Memorializing Miscarriages of Justice: Clemency Petitions in the Killing State


  • I am grateful to Nasser Hussain, Ruth Miller, Adam Sitze, the participants in the Rhetoric of Law Research-in-Progress seminar, and three anonymous reviewers for their helpful comments on an earlier version of this article. I wish to acknowledge Dean Ken Randall of the University of Alabama School of Law and the generous financial support of the University of Alabama Law School Foundation. Tovah Ackerman and Xiao Huang provided invaluable research assistance. Please address correspondence to Austin Sarat, Department of Political Science, Amherst College, Amherst, MA 01002; e-mail:


Clemency in capital cases today has become quite rare. Capital clemency has been a victim of the rejection of rehabilitation as the guiding philosophy of criminal sentencing and of the increasing politicization of issues of crime and punishment since the 1960s. Yet despite the reluctance of governors to grant clemency, despite the difficulty of rectifying miscarriages of justice through the clemency process, petitions seeking commutation or pardon in death cases still are regularly presented to chief executives. With so little chance of success, filing them may seem to be nothing more than an empty ritual. In this article, I examine clemency petitions from Texas and Virginia, and I argue that those petitions may serve another function, and take on meaning in another way. This function I label “memorialization.” These pleas provide an archive of stories of law's failures, of alleged breakdowns in the legal process, of a legal process in disrepair, as well as of racial prejudice, of lives shattered by violence and neglect, of remorse, rehabilitation, and redemption. They are cultural artifacts, documents that address both governors and an indeterminate audience beyond them and that memorialize miscarriages of justice. While they reveal the importance of religion, family, and good works in American thinking about remorse, redemption, and mercy, they also should be seen as histories of the present, documenting the breakdowns and inequities in the death penalty system as well as the tragic circumstances of lives shaped and shattered by poverty, abuse, and neglect.