Should Biden Pardon Trump?

On his way out the door, Donald Trump pardoned a bunch of his buddies. Trump didn’t pardon himself, as some suspected he would. And now one wonders whether President Biden might consider a pardon for Trump.

At his inauguration, Biden spoke of unity, love and healing. Would a Trump pardon help? This was Gerald Ford’s reasoning when he pardoned Richard Nixon. Ford explained, “the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former president of the United States.”

There is much to think about here. What is the role of justice and pardon in the life of the nation? And in our own lives?

The pardon power is easily abused. Trump pardoned his cronies, including his son-in-law’s father. Bill Clinton pardoned his brother, Roger Clinton. And Arnold Schwarzenegger commuted the murder sentence of the son of a political ally.

The pardon power exists because the judicial system is a blunt tool. The executive can make exceptions that correct failures and excesses — or that recognize the unique circumstances of wrongdoers.

Presidents Ford and Carter commuted the sentences or granted amnesty to tens of thousands of Vietnam era draft dodgers and deserters. After conscription was abolished and the war ended, it seemed odd to punish those who refused to fight.

Not everyone was happy about this. Those who obeyed the law and fought in Vietnam resented this move. It seemed to discredit their own service and sacrifice.

Justice requires fair and equal treatment. It also demands negative consequences for wrongdoing. If you do the crime, they say, you must do the time.

Strict retributivists argue that forgiveness is unjust since it fails to give wrongdoers what they deserve. But justice is not the only thing that matters. Forgiveness is beneficial emotionally and psychologically. It heals resentment and promotes kindness. Mercy can build reconciliation and help create a new future.

The world’s religious traditions often celebrate these values. Some even imagine God as merciful and compassionate. But how does God’s mercy relate to divine justice? If you want to generate an argument, ask a friend whether they think God would forgive Hitler.

Forgiveness is an exception to the rule of punishment. For this reason it appears arbitrary and capricious. It unfolds that way in our own emotional lives. Anger and resentment fester, until one day they fade away. It is often not clear why this happens.

There is a mystery here that theologians call grace. Forgiveness is a gift. To forgive is to give up on anger and the demand for punishment. It is to give in to love, compassion, and other tender-hearted values.

But should presidents and governors have the power to bestow this kind of gift? In the old days of kings and emperors, people thought that the sovereign’s mercy was guided by God. But we know that our leaders are merely human. And we see that the pardon power can be abused for corrupt and venal purposes.

Nepotism and cronyism are obvious problems. It is wrong to use the promise of a pardon to create loyalty in the cover up of a crime. It is also wrong to sell pardons or to pardon political cronies. These corrupt uses of the pardon power make it appear that justice is not blind, but that she is only winking at the rich and well-connected.

This shows us the deep political problem of the pardon power. Its promiscuous usage undermines faith in the rule of law and the fairness of the justice system. In defense of the rule of law, it seems that we must make examples of those who break the law.

After Ford pardoned Nixon, many were outraged at justice denied. The tranquility Ford hoped for failed to materialize. Nixon appeared to have gotten away with his crimes. As a result, Ford’s political power waned.

So after you are done arguing about God and Hitler, turn the conversation to Ford and Nixon — and Biden and Trump. What is the function of justice, punishment, and pardon in the life of our nation? And what is the role of mercy and forgiveness in your own life?

Curing Viciousness by Climbing the Moral Ladder

Fresno Bee, September 20, 2020

At a recent rally in Reno, President Trump said, “Now I can be really vicious.” “I don’t have to be nice anymore.” Trump said, “the Republican party doesn’t play it rough and tough.” “We play it so nice,” he said. “In the end it’s not right.”

Trump’s viciousness can be seen in the way the president applauded the killing of Michael Reinoehl by U.S. Marshals. Reinoehl was suspected of killing a right-wing protester in Portland, Ore. After the marshals killed him, the president said, “that’s the way it has to be. There has to be retribution.” Of course, in the U.S., police are not justified in delivering retribution.

We are on a slippery slope lubricated by viciousness. To avoid that slope we need to hold fast to what I call the moral ladder. The rungs of the ladder tell us to be nice and kind, to seek justice, to limit power, and to develop mercy.

Morality begins with niceness. Parents tell kids, “If you don’t have something nice to say, don’t say anything at all.” We quote Aesop’s fables and teach children that “Kindness is never wasted.” These nuggets of proverbial wisdom create a foundation for morality.

