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

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.