Justice, Forgiveness, Mercy, and Forgetting: The Complex Meaning of Executive Pardoning

• Author: P.E. Digeser
• Position: Associate Professor of Political Science, Department Vice Chair, University of California, Santa Barbara.
• Pages: 161-178

Page 161

The President's authority to pardon, granted under Article II, Section 2 of the Constitution of the United States, is extraordinarily broad.¹ With the exception of an explicit prohibition against using the power in impeachment cases, the President possesses an enormous amount of discretion in the use of this authority. Perhaps because the Constitutional guidelines are so thin, controversies surrounding executive clemency tend to be more a matter of ethics and politics than law. It is not unusual for pardons that pass constitutional muster to be subject to additional judgments regarding their appropriateness. In this respect, acts of executive clemency are not immune from the kinds of ordinary political judgments made about any governmental action or policy. From the assessment of executive pardons, however, one may discern the elements of what J.S. Mill called a constitutional morality.² Despite the fact that Presidents have virtually unlimited authority in this matter, United States citizens appear to share a sense that the authority of Presidents should be governed by certain moral restrictions. For example, pardons granted purely for partisan advantage are unseemly and should bear a significant political cost. Similarly, in a society seeking to diminish the importance of gender and class differences, adequate reasons for pardons no longer Page 162 include granting them just because someone is a woman or comes from a good family. Some legal thinkers and philosophers have gone farther than these conventions and have argued that the principles governing executive clemency can be grounded with greater certainty and clarity. The most significant of these positions is that executives should use this authority only to serve the cause of justice. In other words, the constitutional morality limiting clemency should restrict the executive to delivering what is due.

In contrast, if we assume that delivering what is due is neither an absolute nor the only value, then the constitutional morality defining pardoning will be broad enough to include additional understandings such as forgiveness, mercy and forgetting. Opening up the meaning of pardoning also presents the possibility that executive clemency can serve purposes beyond rendering what is due: reconciliation, peace, security, and the relief of suffering. In defending this position, I will briefly set out the salient features of these different understandings of pardoning (with the warning that these understandings, while in some cases familiar, will not necessarily accord with strict legal usage) and argue that important values and purposes can be protected and achieved only if pardoning retains these multiple and, at times, ambiguous meanings. We should be able to understand different pardons in different ways and, on occasion, understand the same pardon in multiple ways.

I Pardoning and Justice

No one denies that executive clemency should have some relation to justice. Differences arise over whether its connection to justice is the only one that executives should recognize. To sort this out, it is first necessary to note that justice is a pretty big concept. One, and perhaps the most predominant, understanding of justice entails seeing it as "the constant and perpetual will to render everyone his due."³ This concept of justice captures the importance of devising institutions that attempt to punish the guilty and protect the innocent. Justice is served when this happens and injustice occurs when it does not. Unfortunately, while this concept of justice provides us with an important end to pursue, we have yet to devise a set of procedures that can guarantee delivery of what is due. Indeed, it is probably impossible for rules and procedures always to deliver justice.⁴ If the best that can be hoped for under any set of rules is imperfect procedural justice, then there is no guarantee against finding innocent individuals guilty or punishing guilty individuals too severely (or too softly). But what Page 163 happens then?⁵ One response is to devise more complex forms of rules and procedures. These higher-ordered rules and procedures may permit the review of prior decisions in order to remedy injustices. But, once again, the processes and rules of appeal may never be able to rise above imperfect procedural justice. Given the myriad of ways for things to go wrong in the administration of justice, the executive power to pardon can be understood as a way to render what is due that is less rule-bound.

Kathleen Dean Moore has argued that not only is the power to pardon linked to justice but that this is also the only appropriate way to understand it.⁶ She writes, "Pardons provide a way to ensure that people suffer only those punishments they deserve. . . . [t]hus pardons provide a way of making sure that justice is served."⁷ The basis of Moore's view is a retributivist theory of punishment which includes a moral obligation to punish those who are deserving of punishment and to free those who are innocent.⁸ In addition, the power to pardon should be used to make the punishment fit the crime when the punishment has been too harsh.⁹ Moore argues that if executive clemency is given for reasons other than desert, then it may be (and probably will be) unjust.¹⁰ From this perspective, either a pardon lives up to the demands of justice and is obligatory, or it does not and therefore should not be performed.¹¹

There are a number of attractions to the constitutional morality carved out by Moore's theory of pardoning. First, it is a good thing for institutions to deliver what is due, and her theory highlights the notion that officials work under an obligation to do the just thing. Those who are innocent and those who have been punished too severely have a claim for relief. In addition, Moore's theory appears consistent with our ordinary sense that gender, partisan advantage, or family ties are inappropriate reasons for pardoning. Her position generates a fairly strict constitutional morality that places a spotlight on justice which clarifies and deepens our Page 164 understanding of what is at stake when a pardon seeks to render what is deserved.

One problem with Moore's position is that she establishes a standard that would have troubling institutional ramifications. Moore sees no discretion in the exercise of pardoning: The executive has an obligation to make sure that the innocent are not punished and that the guilty are punished the appropriate amount.¹² The existence of this obligation appears to be unqualified-justice is a harsh taskmaster. If it is unqualified, then it would appear incumbent on the executive to entertain any and all claims for clemency. Justice would seem to require the executive branch to become the supreme level of court-like appeal in criminal matters. In effect, courts would lack the ultimate authority to establish matters of fact and law. In a system of separation of powers, should the executive, who is not a judge, play this role? And, if executives became judges, how would this solution differ from simply adding another layer of appeal to the judicial process?¹³ The strictness of Moore's constitutional morality would appear to have significant institutional effects on the separation of powers.

As a practical matter, it may be possible to stretch the administrative capacities of the executive to include the additional function of review. It may be that the ultimate institutional and financial costs of eroding the separation of powers are bearable. Unfortunately, Moore's desire to define pardoning solely in terms of desert raises deeper difficulties. The most significant of these is whether justice as receiving one's due has absolute value. Moore's position not only requires seeing justice as desert but also seeing it as more important than all other values. However, it is not implausible to suppose that, at least on occasion, other values may be more important than insuring that people have what is coming to them. In denying Moore's retributivism, we need not deny that justice is of value. Nevertheless, rejecting retributivism does open the possibility that the values of reconciliation, security, peace, compassion, or stability could be more urgent than justice. Or, to put it more strongly, it is possible that the relentless, single-minded pursuit of justice could have the consequence of increasing insecurity, conflict, instability, and cruelty. In a more pluralistic, more consequentialist, and less Kantian understanding of our moral language, not all good things necessarily go together. Page 165

Should our constitutional morality be broad enough such that executives can use pardons as acts of forgiveness? Many argue that because forgiveness is a private, perhaps personal or religious response, it has no place in the public world or the life of the law. Moore provides a particularly clear formulation of this criticism when she asserts that forgiveness refers "to an attitude of one who has been injured toward the one who has inflicted the injury. The attitude of forgiveness is characterized by the presence of good will or by the lack of personal resentment for the injury."¹⁴ Consequently, forgiveness "is primarily a relationship between persons. Institutions, states, systems of justice cannot forgive-except perhaps metaphorically-because although they may be wronged, they do not resent."¹⁵ While pardoning releases or mitigates the transgressor's punishment, this is not the same as forgiveness. From this perspective, one may still punish and forgive primarily because forgiveness is solely concerned with a change of heart or attitude while the former is a legal, public relationship.

For our purposes we can identify Moore's position as a resentment- or sentiment-based conception of forgiveness.¹⁶...