Niceness is about manners. Manners provide a psychological and social root for moral development. In learning to be nice, children develop decorum and self-control. Niceness can be superficial and deceptive. A con-man can be nice while he picks your pocket. But that behavior is an exception. Niceness is the first rung on the moral ladder.

Kindness is also essential. Kindness is empathy and benevolence. Sometimes this can be phony or done for show. But genuine kindness opens the heart. It is the source of charity and compassion. The next rung on the moral ladder involves extending kindness to friends and even to strangers.

Beyond this, ethical maturity requires that we develop a sense of justice and responsibility. The Roman philosopher Cicero said that kindness is optional but justice is necessary. Kindness is a gift. If you withhold charity, no one would blame you or be angry. It is not nice to be unkind, but it is not evil.

Justice, on the other hand, is required. If you fail to be just, you are blameworthy. Failures of justice— from lying and promise-breaking to outright violations of human rights — create outrage and righteous indignation. Injustice is not simply unkind. It is evil. Justice is another step on the moral ladder.

Here is where retribution is found, offering payback that holds criminals responsible for their misdeeds. A traditional scheme requires eye for eye, life for life. But a complex system has developed in order to administer justice. Among the most important features of our system is the presumption of innocence.

Accused criminals in the United States have a right to defend themselves in a court of law. American police are not authorized to deliver retribution. The state’s power to punish is awesome. That’s why we limit it and make certain that those we punish are actually guilty. Recognition of the necessary limitation of the state’s power to punish takes us higher up the ladder. This is the vantage point of democratic political theory, which is committed to basic human rights and the rule of law.

It is possible to climb still higher. Many moral systems teach that forgiveness and mercy are higher than retribution. Mercy asks us to be kind, even to those who deserve punishment. The last rung on the ladder takes us beyond law toward something transcendent.

This moral ladder represents the basic common sense of our civilization. Common sense teaches that when viciousness is praised, virtue gets trampled. When niceness is kicked aside, kindness becomes impossible. When police take retribution into their own hands, democracy is in danger.

It’s time to get off of this slippery slope and climb back up the moral ladder. We do that by adhering to justice and the rule of law. We do that by teaching our children to be nice and kind, fair and forgiving. Our children are watching. They will eventually take control of this vicious country. If we teach them well, they may be kind enough to show a little mercy on us.

Justice, Compassion, and the Dreamers

DACA controversy reveals conflict between blind justice and broad compassion

Fresno Bee, September 8, 2017

The reconsideration of DACA presents an example of the conflict between justice and compassion. It also shows us the conflict between a narrow conception of our obligations and a broader point of view.

Justice requires impartial application of rules. The goddess of justice is blind. She administers law without considering the identity of those who receive her decisions. Justice is a goddess of the public sphere. She demands that we extend moral concern universally, fairly, and without exception.

Compassion operates differently. The goddess of compassion opens her eyes and her arms. She attends to people’s concrete situations, making exceptions for the disabled, the displaced and the disadvantaged. The motherly goddess of home and hospitality focuses on individual identity and relations of care.

Compassion and justice disagree whenever there is a conflict between mercy and rule-following. Justice requires equal treatment and unbiased judgment. Compassion makes exceptions for special needs and mitigating circumstances.

The DACA debate asks whether we should extend compassion to the children of immigrants who did not knowingly violate the law when their parents brought them here. Justice may ignore this fact and simply apply a rule that says if you are not here legally, you must leave. Compassion begs us to consider that these young people have no other home to return to and bear no responsibility for their predicament.

President Trump’s statement about DACA uses moral language. But he prioritizes compassion for Americans, saying, “We must also have heart and compassion for unemployed, struggling, and forgotten Americans.” He admits there is something unfair about punishing children for the actions of their parents. But he said that fairness for American citizens was his first priority. He explained, “Before we ask what is fair to illegal immigrants, we must also ask what is fair to American families, students, taxpayers and job seekers.”

Trumpian morality applies compassion and justice in a limited nationalistic way. This fits with the president’s America first agenda.

Moralists have often criticized this kind of nationalism. The goddesses of justice and compassion are not national deities. Morality universalizes.

Justice and compassion extend across borders. The goddess of justice is blind even to national identity claims. And the “mother of exiles” – as the Statue of Liberty has been called – opens her arms to the world’s homeless and huddled masses, yearning to breathe free.

