During this period of Lent, as we reflect upon our sins, repent, and receive the gift of pardon from our Heavenly Father, it is an appropriate time as well to reflect upon the increasingly neglected role of mercy, of forgiveness in our criminal justice system.
Margaret Colgate Love, probably the nation’s leading expert on executive clemency, has published a piece, “Reviving the Benign Prerogative of Pardoning,” in the latest issue of Litigation (Winter 2006), the magazine of the American Bar Association’s Section on Litigation. If you are an ABA member, you can access the article at this link. Otherwise, the Litigation journal should be available in almost any law library.
Ms. Love begins the article in this way:
Pardon is a mysterious, alien presence that hovers outside the legal system. It is capable of undoing years of criminal investigation and prosecution at the stroke of a pen, but it is of questionable present-day relevance even for criminal law practitioners. Pardon is like a lightning strike or a winning lottery ticket, associated with end-of-term scandals and holiday gift giving. It is capricious, unaccountable, inaccessible to ordinary people, easily corrupted, and regarded with deep suspicion by politicians and the public alike. To the extent that scholars think about it, pardon is regarded as a constitutional anomaly, not part of the checks-and-balances package, a remnant of tribal kingship tucked into Article II that has no respectable role in a democracy. One of pardon’s few friends in the academy, Daniel T. Kobil, has called it “a living fossil.”
Unkindest cut of all, pardon is not taken very seriously as an instrument of government. Even President Clinton’s final pardons now are recalled more as an embarrassing lapse of judgment than as a genuine abuse of power. His successor’s pardoning has been meager and meaningless. A lot of state governors don’t use their pardon power at all.
Ms. Love outlines how the exercise of clemency, both at the federal and state levels, has declined sharply since the 1970s. At the federal level, the percentage of pardon petitions acted favorably by Presidents Franklin Roosevelt through Jimmy Carter was about 30 percent, but since has dropped to but a handful. She identifies this decline as being attributable to the theory of just desserts in which the retributivist philosophy was hostile to clemency, the politics of crime which made it politically risky for politicians to offer pardon to criminals, and the hostility of prosecutors who opposed the loss of control over criminal matters that comes with executive consideration of pardon petitions. Yet, Ms. Love concludes that “there is a compelling present need for pardon because the criminal justice system has never been more harsh and unforgiving.”
[In the past, I have written more circumspectly about the pardon power, in the wake of President Clinton’s astonishingly misguided pardons on the eve of his departure from office (available at this link). While my concerns about abuses remain well-taken, I still think, my past writing did not do justice – pun intended – to the importance of mercy, through clemency and otherwise, in the criminal justice system.]
We Catholics are often said, with tongue only partly in cheek, that we know a great deal about guilt. But we also know much about reconciliation and forgiveness. Reviving what Alexander Hamilton in Federalist 74 called the “benign prerogative” by which “the mercy of the government” is extended ought to be a central part of any Catholic jurisprudence.
Greg Sisk
Today's Times has a story about the announced plans to close 31 parishes and 14 schools in the New York archdiocese. Two really quick thoughts: First, it is interesting to note how big, relatively speaking, the attendance figures are that are presented, in the context of this story, as small. The Church of the Nativity, for instance, is described as having a dwindling attendance -- down to about 400. But, 400 is a lot of people, isn't it? If I remember, doesn't 2,000 make a church a "mega-church"? Also, I was happy to see that the story noted the fact -- sometimes omitted in stories that focus more on closings, dwindling attendance, secularization, and the priest-shortage -- that several new, very large parishes are opening (in this case, in suburbs). I'm enough of an urbanist -- in sensibility, anyway -- to want to think that the old "lots of close-knit parishes in urban walkable communities" model is (somehow) better. But, maybe not . . .
The San Francisco Chronicle scores a bullseye in criticizing the city officials' hostility toward the "Battle Cry" evangelical youth rally:
In fact, concern about heterosexual sex by unmarried youth gets equal treatment from the Battle Cry campaign. Its goal is to spread Christianity and to help young people recognize and resist the cultural influences of a "stealthy enemy" that includes "corporations, media conglomerates and purveyors of popular culture." Its Web site (www.battlecry.com) speaks of "casualties of war" that include drinking, drug use, teen sex, pornography, abortion, suicide and violence.
