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.

29 thoughts on “LAST RESORT”

  • Middle Seaman says:

    How different is our justice system from other western countries? The answer to this question is important. If every justice system "does it" then we are normal. If, however, western countries have a substantially small percentage of wrong convictions then our justice system is guilty of crimes against humanity.

  • History is littered with them.

    I comes back to the blog you wrote a couple of weeks ago about the missing girl, and how the pollies and the cops go looking to put anyone behind bars thanks to the nice people in the media.

    While it's not a perfect system, we have to admit that it's better than what you can get in some countries. The 5th can be a very nice protection in some cases and forces the nice people in prosecution to actually make a case… erm… maybe??

  • Those who wish to change this situation might well throw a few bucks toward The Innocence Project, which does good work in this area.

    We can't fix everything
    But we can fix some things.

    "Somebody has to do something,
    and it's just incredibly pathetic that it has to be us."
    Jerry Garcia

  • Anyone who can look with clear vision at the American justice system and still be in favor of capital punishment is a psychopath.

  • We have the world's largest prison population don't we?
    The prison industrial complex is about the only growth industry in the U.S.A.
    Add to the adolescent thrill most Americans take in stuffing people in jail for minor offenses the rise of the privately owned prison and you know this problem is only going to get worse.

  • c u n d gulag says:

    We talk about justice, but what we really appreciate are punishment and vengeance. We love to punish people, whether it's criminals or the poor – anyone, actually, but ourselves, that is. And if they're black or brown people, all the better.

    As for the wrongly accused, the prevailing theory seems to be, "Well, if they aren't guilty of THIS, they sure as shit were guilty of something else…"

    We also have the best system of justice money can buy. If you have the money, in most cases if you don't get off completely, you get off lightly.

    And, slightly OT, we lost a lot of whatever empathy we may have once had for inmates. While I was a student in college, I was also a teacher at a Maximum Security prison in Upstate NY. Inmates could study for an Associates, a Bachelors, and in some cases, even Masters degrees. They could also study for a a vocation, if they didn't want a degree.
    They got no time off their sentence, but if they behaved well in prison, they had a chance when (if) they got out to have some marketable skills and a degree (and if they were 'lifers,' at least they could spend their time learning, rather than brooding or plotting) .
    The recidivism rate (rate of return of prisoners to prison) was much, much lower than for prisoners who didn't go through the program.
    But as soon as Reagan came into office, that program was eliminated because Federal funding for it stopped, and NY couldn't afford it without help. The word from Reagan's DC was, "Hey, if regular (white) people can't afford to send their children through college, why are we wasting money educating these prisoners (n*ggers)." The old "Divide and Conquer."
    And it worked. When NY tried to get the money together to continue the program, the outcry was what I mentioned above.
    So what happened?
    The program died, and at the same time you had more and more prisoners coming in because of the stupid "Rockefeller Drug Laws." And with nothing productive to do, and no option for when they got out, inmate violence went through the roof, and the recidivism rate soared for all prisoners. Why? Well, when young kids went in because of our idiotic drug laws, when they came out, they were bitter and violent, more violent than when they went in, with no skills, and no hope. BRILLIANT!

    So, even when given an opportunity to try to make inmates into future productive citizens, we chose punishment and vengeance instead.

    I could go on and on, but I'll spare you.

    Basically, we are a stupid and ignorant society.
    One probably too stupid and ignorant to exist much longer.
    Are we better than others? Sure. But that's a pretty low bar for a country that had such high potential, and was striving to live up to it.
    We will never recover from "The Reagan DE-Evolution."

  • I'm surprised more states haven't gotten rid of the death penalty because the Prison Lobby doesn't want their cash cows executed.

    Frankly I'm all for increasing executions. Even for petty crimes. Jay Walking? Execution. Expired Registration? Execution. Littering? Execution.

    If the human population was reduced by 99% this planet would be a whole lot better off.

  • A legal system that gives prosecutors wide discretion in building a case against someone regardless of the evidence that is available; whose only concern is getting a conviction guarantees this type of abuse. They don't try to find the guilty person, they try to find anyone and 'let the jury decide', thus washing their hands of any responsibility because they presented the case and let 'the people' decide. And given the relative critical analysis that most people in this country have, would any of you want to have your future hanging in the balance with a typical American who hasn't read a book in years and watches almost 8 hours of TV a night.

  • We do not have a death penalty anymore from a statistical standpoint:

    Broad brush –

    15,000 homicides per year. Assume 50% are worthy of the death penalty

    7500 potential executions, wait – about half the States don't have a death penalty

    3750 potential executions per year (realizing we have a process here, we might be executing 1999's allotment this year for example)

    In 2007 we executed 42 people and 26 of those, wait for it, were in TEXAS!