ANY RESOLUTION WILL REQUIRE US TO THINK CAREFULLY ABOUT THE NATURE OF LAW AND MORALITY.
IT WILL ALSO REQUIRE US TO REFLECT ON WHAT IT MEANS TO BE AN AMERICAN.

It is not surprising that American religious leaders responded with dismay to Trump’s announcement. The U.S. Conference of Catholic Bishops condemned Trump’s decision. The bishops wrote, “Today’s actions represent a heartbreaking moment in our history that shows the absence of mercy and good will, and a short-sighted vision for the future.”

Mercy and good will are the heart of the ethics of compassion. The bishops extend this globally, applying the commandment to love one’s neighbor in a universal direction.

Trump and his supporters reject this view of morality. They also discount the religious critique of this policy. Steve Bannon, Trump’s former chief strategist, said that limiting immigration was a matter of “national sovereignty.” He also said that the Catholic church has “an economic interest in unlimited immigration,” suggesting that the church wants immigrants to fill pews and coffers.

The president and his supporters have also claimed that Obama’s Deferred Action for Childhood Arrivals program was unconstitutional. They want Congress to take action. But hundreds of law professors, governors, and other legal and political leaders have argued that DACA is constitutional.

The constitutional question is related to the moral question. Does our legal system require strict impartiality and blind justice or does it permit discretion and compassion? Is the Constitution a system that puts America first and focuses only on questions of national sovereignty? Or are there values in our constitutional system that point in a more cosmopolitan direction?

These are not easy questions to answer. We disagree about religion, morality, and the Constitution itself. These conflicts run so deep that they may never be resolved.

But any resolution will require us to think carefully about the nature of law and morality. It will also require us to reflect on what it means to be an American.

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Justice, Mercy, and the Death Penalty

Ballot offers choice between justice and mercy

   Andrew Fiala

Fresno Bee 2012-10-06

Proposition 34 aims to repeal the death penalty in California, while replacing it with life imprisonment without parole.

Those arguing in favor of Prop. 34 claim that abolishing the death penalty will save money which can be used to pursue criminals. The election booklet clarifies this focus on law enforcement by saying, “we cannot let brutal killers evade justice.” The argument also claims that abolishing the death penalty will ensure that innocent people are not executed.

Opponents of Prop. 34 argue that without the death penalty, murderers would indeed evade justice. That argument claims, “Proposition 34 lets serial killers, cop killers, child killers, and those who kill the elderly, escape justice.” The argument then describes a number of cruel and brutal murders.

This points toward some deep moral issues.

Justice appears to require an equivalence between crime and punishment. The retributivist idea of “eye for eye, life for a life” may have developed as a way of restraining the desire for revenge. Consider, for example, the ancient Greek story of Achilles. When his friend was killed, Achilles went on a rampage, slaughtering every Trojan he could find. Achilles defiled the body of his friend’s killer and ritually murdered a dozen Trojan prisoners. From the standpoint of “life for life,” Achilles’ revenge was unjust.

The “life for life” ideal may establish a duty to execute. Immanuel Kant once argued that even if society were to collapse and the prisons were to be dismantled, we would still have a moral obligation to kill every murderer awaiting execution. For Kant, we have an obligation to the murder victim — and to the murderer himself. People should be given what they deserve. If murderers deserve to be killed, we ought to deliver justice, even if it is inconvenient or expensive.

An alternative to retributivism is an ethic of mercy. When we show mercy, we give people less than what they deserve, perhaps because we feel compassion to them. The ethic of mercy is associated with Christianity, with Jesus recommending that we “turn the other cheek” rather than taking an “eye for an eye.” The Catholic Bishops of California have argued in support of Prop. 34, connecting it with a larger “pro-life” view. The California Catholic Conference website explains: “we consistently proclaim the intrinsic worth and the God-given dignity of all human life, whether innocent or guilty.” They claim that if society can be protected from violence through the use of life imprisonment, this is preferable to killing the murderer.

This points us toward the question of protecting society and the deterrent effect. The question of deterrence is a complex one, depending on a variety of psychological and social factors. Are murderers rational? Do they value their own lives enough to engage in cost-benefit analysis, weighing the risk of punishment before they engage in their crimes? There is no proof that the death penalty, as currently employed, has a deterrent effect on a murderer.

