I bet I’d move it on a little farther down the line… The problem with pardons

There’s a risk that I end up being ‘That Guy’ in this post.  Something happens and people are happy, then That Guy says: ‘Aha!  You are all stupid for being happy about this because it is actually bad!’  We often see That Guy perform along to partisan beats.  The NDIS is launched and a right wing That Guy bloatedly explains that the NDIS is actually bad somehow.  A terrorist plan is thwarted and a left wing That Guy bloviates that it is somehow a false flag.

On one level, we should be happy that Chelsea Manning was pardoned.  She gets to be reunited with her family and friends, and we shouldn’t begrudge her that genuine happiness.  It is a monster who responds to an act of mercy with spite or with pettiness.

At the same time, we should keep a critical eye on this act of executive power and question whether we think it meets our community standards for how we want our justice system to work.

Let’s get the obvious out of the way.  The celebration of Chelsea Manning’s sentence being commuted is mostly in celebration of what Manning did.  For the radical left, hindering the United States’ ability to defend itself is a moral good and, therefore, no punishment should attach to it.  This is a pretty stupid intuition, asking us not only to consider the illegality of a particular action but also its moral praiseworthiness.  I look forward to the return of heroes who say: ‘I’m conflicted by two moral obligations.  Therefore I will commit a crime and accept the punishment for it.’

In this sense, there is no room for deeper analysis.  Their view is that Manning should never have been in jail and, therefore, commuting the sentence is the only morally acceptable path.  Crimes they like shouldn’t be punished.

The problem, even at this level of inquiry, is that people have different thresholds for the sort of crimes they’re willing to support.  Ignoring the Federal/State crime division, we would be concerned if Trump commuted the sentence of an ex-cop who shot an unarmed teenager.  More than concerned, there would be riots.  And rightly so.  But you will find people who earnestly and sincerely believe that the ex-cop was framed, or that the teen was really armed, or that the teen somehow deserved it, or that the judge and jury were prejudiced against the white cop, or… or… or…  This isn’t to say that we shouldn’t have commuted sentences simply because that opens the floodgates for racists to exonerate klansmen.  Far from it.  But if we only have ‘I like this crime, therefore there should be no sentence attached’ as the only mode of analysis — which is almost certainly the case for most of the people celebrating the decision to commute Manning’s sentence — then we find ourselves without principled reasons for opposing decisions to commute the sentences of deplorable people.

Putting aside the ‘Boo!/Hooray!’ level of analysis, we can turn to the formalities of what’s going on when the President pardons or commutes a sentence.  The President is the head of the executive branch of government.  They have decided — on whatever grounds they choose — to set aside the decision of the judicial branch of government based on the laws passed by the legislative branch.  When framed in these terms, it seems difficult to reconcile our intuitions about the separation of power with this power of the executive to override the judiciary and the legislature.

It is even more difficult to reconcile when we introduce the history of the power into the discussion.  This was a power of political convenience: it was considered necessary for the President to be able to pardon prisoners in situations where that would settle down riots or civil unrest.

It’s such a weird power that it doesn’t really exist in the same way in Australian law.  Here, we have ‘Prerogatives of Royal Mercy‘, but they are rarely, rarely used.  The reason for their disuse in Australia is pretty much the separation of powers issue: courts are better suited to determining guilt and appropriate punishments.  It’s the same argument we have when legislatures want to introduce mandatory prison sentences.

But in the U.S.?  This power to commute sentences is used frequently and, invariably, politically.  Apparently George W Bush was the President who tried the hardest to regularise and standardise the use of the pardoning power so that he wouldn’t be accused of politicising his decisions.

Perhaps this is too cold.  Maybe our intuitions about the separation of powers is too formal (and even I think the separation of powers is probably wrong).  It could be that the Australian approach is too miserly, a cowardly hide behind formalism in order to dodge questions about justice.  Perhaps we think that any mechanism that errs on the side of mercy is, by default, a good mechanism.

In this case, we definitely have something that errs on the side of mercy.  The executive cannot increase the severity of a punishment, or punish a person who has been found guilty; the only option available is a more lenient sentence.

The problem for me is that I believe in having sentences that ‘match’ the crime.  Back when we had a national discussion about ‘no body, no parole‘ laws, I argued that the only way a punishment can be just is if it is determined by the nature of the crime.  By commuting the sentence in this way — regardless of the type of crime — I feel like a person has not received a just punishment.  That, in a way, the community’s need for justice to be enacted has been frustrated by political interference.

This is a space where I think reasonable people can disagree.  It is entirely reasonable for a person to believe, sincerely, that mercy is more important than punishing the guilty.  They might think that Manning has been punished enough and, therefore, was deserving of mercy.  But I disagree, because I think crimes should be punished and the courts are the right vehicle for setting the punishment.

Ideally, this will be the sort of conversation that takes place in the media over the next week or so, and not just a screaming match between ‘The US is an evil empire’ and ‘Manning deserved to die’ megaphones.

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