by Austin Sarat and Nasser Hussain (eds). Stanford, California: Stanford University Press, 2007. 256pp. Cloth. $65.00. ISBN: 0804753326. Paper. $24.95. ISBN: 0804754443.
Reviewed by Charles F. Jacobs, Department of Political Science, St. Norbert College. Email: charles.jacobs [at] snc.edu.
In the early winter of 2007, Gerald R. Ford, the nation’s 38th president and first unelected chief executive, died at the age of 93. His passing offered an opportunity for historians, political commentators, and pundits alike to reevaluate the general legacy of the Ford presidency and to analyze, again, his specific decision to pardon his predecessor, Richard Nixon, for any criminal acts related to his participation in the Watergate scandal. Ford certainly faced numerous political quandaries when considering granting Nixon’s pardon. Of equal concern was the legal implication of such a decision. Relying on a decades-old United States Supreme Court decision, Ford and others in his administration took the position that an executive pardon not only exempted an individual from punishment, but also served as a personal recognition of guilt when the wrongdoer accepted the grant of clemency (BURDICK v. UNITED STATES 1915). The pardon, offered just one month into Ford’s tenure in office, attracted significant criticism inside the Beltway as well as from the public, whose approval of the newly installed president dropped more than twenty percent in a single week (Greene 1995, at 53). Critics suggested that Ford had moved too quickly in absolving Nixon, arguing that no pardon should be granted until the nation comprehended the full scope of the former president’s participation in the scandal.
These questions were part of a broader theoretical debate raised implicitly during this national discussion concerning the place of the pardon power within a legal system. Should pardons be awarded? What does a pardon confer upon the recipient? What acts or actions are excused by the executive grant? Is the acceptance of the pardon an implied admission of guilt? These larger questions related to pardons, clemency and due process are the subject of the chapters of Austin Sarat’s and Nasser Hussain’s edited volume entitled FORGIVENESS, MERCY, AND CLEMENCY. The editors offer the work of the contributors as an attempt to answer a broad range of questions regarding concepts that often lack clear or complete definitions.
At its most basic level, the authors pursue insight into the very meaning of forgiveness, mercy, and clemency. Are they synonymous terms or do they have unique applications and consequences in the legal system? To what, or whom, do the concepts apply? Do the terms apply to actions or attitudes? Finally, what connection do they have to religion and divinity, and is this connection appropriate? “The purpose of Forgiveness, Mercy, and Clemency,” suggest the authors, “is to map the terrain on which such questions might be addressed; to examine various registers on which to chart the relations among [*524] forgiveness, mercy, and clemency; and to understand their place in our lives and the society in which we live” (p.1). In conducting this review, the individual authors and editors explore the enigmatic relationship the concepts have with systems of law and the exercise of power by executive authorities. Forgiveness, mercy, and clemency exist as the square pegs that fit poorly, if at all, in the round world of equality and the rule of law. Clemency, as they note, is an oxymoron of legal theory. It is “’legally sanctioned alegality’” or “lawful lawlessness’” (p.6). This indeterminacy and the quixotic role the concepts play within law, suggest the editors, injects into the “fabric of legality” an ambivalence and instability “that neither jurisprudence nor legal theory can fully resolve” (p.7). It is this troublesome aspect of the law that forms the basis of the individual chapters in a volume that explores the compatibility of equality and the rule of law with the absolution of wrongdoing outside of the normal strictures of the legal system.
This investigation begins with Carol S. Steiker’s piece “Tempering or Tampering? Mercy and the Administration of Criminal Justice.” She poses two questions concerning the role of mercy. Theoretically, Steiker asks if there exists a reasoned argument for the application of mercy. More pragmatically, she wonders about the impact of such an application on the institutions within a system of criminal justice. To address these issues, she reviews a number of challenges to, and explanations for, the use of mercy. This begins with what she dubs the skeptical view of mercy. Those who argue from this position believe that there exists no place for mercy in the criminal justice system. In lieu of a mechanism for remedying errors, skeptics propound the development of a theory of just punishment that avoids, or at least mitigates, arbitrary decisions made by actors in the system. The difficulty with this stance, as Steiker notes, is the absence of a consensus regarding the existence of a single theory of just punishment and the ability for such a theory to accommodate the real possibility of the need for mercy beyond the traditional bounds of criminal justice apparatuses. This apparent weakness brings challenges from at least three intellectual camps, argues Steiker. First, she notes a camp that believes the idea of mercy can be reconciled with the concept of justice. The second group claims that there exists no common measure for justice and mercy, and hence the two must exist in an exchange relationship. The last group of contrarians dismisses the skeptics out of hand and instead offers alternatives to this vision. Steiker entrenches herself among these thinkers, arguing that “both retributivism and social welfare theory have predictable biases toward too much punishment” (p.30). Her position is bolstered by a view of mercy as a virtue that exists to moderate the extant harshness in contemporary paradigms of punishment. While not completely sanguine about the possibility of an error free application of mercy, she certainly suggests that there exists the possibility that discretion can be restrained in such a way that it comports with the demands of fairness and equality. [*525]
