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The Ethics of Pardoning

photograph of Trump pardoning Thanksgiving turkey

Back in October, I read the single greatest news article that I have ever read. It had everything you could want in a story: courage, a murderer turned hero, a thwarted terrorist attack, the London Bridge, a narwhal tusk, and a royal pardon. If you have not already read the article, you absolutely should; each paragraph is better than the one before.

But the story is not only a thrilling and satisfying narrative, it also provides us an excuse to talk about the ethics of pardons. This is a good thing, because I expect that, as happened in previous presidential administrations, we will see a flurry of presidential pardons before president-elect Biden is sworn in. It is always a good idea to think carefully through your principles before there is some controversy where you need to apply them. Otherwise it is far too easy to shift into principles that end up siding with your political tribe after a controversy arises.

Black’s Law Dictionary defines a pardon as “the act or an instance of officially nullifying punishment or other legal consequences of a crime.” In the United States, the power to pardon is possessed by the executive. The president can pardon federal crimes, while governors can pardon state crimes.

When we look at the ethics of pardoning, there are two types of questions we might ask. We might wonder about how extensive the power to pardon should be. These are questions framers ask when structuring a constitutional system. An example question is whether the president should be empowered to pardon him or herself? We might also wonder whether any given pardon is a good idea. These are questions that the executive branch asks before issuing a pardon. An example question is whether President Ford should have pardoned President Nixon. Note that these two questions come apart. Just as I can simultaneously think it is a really bad idea to own a gun and also think people have extensive rights to own guns if they choose to, so I can think that most pardons are a bad idea and yet also think the president should have broad power to pardon.

There are fascinating questions about how extensive the presidential power to pardon should be. But here I want to look at the second set of questions. Suppose that the president is empowered to pardon someone, when is it appropriate to exercise that power?

One context where pardoning might make sense is when the president believes a criminal trial was unjust, either in process or outcome. A recent example of this is President Trump’s posthumous pardoning of the Boxer Jack Johnson. While there are many checks internal to the judiciary, the presidential pardon is probably the largest external check on incorrect judicial decisions.

Another context where pardoning seems justified is where the judicial branch properly applies the law, but where peculiar circumstances make the application of the law unjust. This is the justification for the presidential pardon given by Alexander Hamilton in the Federalist Paper No. 74. Alexander Hamilton explains the power to pardon is important because criminal codes have a “necessary severity” and so “without an easy access to exceptions in favor of unfortunate guilt” justice would often end up too “cruel.”

Of course, neither of those two justifications are operative in this narwhal story. According to the NYTimes, in the U.K. “pardons for early release are generally recommended by officials in exceptional situations, such as if a prisoner risks his safety to prevent death or serious injury to another.” Here, the idea is that pardons might be a way to recognize something particularly remarkable about an individual.

And indeed, many pardons do seem to track something about the individual. For example, it is not uncommon that famous people are much more likely to receive pardons for crimes. This may in part be in recognition of their accomplishments, but it is also simply a consequence of being much more likely to be brought to executive attention.

This brings us to one of the biggest worries about the use of pardons, namely that they are idiosyncratic and thus seem in tension with a commitment to equal treatment under the law. Suppose I am also in jail in the U.K. for murder. It could be that I, like Steven Gallant, turned my life around, am close with my child, and act as a role model and mentor. However, none of that will be enough to secure a pardon, I also need to have the opportunity to do something heroic. Opportunities for heroism, however, are not evenly distributed throughout society. And thus some people will have access to pardons that others do not, merely as a matter of luck.

Indeed, this worry about the idiosyncratic nature of pardons applies even to pardons designed to act as a check on the judiciary. This issue is examined in detail in The West Wing episode “Take This Sabbath Day.” President Bartlet faces the question of whether to commute the sentence of a man soon to be executed. President Bartlet, who is Catholic, believes the use of the death penalty is unjust. However, he also worries about punishment for a crime changing based on the beliefs of whoever happens to be president. Toward the end of the episode he expresses his frustration:

“I commute this guy, for no particular reason other than I don’t like the death penalty . . . And the next president sees it in a different way. . . .  We cannot execute some people and not execute others depending on the mood of the Oval Office. It’s cruel and unusual.”

So what should we think about this worry concerning equal justice?

It is actually a tricky legal principle. Is it unjust to give a good thing to one person, if you cannot also give the same good thing to others who are equally deserving? Obviously, certain motivations for giving the good thing only to some people are unjust. For example, if you pardon one person and not the other because the one person is famous, then you are doing something wrong. But what if you would be willing to pardon anyone in that situation, you just know you will only hear about famous people. Then is it still unjust to pardon the famous? This question has important parallels. It would be unjust if I chose to only give money to white beggars and not to black beggars. But would it be unjust if I gave money to every beggar I see, I just also happen to live in a part of town where almost all the beggars I see are white?

