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Clemency and Alternative Systems: Why They are Failing to Address Wrongful Convictions

Annually, the President of the United States, alongside each state's Governor, holds the authority to grant clemency to individuals convicted of crimes. Clemency decisions are often announced at the end of the year, a customary practice reflecting a time for reflection and mercy. These clemency decisions can manifest in various forms: pardons, which are complete forgiveness for the crime; commutations, which are reductions in the length of sentences; and reprieves, which temporarily suspend sentences. Once granted, pardons and commutations are usually irreversible, and any new offenses by the recipient lead to new charges but do not reinstate the original conviction. Some commuted sentences may also include parole supervision. Clemency often liberates individuals from ongoing government oversight.

Federal and State Clemency Powers

At the federal level, the U.S. President exercises clemency authority, guided by the Department of Justice. In the states, governors, sometimes in conjunction with an administrative board, wield this power. Many states allow boards to advise governors on clemency decisions, while in others, board approval is necessary before the governor can act. In several states, governors have complete discretion over these decisions, with more influence than over parole decisions and limited judicial oversight.

Historical Roots and Modern Limitations of Clemency

Clemency in the United States is deeply rooted in constitutional principles that predate the nation's establishment, deriving from English traditions where it symbolized monarchal mercy. The founding fathers saw clemency as a safety net for those deserving of state-sanctioned benevolence, not just a privilege of imperial power. However, the role of clemency in aiding individuals with credible innocence claims is more limited than commonly believed.

When all legal appeals have been exhausted (Figure 1), clemency emerges as a critical, though often final, recourse for individuals seeking relief from convictions or sentences. It represents an extraordinary measure, typically vested in executive authorities such as a governor or president, to mitigate or alter judicial decisions, often based on considerations of mercy, justice, or humanitarian grounds. This use of clemency can be especially pivotal in cases where new evidence surfaces, or where there are compelling reasons to believe that the original trial or sentencing failed to deliver just outcomes. However, its application is discretionary and varies case by case, often influenced by broader legal, social, and political contexts.

Appellate Court System in the US
Figure 1. Appellate Court System in the US. In the U.S., both state and federal court systems include appellate courts. State appellate courts, typically known as State Courts of Appeals, review decisions from lower state courts, and each state also has a Supreme Court for significant legal matters. The federal system comprises U.S. Courts of Appeals, divided into 13 circuits, which examine lower federal district court rulings and federal administrative decisions. The highest appellate court in the federal system is the U.S. Supreme Court, which handles cases from the federal circuits and state supreme courts, particularly on constitutional or major federal issues. (Source: Judicial Learning Center)

How Effective is Clemency in Confronting Wrongful Convictions?

Despite widespread belief, the capacity of clemency to assist individuals with convincing claims of innocence has shown to be limited. This limitation is starkly illustrated in the case of Troy Davis, who was convicted in 1991 for the murder of a police officer in 1989 in Savannah, Georgia. Davis's conviction was primarily based on eyewitness testimony and came under intense scrutiny over the years, particularly due to the lack of physical evidence linking him to the crime. Throughout the course of the case, numerous witnesses changed or withdrew their testimonies, citing police coercion during the initial investigation. These developments cast significant doubt on the reliability of the conviction and spurred widespread demands for clemency. Davis's case, raising questions about his guilt, garnered attention from prominent figures, legal authorities, and human rights groups, thereby becoming a central topic in national debates about the death penalty and the U.S. justice system.

In the midst of this controversy, the U.S. Supreme Court stepped in, ordering the U.S. District Court for the Southern District of Georgia to reexamine new evidence to assess Davis's innocence. However, the district court determined that, although the new evidence introduced uncertainty about the conviction, it did not conclusively prove Davis's innocence. Consequently, Davis continued to face the possibility of execution, which intensified public advocacy and pressure for the Georgia Board of Pardons and Paroles to grant him executive clemency. It was assumed that Clemency was all but guaranteed as Davis' case received the backing of thousands of civilians, which resulted in prominent figures including 50 members of Congress, Pope Benedict XVI, President Jimmy Carter, and Archbishop Desmond Tutu, calling on the Georgia Board to grant clemency, suggesting a life sentence instead. However, on September 20, 2011, signaling a genuine failure in the Clemency process, the Georgia Board of Pardons and Paroles denied executive clemency to Troy Davis. Shortly after the Board rejected his application for clemency, Davis was executed, steadfastly asserting his innocence to the very end.

