Legal Beagle by Graeme Edgeler

I've recently come to realise, if not appreciate, what you might call the PR aspects of the justice system; the way the public demands satisfaction in a way that's not directly reflected by more higheaded interpretations.

A vaguely relevant story is something I read about James I when I was researching a Shakespeare play.

It interpreted arbitrary pardons as a kind of quid pro quo for an arbitrary justice system: surely, lots of innocent people got condemned and people got extreme punishments, but sometimes guilty people got off.

There's a sense in which that balances out.

President Bartlett commuted the sentences of 35 people

I was thinking about that episode as I started reading your piece. Ironically, the 36th person in that episode, who wasn't pardoned (and subsequently committed suicide) had (a step) parent who was major Democratic contributors. Their pardon was turned down on that basis.

The difference between TV-land and reality of course is that in reality the queue seems to be often filled with political friends and whatnot - Libby being the obvious recent candidate.

My first reaction is that I don't like the idea of pardons. It's an admission that a legal system has failed in some way. Either an (in the eyes of the pardoner) innocent person found guilty, or a guilty person over-punished. I want 'my' legal system to work so that both those things don't happen. Surely if we put in place structures which 'catch' errors at the end of the legal chain, then we're less likely to fix the legal chain so that it works properly. Pardons aren't going to necessarily be about the legal strength of your case, they're probably going to have a fair bit to do with other things - your gender, the colour of your skin, whether you have kids or other family, your background, what you end up doing in jail etc etc.

If they're about releasing guilty people... then we start to lose consistency, and what the hell are we locking up the other 99.9% of criminals for?

There's another West Wing episode where Bartlett has to consider whether to pardon a man who is being executed by the federal authorities for a drug related killing. He clearly wants to do it and tries to find a way to do so that is publicly justifiable (he ends up not pardoning him and the guy is executed). He discusses how there needs to be consistency between presidents:

We cannot execute some people and not execute others depending on the mood of the Oval Office. It's cruel and unusual.

A fair comment. I'd be much more in favour of an independent body to deal with these questions as you've suggested, innocent people get released, guilty people get the same as other guilty people who commit a crime.

My first reaction is that I don't like the idea of pardons. It's an admission that a legal system has failed in some way.

Maybe this is more of a problem where you've got a state law/federal law distiction. The views of a federal-level pardoner may be different to those of state level law-makers.

Then again, you link in to your West Wing quote about whether it is good to have inconsistent law.

It's an admission that a legal system has failed in some way ... a guilty person over-punished.

Not necessarily. The punishment might have been appropriate, but its effects are now too great. Anthony Circosta is a potential example of that - a 13-year-old pleading guilty in a youth court and receiving 364 days probation for firing a BB into an acquaintance's shoulder (it didn't draw blood). It's a little harsh in New Zealand terms (here - being younger than 14 - he couldn't have been charged at all), but it doesn't seem a drastic over-punishment.

The Massachusetts clemency board twice recommended a pardon - the guy had moved on from his early teens, become a volunteer fire-fighter, enlisted in the National Guard, did a tour of duty as a combat medic in Iraq, been awarded the bronze star, and was promoted to first lieutenant. He'd been offered command of his National Guard unit, but couldn't get the higher security clearance with his conviction.

There are other ways to deal with such cases - clean slate legislation, for example - but I don't know that you could characterise a situation like the one above as resulting from a flawed or over-zealous justice system, merely one in which the effect of a conviction had arguably become oppressive. He - like everyone else - had done his time but he should be able to move on after all this time. Maybe pardons aren't the right way to go about it, but if we do have them, then situations like this don't seem a bad use for them.

So the yanks use pardons as a release valve for their pressure cooker of a justice system. Fair enuf we would follow them on this as well.

Would you be in favour of US styled pardons or the rehashing of old cases being talked about at the mo?

Seems like a really good case for some sort of clean slate legislation to be honest Graeme.