Daniel T. Kobil offers an additional dimension to the problem of mercy in his piece through an investigation of the application of mercy in clemency decisions. Kobil suggests that clemency, at least in contemporary interpretation, is perceived as a tool for achieving justice and equity in meting out punishment in systems based primarily upon notions of retribution and deterrence. Mercy, however, is the absolution, or the reduction, of what is owed to society based on benevolence or compassion and, unlike clemency, emphasizes purposes such as rehabilitation and reconciliation. Despite the apparent incompatibility of these views, Kobil argues, a case can be made for permissible uses of mercy-based clemency. The author forwards two justifiable bases for the use of mercy in clemency decisions. The first, which Kobil calls the expediency rationale, is a throwback to monarchical political structures when leaders employed clemency to entrench power and display the honorable motives of the ruler. Such a position, argues Kobil, is misplaced in modern representative government where personal aggrandizement by leaders is so often frowned upon. The second argument for mercy-based clemency he titles the false dichotomy rationale, a justification grounded in the belief that justice may be served by the judicious use of mercy. Kobil recognizes that this latter position faces significant challenges in a criminal justice culture dominated by arguments for retribution. Nonetheless, he offers a number of justifications for the use of mercy even in the current climate of harsh punishment, including instrumental and expressive benefits. For the former, Kobil points to medical studies that indicate health benefits accrue to individuals who are capable of showing mercy. That tangible benefit, he argues, might extend to the general community through a generalized social good. A second instrumental benefit is the possibility of lower rates of recidivism by those who receive grants of clemency. Absent the ability to quantify these instrumental gains, Kobil claims that any argument for the application of mercy must be made utilizing expressive benefits. Mercy, he suggests, demonstrates the strength and resilience of a community and its ability to show compassion and humanity. It is upon this foundation that society might be convinced of the utility of the appropriate application of mercy-based clemency.
In “The Merciful State,” Linda Ross Meyer offers an analysis of the authority to pardon and how such a power meshes with the democratic state and the rule of law. To make the case that the pardon deserves a place in institutions of democracy, she identifies instances when the pardon authority is commonly exercised. Among these are pardons as equity, employed when the punishment is perceived as fundamentally unfair; pardons as peace that exist to reconcile communities in the aftermath of revolution or rebellion; pardons as allegiance that aid in the process of connecting the offender and the victim in the resolution of the offense; and pardon as compassion utilized to exempt some from punishment based on extraordinary circumstances or conditions. Meyer identifies these four categories as reflecting issues internal to the case. A [*526] fifth category, extrinsic pardons, is identified instead by external matters. These pardons are granted for reasons unrelated to the specific circumstances of the offense or punishment. Finally, Meyer offers a review of what she deems hard cases. These pardons are not based upon any of the categories outlined above and instead are often granted for random, even inexplicable, reasons. This catalogue of pardons serves both to identify the qualities of the merciful state and also as a foil for those who argue in opposition to the use of compassion by government. The misapplication of the pardon power, critics contend, undermines republican principles by diminishing culpability, weakening the character of equality and undermining democracy itself by ignoring the wishes of majorities expressed through criminal law. Meyer utilizes her taxonomy and the critics of mercy decisions to defend the use of compassionate pardons. Much like the other authors in this volume, she is careful to recognize the inherent danger in offering the pardon power to government actors. But the pardon, she argues, is not antithetical to law itself, but instead recognition of the potential fallibility of law and those charged with executing it on behalf of the public. Mercy serves as a counterpoise to the worst characteristics of a hyper-egalitarian retributive system that makes no distinction among lawbreakers, the acts they commit, and the circumstances surrounding the offense.
Meir Dan-Cohen approaches the problem of forgiveness, mercy, and clemency from a tack slightly different from others in this volume. Rather than focusing on problems related to democratic theory and practice, Dan-Cohen investigates the role of the offender and the impact of repentance, forgiveness and pardon on perceptions of a person’s transgressions. In “Revising the Past: On the Metaphysics of Repentance, Forgiveness, and Pardon,” the author reexamines what he perceives to be a simplistic treatment of this issue in the literature. The central question that guides the investigation is: “How do the revisionary practices render the negative reactions provoked by the misdeed no longer appropriate” (p.117)? In addressing this question, Dan-Cohen reviews what he calls the standard account of repentance that includes a wrongdoer’s admission of fault followed by forgiveness by the victim and pardon by the state. Of the several problems with this account identified by Dan-Cohen, central is the inability of revisionary practices such as the pardon to erase the past from the biography of the offender. Certainly this flaw serves to undermine the impact of the pardon and other tools meant to offer absolution. For the author, a solution lies in reassessing the boundaries of the self. He argues, “Revisionary practices give rise to a new version of the self from which the wrongful act is excluded. When this version is inhabited and enacted, it replaces the older one as superior and more authoritative” (p.129). Hence the new version of self replaces, but does not eradicate, the previous self and allows for elements of forgiveness to adhere. Dan-Cohen admits to the limitation of revisionary practices to mitigate past wrongs, and also suggest that reframing the question to focus on the offender rather than victim will help [*527] to mute the discomfort with the process of forgiveness.
