Gin and Tacos

When teaching about the presidency I emphasize that the Constitution describes an office with a limited set of powers. In fact, only one of the enumerated powers in Art. II can be exercised by a president without the consent of another branch – for example, appointments, treaties, and military action all require some degree of participation from Congress. The sole power he can exercise independently is the pardon. The same is true for the governor in many, but not all, states.

Why? Well, I usually point out to the class (with no small amount of sarcastic humor) that the authors of our Constitution realized that, believe it or not, the justice system they created might – just might – convict innocent people. Borrowing the pardon from the British system, where final appeals could be made to the monarch, the Constitution allows the wrongly convicted one last and final appeal from a court of one. Of course, over time the pardon has become a way to score cheap political points – Grr! Tough on Crime! – and the facts of cases are rarely determinative of the outcome.

The takeaway point is that even The Great Exalted Founders recognized that our justice system – the system they created according to their own ideals – would convict the innocent and too harshly punish the convicted. And boy howdy were they right. The only real flaw in their logic was the belief that the pardon power would do anything to ameliorate the problem.

Over the past few days there has been a celebratory atmosphere around the release of the so-called West Memphis Three, a trio of convicted murderers in Arkansas (one sentenced to death) caught up in the late 1980s moral panic over "satanic ritual abuse" and subject to an absolute sham of a trial. It took many years for DNA evidence to exonerate them – shockingly enough, there was plenty of DNA at the crime scene from the murdered boys' own father, but not the convicted men. I can't say "All's well that ends well" because these men have lost 18 years of their lives and no amount of compensation or post-release celebration can make up for that. But at least they're out. They didn't die in prison.

I understand why people feel like high-fiving and enjoying a "We did it!" moment, as publicity and activism for the WM3 contributed to the eventual outcome. Not to be a downer, but here's the problem: our prisons are full of these people. Chock full. And very few of them have two documentary films, a star-studded benefit album, and dozens of Hollywood backers to keep the spotlight on the case. They don't all have excellent pro bono counsel and independent investigators devoting a decade to their cause. Most of them are going to die in prison, or at least spend an unforgivably long amount of time there. Americans live in a considerable amount of denial about the efficacy of our judicial system; in the back of our minds we know that it's a sham and that the outcomes depend on the price of one's lawyer, the color of one's skin, and all kinds of other superficial nonsense.

We know it, but we don't like to think about it. We content ourselves with the occasional cause celebre, and a successful resolution creates the impression that progress is being made. Yet if we ever bothered to peel back the crusted layers of fraud, bias, and oppression around our criminal courtrooms we would be forced to confront the reality of hundreds upon hundreds of questionably convicted inmates who aren't so fortunate as to be on Henry Rollins' tweets every few weeks to remind us of their plight. We can't wrap our minds around the number of wrongfully or questionably convicted people in our prisons, so we don't try.