Saturday, April 13, 2013

Especially When It's Hard

I wrote the other day about Steven Smith and the Parole Board's recommendation that he be killed. Then I wrote about Thane Rosenbaum's thirst for vengeance and Anthony Colón's open-hearted insistence on loving and forgiveness. The two posts clearly (at least it's clear to me) belong together as they help to describe a philosophical and moral position I've been working on articulating since I started writing this blog almost four years ago (and my god how time flies).

As it happens, I was moved a bit ago to stake out that position again in an e-mail to a group of abolitionists. With a few tweaks, I'm reproducing it here.  The nominal subject was Steven Smith's case.

Some cases are easy: There are serious doubts about guilt. Trial counsel was obviously derelict. Mitigation was overwhelming. The person has changed dramatically in the years since the conviction. Whatever.

Other cases are harder. There's no obvious hook. The crime was especially, stomach-churningly, horrific. There's nothing obviously redemptive about the person. Where does one turn?

I've thought a lot about the hard cases as I've thought a lot about the nature of executive clemency and about what's wrong with how it's meted out in this age, which is not how it has always been.  My own position is clear to me, and I trust to anyone who's dipped into this blog even a little bit.  I don't believe the government should be in the business of killing its people.  Ever.  I'm opposed to the death penalty in all cases, absolutely and unequivocally.  My opposition is moral and practical and philosophical.  It's wrong; it's bad policy; it's ultimately indefensible.  Your mileage may vary.

This is not about the death penalty, though.  It's about clemency, which is something very different, though it happens in the context of the death penalty.

Executive clemency, what the Governor can offer, is the Americanized version of the power to grant mercy that belonged to the English King. And while he (and occasionally she, in the person of the Queen) had the power simply because he had power, its formal genesis was in the King's understood role as God's designated agent on earth. It was inherent in the "divine right of kings" as kings were chosen, it was understood, by God.

Our current approach is to treat clemency as either a means of error correction or a prize for being spectacularly rehabilitated, a gold star for extraordinary achievement (nobody actually gets that gold star, but the Parole Board talks about it). So the Parole Board debates whether the condemned has proved worthy of clemency. But really that's not the point. Clemency is an act of mercy, and we don't earn mercy. It's not (or it shouldn't be) about the condemned; it's about the rest of us. When the Governor grants clemency, it's an act of grace.

To whom is it most worthy to bestow grace, to be merciful? To the innocent? To the good? No, there's nothing to that. It should be done, of course, but it's easy. Grace is hard.  It asks a lot of us, of the giver.  It asks that she give freely and openly because she recognizes that, as we were taught as children, it is better to give than to receive.

And so the best gift, the noblest, and the most honest, clemency in its truest form is for those who least deserve it. Clemency for Steven Smith would be an extraordinary gift precisely because his is such a tough case. And how much better we would be as a state if we were willing to bestow it on him. This is who we are, it would say, we are a decent people who look upon the frog and see the prince, upon the foul and see the fair, upon the ugly and see the beautiful.

The Pope washed the feet of those in prison. They weren't the folks most deserving of his act but the least deserving. That was the whole point.

I'm not a Christian, not a believer in any religion or in any god, but I believe these things very deeply.  And, as it happens, I'm right.

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