    Ron 'Tater Salad' White, red-neck comedian, is from Texas. His words – "If you kill somebody in Texas, we'll kill you back!"

    So about 40 people executed when about 4000 "deserve it" is about 1% and if you eliminate Texas it is about 0.3%

    Therefore, we no longer have a death penalty, practically speaking.


  • Halloween Jack says:

    Therefore, we no longer have a death penalty, practically speaking.

    It sure would be funny if you ended up on death row and someone quoted that line back to you. But you're not a murderer, you say? Well, neither was Damien Echols, or in all likelihood, Cameron Todd Willingham, certainly not with anywhere near the degree of certainty required by law.

  • Halloween Jack says:


    these men have lost 18 years of their lives and no amount of compensation or post-release celebration can make up for that.

    They won't be getting any compensation from Arkansas, and can't even be able to do a book or movie deal, because they took Alford pleas, which basically prevents them from suing the state for wrongful prosecution (and, according to the prosecutor, counts as a guilty plea in his book). The state managed to bluff them into the pleas because, even though there was a hearing on the evidence scheduled, Echols was still threatened with execution and it was an all-or-nothing deal on the pleas.

  • Among the many disappointing aspects of the current 'justice' system, the steady increase in the population of the sex offender registry (despite an overall decrease in convictions for crimes involving, y'know…sex) might be the most disturbing.

    An eight-year old boy who grabbed his teacher's breast: Registered.
    Some dude taking a leak in an alley behind a dumpster: Registered.
    A 17-year old having sex with his 16-year old girlfriend: Registered for life.

    Things have gotten out of control and there's neither room for common sense where the registry is concerned nor the slightest thought about how such a thing will perpetually impact the life of the person being registered. And no politician interested in their job will even consider reforming such a thing, since doing so will mark them as soft on 'sex crime'. The TV ads by their opponents would practically write themselves. The registry tends to afford the public a false sense of security, but it's becoming even more fictitious since an increasing number of those registered are truly a danger to no one.

  • Yeah, when I used to work as a paralegal in Atlanta back in the late 90s, I travelled from GSP to GSP while the US was attacking the Serbs for putting muslims into concentration camps. The irony was not lost on me as I drove up to each prison, filled to the rafters with poor black man. Our prison system is way phucked up? In Atlanta, the budgetary dollars favor the prosecution vs. defence about 2 to 1. It may be 3 to 1 now. If it wasn't so tragic it'd be laughable.

  • If the human population was reduced by 99% this planet would be a whole lot better off.

    As long as you're part of the one percent, right, you selfish prick?

  • Half of the states do NOT have the death penalty, 38/50 do. Texas and southern states use it most often. Which lends to the injustice, where you do your crime will determine your punishment. Also, what you have to deal also will determine your punishment. The Green River Killer, the worst of the serial killers in recent times, sits ina Washington jail for life because he had information on the bodies of some victims that his lawyer parlayed into taking the death penalty off the table. Some poor schlub in Texas who was with his buddy when he robbed a liquor store and shot the clerk, needle in his arm. The very arbitrariness of the current system makes it untenable.

  • Jude says:

    If the human population was reduced by 99% this planet would be a whole lot better off.

    As long as you're part of the one percent, right, you selfish prick?

    Actually, I'm ok with killing myself–eventually. First I need to evangelize the virtues of mass suicide otherwise there's no point.

  • @"Sir":
    The explosion of the sex-offender registry really is the new century's Satanic Panic. Countless horrifying case studies are already on the record. But who the hell wants to stand up for KNOWN PERVERTS, or convince underlaid Orange County housewives that they're more likely to be taken by loan sharks than have their children abducted by Philip Seymour Hoffman lookalikes?

    As the saying goes: Better for ten innocent men to hang than one guilty man to go free. Right?

    Another interesting aspect to the WM3 case: Would we have ever heard of these poor bastards if they weren't into cool, edgy music? Think about that next time you're jamming out to Katy Perry and Nickelback.

  • Halloween Jack:

    I wondered how long it would take some asshole like you to personalize this. Of course, I wouldn't want to be on d-row and neither would you.

    I was talking the big picture and statistics. We are PRACTICALLY at the end of the death penalty for good mostly because of the inequitable way it is administered.

    Sexual Registry Laws:

    I agree about the sex offender/sexual registry bogosity. I have worked with about a dozen over the last five years. It is medieval in its bizarre evilness.


