The Quality of Mercy

I'm not in principle opposed to commutations of sentences or even pardons. It's a royal prerogative that for some reason the Founders chose not only to retain, but to vest in the executive. It might also have been vested with the truer sovereign, the American people, as perhaps by having annual referenda on it. [UPDATE: Or administratively, which seems to have problems too.] It might also have been rejected as incompatible with the judiciary's independence; but the Founders usually preferred to limit independence with checks and balances between the three branches. 

Courts often get things wrong. They are human institutions, and any system of rules can end up being unjust by applying those rules to a situation that they weren't really fit to handle. The rules are written in advance of the reality of the cases to which they end up being applied, and as such the cases may involve aspects the legislators never considered. This also has the happy quality of preventing magistrates from drafting rules that will favor their own side, of course; that was what Aristotle liked about the approach, and why he recommends it strongly in Rhetoric I.1. Still, the other side of that coin remains: sometimes the only rules we have don't fit a particular case well. Justice seems to involve setting the rules aside. Pardons and commutations are an approach to that problem that has evolved over human history, and retaining it doesn't seem in principle problematic to me.

One problem with locating it in an individual, though, is that the individual may prove to have poor judgment. This works in both ways: they may lack the virtue to stand up for the interests of justice by issuing a pardon when it is deserved, or they might lack the virtue to use the power in a just manner and end up pardoning people they should not.

The use of the clemency power in grand gestures is likely to prove problematic, as it is very likely that grand gestures will end up including some candidates who shouldn't have been included. On the other hand, there is Biblical warrant for a complete jubilee -- perhaps there is a basic wisdom to the idea that everything should be wiped clean every so often. Perhaps we should even use the power in this wide-ranging way more often that we do.

These big questions are in the news because of a series of Biden administration pardons and commutations that seem to range between somewhat unjust to completely unjust (e.g. his pardoning of his own son in the face of manifest criminal wrongdoing in which the elder Biden is also involved). However, there's also a set now from the outgoing governor of North Carolina, Roy Cooper. Readers know that I think he has been a terrible governor, and I sorrow that his chosen replacement will become our next governor. That said, I don't get the sense that on this occasion he has engaged in anything unjust. 

Before Tuesday, North Carolina had 136 offenders on death row. Cooper’s office said it had received clemency petitions from 89 of them.

Cooper’s office said it considered a variety of factors, such as a defendant’s conduct in prison, the adequacy of legal representation and sentences received by co-defendants.

“These reviews are among the most difficult decisions a Governor can make and the death penalty is the most severe sentence that the state can impose,” Cooper said in a news release. “After thorough review, reflection, and prayer, I concluded that the death sentence imposed on these 15 people should be commuted, while ensuring they will spend the rest of their lives in prison.”

I'm inclined to accept this as a reasonable use of the power; it is not an extravagance, and the penalty that remains imposed is quite severe. (I'm not in fact sure that 'life in a state prison without the possibility of parole' is preferable to death.) The pardon power is possible to use well, and whether or not I agree with Gov. Cooper in each particular case, I am satisfied that he took his duties seriously here. That may be the best we can do as human beings.