Bruce Robbins joins the colloquy regarding forgiveness in his piece “Comparative National Blaming: W.G. Sebald on the Bombing of Germany.” National blaming is a “rhetorical practice” utilized by political actors to gain a position of moral superiority by comparing the actions of contemporary political actors with the condemned behavior of previous regimes. The purpose of the chapter is to explore how exactly this comparative national blaming is conducted, should such an activity be conducted, and how it might be done correctly or well. As it relates to the purposes of this volume, Robbins explores the capacity of nations to extend a hand of forgiveness in the international realm to those whose history reflects past wrongs, or, it seems, at the very least end the process of blaming for those transgressions. This discussion is grounded in an analysis of W.G. Sebald’s discussion of Germany’s inability to come to terms with its position as a victim of the firebombing perpetrated on the nation’s cities during the Second World War. The inability to grasp this potential role, Sebald argued, relates to an internal comparative dialogue that shuns the easy adoption of the position of victim because of the history of the Nazi’s own behavior during this conflict. The textual analysis of Sebald’s work provides an opportunity for Robbins to explore the capacity of a nation to claim the status as victim when that nation has a history of victimizing others. The motivation for this discussion lies in part in the status of the United States in a post-9/11 world in which America adopted the role as victim and the nation sought retribution without reference to past behavior as aggressor. That recognition, Robbins suggests, would lead to a greater capacity for nations to shed the potential for knee-jerk adoption of victim status and instead engage in the practice of forgiveness.
The final contributor, Adam Sitze, offers a challenging examination of the concept of pardon in “Keeping the Peace.” The guiding question behind the work posits: “What would it mean to take the indiscernibility of pardon and amnesty seriously as a problem for the philosophy of law” (p.165)? The investigation is a multilayered textual analysis of Carl Schmitt, Immanuel Kant, Plato, and others in an attempt to understand the relationship of pardon and amnesty as those concepts apply to the notion of a just war and a just enemy. The difficulty that Sitze identifies with conflating pardon and amnesty is the existence of a moral and legal contradiction that undermines political and theological doctrine. The analysis gives insight into the inherent problems of pardon in the political realm and the trickier issue of amnesty, or general pardons, for the community.
There is much to recommend this volume. The various authors provide a font of heuristic tools to promote debate about concepts that, in casual use, are either poorly delineated or not defined at all. The authors draw out distinctions among the terms that begin to bring into focus the place each has in the puzzle of justice, equality, and the law. As a result, the reader is offered a substantial [*528] number of questions to ponder regarding the powerful tools available to leaders responsible for obviating inconsistencies or injustices in the law. Such questions are useful for a continued and vital debate about how, and to what extent, these powers should be exercised at all. Several authors also do an admirable job connecting what might be viewed as obtuse disquisitions to contemporary events and utilizing recent judicial events to illuminate complex arguments. Daniel Kobil offers Governor George W. Bush’s refusal to pardon condemned killer Carla Faye Tucker and Pope John Paul II’s intercession on behalf of a death row inmate in Missouri as thoughtful, evocative, and explanatory examples that both demonstrate and substantiate his argument. Likewise, Linda Ross Meyer defines categories of pardon by reflecting on historical events such as the American Civil War and the use of cutting-edge evidentiary techniques based on DNA analysis. To a lesser, but still important, degree, Bruce Robbins, who draws on the events of 9/11, also provides important context for his discussion regarding the international quality about national obligations for past and current acts. This method offers insight that makes real the difficulty justifying the use of mercy and its counterparts by democratic institutions.
Standing alone, each chapter offers significant, albeit narrow, insight into the virtues and difficulties related to the application of clemency, pardons, and mercy. However, stitched together, the arguments fall short in offering a coherent and well-integrated understanding of the nuances and complexities of these topics, including well-articulated definitions of the concepts central to the book. In the introduction, the editors argue that the book seeks to “map the terrain” related to the relationship of the concepts and explore answers to important questions left unresolved in other threads in the literature. However, each of the chapters tackles a unique question or set of questions without any obvious or significant connection to other contributors to the volume, leaving the reader to search for relationships among the arguments and the interconnectedness of the perspectives on these concepts. To borrow the editors’ cartographic metaphor, the consequence is a map without the necessary detail to insure the arrival of the reader at the appropriate intellectual destination. A final observation relates to the level of sophistication of the analyses presented by the varied authors. The work offers erudite and complex discussions that are likely inaccessible to the average reader and possibly beyond the typical undergraduate students of public law. The contributors at times offer insights into authors and writings too esoteric for the casual or novice reader of this type of legal philosophy. Despite these few observations, the book serves as a thought-provoking volume for scholars in the field and graduate students seeking additional analysis of this strand of legal theory.
Greene, John Robert. 1995. THE PRESIDENCY OF GERALD R. FORD. Lawrence, Kansas: University Press of Kansas. [*529]
BURDICK v. UNITED STATES, 236 U.S. 79 (1915).
© Copyright 2007 by the author, Charles F. Jacobs.