In January 2008, two men convicted of rape and murder in the early 1990s—Levon Brooks and Kennedy Brewer—were released from Parchman after they were exonerated by DNA evidence. (I wrote about their cases for Slate last year.) The two were convicted based almost exclusively on the testimony of medical examiner Steven Hayne and self-proclaimed bite mark expert Michael West. West has testified in dozens of other cases in Mississippi. Hayne, whom I've been reporting on for three years now, has testified in thousands. Both men have been condemned by their colleagues for giving testimony wholly unsupported by science. There are at least three people on death row in Mississippi who were convicted thanks largely to Hayne's testimony (one is another bite mark case also involving West), and in all three cases more reputable forensic experts have come forward to express grave concern about what Hayne's said on the stand. The Mississippi Innocence Project and the Innocence Project in New York are looking at hundreds of other noncapital cases involving Hayne and West.
Last May, I reported on yet another death penalty case in Louisiana that also featured Hayne, West, and bite marks, and was able to obtain video of West's "examination" of the victim, a young girl. Forensic specialists to whom I've shown the video say that it may actually depict criminal evidence tampering—West appears to be actually creating bite marks on the child using a plaster mold of the suspect's teeth.
The stories about Hayne and West have been all over Mississippi's newspapers and TV and radio stations, and on a few occasions have made national news. Yet Barbour hasn't uttered a word about them. He hasn't expressed sympathy or apologized to Kennedy Brewer or Levon Brooks for their wrongful incarceration (and in Brewer's case, his near execution). Nor, for that matter, has Barbour said anything about Cedric Willis, another Mississippi man recently exonerated for a murder he didn't commit. "It's disappointing that the governor's mercy largesse hasn't reached the people whom Dr. Hayne and West affected—many of whom, unlike the people the governor pardons, are unquestionably innocent," says Tucker Carrington, who heads up the Mississippi Innocence Project.
Barbour's odd record can only prompt questions about the proper use of the pardon. There's some indication that the Founders intended this power as a last check against injustice, not only in cases of wrongful conviction, but where the law was misapplied or where a conviction otherwise wouldn't be in the interest of justice or fairness, even when the defendant is actually guilty.
Yet that isn't how governors generally use the pardon. Instead, they bestow redemption on guilty people who claim that they're rehabilitated. This converts the pardon from a check on an imperfect system to an almost religious capacity for conferring forgiveness, for reasons often more personal than related to public policy.
There's room to debate whether the criminal justice system is too punitive and if it should focus more on rehabilitation than it does. But the pardon and clemency power isn't the place for it. That power is correctly used to draw attention to injustice, not grant mercy to a few lucky (and guilty) souls. Barbour is handing out mercy to killers while paying no heed to the staggeringly flawed system operating right under his nose.
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