Alex Wong/Getty Images

赦免是一支上满子弹的枪

纽约——亚利桑那州马里科帕县前警长乔·阿帕约因为公然违抗联邦法官的命令,拒绝停止以抓捕非法移民为名义对拉美人进行种族区分和随意拘留而被判犯有藐视法庭罪。阿帕约所引发的此类争议并不罕见。但目前正在引发激烈争论的是美国总统唐纳德·特朗普最近对阿帕约的赦免,因为它提出了有关总统赦免权的根本性问题,而赦免权问题从美国诞生之日起就一直是美国决策过程的一部分。

在君主制下,国王可以有权不受限制地赦免公民的罪行。而美国宪法第二条第二款规定,美国的开国元勋赋予总统类似的权力,但同时还规定了两条关键的限制因素。其一来源于权力分离原则:赦免不适用于遭受弹劾的情况,而弹劾与否的决定权由国会掌握。另外一种限制来自联邦制:赦免仅限适用于“反美国”或联邦罪行,而对由美国50个州起诉的罪行不适用。

赦免权的授予反映了美国宪法制定者担心刑法法典执行的方式可能过于严厉,从而造成过度惩罚的问题。正如亚历山大·汉密尔顿在联邦党人文集第74篇中所论述的那样,“每一个国家的刑法法典都无法避免必要的严厉性,如果没有对不幸过失的赦免机制,司法就会摆出一副过于血腥和残酷的面孔。”

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