Legal Beagle by Graeme Edgeler


The Quality of Mercy

Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.

~ Publius (Federalist, No. 74)

Americans do pardons right.

Marc Rich, Scooter Libby, and Roger Clinton may prove they don't always do them well, but they do them right.

In New Zealand we pardon the innocent. I don't think it too semantic to point out that if you're innocent, you don't need to be forgiven. Indeed, if you are innocent, and the Government accepts that you are innocent, then the government ought to be begging your pardon for erroneously convicting you, or putting you in prison.

The United States Supreme Court has stated that a pardon carries an imputation of guilt, and that accepting a pardon is 'an admission of guilt'. The logic is flawless – to need to be pardoned, you must have done something bad – something, uh, well, for which you should be pardoned.

[A word of explanation – the issuing of a pardon involves the complete wiping of a conviction; the granting of a clemency, a commutation, or a reprieve, involves a lessening a sentence (perhaps replacing a death sentence with life imprisonment, or letting someone out of jail earlier); there are other less significant types: respites – delaying a sentence, remissions – revocation of fines or orders of forfeiture; and you can probably add in amnesties – generalised pardons – too.]

In the US, the place for the convicted innocent to find justice is through the judicial process – indeed that's why it's there. The pardon attorney of the President or of a state governor is well-placed to help decide whether a (guilty) convicted criminal deserves mercy – they are less well-placed to decide whether someone is guilty. Lest I be seen to overstate the matter, they occasionally pardon the innocent as well – I'm not going to go into the state by state variations – but pardons seem best suited for situations where it is felt that the consequences of a conviction now outweigh the gravity of the offending (perhaps because someone has turned their life around).

One consequence of pardoning the guilty is that pardons do, unfortunately, become political. The pardon of Richard Nixon by Gerald Ford, or the commutation of Scooter Libby's prison term by George W. Bush, and the too numerous pardons given to campaign contributors are prime examples. In the race for the Republican presidential nomination Mitt Romney has accused Mike Huckabee of granting too many pardons and commutations, and Huckabee has accused Romney of granting too few – laying particular blame over his twice refusal of a pardon for Anthony Circosta, a decorated military officer who upon his return from Iraq was unable to pursue a career in the police because a conviction relating to an incident with a BB gun as a 13-year-old resulted in a felony conviction that prevented his obtaining a gun licence.

President Bartlett commuted the sentences of 35 people whom he believed were treated too harshly by laws specifying mandatory minimum sentences for various drug offences in the episode of The West Wing through which I found the quote that begins this article. You might disagree with the decisions made, but these are times when the consideration of mercy make sense. There is basically no mechanism in New Zealand through which mercy can be shown (although in certain circumstances, minor offenders can have their records clean slated).

Similarly, our criminal appellate system is not well set up to inquire into the innocence of convicted offenders. Its focus is fixing up mistakes made during the trial - when new evidence arises, or old evidence is called into question, it's highly likely that appeals will already have been exhausted, and getting an extra appeal is incredibly hard. Although the Courts have long had the power to overturn convictions where the jury just got it wrong, until very recently the Court of Appeal have tended to treat this very narrowly: rarely upholding any appeal on the ground that 'it cannot be supported having regard to the evidence'; often holding that where there is any evidence that would support a conviction, a jury's finding should be untouched.

The Royal prerogative of mercy, exercised on the advice of the Minister of Justice, is basically all we have. Two years ago, retired High Court Judge Sir Thomas Thorp called for a specialist tribunal that would enquire into miscarriages of justice. It was not an outlandish suggestion: consistent with growing international recognition of both the frequency of miscarriages of justice, and the utility of having potential miscarriages reviewed by an independent body.

Those who have been falsely convicted don't want mercy, they want justice – and an acquittal is better than a pardon.

I'd have thought it self-evident. We pardon those whom we think deserve forgiveness. We commute the sentences of those whom we think may not deserve complete forgiveness, but have been punished enough. We apologise to those whom we falsely convict. Requiring those who assert they have been wrongly convicted to beg for mercy is fundamentally illogical.

This isn't about whether a particular cause célèbre should have been acquitted, but whether they should be given an appropriate forum in which to make their case. Ad hoc justice, granted through a Royal prerogative, isn't a solution. Not only is the current system not working well, it doesn't even make sense.

In the furore over law and order is it too late to ask for a proper mechanism to pursue justice?

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