It seems plausible that in the interpersonal case, one does not need to be too concerned about the unequal application of personal charity. However, it also seems plausible that in cases of criminal law, we have special reason to maintain not just justice before the law, but also the equality of all persons. It matters, if for no other reason that it not look as though the rich and famous get access to extra opportunities to avoid punishment.

If you think that it is important that everyone have an equal chance before the law, then the use of the power to pardon should be extraordinarily rare. If, instead, giving a good thing to someone is still good, even if you can’t also give it to another, then probably the presidential pardon is an underutilized tool.

The Pardon of Alice Marie Johnson

photograph of Alice Johnson being granted clemency at State of the Union in 2018

The 2020 Republican Convention featured dozens of predictable guest speakers, many of whom have been President Trump’s closest allies and defenders. However, a speaker that came as a shock to many was criminal justice advocate Alice Marie Johnson. Johnson, who had her sentence commuted by Trump in 2018, spoke about how President Trump had impacted her life through his compassion. Politico, reporting on her speech, referred to Johnson as being “propped up” by the Trump administration. Many on Twitter criticized Politico’s characterization of Johnson as racist and demeaning toward Johnson as a Black woman.

What should we make of Alice Johnson’s show of support for Trump at the RNC?  And how should we interpret President Trump’s pardoning of Johnson immediately following the convention?

In 1996, Alice Johnson was convicted and sentenced to life in prison for attempted possession of drugs and money laundering. Johnson was a first-time non-violent offender, and many considered her sentencing to be not only harsh, but fundamentally unjust. Under all three of the most common theories of punishment: deterrence, retribution, and restorative, Johnson’s sentencing is clearly immoral. A fundamental principle of retributive justice is that punishment be proportional to the crime. While deterrence seeks to use punishment to discourage recidivism, the charges brought against Johnson and the sentencing that followed were so harsh that there was no true due notice by which she could have been deterred and since she was sentenced to life in prison, she had no opportunity for which to be deterred. Lastly, Johnson’s sentencing is clearly unethical under a restorative justice model since it gave Johnson no opportunity for rehabilitation, to restore the harm that had been caused, or to change her impact on society after release.

While criminal justice reform non-profit CAN-DO had been advocating for Johnson since 2014, the case caught national attention when celebrity Kim Kardashian West became involved in the project to grant Johnson clemency in 2018. In a widely reported meeting at the White House, Kardashian West urged Donald Trump to commute Johnson’s sentence. Merely one week after this meeting, Trump announced he would be commuting Johnson’s sentence effective immediately. On June 6 2018, Johnson was released from prison and reunited with her family. Johnson’s case has been cited as an example of the racial inequity of the criminal justice system toward Black people. Since her release, Johnson has become an outspoken advocate for criminal justice relief and touts a host of academic and cultural accolades.

Johnson’s appearance at the RNC is not her first time publicly associating with conservatives. On March 1, 2020 she appeared as a guest speaker at the American Conservative Union. During her talk, she endorsed “Right on Crime” an organization which calls itself “The Conservative Approach to Criminal Justice.” Right on Crime’s mission argues that “For too long…American conservatives have ceded the intellectual ground on criminal justice.” Right on Crime proposes reforms highlighting values such as public safety, right-size government, fiscal discipline, victim support, personal responsibility, government accountability, family preservation, and free enterprise. Despite her endorsement of the conservative approach to criminal justice, Johnson has also expressed support for more liberal approaches to criminal justice reform, such as ending mandatory sentencing, promoting prisoner education, and abolishing cash bail.

Johnson’s decision to deliver a speech at the RNC and vocalize her support for Donald Trump is especially interesting given the increase in activism spurred by the murder of George Floyd earlier this year. Trump himself has refused to support the Black Lives Matter movement and has actively undermined and demonized many demonstrations over the past few months. He has consistently voiced his support for law enforcement officials during the ongoing protests and calls to defund the police in recent months. Back in July, he ordered National Guard troops to tear-gas protestors outside of the White House for a photo-op. Considering the fact that police reform is a large component of many criminal justice reform doctrines, it is strange that Alice Johnson is choosing to vocalize support for a president who has threatened that if reelected he will “restore law and order to our country.” Johnson’s decision to align herself with Trump might strike some as hypocritical and even dangerous — especially if her continued support is interpreted as proof that President Trump is not racist or is morally righteous in his approach to criminal justice. In an article in The Nation, Elie Mystal argued that “The Republican National Convention has been all about using Black people to convince white people it’s OK to vote for a bigot.” Johnson was one of several black speakers at the RNC, many of whom at least partially undermined the characterization of Donald Trump as racist. In addition to Black speakers, the convention featured a naturalization ceremony for five new American citizens, none of whom knew that footage of them would appear during the convention. This ceremony has also been heralded as ironic considering Trump’s vast record on anti-immigration stances and policies.

