A Last-Minute Pardon
A Last Value Meal®
Among the invitations
in the mailbox recently was a full-color brochure whose cover bore the
soft-focus image of a benevolent hand. But for its size and print quality,
one could have confused it with a Jehovah's Witness tract. Inside, a finger-to-the-wind
colleague had conceived a pricey, two-day professional CLE seminar entitled
"Forgiveness in the Law." Its incongruity evoked an audible 'What the--?':
Apart from principles of equity ("Equity does equity."), conventional American
legal training has no truck with mercy.
While penance (thus,
"penitentiary") figures subtextually into the classic, Anglo-derived set
of rationales for punishment which every first-year law student memorizes
(retribution, rehabilitation, deterrence), the implied promise of societal
forgiveness is hedged. At most, the 'demonstration of genuine remorse'
may move a judge left on the 1-to-10 continuum in cases where s/he still
possesses discretion on sentencing. However, compulsory registration of
sex offenders (e.g., "Megan's Law") and job application disclosure requirements
on pain of 'immediate termination' suggest instead routine, even systematic,
Factors in the debate
on the reinstitution of the ultimate punishment have recently also included
"economy" (no 13th place setting at meal times) and "protection" (subsumed
into a vast 'quality of life' category which includes racial profiling,
redlining, and homeless sweeps). Precursor lists have acknowledged another,
historically the concomitant of public executions: the overt expression
of moral outrage. Even as social re-education has consigned the term, 'lynching',
to metaphoric usage (slow-learners still failing to grasp the simplified,
if broadened, 'hate crimes'), social inculcation has fostered a semi-national
pastime of moralistic acting out.
Is It Anyway?
man-in-theeet (i.e. commoner) demands for increasingly self-abasing
apologies from Clinton (the republic's ersatz monarch) were unappeased
even after the hideous bathos of the country's impeachment ordeal,
by whose tortured tautologies and see-through sophistry masturbation became
the epitome of 'high crimes and misdemeanors' and 'rule of law'
the idée affichée in the impressionable, Limbaugh-lobotomized
minds of the uneducated and of the brainy, if duplicitous, doctrinaire.
Already overchallenged, the other overprovoked, such intellects collapse
in massive frustration when the one so willingly vilified reaches -- by
uniquely granted Constitutional prerogative --'above the law' to pardon
the wrongdoing of others.
Advocates of capital
punishment readily accommodate the paradoxical premise which allows the
adamant pro-lifer to rationalize his bombing of family-planning clinics
and his death threats to female care physicians. Much worse though,
while dimanchier hangmen anguish once actually impaneled as fact-finders
on a weekday jury, Realpolitiker George W. Bush dismisses hard-science
exculpatory evidence (DNA) without compunction when his gut tells him the
presumptive perp did it or will do -- to serve out his term, since
already begun, as the designated object for the venting of public outrage.
Even as Clinton served
out his term skewered on the bull market horn of public outrage, the People--in
a dilemma of their own making--waggled with the broken other: public adulation.
Certainly they require a president to be at once monarch and commoner,
but moreover stroke unknowingly upon him as Dorian Gray portrait now flattering,
now monstrous shades of their own virtue and vice, self-love and self-loathing--with
as little command of brushwork as of history, typically a flashcard-like
sense that reads: Mayflower - George Washington - Gettysburg - Hitler
- Steven Spielberg.
Fatally Flawed King
in a Shakespearean Comedy
Hopeful Democrat or
resigned Republican, they assumed they had inaugurated from among multiple
contenders a Prince Hal (whose adopted father was Kennedy royalty). His
enemies soon laid rebellion in his way and he found it. Historians will
argue whether this Hal--but for his overpublicized moral lapses--could
have fulfilled his promise and become Henry V. Surely, none were prepared
for a fifth act in which Clinton would conduct himself as Vincentio, Duke
of Vienna. Bush's costumers may have passed him off as a high-minded
Angelo, but he could just as well turn out to be Lucio.
To premise impeachment
on the notion that the U.S. Constitution stands or falls on the duty of
a president (our youngest save one) to act as national shepherd for a self-selected,
evangelistic flock and moral retriever of the wayward is patently ludicrous.
