Revitalizing the clemency process.

• Author: Larkin, Paul J., Jr.
• Position: Introduction: Problems in the Criminal Justice through II. The Disappearance of Executive Clemency B. Possible Explanations for the Decline 3. Shifts in the Underlying Rationales for Punishment, p. 833-873

INTRODUCTION: PROBLEMS IN THE CRIMINAL JUSTICE SYSTEM I. THE BIRTH AND LIFE OF EXECUTIVE CLEMENCY II. THE DISAPPEARANCE OF EXECUTIVE CLEMENCY A. The Contemporary Decline in the Issuance of Presidential Clemency Grants B. Possible Explanations for that Decline. 1. Improvements in the Accuracy of the Trial Process 2. Refinements in the Sentencing Process 3. Shifts in the Underlying Rationale for Punishment 4. Justice vs. Mercy 5. The Victims' Rights Movement 6. Presidential Abuses of the Clemency Power III. THE POSSIBLE RECOVERY OF CLEMENCY A. John Kingdon's "Three Streams" Theory of Public Policymaking B. President Obama's Clemency Project 2014 C. The Size and Cost of Corrections Today IV. THE REVITALIZATION OF THE CLEMENCY PROCESS A. Revising the Roles in the Current Clemency Process Played by the Justice Department and White House Staff B. Creating A Hybrid Clemency Process 1. Pardons and Commutations 2. Compassionate Release C. Improving the President's Own Clemency Decisionmaking CONCLUSION INTRODUCTION: PROBLEMS IN THE CRIMINAL JUSTICE SYSTEM

A trope heard throughout criminal justice circles today is that the system is a dystopia. The only difference is the stage of the criminal justice system being attacked. The allegations ordinarily go as follows:

Legislatures and regulatory agencies have adopted too many criminal laws, so many that the average person cannot know what is and is not a crime. (1) The police are motivated by racist attitudes and act like Rambo wannabes decked out in full military gear. (2) Traditional forms of proof, such as eyewitness identification, (3) fingerprints, (4) and confessions, (5) which the public assumes are foolproof are, in fact, anything but--to say nothing about the more exotic forms of proof such as "bite-mark" or "blood-spatter" analysis. (6) Allegedly scientific test results and supporting expert testimony offered by law enforcement laboratory technicians are sometimes so riddled with errors as to be little more useful than guesswork. (7) Prosecutors charge offend with crimes that have maximum publicity value (8) or can easily be proven in order to enhance their resumes, (9) all while withholding exculpatory evidence from the defense to maximize the likelihood of conviction. (10) Public defenders are so swamped with cases and starved for resources--investigators, assistants, and even office supplies--that they wind up being collaborators rather than effective independent advocates for their clients. (11) Judges find themselves crushed by caseloads, forcing them to treat cases in the same way as tollbooth operators treat vehicles--make everyone pay the fee before moving on. They are also hog-tied by mandatory minimum sentencing laws, which force them to impose lengthy and unjust terms of imprisonment. (12) All told, the system treats defendants like widgets wending their way down the assembly line, where no actor in the process believes in their innocence and where all must be processed quickly to keep the line from backing up. (13) The result is not a pretty sight.

The picture would be slightly less ugly if there were an effective post-conviction filter to ensure that any innocent parties not exonerated by the jury or trial judge are freed at a later stage of the case. The judiciary sometimes performs that role by setting aside erroneous convictions--which include the classic erroneous conviction of an innocent defendant--when a court reviews a case on appeal or in habeas corpus proceedings. Appellate and post-conviction review, however, does not guarantee success. An appellate court cannot reweigh the evidence or second-guess the jury's credibility judgments. The court can only ask whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (14) In addition, an appellate court may uphold a conviction or sentence even if it concludes that an error occurred before or during trial so long as it believes that the error was harmless. Some mistakes cannot be overlooked, regardless of the strength of the government's proof, (15) but most errors can. (16) Even a constitutional error occurring at trial can be harmless depending on the nature of the error, its likely effect on the trial, and the strength of the government's independent proof. (17)

The prospect for a defendant is even worse on collateral attack because the harmless error standard applied on habeas corpus is even more generous to the prosecution. (18) Neither an innocent defendant nor one convicted after an error-filled trial can be certain of success on appeal.

Many commentators willingly identify flaws in the criminal justice system and recommend improvements. Few government officials, however, will undertake that exercise while in office. They prefer to wait until returning to the private sector before suggesting how the government has gone wrong and how it should be corrected. (19)

Recently, however, an exception to that rule has emerged. Alex Kozinski, a judge on the United States Court of Appeals for the Ninth Circuit, has written a scathing review of the criminal process and has offered a fistful of various potential reforms. (20) Among others, he suggests requiring open-file discovery; videotaping suspect interviews; limiting the use of jailhouse informants; directing internal affairs units to vigorously investigate and prosecute constitutional violations, such as withholding exculpatory evidence; publicly identifying misbehaving government officials; eliminating prosecutorial immunity for misconduct at trial; and ending judicial elections. (21) Judge Kozinski's recommendations range from the sound and long overdue to the imaginative and whimsical, but one matter is clear: He sincerely believes that the criminal justice system is in need of major repair.

Interestingly, Judge Kozinski does not address clemency. He does not examine whether that process currently provides a last-chance remedy for some flaws, nor does he call on the President and governors to grasp their clemency power, step up to the plate, and immediately use it to remedy wrongful convictions and unjust sentences until the Congress and...