In light of the fact that tomorrow, the state of Georgia, barring virtually unprecedented administrative action, is going to execute a man which the great weight of evidence suggests is not guilty of the crime he is accused of, this seems like a good time to remind people of the case for the Executive Pardon, and its proper place in a sane criminal justice system.
Alexander Hamilton made the case for the Executive Pardon in Federalist 74:
Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.
It is hard to express the sense, wisdom and sanity Hamilton displayed when he wrote this. The only reasonable counter-argument to Hamilton’s defense is that the executive pardon could be used mischievously by unscrupulous executive office holders to pardon individuals whose guilt was clearly established, thereby undermining the democratic legitimacy of jury trials. This objection can be quickly dispatched by simply pointing out that a) juries can be and often are wrong, particularly where the body of evidence in a case changes post-verdict, and b) Governors and Presidents are politicians; abuse of the Executive Pardon would quickly become a political liability if used fecklessly and as a form of patronage. And given the fact that these are public acts of record, there is no shortage of journalistic scrutiny that might be applied to make such acts known to the public.
Unfortunately, in Georgia, the Governor has no direct control over the pardon process. The decision is made by a Board of unelected individuals, the composition of which has very little guidelines in terms of selecting an ideological and professionally balanced committee. Georgia isn’t the only state that does this either, which I would argue is an abdication of the Executive Office’s responsibility; the case for Executive Pardons in Federalist 74 falls apart when Pardons are decided by a small coterie of peers, who “might often encourage each other to act in obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency.”
Appreciate that fact when Troy Davis is executed tomorrow in the face of overwhelming evidence of his innocence. Appreciate the fact that things could be done differently. But they won’t be.
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