  • I spent four years studying our criminal justice system and the only thing that I got out of it (besides a degree that I don't use in my current profession) is that the system is so far beyond fucked up. Ed's touched on it all here at various points, so I won't reiterate. But, I came out of that program just wanting to tear down the system and start all over, because I don't see a way for it to be fixed from how it is now.

  • most other western countries do not have these problems, because they have professional judiciaries, inquisitorial systems of justice, or both.

    France is a good example. Judges in France are appointed and promoted by a panel of other judges, on the basis of professional qualifications. Judges are allowed to question witnesses, order searches and examine evidence independently of the prosecution (although this is generally only done in the case of serious crimes). Judges are not bound by precedent- they can take earlier cases as examples, but every new case is supposed to be judged on its own merits. There are no juries, except for very serious crimes, when the jury is made up of three judges and nine randomly selected citizens.

    So there are other ways to run a justice system. But this is 'merica, so that won't be happening. ::sigh::

  • Do most other (developed/western/first world/whatever term you want to use when comparing us mainly to Europe) countries simply have less of this kind of problem due not only to different judicial systems, but possibly also due to less social stratification and a better social safety net and less violent crime to begin with?

    I don't know, I'm just guessing (anyone got facts?).

  • @bb

    Occasionally Texas even executes someone who's actually guilty, although they're not known for letting a technicality like that get in the way of a good execution.

  • I don't know if I've ever seen anything more horrifying than Randall Adams' face during his trial when I watched The Thin Blue Line.

  • The fact that America's prisons are chock full of innocent people is a feature, not a bug.

    You can't maintain a wealth disparity as gigantic as America's (greater now than in 1/2 of all African dictatorships) without enforcing the kind of savage oppression that gets used in African dictatorships.

    The innocent people rotting in prison provide the bottom 99% of America's economic pyramid with a stark object lesson:

    If you step out of line, this can happen to you.

    The former Soviet Union used mass imprisonment in brutal gulags to prevent the bulk of the population from dissenting against communism. America today uses mass imprisonment in brutal hellholes to prevent the bulk of the U.S. population from dissenting against the American brand of capitalism.

    America's prison-industrial complex represents the flip side of what Herbert Marcuse called "repressive desublimation." Those members of the bottom 99% of the American economic pyramid who judge capitalism as it current exists to be unworkable and unsustainable get bombarded with plenty of porn and hi-def sports and pop music and blockbuster movies designed to distract them from doing anything about their dissatisfaction with capitalism.

    Those members of the bottom 99% of the American economic pyramid who actually do something about their conclusion that American capitalism as it currently exists is unworkable and unsustainable (say, by setting up alternatives to conventional U.S. capitalism such as untaxed drug sales, or intellectual property copyright infringement, etc.) get hurled into assrape prison until they die from AIDS. Adding lots of innocent people to the prison mix serves the same function as Stalin's wholesale sweeps of doctors, army officers, etc. in the purges of the 1930s.

    Mathematical game theory analysis has shown that mass terror is much more psychologically effective in enforcing mass obedience when it becomes impossible to predict whether any given individual will get swept up in the purge and sent to the gulag. (See "The political economy of death squads: toward a theory of the impact of state-sanctioned terror," T. David Mason and Dale A. Crane, International Studies Quarterly, Vol. 33, No. 2, Jun., 1989, pp. 175-198. Also see "Modeling civil violence: an agent-based computational approach," Joshua Epstein, Proceedings of the National Academy of Sciences, Vol. 99, No. 3, 2002, pp. 7243-7250.)

    "`It is not always when things are going from bad to worse that revolutions break out,' wrote de Tocqueville (14). `On the contrary, it oftener happens that when a people that has put up with an oppressive rule over a long period without protest suddenly finds the government relaxing its pressure, it takes up arms against it.' According to Kuran (7), in the cases of the French, Russian, and Iranian revolutions, `substantial numbers of people were privately opposed to the regime. At the same time, the regime appeared strong, which ensured that public opposition was, in fact, unalarming. What, then, happened to break the appearance of the invincibility of the regime and to start a revolutionary bandwagon rolling? In the cases of France and Iran, the answer seems to lie, in large measure, in a lessening of government oppression.'"

    Epstein, 2002, op. cit.

    Thus the crucial need for most of the victims of this kind of state-sanctioned repression to be innocent of any crime. And, as well, the need for a continual expansion of the prison-industrial complex in America, with limitless increases in the number of criminalized acts and a concomitant endless increase in the prison population — neither which are practical if the prison-industrial complex restricts itself to arresting and convicting and imprisoning the merely guilty.

    See "Too many laws, too many prisoners: Never in the civilised world have so many been locked up for so little," The Economist, 22 July 2010.

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