John Donne disposed already in Pseudo-Martyr (1610) of the dilemma
faced by a devout minority (English Roman Catholics) unable to reconcile
religious and secular strictures, thus, obedience to Pope Paul V with the
oath of allegiance to King James I. Donne (himself, a lapsed Catholic)
did not propose a resolution that merged these sovereign estates, sacred
and profane, into one glory-bound leader. Instead, he argued (a lawyer)
that the exercise of royal mercy and pardon is the province of the absolute
ruler, both secular and religious, which, used by pope and king, each toward
one another, could resolve the quandary for the Catholic minority.
The Framers resolved it with the First Amendment prohibition against state
intrusion in church matters, thereby effectively separating the two realms
and ceding to each the powers of its respective sovereignty: "Congress
shall make no law respecting the establishment of religion, or prohibiting
the free exercise thereof." (1791)
to perform as both latter-day king and pope, resolution eludes an American
president. As undisputed sovereign of the realm, he must still be one with
the common man, and endure seditious utterances against his person for
which the speaker would once have swung. He cannot even arbiter the
standards of language in a time when the King's English is done unprecedented
violence by his precursor and successor in office, original and proxy in
a would-be dynasty of Bushspeak. Truly, the American emperor has no
clothes. Not much news there. But what a revelation: The emperor has a
penis. Wait. Look. Did we see something more? A sovereign right of pardon--and
the balls to use it.
Literary Mercy or
It is indeed one of the great advantages
in general, above any other form
of government; that
there is a magistrate, who has it
in his power to
extend mercy, wherever he thinks
it is deserved:
holding a court of equity in
his own breast, to soften the
rigour of the general law, in such
criminal cases as
merit an exemption from punishment.
Blackstone's Commentaries on the
Laws of England
If I am wrong, ten angels swearing
I was right would
make no difference. I do believe,
with all my heart
and mind and spirit, that I, not
as President but as a
humble servant of God, will receive
mercy if I fail to show mercy.
(Ford pardons Nixon, September 8,
Those who seek forgiveness must themselves
ready to forgive.
(Bill Clinton, September, 1999)
No ceremony that to great ones 'longs,
Not the king's crown, nor the deputed
The marshal's truncheon, nor the
Become them with one half so good
as mercy does.
(Isabella's appeal to Angelo on behalf
of her brother
Hal's father, Henry IV,
granted a general pardon to Thomas Littleton in October, 1455. Sir Thomas
Wyatt (1503-42), credited along with the Earl of Surrey with introducing
the sonnet to English, was allegedly the lover of Anne Boleyn both
before and after her marriage to Henry VIII. Wyatt was sent to the Tower
for quarreling with the Duke of Suffolk, and while there, witnessed Boleyn's
execution (1536). (The deer with a jeweled collar in his "Whoso List to
Hunt" is believed to refer to her.) He was imprisoned again for making
rude remarks about the king's person to a cardinal. Through the efforts
of Queen Catharine Howard, he received a royal pardon of his treason, but
took ill and died the same year.
Claudio: Measure for Measure,
John Merbecke, who
edited and set to music The Booke of Common Praier Noted, was to
have been burned at the stake in 1544, but a friend intervened to obtain
a royal pardon. Christopher Marlowe, author of Doctor Faustus,
was killed in a tavern brawl, allegedly by his assistant, Ingram Frizer.
Frizer obtained a royal pardon, claiming that he had acted in self-defense.
Legend has it that Robin Hood (1160-1247), condemned to death for
violation of forest laws, remained loyal to the crown though a fugitive
from its justice. Richard the Lionhearted may have sought him out
in disguise, and impressed by his loyalty, granted him a pardon. French
poet François Villon, who reportedly killed a priest with
a sword at the Cloisters of St. Benoît in 1455, was banished from
Paris, but later pardoned.
