26th November 2020
There is a distinction – no doubt one of the oldest distinctions in the history of human societies – between justice and mercy.
The model is as follows:
– justice is (in part) about the appropriate application of general rules to particular cases;
– the application of justice in a particular case may result in an onerous sanction against an individual;
– there may be special circumstances where this onerous sanction should not be imposed on that. individual, even though this is what justice provides;
– and so an exercise of mercy will release that person from that sanction.
As such, mercy is a complement to justice, not a replacement for it.
A person may have done wrong, but they need not suffer for it.
The sin is still hated, but there is love for the sinner.
This, at least, is the model.
The usual and best known means of exercising mercy is by way of a pardon.
The sovereign – or other head of the executive – makes a decree that in a particular case an individual should not suffer a punishment for their crime.
In the United Kingdom, the power to grant pardons is part of the royal prerogative (and is exercised rarely), and in the United States there is the constitutional power of the President to pardon in respect of federal crimes (and is exercised quite a lot).
Pardons are curious things.
Let’s look at the word: to pardon someone is to forgive them and to receive a pardon means that you have been forgiven – and so to say ‘I beg your pardon’ is literally to ask for forgiveness.
(Only by usage and habit has it come to mean ‘say again’ – which is in effect an abbreviation of ‘I beg your pardon but can you please repeat that’.)
When applied to legal matters, a pardon is about forgiveness.
It is (or should be) about the sentence, not the offence.
As such it is (or should be) about mercy rather than justice.
And so here we come to a conceptual issue about pardons.
A pardon presupposes guilt.
A pardon means (or should mean) that it is accepted or admitted that an offence has been committed – else there would not be a thing to forgive.
A pardon does not (or should not) expunge the offence.
This is why it possible for a convict to refuse a pardon (or to refuse to plead the pardon as a bar to any proceedings), if it is not accepted an offence has actually been committed.
To accept a pardon is to mean (or should mean) that the person accepts or admits that they committed an offence and that they accept official forgiveness.
And so to offer a pardon is to, implicitly, accept that the conviction is sound but that the punishment should be forgiven.
So should there be pardons for convictions when the law itself is wrong or unjust?
Would it not be conceptually neater for the convictions themselves to be expunged, rather than merely having the sentences forgiven?
(In 2013, I wrote about this at the New Statesman in respect of the posthumous pardon for Alan Turing.)
And there is also, of course, a more obvious problem with posthumous pardons: they are practically meaningless, as a dead person cannot be relieved of the sanction.
Posthumous pardons are mere gestures with no legal or practical effect, other than to make people still alive feel better.
Pardons are topical because of the pardon granted by President Trump to Michael Flynn (the text of which can be read here).
But only those with short political memories will consider it exceptional that a President of the United States uses the power of pardon in a wrongful or controversial way.
Wrongful, controversial presidential pardons did not start with President Trump.
For example, on his last day of office in 2001, President Clinton granted 140 pardons, some of which seemed rather questionable.
And in 1974 President Ford pardoned President Nixon even before any criminal proceedings had been commenced, and without Nixon admitting any criminal offence.
The Nixon pardon was an odd thing from a legal perspective – you can read the text here.
The key text was that the pardon was ‘for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974’.
The ‘may have committed’ is remarkable: it in effect created retrospective immunity.
Nixon was, in effect, being given immunity from any prosecution for any federal offence for his presidency.
No specific offences were mentioned.
No guilt was admitted.
The Nixon pardon is an extraordinary legal document.
And it can barely be called a ‘pardon’ in any meaningful way.
The classic model of pardons as only going to sentence, and not to criminal culpability is therefore an ideal which has sometimes not been matched in practice.
And so it is not unexpected that Trump seems to see pardons as not about forgiveness of offences but as, in effect, grants of criminal immunity.
Trump seems to want to use pardons as devices to place specific people above or beyond the law.
There is even the prospect that he will seek to (purport to) grant himself a pardon and in doing so, as with Nixon, he may not admit any criminal guilt.
(But there are limits to pardons: in the United States, a presidential pardon only protects against federal prosecutions, and so any State prosecutions would be unaffected.)
The issue of the use and abuse of pardons is no doubt as old as the distinction between justice and mercy itself.
One problem will always be that there is a point where showing mercy to any significant degree defeats the purpose of law itself.
As such mercy ceases to complement justice but subverts justice instead.
Mercy will then not alleviate the excesses of the rule of law, but instead may undermine the rule of law.
And we may about to see this in action with Trump in the United States.
What Trump now does with his power to pardon before 20 January 2020 may exceed in scale what was done with the Clinton last-day pardons, and surpass in jurisdictional reach what was done with the pardon for Nixon.
Trump may be about to use the power of mercy to assault justice itself.
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