The Empty Promise of Clemency

The ineffectiveness of clemency, as seen in Troy Davis's case, is not an isolated occurrence. A notable earlier instance is the case of Leonel Herrera, a Texas man sentenced to death in 1987 for the 1981 murders of two police officers. Similar to Davis's situation, Herrera's conviction relied heavily on eyewitness testimony and an alleged confession from his late brother, Raul, who purportedly admitted to committing the crimes himself. Years after his conviction, Herrera brought forward new evidence, including affidavits, suggesting that his brother was the actual perpetrator. This new evidence cast serious doubts on the fairness of his trial and the soundness of his conviction.

Herrera's case was escalated to the United States Supreme Court in "Herrera v. Collins" (1993). The pivotal issue in this case was whether a claim of actual innocence, based on newly discovered evidence, could constitute grounds for federal constitutional relief, especially when the original trial was deemed free of constitutional errors. Herrera contended that executing an innocent individual would contravene the Eighth Amendment's ban on cruel and unusual punishment and violate the due process guaranteed by the Fourteenth Amendment.

In a decision that split 6-3, the Supreme Court ruled against Herrera. The Court declared that claims of actual innocence, even those based on newly discovered evidence, did not qualify for federal habeas corpus relief unless they were accompanied by a constitutional violation in the original trial. While recognizing the grave implications of executing an innocent person, the Court held that the existing legal system provided adequate opportunities for the consideration of innocence evidence both before and during the original trial. Notably, the Supreme Court, in a controversial move, referenced Texas's clemency process as a potential remedy, describing it as a 'fail-safe' within the justice system historically used to rectify wrongful convictions. This perspective, however, was notably exaggerated, as evidenced by Herrera's execution in 1993 despite the lingering doubts about his guilt. This further underscored the limitations of clemency in such circumstances.

Despite widespread calls for clemency and doubts about their guilt,

Troy Davis and Leonel Herrera demonstrate the challenges and often the failure of the clemency process to serve as an effective check against the potential miscarriage of justice in capital punishment cases. Furthermore, they highlight the systemic issues within the criminal justice system, particularly in cases where new evidence of innocence emerges post-conviction.

Exchanging Clemency for Bureaucracy in the UK

The transformation of the clemency process in the United Kingdom from a largely discretionary royal prerogative to a more structured and bureaucratic system reflects the evolution of the UK's legal and administrative framework.

Initially, the power of clemency was exercised by the monarchy, a practice that traced back centuries. However, as the UK's constitutional democracy developed, this power gradually transferred to the government. The Home Office, a ministerial department responsible for domestic affairs, became the primary agency handling petitions for mercy in the 20th century. This marked a significant departure from the traditional royal clemency, signaling a move towards a more regulated and bureaucratic approach.

Within this framework, the Home Office maintained a dedicated department for reviewing petitions for mercy, focusing on claims of wrongful conviction. Individuals or their legal representatives could submit applications to this department, detailing why they believed an injustice had occurred in their case. Often, these applications included new evidence or arguments that had not been considered during the trial or appeal process.

The Home Office’s role was to evaluate these applications and determine if there were any merit to justify a further review by the Court of Appeal. However, this did not amount to a full re-examination of the case. Rather, the Home Office's primary function was to assess whether the introduction of new information or evidence could substantially alter the case's outcome. Unfortunately, this role was often poorly executed, marred by inefficiency and ineffectiveness in properly evaluating cases. On average, less than five cases out of every 700 applications per year were referred to the Court of Appeal. Notably, the Home Office's approach was largely reactive, focusing solely on the information presented without actively investigating or seeking new grounds for appeal.

The shortcomings of the Home Office in managing wrongful convictions became evident through the outcomes of major cases like the Birmingham Six, Guildford Four, and the Maguire Seven. These cases, involving wrongful terrorism convictions, were riddled with issues such as coerced confessions, unreliable forensic evidence, and police misconduct. Similarly to the Davis' case the awareness of the convictions being unsafe incited public outrage and led to the Home Secretary's decision to refer the cases back to the Court of Appeal.

While the reversal of these convictions was a victory for justice advocates, it significantly undermined public trust in the criminal justice system and was a source of national embarrassment. In response, Lord Runciman was appointed to lead a Royal Commission to investigate these judicial failures and recommend reforms.

The Making of the Criminal Cases Review Commission (CCRC)

A key finding of Lord Runciman’s investigation was that the Home Secretary, due to their responsibilities for the police and prisons, was not suitable for deciding on case referrals to the Court of Appeal. This conflicted with the principle of separation of powers, fundamental to constitutional governance. Moreover, the Home Office department handling miscarriages of justice was noted for its inefficiency, processing only about 4 or 5 cases annually out of roughly 700 applications, with a reactive rather than proactive approach.