In Brecht's Three
Penny Opera, the thief Macheath is arrested for marrying the daughter
of a bourgeois, but escapes with the help of the Police Commissioner's
daughter. Later, he is caught again when a third woman betrays him. Just
before he swings, he is saved by a royal pardon. Tosca purchases
her lover's pardon with a pledge of womanly favors, if not virtue. Unbeknownst
to her, the reprieve is a sham, but she is moved to kill the treacherous
Scarfia for his affrontery alone. Mario is executed and she leaps to her
death. Sir Thomas Malory, author of Le Morte d'Arthur,
was granted a pardon that was later revoked. Oscar Wilde was denied
a pardon, though he would likely qualify for one now, as would Paul
Verlaine. The laws of man are not immutable.
Cruel and Unusual
Punishment: A Theory of Relativity
The prospects of such a trial will
cause prolonged and
divisive debate over the propriety
of exposing to
further punishment and degradation
a man who has
already paid the unprecedented
penalty of relinquishing the
highest elective office of
the United States.
(Ford pardons Nixon, September 8,
There are fifty-five persons
awaiting execution by firing squad in Thailand, the official punishment
since 1935 (when it replaced decapitation). Fewer than three hundred persons,
nearly half of them convicted murderers, have incurred that punishment.
Four were shot for offenses against the royal family. There is no indication
that any of them had held or willingly relinquished that country's highest
A primary reason cited
by Ford for his pardon of Nixon was that it might take years for the former
president to secure a fair trial anywhere in the U.S., that his due process
rights could therefore be abridged, just as he was trying to "reshape his
life." In an Op-Ed piece for The New York Times, Scott Turow, a
criminal defense lawyer and author of the best-selling novels, One-L,
Presumed Innocent, and Burden of Proof, catalogued the violations
of Clinton's due process rights, and concluded that he had by reason of
his status been accorded far less than equal justice under the 'rule of
law.' Neither president was ever put at risk of life and limb. Marc Rich
was indicted for tax fraud and for flouting an embargo then in effect against
trading with Iran and South Africa. Reagan's Secretary of Defense, Caspar
Weinberger, was pardoned by George Bush the Elder for his involvement in
the government's secret arms trading with Iran.
became routine in Texas during the eight years of Bush's tenure as governor.
The most common last meal request was a cheeseburger. No doubt, the menu
selections were not extensive. Studies are now documenting that prison
personnel assigned to lethal duty exhibit signs of long-term trauma. If
testimony from such persons becomes admissible at hearings on sentencing,
perhaps judges will take pity on them; perhaps law-makers who share
Bush's 'faith-based' values will as well.
Why all the souls that were, were
And He, that might the vantage best
Found out the remedy. How would
If He which is the top of judgment,
But judge you as you are? O, think
And mercy then will breathe within
Like man new made.
(Measure for Measure, II.ii.72-79,
Isabella to Angelo.)
It Takes a Saint
Bush is a Prince Hal,
boisterous in his youth but familiar with integrity, now a regent devoted
to the redemption of his father's "vision thing". In their book, Shrub,
The Short but Happy Political Life of George W. Bush (Vintage, 2000)
Molly Ivins and Lou Dubose recount that during his father's 1988 presidential
campaign, George 'Dubya' ("He's got no 'Herbert'.") was assigned to liaise
with the Christian Right and did it well. This arm of the party is powerful
in Texas and took over the legislature in 1994, just as Newt Gingrich was
'contracting' with America (and with 'harlits'). Once a libertine, Bush
has been rehearsing publican piety for twelve years.
Angelo's chief faults
are self-deception and arrogant self-righteousness. Ascetic, he is completely
vulnerable to what he has denied himself. "O cunning enemy, that, to catch
a saint, / With saints dost bait thy hook!" (II.iv.178-9) When he surrenders
to temptation, his blood, once "very snow-broth" flows hot: "Let's write
good angel on the Devil's horn." (II.iv.16) Good and evil change places
in his mind, leaving him with no moral reference at all. He becomes a scoundrel.
Yet a sinner reformed
from without to saint will not "confess a natural guiltiness" for fear
Alack, when once our grace we have
Nothing goes right: we would, and
we would not.
Hell, a bishop ratted
on Wyatt--to curry favor with a king, the same king who pardoned Wyatt
for the blasphemy against his secular lord.