He might get a pardon, but there's probably thousands of people in America who have got similarly caught by something silly they did when they were young. Do they all have to go off and fight a war and come back a hero and get lots of publicity to get a fair second shot? That's where pardons seems to lead to.

get lots of publicity...

To be fair, he got two recommendations for clemency before all the recent publicity.

Seems like a really good case for some sort of clean slate legislation...

Quite possibly. I guess I was mostly dismissive of that idea based on the particular clean slate system we have in New Zealand. A system whereby people could apply to a court to have their record expunged after a period of blameless excellence has something going for it.

I the asked for a discharge with out conviction on the grounds that the conviction would unlock Stefan's clean slate.

It's not come up for me, but I've thought about instances where it could be used in a sentencing. Yours was one, but one going the other way is that the effects of a conviction are now less (only lasting 7 years, instead of an entire lifetime) so it may make section 106 harder to use.

the clean slate had hidden Stefan's criminal conviction's from this particular court

Well, I'd say Stefan was lucky. Our clean slate law isn't supposed to hide convictions from a court.

Quite possibly. I guess I was mostly dismissive of that idea based on the particular clean slate system we have in New Zealand. A system whereby people could apply to a court to have their record expunged after a period of blameless excellence has something going for it.

Yes. I guess for a pardon you're applying to a political branch, and all the dangers that opens up. For a clean slate, you're applying to a legislative branch, and therefore hopefully avoid all the backslapping, campaign contributions, buddies, and hopefully people who to some extent get over biases for and against.

I quite like NZ's clean slate system, though I have no idea if anywhere else has a better one. Wipes out my convictions for political protesting in 1995. It wouldn't hurt to have more serious convictions capable of being wiped, but there would presumably have to be a process, and therefore a cost. Either the state meets that, or we're looking at clean slates more for rich people.

that should be "hopefully involves people who to some extent..."

The law protects small time crimes that keep there noses cleans rights to tell porky's about there past.

Basically. Anyone who's ever gotten a prison term can't get one, and anyone with a conviction for a specified offence - basically sexual offending - can't get one (those who've gotten prison terms for things that are no longer illegal - for example, things that were offences before the Homosexual Law Reform Act - can apply to court for a clean-slate). Oddly - and I've never been able to get an explanation for this - rape/sexual violation under the Crimes Act 1961 isn't one of the specified offences that precludes application of the clean slate legislation.

The fact that it allows you to lie is basically what I have against it - if you could apply to the court to have your record expunged after a certain time, then this required dishonesty wouldn't be necessary, and it would probably sit better with me.

The Criminal Cases Review Commission here in the UK has been running for a few years now and seems to function well. It basically sits between the appeals courts and the appellant with the power to initiate investigations on its own. So if you can persuade them of your case and they investigate they can then recommend that the case be accepted for Appeal. A number of people have been freed as a result of it and it was instrumental in freeing the women jailed for killing their babies under the testimony of Prof Meadows.

IIRC it can also recommend changes to law and practice as a result of what went wrong unless it has been fixed in the mean time. It could serve as a model in the New Zealand system.

as an aside ...

I'm getting increasingly irked bythe continued commentaries by NBR media writer David Cohen__ (no link, NBR don't put their content online, see the Feb1st issue for the column)__ who has a bug up his butt about the NZ MSM pleading for every convicted killer to go free.

I'm sorry Mr Cohen, but I think everyone pretty much agrees the Peter Ellis conviction was as dodgy as hell, and the Scott Watson conviction is looking just as shakey. Is it no wonder then that given the police/prosecution penchant for pushing cases thru on circumstantial evidence by trumpeting the tabloid nature of the killings that we might also just be a little skeptical of the Mark Lundy case too? (the timelines in that one are dubious)

I signed up to a recruiting agency in London that had the cheek to ask on their signup form if the applicant had ever had a conviction wiped (or more correctly "spent").