An Ancient Remedy for Modern Ills: The Prerogative of Mercy and Mandatory Sentencing (Advance)

The prerogative of mercy is an ancient power to forgive, or temper the punishment of, a legal wrong. In the Middle Ages in England, and later in colonial Australia, it was regularly used to spare the lives of persons found guilty of offences carrying mandatory death sentences. Scholarship and case law considering the prerogative of mercy in the United Kingdom and Australia have almost exclusively focused on its application to pardon persons whose convictions are attended by doubt, irregularity or other infirmity. This article takes a different perspective, highlighting the continued, albeit limited potential application of the prerogative of mercy to alleviate the injustices occasioned by mandatory sentencing. This potential application of the prerogative of mercy is explored in its historical, theoretical and contemporary dimensions, with the contemporary discussion focusing on a recent Australian case study. Drawing upon the case study and the historical and theoretical discussion, this article concludes by making practical recommendations as to how defence lawyers might begin to more regularly petition for mercy in mandatory sentencing cases.