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January 12, 2017

"Mistakes and Justice — Using the Pardon Power to Remedy a Mistake of Law"

The title of this post is the title of this notable new article by Paul Larkin now available via SSRN. Here is the abstract:

American criminal law has never recognized a mistake-of-law defense. The principal rationale for rejecting it has been that the community knows what the criminal law prohibits.  That may have been a reasonable rule when there were only a handful of crimes, and each one also violated the contemporary moral code, but that rule makes no sense today, given the use of the criminal law to enforce thousands of sometimes technical, arcane administrative regulations.  Clemency, however, may be a perfect vehicle for the implementation of a mistake- or ignorance-of-the-law defense.

Throughout Anglo-American legal history, kings, presidents, and governors have used their pardon power as a vehicle to remedy injustices in the criminal justice system.  The conviction of a person for conduct that no reasonable person would have thought to be a crime certainly qualifies as a miscarriage of justice.  Presidents and governors should consider using their clemency authority to pardon legitimate cases of mistake or ignorance, which might particularly arise in connection with strict criminal liability or regulatory crimes.

January 12, 2017 at 06:11 PM | Permalink


The common law crimes have been crimes through the ages, and around the globe. Those are known to everyone, and are taught as crimes to children.

What is not known by defendants is the infinite number of rules to be broken, in a business model by the lawyer profession that imitates the Inquisition. This business model was highly profitable and robust enough to last 700 years. Does anyone think that Vatican palace was funded from the collection plate. It was funded from plea deals. This racket ended when Jacobins beheaded and expelled 10,000 high clerics. The American lawyer profession took it up. I would support a Jacobinic approach to end our lawyer scourge.

These laws are mostly lawyer quackery. They have no benefit, no merit, and were just made up. They are not stupid, they are intentional, fraudulent activity.

As such, they have no external validation. Lawyer quackery violates the Fifth Amendment right to due process. Lawyer fraud is void for illegality. Regulation without external validation are a form of government rent seeking and a corrupt practice. Its practitioner should be arrested, tried, and imprisoned.

The quackery or lawyer fraud defense has never exercised. Make the prosecutor provide external validation for the statute, regulation, or rule, outside the common law crimes. An example, where such a defense is needed but never used? Insider trading. The evidence is that such activity benefits the economy, and its prosecution hurts the general economy.

As with other quackery, prosecutors who suborn lawyer quackery should be sued for legal malpractice, as should any judge allowing lawyer quackery to proceed beyond first pleading.

If these self dealt immunities are not waived, the prosecutors and judges engaging in quackery should be specifically deterred with violence.

Posted by: David Behar | Jan 13, 2017 1:28:41 AM

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