-- MH (J.D., LL.M.)
 CLE: "Continuing Legal Education".
 "Mercy-killings" by amico-
or medico-intervention are admittedly the stuff of law review articles
and third-year electives.
 NY State Bar Assoc'n Newsletter,
Summer 2000. http://www.nysba.org/sections/crim/newsletters/sum00/crimmarch.html.
 . . . he shall have Power to
Grant Reprieves and Pardons for Offenses against the United States, except
in Cases of Impeachment. (Art. II, Sec. 2, U.S. Constitution). "The power
flows from the Constitution alone...and...it cannot be modified, abridged,
or diminished by the Congress." Craig v. Boren. Because
presidents have rationalized their clemency decisions based on everything
from due process considerations, to 'encouraging reformation', to the Christmas
spirit, the Annual Report of the Department of Justice stopped reporting
decisional rationales in 1933. Beneficiaries have included suffragettes
and draft-dodgers, mobsters and Watergaters, thus, G. Gordon Liddy and
Richard ("I am not a crook!") Nixon, and even baseball bully, George Steinbrenner.
 An animal bewildered attacks.
A political animal gaffes: "It's hard to pardon somebody who hasn't been
indicted for anything. No, I wouldn't pardon somebody [i.e. Clinton] who
has not been indicted. It doesn't make any sense." -- George W. Bush, Jan.
9, 2001. The absence of an indictment was no such obstacle to the pardon
of Nixon by his successor, Gerald Ford. Clinton has indicated he is not
interested in a pardon from Bush, and does not expect that he will have
any use for one.
 "What do I tell my children?"
was the cry of constituents outraged by Clinton's alleged perjury, a plaintive
refrain sung into tunelessless on Capitol Hill. What does the abortion
clinic arsonist tell his children?
 "Prompted by [Illinois Gov. George]
Ryan's startling [moratorium] announcement and the growing number of exonerations
of Death Row prisoners—now totaling 93 over the past three decades—seven
states will consider moratoriums or measures that would abolish the death
penalty in their coming legislative sessions." http://chicagotribune.com/news/metro/chicago/article/0,2669,ART-49560,FF.html
"Under Gov. George W. Bush, Texas
has executed dozens of Death Row inmates whose cases were compromised by
unreliable evidence, disbarred or suspended defense attorneys, meager defense
efforts during sentencing and dubious psychiatric testimony, a Chicago
Tribune investigation has found.
While campaigning for president,
Bush has expressed confidence in the fairness and accuracy of the death
penalty system in Texas, the nation's busiest executioner. He has said
he sees no reason for Texas to follow Illinois' lead by declaring a moratorium
But an investigation of all 131
executions during Bush's tenure found that the problems plaguing Illinois
are equally pronounced in Texas and that additional flaws undermine the
state's administration of society's ultimate punishment."
Chicago Tribune, June 11,
2000, cited in http://www.ncadp.org/press.html.
 Paraphrase: "Rebellion lay in
his way, and he found it." (Henry IV, Pt. 1, V.i.28) Forced to answer
deposition questions in the sexual harassment case brought by Paula Jones,
Clinton allegedly perjured himself.
 The Duke, "like Jesus, the prophet
of an enlightened ethic," metes out justice and mercy at the close of intrigue-riddled
Measure for Measure.
 Bewitched by the purity of the
convent-bound Isabella, Angelo demands she trade her virtue for her brother
Claudio's life. Lucio, reckless and glib, slanders the Duke as a coward,
who condemns him to whipping and hanging, but commutes his sentence to
marriage of his mistress.
 James was well-pleased and disposed
to further Donne's career, but only on condition that he take Anglican
orders. Donne resisted until 1615, and was then appointed Royal Chaplain.
 Thomas Jefferson pardoned all
those convicted under the Sedition Act of 1798 for allegedly defamatory
statements against the government.
 Asked by a journalist what he
and his father talk about when not discussing politics, George the Younger
brightened and confided, "You know: pussy!" His inability to reconcile
subject and verb, and inimitable syntactical and grammatical blunders provide
daily content for numerous web sites.