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