On the other hand, Johnson’s decision to speak at the RNC could be either out of a perceived personal obligation to the president or in an attempt to ‘reach across the aisle’ and generate more support for criminal justice reform. President Trump quite literally changed Johnson’s life when he commuted her life sentence. Even consistent critics of Trump, heralded his decision as compassionate and progressive. But some have suggested that Johnson might feel a personal obligation toward Trump, influencing her decision to accept an invitation to speak at the RNC. Others might argue that commuting her sentence was not an act of kindness, but rather morally obligatory, considering how the stark injustice of her sentencing, discussed above. Therefore, Johnson does not owe anything to Trump and is under no obligation to support him.

Johnson has also been very vocal about her desire to make criminal justice an apolitical issue. Perhaps her decision to support President Trump is to appeal to Republicans and potentially inspire them to advocate for social justice reform. During her speech, Johnson declared, “there are thousands of people just like me, who deserve the opportunity to just come home.” She also referenced the First Step Act, signed into law by Trump in 2018. Johnson indicated that this was important, but that is only a stepping stone. If Johnson’s speech at the RNC encouraged even a few Republicans to reconsider their views on the criminal justice system, it is arguably ethically justified. Additionally, some criticisms of Johnson’s speech are clearly unethical. Politico’s aforementioned characterization of Johnson as a “prop” disacknowledges her as an individual with political and moral agency. It might also imply that she is only speaking in support of Trump’s administration for selfish or opportunistic reasons. This type of objectification and suspicion of Black women has a very long history and is unfortunately still quite common in American culture and politics.

While Trump’s pardon of Johnson seems morally justified from multiple viewpoints, his timing raises troubling questions about his motive. Why not officially pardon Johnson when he commuted her sentence? Considering the fact that Trump was recently impeached for attempting to partake in “quid pro quo” behavior, it would not be irrational to interpret his pardoning of Johnson as a way of rewarding her for supporting him at the convention. The case for this interpretation becomes stronger when one considers Trump’s history of pardoning his political allies. Though some might argue that there is nothing inherently wrong with quid pro quo politics, the president’s record of such behavior is not of making deals with peers, but rather, bullying those who he holds power over into submission. It’s arguable that this type of strong-arming is more characteristic of a tyrant than of a democratic leader.

Despite speaking in support of Trump during the RNC, Johnson refused to use the word “endorse” when speaking about her support for him as president. The day after she was pardoned, Johnson refused to officially endorse Donald Trump, while admitting that she supports Donald Trump as a president and hopes to work with him more in the future on criminal justice reform. What we should make of Johnson’s support is not an easy question to answer, but Donald Trump’s decision to pardon Johnson immediately after her show of support adds to a troubling pattern of opportunistic exertion of presidential powers.

Bad Behavior During Political Primaries

photo of empty studio with debate podiums

The new presidential election cycle brings with it both a sense of hope for the future and cause for frustration over bad behavior in an increasingly hostile political environment. As primary candidates emerge, it’s worth pausing for reflection on what appropriate behavior during the primary season and beyond looks like.

This may be interpreted as a pragmatic question. If we understand it in this way, the question amounts to something like: how should members of a political party behave if they want their party’s candidate to ultimately win the general election? Notice that this is not necessarily a moral question. It may turn out to be the case that the best way to get a candidate elected is to behave as morally as possible, but recent elections don’t lend a lot of support for that view. It may turn out that playing fast and loose with facts and spreading misleading or outright false information on the internet is useful for getting a candidate elected, but such behavior is likely unethical. On the other hand, some argue that what really matters at the end of the day are the consequences of the election. According to this view, the ends justify the means. Though there may be something to the view that consequences matter most, one significant consequence of this kind of behavior worth taking into account is that it contributes to the decline in critical thinking skills of the population at large, and it diminishes the trust that we have for one another. This could potentially result in an irredeemably broken political system.

One of the most visible issues during the primary season is the way that voters treat candidates running against their preferred candidate choice. There is nothing wrong with passionately supporting a candidate; in fact, caring deeply about politics is, at least on its face, a virtue. Politics matter, and many political choices are moral choices—people suffer to a lesser or greater degree depending on what kinds of policies are implemented. It makes sense to support the candidate that you believe will maximize well-being. But what does this entail about how the other candidates in the field should be treated?