These insights led to the establishment of the Criminal Cases Review Commission (CCRC), an independent body designed specifically to address and correct miscarriages of justice. The creation of the CCRC represented a significant step in restoring public confidence in the UK's criminal justice system, offering an independent, thorough, and proactive method of reviewing potential wrongful convictions.

However, the effectiveness of the CCRC has been questioned, especially concerning the legislative constraints under which it operates, including the requirements of Section 13 of the Criminal Appeal Act. This section stipulates that there must be a 'real possibility' of the Court of Appeal overturning the conviction, based primarily on new evidence or arguments, a condition often seen as a restrictive barrier. Furthermore, the CCRC's case review process is often lengthy, causing distress and uncertainty for applicants who believe they have been wrongfully convicted. These extended waiting periods have raised concerns about the CCRC's efficiency and responsiveness in handling these critical cases.

A Comparison of Two Systems - Shuffling to and from Clemency

Both the US and UK have systems in place for addressing wrongful convictions through clemency or review commissions, when the appeals process has been exhausted. However, both systems have shown significant shortcomings. In the US, the clemency process often fails to adequately consider new evidence of innocence, especially in capital cases, leading to tragic outcomes. In the UK, while the transition from the Home Office to the CCRC marked an improvement, the CCRC still grapples with legislative and operational limitations that hinder its ability to effectively correct wrongful convictions.

A significant difference between the US and the UK concerns the access to the court system. In the US, there is no entity like the CCRC, as such any application for relief must be submitted to the court, until all appeals are exhausted. In the UK, there is only one chance at appeal, and if that fails a convicted person can find themselves fighting the CCRC to get their case returned to the Court of Appeal. To some extent, the advent of Innocence Projects in the US have made the Clemency process redundant. Conversely, in the UK, the CCRC increasingly appears to be a de facto Clemency process, when one considers the likelihood of gaining relief through an application.

The shift in public opinion surrounding wrongful convictions, and the increasing effort to reset these injustices provides further support of the progress made in the US criminal justice system. This is most evident by the fact that since the formation of the Innocence Projects, in 1989, 3433 people have been exonerated, and 679 of those exonerations occurred in the last three years. Conversely, the CRCC boasts that in that same time only 100 people have been exonerated.

A Tableau Dashboard of exonerations
Figure 2. Exonerations in the U.S since 1989

In the US, Clemency is reserved for those who have exhausted all legal avenues. However, there are considerable opportunities for the convicted to take their case to an appellate court to obtain review. Over the last three decades, Innocence Projects spread across the US and have been instrumental in using new scientific methods, especially DNA testing, to challenge and overturn wrongful convictions. Their success has not only freed innocent individuals but has also brought to light systemic issues in the criminal justice process, such as unreliable eyewitness identifications, misconduct by law enforcement, and the misuse of forensic evidence. As a result, these organizations have effectively taken on a role historically associated with clemency – correcting miscarriages of justice – but with a more evidence-based and methodical approach.

In light of the work of the Innocence Projects, the traditional clemency process, which is often mired in political considerations and lacks the systematic approach of Innocence Projects, appears less relevant and effective. Clemency decisions can be unpredictable and inconsistent, lacking the rigorous evidentiary review that organizations like Innocence Projects provide. Moreover, the slow and often opaque nature of clemency proceedings contrasts sharply with the more transparent and evidence-focused approach of wrongful conviction advocacy.

Conversely, the CCRC exists in a peculiar dimension where it straddles the traditional clemency process, with the added element of needing evidence, sufficient to overturn a conviction, to justify access to a review by the Court of Appeal.

Moving beyond Clemency to Confront causes of Wrongful Convictions

There is still much work to do on both sides of the Atlantic. The challenges faced by the Criminal Cases Review Commission (CCRC) in the UK and the diminishing role of clemency in the U.S. reflect distinct yet interrelated struggles in addressing wrongful convictions. The CCRC operates under legislative constraints that often restrict its ability to effectively refer cases back for appeal, thereby impacting its capacity to rectify miscarriages of justice. In contrast, in the U.S., the traditional clemency process is increasingly seen as symbolic and less effective, particularly in the wake of more proactive, evidence-based initiatives led by Innocence Projects and a growing public awareness of judicial fallibilities. Both scenarios underscore a broader, shared need across these two justice systems: the adoption of more systematic, transparent, and scientifically robust approaches to identify, address, and prevent wrongful convictions, moving beyond the limitations of traditional methods and embracing a more modern, evidence-driven paradigm of criminal justice reform.



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