Pardons could be subject to congressional review. Better yet, they could be subject to an independent commission that would recommend cases worthy of pardon to the president, who could then refuse (sustaining the judgment of courts) but could not initiate his own cases of pardon.

Really, this is not that hard to fix. It’s the political will that’s hard.

Final remark: If Josh thinks the solution is “better presidents” I suggest he go back and brush up on his Madison.

The New York Court of Appeals and California Supreme Court justices are appointed by the governor, not elected by the people. If Californians want to punish the justices who voted to recognize SSM, they have to wait for an election that is on the 14-year-cycle from the judge’s initial appointment. The fact that we do have non-elected judges in the U.S. (including federal judges who have life tenure and face not even retention elections) means that if one wants to make a comparison between the justice of sentences given by elected judges and those by unelected, one need not go outside the U.S. Comparisons between the states, and between state and federal, won’t have the same degree of noise from differences in laws, cultures, etc. that comparison between American states and foreign nations will.

Most importantly, appeal courts never get to consider whether the jury was simply wrong. On appeal, the jury verdict will be upheld if there was any possible way they could have reasonably found the person guilty. Think of a reverse OJ scenario, where virtually anyone looking at that evidence would have acquitted, but that group of 12, with evidence barely over the smell test, convicts.

That happens more than you think. All those DNA “innocence” cases? They try some of those (not after those 20 year appeals AFAIK) and win. Tattoos McGangbang doesn’t look all that innocent on the defense table. A jury sees some “eyewitnesses,” a cop giving some gang history, and the defense giving some expert DNA evidence the jury doesn’t really understand. Give the jury a choice of murder, assault, and innocence, you might get a third strike from 12 guys who think they’re give Tattoos a break, and really think the guys innocent. Juries are crazy.

Without pardons, there’s really nothing you can do about that.

A proactive pardon of any kind seems like it ought to carry both the force and the limitations of an executive order (so that, for example, a subsequent chief executive has the authority to reverse the decision). That’s probably the crux of the matter: should the chief executive have the right to prohibit future chief executives from prosecuting specific crimes? Under what circumstances could this be a useful and appropriate power? (My guess—if anything, this should be restricted to use as a bargaining tool, e.g. pardon in exchange for information to prosecute someone else with.)

The question is whether the head of an executive branch should have the power to assert either “oops we ought not to have prosecuted person X for Y” (after-the-fact pardon) or “we are categorically not going to prosecute Person X for Y” (proactive pardon)—in a sense, the discussion of exoneration is moot in this context.

In any case, pardon before charging and conviction, without even stating what the offense pardoned might have been, seems a big stretch to me. And doesn’t a pardon require a name…i.e. a specific pardonee, so to speak? If so, than a list of such people pardoned by Bush would give a very good roadmap for a Congressional investigation in to abuses of power, violation of privacy laws, even war crimes…with immunity provided to make testimony easier to compel.

Of course, U S immunity would not be protection against trial by an international court; should say, Bush, Cheney, or Rumsfeld travel abroad, they might well be vulnerable to a Pinochet occurrence.

Anyway, here is my scenario: Bush pardons everybody in sight, then 10 minutes before the swearing-in, he resigns, making Cheney the President, who then turns around and pardons him. Odds, anyone?

Not all offense’s and/or in all states.

Woah, hold up there. Once someone has been convicted of an offence they never get to vote again? Wow. I really don’t know a damn thing about the US justice system, it seems. That is all.

I see pardons as an important safety valve on the excesses of government, it is very underused these days.

And the chart above is misleading. George H.W. Bush shows a low number of pardons, but among them the disgraceful pardons of his Iran-Contra co-conspirators.

Apart from what Brett writes, it’s a human process as much as the trial: if your lawyer isn’t the greatest he may not choose the best grounds for appeal.

No pardons involved but this is a great film about American justice going wrong:
http://en.wikipedia.org/wiki/The_Thin_Blue_Line_(documentary)