We may disagree with certain aspects of the Battle Cry agenda -- on issues such as abortion rights, religion in schools or acceptance of an individual's sexual orientation -- but the attempt by counterprotesters and some of the city's elected officials to call them "fascist" and "hateful" was totally at odds with the tone of the ballpark event and the approach of the Web site.
Set aside the issue whether calling homosexual acts immoral, as the Battle Cry youth do, is intolerant (a legitimate point of debate) or "fascist" (a stretch). The striking thing to me, and to the Chronicle, is how the city officials' focus on that issue alone obliterates, for them, everything else the evangelical group says -- every criticism the group makes of threats like youth violence, superficial sex in the media, and empty commercialism, things that traditionalists and progressives ought to be able to fight working together.
Tom
Tuesday, March 28, 2006
Very good people have worked and are working on President Bush's "faith-based initiative," but the evidence continues to mount that the administration as a whole views it as a rhetorical ploy to woo religious voters rather than a serious effort to address social needs (see previous post here). Amy Sullivan in The New Republic gives an update:
The real story, however, is not how immense the faith-based initiative is, but how small. The federal government distributed approximately $2 billion in grants to faith-based organizations in fiscal year 2005, a number that seems large but is not actually much different than the funding that groups like Catholic Charities and Habitat for Humanity received before Bush took office. . . . It is increasingly clear that only a handful of people in the administration view the program as anything other than a political tool to attract support from black religious leaders and to mollify the party's evangelical base. And now, even the program's most enthusiastic supporter on the Hill [Rep. Mark Souder (R-IN)] has pronounced it a sham. . . .
[At a recent hearing, Souder] ticked off for his audience the ways in which White House officials had kneecapped the initiative. . . . [Souder also charged] that congressional Republicans are unwilling to increase funds for social services because the recipients of those funds might be organizations in urban, Democratic districts.
Tom
UPDATE: Bryan McGraw, fellow at the Erasmus Institute at Notre Dame, writes to agree with my criticisms of much of the Bush administration but adds: "[I] it’s worth noting, I think, that part of the reason for the smallness of the program lies in bureaucratic resistance in places like HUD, HHS, etc." True; and one can also lay blame at the feet of some Democrats and interest groups that have fought the initiative tooth and nail. I also agree with Bryan that some White House staff take the program seriously (like the President's chief wordsmith) -- and I want to emphasize that I mean no criticism of the many people (including friends of mine) who have worked tirelessly on this program to boost the ability of faith-based and community services to help others. But John D'Iulio, David Kuo, Mark Souder: the voices are adding up, among social conservatives, toward the conclusion that the tax-cutting, budget-cutting, business-conscious -- and political -- side of Republicanism is frustrating the ideal of seriously assisting the needy through "compassionate conservatism."
Regarding my recent post on the question whether it is "insane" to "embrace" "martyrdom", Professor Teresa Collett helpfully reminds me of some relevant passages (pars. 90-94) in Veritatis splendor (link). Here is a quote from par. 92:
Martyrdom, accepted as an affirmation of the inviolability of the moral order, bears splendid witness both to the holiness of God's law and to the inviolability of the personal dignity of man, created in God's image and likeness. This dignity may never be disparaged or called into question, even with good intentions, whatever the difficulties involved. Jesus warns us most sternly: "What does it profit a man, to gain the whole world and forfeit his life? " (Mk 8:36).
Martyrdom rejects as false and illusory whatever "human meaning" one might claim to attribute, even in "exceptional" conditions, to an act morally evil in itself. Indeed, it even more clearly unmasks the true face of such an act: it is a violation of man's "humanity", in the one perpetrating it even before the one enduring it. Hence martyrdom is also the exaltation of a person's perfect "humanity" and of true "life", as is attested by Saint Ignatius of Antioch, addressing the Christians of Rome, the place of his own martyrdom: "Have mercy on me, brethren: do not hold me back from living; do not wish that I die... Let me arrive at the pure light; once there I will be truly a man. Let me imitate the passion of my God".
To be clear: My short post was intended to provoke questions about whether, given the view that is widespread today about the hobby-ness of religion, it is -- again, considered against the backdrop of this view -- "insane" even to accept, let alone seek out, martyrdom. I hope no one assumed or concluded that I was endorsing this view by trying to provoke these questions.
