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Article

Margaret Colgate Love

Executive clemency has a rich history in the United States, both as an agent of justice and as a tool of politics. A presidential power to pardon was included in Article II of the Constitution, and all but one of the state constitutions provides for a clemency mechanism. States have established a variety of ways to manage and sometimes limit a governor’s exercise of the constitutional pardoning power, but the president’s power has remained unlimited by law. Until quite recently, clemency played a fully operational part in both federal and state justice systems, and the pardoning power was used regularly and generously to temper the harsh results of a criminal prosecution. Presidents also used their power to calm and unify the country after a period of strife, and to further policy goals when legislative solutions fell short. But in modern times unruly clemency’s justice-enhancing role has been severely diminished, initially because reforms in the legal system made it less necessary, but later because of theoretical and practical objections to its regular use. A reluctance on the part of elected officials to take political risks, as well as clemency-related controversies, have further eroded clemency’s legitimacy. As a result, in most U.S. jurisdictions clemency now plays a limited role, and the public regards its exercise with suspicion. There are only about a dozen states in which clemency operates as an integral part of the justice system, in large part because its exercise is protected from political pressures by constitutional design. At the same time, the need for an effective clemency mechanism has never been greater, particularly in the federal system, because of lengthy mandatory prison sentences and the lifelong collateral civil consequences of conviction. It appears unlikely that an unregulated and unrestrained executive power will ever be restored to its former justice-enhancing role, so that those concerned about fairness and proportionality in criminal punishments must engage in the more demanding work of democratic reform.

Article

Randall Grometstein

Miscarriages of justice, also called wrongful convictions and errors of justice (Forst, 2004), have long been a subject of popular interest. Traditional ballads and stories recounted the plight of the poor man facing execution for poaching to feed his family (“Geordie,” Child Ballad #209), the wife or sister who attempts to gain his release by surrendering her virtue to the cruel judge (“In his golden bed at midnight/There she heard the gallows groaning …”), and the outlaws, rebel leaders, and condemned men who told their stories from the scaffold (“Roddy McCorley”). These traditional stories focus on the contrast between good and evil, the implacability of the judge, and the imminence of death, while the theme of injustice is hinted at but never spoken. It is only in the final third of the 20th century that it becomes possible to speak of wrongful conviction as a topic of academic study and to explore it scientifically, trying to determine how often it occurs, and whether it is the result of human error. This article first provides a brief history of wrongful convictions, beginning with the Salem witch trials, and then turns to the discovery and crisis of forensic evidence in the 20th century. By the end of the 20th century, forensic evidence techniques, from fingerprint identification to hair analysis, to interrogation techniques, had been called into question by the DNA revolution and the Supreme Court’s holding that expert witnesses in federal courts must be able to show the scientific basis for their testimony. Then we will turn to the psychological research that suggests that our current investigative techniques can provide false or misleading results. Causation can be divided into proximate and ultimate causation, and in the latter category, we will describe a social psychological theory which seeks to understand why, for example, it is so often the poor man (or, in the United States, the man of color) who faces execution for a crime he did not commit. Throughout, we will note the role of popular entertainment and news media in establishing a social understanding of wrongful convictions and assumptions as to its causes. We will close with considering three recent true crime documentaries whose success predicts similar efforts down the road.