One reason for this is the infrequent use of the death penalty. The November election book explains that since 1978 about 900 people have been sentenced to death. But only 14 have been executed. When you are more likely to die on death row of natural causes than to be executed, there is not much reason to fear a death sentence.

If we really want to deter crime, we may need swifter and more certain system of execution. But opponents will argue that this could lead us to execute some innocent people, who are protected by the lengthy appeals process. For deterrence to work, we might want to return to public executions–public hangings or the guillotine. The spectacle of a brutal execution may in fact scare people away from crime. But our current practice emphasizes the painless killing of lethal injection.

This brings us back to the question of justice and mercy. We no longer cut off criminal’s heads or hang them in public. Why not? Perhaps we are simply squeamish about doing what justice requires. Maybe we just don’t like to see blood — even when we believe that it is justly spilled. Or perhaps we are convinced that mercy and compassion are important values. We’ll see whether justice or mercy wins out in the November election.

Olympic Athlete Pistorius and Fairness

Olympic athlete raises complex issue of fairness

   Andrew Fiala

Fresno Bee 2012-07-28

We are born into this life without any choice about our bodies or our social situation. Some are born rich, tall and good looking. Others are born poor, unhealthy or disabled. From a certain perspective, life just isn’t fair. But technology can help to make it fairer.

That’s one lesson to be drawn from the story of Oscar Pistorius, a South African Olympian who was born without fibulas — the bones in his lower legs. In London, he will run the 400 on carbon fiber blades.

While Pistorius’ success is an inspiration, some worry that permitting this technological boost will undermine the purity of the sport of running. Others have complained that his prosthetic legs give him an unfair advantage.

Scientific American recently examined this question. Pistorius uses less energy, due to the elastic action of the blades. His lower “legs” are lighter than those of other runners; and they do not tire. But Pistorius must compensate for the light springiness of his legs by bearing down on his prostheses in a way that no other runner must do.

Scientists were unable to answer the vexing question of whether Pistorius was on a “level playing field” with other runners. The concept of a “level playing field” is a fuzzy one that points beyond science to a variety of ethical issues. I asked professor Jeffrey Fry, an expert on the philosophy of sport at Ball State, about this issue. Fry reminded me of the difficulty of defining justice and the idea of a level playing field in sports.

Since Aristotle, justice has been defined as treating similar people similarly and treating dissimilar people differently. Faster runners receive medals, while the losers receive nothing. The purpose of the game is to differentiate among people. It is not unfair that the winners are rewarded. But we also think that competition should be fair, which means that no one should have an unearned or undeserved advantage or disadvantage. This is why doping is outlawed: It creates an undeserved advantage.

Professor Fry indicated that there are other kinds of undeserved advantages and disadvantages that we conveniently ignore. Social and economic factors influence athletic performance. You can’t excel at a sport unless you have access to facilities, coaches and equipment. Athletes from poor countries may not really have a “fair” chance against athletes from rich countries.

And we are all victims of a genetic lottery, which determined our gender, our eyesight and our body type. Michael Phelps was born tall, with long arms and big feet, which apparently helps in swimming. Oscar Pistorius was born without fibulas. Those advantages or disadvantages are matters of luck that neither Phelps nor Pistorius did anything to deserve. In a certain metaphysical sense, it is unfair that Phelps is tall, while Pistorius lacked legs.

It’s true that each athlete has done amazing things with his genetic endowments. But the deck was stacked against Pistorius. It seems appropriate to allow technology to level the playing field. While admitting this, Fry also concluded, “We don’t want differential use of technology to be decisive.”

But what forms of technological assistance are “decisive”? What about running shoes, or diet and access to training equipment? We permit people with bad eyesight to use technology to fix their eyes so they can play golf, tennis and other sports. Should people with other disabilities be allowed to use other forms of technological assistance?

The issue of fairness and disability in sports is a microcosm for thinking about fairness in other parts of life. People with different abilities compete in business, in politics and in the world of romance. The rich, the tall and the beautiful appear to have an unfair advantage over the rest of us. And for a long time, there was outright discrimination against women, minorities and the disabled.

The Pistorius story shows us that we are doing better at treating people fairly. Technological assistance is able to level certain playing fields. There is still a long way to go in overcoming discrimination — especially discrimination against the disabled. But we seem to agree that we ought to try to make life less unfair for those who have done nothing to deserve their disadvantage.