Commuting a Prison Sentence: Some Guys have all the Luck

The separation of powers is a cornerstone to any democratic system of government.

“The leading principle of our Constitution is the independence of the Legislature, Executive and Judiciary of each other.”   

Thomas Jefferson to George Hay, 1807.

This week US President Donald Trump commuted the prison sentence of Roger Stone, relieving his long-time confidant from the execution of his sentence. Stone was convicted after a jury found that he had broken the law multiple times by lying to Congress and obstructing justice.[FN1]

When the political executive (in this case the President) uses its power to commute a prison sentence or pardon a crime, there is real danger to the constitutional separation of powers and to the integrity of the judicial process. The commutation of a sentence or the pardoning of a crime by a political actor should not be a matter of simple executive fiat, but rather the exercise of an extraordinary power subject to a series of careful checks and balances.

This extraordinary power must not to be used to interfere with a court’s decision when to do so merely substitutes of the discretion of the executive for a decision of the court.

A court is required to be independent and impartial.  A president (or prime minister, in the case of Canada) is not.  Generally we expect our politicians, in most instances, to be partial. However, having a partial actor interfere with what in most cases we can expect to be an impartial judicial decision has its place, even in our contemporary constitutional and democratic order.  It is a mechanism of mercy able to relieve against excessive hardship and/or inequity, beyond that which could have been foreseen at the time of the conviction and sentencing.

In my next blog post, I will describe how the Royal Prerogative of Mercy is exercised in Canada according to general principles which are meant to provide for a fair and equitable process, while ensuring that “the Royal Mercy” is granted only in very exceptional and truly deserving cases.

Written by Stuart O’Connell (Barrister/Solicitor)

[FN1] For more, see https://www.washingtonpost.com/politics/trump-says-hes-looking-at-pardoning-roger-stone-ahead-of-prison-term/2020/07/10/d1a1e5ea-c2b7-11ea-b4f6-cb39cd8940fb_story.html

[FN2] The separation of powers is a constitutional doctrine requiring the distribution of power among the legislative, executive and judicial arms of government.


Location: Toronto, ON, Canada

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