Remedying Wrongful Conviction: Comparisons between The Royal Prerogative of Mercy in England and Wales and Clemency in the USA

Cooper, Sarah Lucy and Burrows, Hannah (2020) Remedying Wrongful Conviction: Comparisons between The Royal Prerogative of Mercy in England and Wales and Clemency in the USA. In: Executive Clemency: Comparative and Empirical Perspectives. Routledge Research in Human Rights Law . Routledge, UK. ISBN 9780367243579

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The problem of wrongful conviction is “present around the world.” This situation has motivated stakeholders to consider ways to prevent, identify, correct, and atone wrongful conviction. This has led to an increased understanding about how criminal justice systems, including those established in the United States of America (USA) and England and Wales (E&W), produce wrongful convictions. In both jurisdictions, individuals, groups, and institutions have emerged to pursue wrongful conviction-focused research, litigation, and reform.
In both the USA and E&W, the clemency/pardon power has an error correction function. In 1993, the United States Supreme Court (SCOTUS) declared clemency the “fail safe" of the American criminal justice system, and the “historic remedy for preventing miscarriages of justice…” This ruling thrust clemency into each state’s mechanics for correcting error. Months later, in 1994, the High Court of England and Wales stated, “The prerogative of mercy…is now a constitutional safeguard against mistakes…”, and that “… pardon should be reserved for cases where it can be established that the convicted person was morally and technically innocent.” Subsequently, the Criminal Cases Review Commission (CCRC), the body responsible for investigating miscarriages of justice in England, Wales and Northern Ireland, was given the power to refer cases (with reasons) to the Secretary of State so s/he could consider the exercise of the prerogative of mercy.
This chapter provides a compact comparative review of the relationship between wrongful conviction and the clemency/pardon power in the USA and E&W. Part I outlines current clemency/pardon frameworks in both jurisdictions. Part II explores common themes across both jurisdictions, namely (1) eligibility and standards of proof; (2); transparency and reviewability; and (3) political will. It concludes that both jurisdictions encounter similar challenges when utilizing the clemency/pardon power to correct error, and offers five ideas for fostering better practice in both jurisdictions.

Item Type: Book Section
Additional Information: Book description: Nearly every country in the world has a mechanism for executive clemency, which, though residual in most legal systems, serves as a vital due process safeguard and as an outlet for leniency in punishment. While the origins of clemency lie in the historical prerogative powers of once-absolute rulers, modern clemency laws and practices have evolved to be enormously varied. This volume brings comparative and empirical analysis to bear on executive clemency, building a sociological and political context around systematically-collected data on clemency laws, grants, and decision-making. Some jurisdictions have elaborate constitutional and legal structures for pardoning or commuting a sentence while virtually never doing so, while others have little formal process and yet grant clemency frequently. Using examples from Asia, Europe, Latin America, the Caribbean, and the USA, this comparative analysis of the law and the practice of clemency sheds light on a frequently misunderstood executive power. This book builds on existing academic scholarship and expands the limited geographical scope of prior research, which has tended to focus on North America, the UK, and Australia. It relays the latest state of knowledge on the topic and employs case studies, doctrinal legal analysis, historical research, and statements by clemency decision-making authorities, in explaining why clemency varies so considerably across global legal and political systems. In addition, it includes contributions encompassing international law, transitional justice, and innocence and wrongful convictions, as well as on jurisdictions that are historically under-researched. The book will be of value to practitioners, academics, and students interested in the fields of human rights, criminal law, comparative criminal justice, and international relations.
30 July 2020Published
Subjects: CAH16 - law > CAH16-01 - law > CAH16-01-01 - law
Divisions: Faculty of Business, Law and Social Sciences > School of Law
Depositing User: Sarah Cooper
Date Deposited: 20 Nov 2018 13:29
Last Modified: 12 Jan 2022 14:08

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