Crime has been a reality in society forever, and one seemingly immune to resolution, much less elimination. Whether motivated by need or want or emotion, criminal offenses may be inevitable. Offenses against persons and property have existed, as the Bible tells us, since Eve ate of a forbidden apple and Cain slew Abel. Today, US prisons, jails, and other institutional detention facilities hold millions in captivity, deprived of freedom. Loss of freedom–removal from society at large–is the perennial mainstay solution for defined criminal behavior.
In popular terms, crime relates to conduct that is evil, shameful, and wrong, requiring a social response. In turn, that response involves justice dispatched with fairness, equality, and equity. Together, justice and the social response to criminal conduct carry some inherent disconnects or conflicts between them, contributing to inconsistent views and outcomes across jurisdictions. They collide because the onus on society and its laws to afford fairness and equity for wrongful conduct essentially requires an individual character assessment. Sometimes, that collision and the frictional heat given off may be mitigated by clemency.
The concept of criminal justice is further confounded when the term “system” is added. This latter suggests a formulaic proposition between crime and justice, with each component in some relationship with the other. Since the assessment of individual character is involved, commonality across jurisdictions with differing statutes is a herculean undertaking. Fairness, equality, and equity are at risk in universal applications where evaluation of an individual is concerned. Friction among these criteria tends to result in criticism that America’s criminal justice system is an oxymoron.
Societies have created at least one element of resolution for resolving harsh edges in the process of crime and justice. English law transferred to the new United States its principle of clemency, including pardon for offense, exercised by government, generally the chief elected officer of the jurisdiction. The Constitution (A. II, Sec. 2, c. 1) provides the President “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Virtually every state has an analogous provision in its governing constitution.
However, as some recent exercises of clemency and pardon have appeared to be toxically political, executive clemency has received substantial criticism. At the federal level, the process is overseen by the Department of Justice (DOJ). Pardons for Paul Manafort, Roger Stone, and Michael Flynn have drawn harsh opposition as rewards for political loyalty to the President. Even the most honest exercise of executive clemency is subject to a claim of political preference. A slew of over 400 pardons by the former governor of Kentucky have come to the attention of the FBI upon allegations of bribery and abuse of authority.
Misuse or abuse of executive clemency sullies the necessity for its exercise in cases involving excessive sentences or clear and convincing evidence of innocence or misconduct by prosecutors or state courts.
Misuse or abuse of executive clemency sullies the necessity for its exercise in cases involving excessive sentences or clear and convincing evidence of innocence or misconduct by prosecutors or state courts. The governor of Missouri has declined to pardon an inmate whose conviction has been demonstrated to be baseless.
While the clemency power exercised by the English monarch might be deemed infallible because the royal head is also the head of the state’s church, that exalted dominance is not a virtue of clemency in the United States. In addition, the federal process under the DOJ’s Office of Pardons is required by its own regulations to give “considerable weight” to the opinions of local prosecutors who oversaw the initial conviction. Essentially, perhaps with the exception of DNA evidence, it requires prosecutors to consider some error within their jurisdictions.
When Joe Biden was nominated for the presidency, he joined with Sen. Bernie Sanders to issue a joint policy statement on several matters of common agreement called the Unity Task Force Recommendations. The clemency power was described as follows:
Democrats are proud that the Obama-Biden administration commuted the sentences of more than 1,700 people serving unjust sentences following thorough review of their individual cases, and we support the continued use of the President’s clemency powers to secure the release of those serving unduly long sentences. We also support establishing an independent clemency board to ensure an appropriate, effective process for using clemency, especially to address systemic racism and other priorities. (Microsoft Word – Press Release — Unity Task Force Recommendations 7_8_2020.docx (joebiden.com)).
Although executive clemency might never be utterly devoid of political considerations, its exercise by way of an independent board promises a less conflicted process, one preserving society’s value and interest in fairness, equality, and equity.
Although executive clemency might never be utterly devoid of political considerations, its exercise by way of an independent board promises a less conflicted process, one preserving society’s values and interests in fairness, equality, and equity. The prefix “oxy” is defined as intense of sharp. Combined with “moron” meaning dull or stupid, oxymoron is itself a contradiction. The goal of justice ought to be as clear as possible of contradictions.