on the reason for the theft – that his family were starving – he has not explored the reasoning why the theft was the only possible route of action. Further, by listing all seven virtues with trivial interpretation he creates the impression that the priest is not clear how Alyosha is virtuous but will try anything to help. It is better to concentrate on as few Virtues as possible.

Example 3 The priest argues that Alyosha's family were on the brink of starvation and that he acted out for their Prosperity. She explains that the risk of starvation was caused because a band of barbarians had raided his farm, stealing his stores and burning his crops. He had stolen one of the bags to provide just enough grain to keep his family alive until the next harvest, and a second bag of seed grain to ensure he had a harvest to plant. Further, in choosing the victim he choose a miserly, unvirtuous individual who he knew had more than enough grain, rather than steal from those with little, for he wished to minimise the effects on the prosperity of others

Result: Greatly reduced sentence, with minimal financial burden. By concentrating on Alyosha's virtue of Prosperity and elaborating further on the motivation and Alyosha's thoughts on the Virtue before committing the crime the Priest has been at least partly convincing. She has plead that Alyosha believed the crime necessary and in his choice of victim and the size of the theft had sought to minimise the damage he caused. What he has not demonstrated is the reason why the act of breaking the law was absolutely necessary.

Example 4 In this example the priest pleads identically to example 3, except that she elaborates further on the actions Alyosha and his family performed after the raid, but before the theft. Here he explains that Alyosha created a plan to preserve the prosperity of his family which they all enacted. His wife and young children worked hard to recover what they could from the burnt fields and barn – his wife had collapsed from her labours and the fingers of his four year old son were covered with blood from trying to scrape the few lost grains from cracks in the barn floor and walls. Alyosha himself had rounded up anything of value that he could spare and sold it in the village and spent the rest of his time calling on friends and neighbours to ask for help. None had offered any. He had petitioned the local authorities, on behalf of all those in a similar position and whilst he had been given assurances that “something will be done” no immediate aid was forthcoming and there was no sign that any form of alms would arrive before death.

The priest further explains that Alyosha has thought long and hard before committing his crime and has done his utmost to minimise the damage to the Prosperity of others. He did not immediately hand himself in to the authorities after the act only because he wanted to immediately feed his family and plant at least some of the seed, but has never denied his crime when apprehended.

Result: The magistrate releases Alyosha without sanction. Here the priest has explained the full course of actions, He has demonstrated that the normal “due process” would likely have led to the death of his entire family. Talking about Alyosha's pre-meditation has done no harm. A rash or unconsidered act is much less likely to be the act of the virtuous.