Now that so many of our behaviors and comments are recorded and easily accessed decades after the fact, there are many more considerations that can be brought to bear on the decision of which candidate to support. The past behavior of a potential candidate matters. We need to take a look at how a candidate has voted in the past, the ways in which that candidate reliably treats other people, and the virtues and vices that might be easily observable in their character. But we need to use good critical thinking practices when we make these judgments. First of all, we should make sure that we are employing consistent standards across the field of candidates. No person exhibits perfect behavior in every circumstance. It will always be possible to point to some bad decision making on the part of any candidate. Like offenses should be treated in similar ways. We should avoid treating behaviors as disqualifying in an opposing candidate that we wouldn’t treat as disqualifying in the case of our own preferred candidate. It’s also important to recognize that some bad behavior is worse than others and we need reasons beyond our political preferences for treating a particular instance of bad behavior as disqualifying.  
A further question worth considering is the standard to which it is appropriate to hold candidates for political office. We often treat our family and close friends with empathy and compassion. We recognize that people grow and evolve and make mistakes in the process. As a result, we are frequently willing to forgive those to whom we are close. How much forgiveness should we be willing to offer candidates for office if they express contrition for past bad behaviors?

We also need to resolve the question of how to react to various changes both in people and in political, social, and ethical climates. There is some language that it is arguably inappropriate to use in any context, but it is also important to recognize that language is dynamic and changes over time. Should we judge comments made by candidates according to the social standards of the current environment, or should we view them in the context of the environment in which they were expressed?  

The same considerations apply to a political candidate’s voting record if they have previously served as a legislator. This is a real challenge, because it is undeniable that bad legislation exists and we shouldn’t minimize that fact. On the other hand, very few people follow politics closely enough to be fully aware of the political context in which particular decisions are made, especially when those decisions are decades old. Hindsight is 20/20, and often the folly of past political decisions is weaponized. One proposal for the way we should look at a candidate’s record is in terms of what their reliable dispositions seem to be. If a candidate routinely, through the course of a career, makes decisions that, for example, put poor people at a disadvantage, then it is appropriate to conclude that the candidate in question is bad for poor people. It is unproductive to use isolated political decisions out of context to score points against a candidate we dislike.

There is a big picture to keep in mind. Some primary candidates maybe better than others, and it may turn out to be the case that a charismatic candidate wins over a candidate with more productive substantive policy proposals. If we want ideals that resemble our own to prevail because we think those ideals aren’t just political, but are, fundamentally, moral ideals it would be useful to have a theoretical framework in mind in advance for what kinds of behaviors count as disqualifying, and to treat candidates accordingly.

Was Obama Truly a Post-Racial President?

A photo of Barack Obama speaking behind a podium.

“There is not a liberal America and a conservative America—there is the United States of America. There is not a Black America and a White America and Latino America and Asian America… there’s the United States of America.” These words were pronounced by Barack Obama in the 2004 Democratic Convention. A relatively obscure politician at the time, this speech proved to be momentous, as it struck a chord with American voters, and four years later, Obama was the first African American president elected in U.S. history.

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On Lying When There is No Truth

A photo of a Pinocchio doll.

One of St. Augustine’s enduring gifts to ethics has been Just War Theory. “Thou shalt not kill” comes with an asterisk and a long explanatory footnote.  Augustine did not leave us a Just Lie Theory. “Thou shalt not bear false witness” is almost absolute.

Augustine wrote about lying because, of course, everyone does it. And not just about little things. Even Augustine’s co-religionists were saying anything they could to win converts to their side. This was bad. Lying about faith and salvation degraded and debased Truth, the foundation of Augustine’s spiritual values. Augustine worried that a person converted by a lie had never accepted the Truth, and so might not really be saved.

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Should Americans Hope for a President Pence?

A little over a month into Donald Trump’s presidency, chaos continues to swirl around even the most basic of the administration’s operations. High profile controversies – most notably, the emerging details about Trump surrogates’ contact with members of the Russian government during the campaign – continue to roil the nascent administration. From within, leaks to the press abound, painting a portrait of a chaotic White House even more defined by power struggles and botched policy rollouts than usual. And all the while, Trump continues to make inflammatory statements, most recently asserting without evidence that then-President Barack Obama ordered wiretapping of Trump Tower during the 2016 election.

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Health Transparency for Presidential Candidates

From Grover Cleveland’s secret oral surgery to First Lady Edith Wilson running the Executive Branch after her husband, Woodrow Wilson, suffered a stroke, the legacy of medical cover-ups among Presidents and candidates continues. This past weekend, Hillary Clinton left a 9/11 memorial early after feeling overheated and dizzy, as well as losing her balance. Clinton’s staff later released that Clinton had been diagnosed with pneumonia the previous Friday and ignored her doctor’s request of a five-day break from the campaign.

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