Forgiveness is Unjust

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The news today was covered with the story about Bush commuting Libby’s sentence (who he still may pardon), and many people that I know in Spain were ranting about how this was just another sign of Bush’s evilness. My simple answer was that the U.S. president is granted in the Constitution the express power to pardon (which also includes the power to grant commutations and amnesties). The Clinton’s were notorious for their pardon scandals, and almost all presidents have used the same power to grant pardons to all sorts of political scapegoats and amigos (even Ford pardoned Nixon). This power is seen as being part of the Separation of Powers in the U.S. Constitution, and the basic concept of forgiveness is considered one of the pillars of Christianity.

Nevertheless, the fact of the matter is that forgiveness is almost always necessarily unjust.

The obvious question you are probably asking now is, what is justice? No matter how you wish to define justice, essentially justice means that similar situations are treated similarly. In this sense, justice can be boiled down to a basic notion of foreseeablility and reliability. In general, justice (what we often call due process) can be divided into two types: substantive justice and procedural justice.

Substantive justice would mean, say when referring to a law, that the substance or content of the law is fair. A substantively just law would be one, say, that treated all those affected by the law equally. The mere fact that you do not like the law doesn’t make it unjust. For example, I may think that a traffic fine for speeding is too excessive or that the speed limit is too strict. But that doesn’t make the law unjust. It just means that I disagree with it. To follow the same analogy, a law that says that men have to drive at different speeds than women would be substantially unjust.

Generally we are more concerned with procedural justice (where injustice is easier to hide). Procedural justice means that the processes that govern us are constant and reliable. By reliable, I mean that you know that each time you enter the process, the outcome is foreseeable and will remain constant. Procedural injustice occurs when, for example, you are treated differently than someone else even though you have acted in the exact same way. Say for example, the company you work for says that it will give bonuses to everyone who meets a certain objective. You are one of five people who meet the objective, and yet you are the only one who does not receive the bonus. In this sense, you are treated differently.

To the same extent procedural injustice can also occur even when you are the one who benefits. Imagine that only you receive the bonus, or that police decide to let you go even though they have stopped everyone else. For example, I never understood why the “first would be last, and the last would be first”. Where is the fairness there? If we have all abide by the rules, shouldn’t all be treated equally?

One of my favorite scenes in Schindler’s List covered this very notion. Schindler is trying to convince Goth to stop killing so many people. He does so by explaining that the Roman emperors’ true power was not derived from the obligation to punish but from their power to pardon. So when someone was brought before the Emperor after having a committed a crime, the criminal knew full well that he would be punished and deserved to be punished. Punishment was foreseeable, expected, and fair. But, only the Emperor had that supreme and unique power to forgive. The Emperor was above the law in that he had that power to act unjustly and treat the criminal differently than what the process dictated.

But sometimes you’d think that the emperors, like most Biblically derived Gods, had made the rules so strict so that their ultimate power would be derived from the fact that everyone would eventually have to beg them for mercy.

My point being that any time that we are treated differently from others — given any free-be or when punishment has been forsaken — an injustice has occurred. Thus, forgiveness is essentially unfair, as it allows for people to be treated differently, just as Clinton pardoned a buddy for a crime that sent hundreds of other Americans to jail, or Bush pardoned his fall guy for actions that put other Americans behind bars for two years.

I suppose then that the only way we can truly be fair and be forgiving is to forgive everyone always. You make forgiveness part of the process. Ironically it is generally turn-the-cheek Christians who are also zero-tolerance-on-crime Republicans. Or at least when it is in their best interest.

Now whether some forgiveness is a necessary injustice is an entirely differently question altogether.

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17 Comments

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17 responses to “Forgiveness is Unjust

  1. Melissa

    Hey, Eric.

    Bush didn’t pardon Libby. He commuted his sentence. But he may still pardon him.

    I think by your definition, forgiveness would be just if it were a cultural practice, as it is in some places. (Alice Walker has written about an African community where criminals are put in the center of a circle and addressed by each individual in the community with a list of everything the criminal has done well and is loved for.) But I’ll quote my partner John: “Is justice actually what we want?” I think in many cases, mercy is probably a better societal model.

  2. Forgiveness = appeasement = societal weakness and proliferation of criminal activity.

    Justice is logical, rational and serves all with balance. That’s why it doesn’t exist, we can’t tolerate having a criminal properly served equal sentence for the crime. We are too much in fear of our own mortality to accept actual Justice.

    That’s why the Law, the Courts and attorneys are such a useless joke.

  3. TheCommentKiller

    Ditto to what Melissa said both on commuting and justice. And I do think we need a new model of justice in this country, one that Rawls would embrace. Restorative justice is interesting and should continue to be tested.

    There is a really good book which talks, in part bout this, called ‘On the Courthouse Lawn: Confronting the Legacy of Lynching in the Twenty-first Century,’ Eric I think you would especially like it.

    On the Libby front,
    I think executive pardons and such are important and the former Gov. Ryan has shown why. I have a friend that worked on 60 of those cases and i happened to speak to him today and he was upset about Libby.

    He mentioned that he is not aware of an instance where someone has been pardoned or their sentence commuted w/out either being found innocent or apologizing. Libby demonstrated neither. As such i tend to agree w/ your friends in Spain. The Bush administration simply does not care about public opinion, justice or accountability. The only thing you need on your resume to work for Bush is proof of loyalty.

    As James said, the Justice system in America is completely flawed. The laws are written for the by the rich, for the rich. Always difficult explaining that to indigent clients that have been taken advantage of by wealthy corporations and the law and court offers them little to no protections. I don’t know how many times i have told the court that ‘just b/c my client is poor doesn’t mean that he/she isn’t entitled to the full protections under the law.’ the courts love that.

  4. eric

    Melissa,

    I have amended the post to accurate reflect that it is a commutation of Libby’s sentence. But my central idea is that any form of forgiveness (be it a reduced sentence, full pardon, or favor) that treats some people differently than others when those others are similarly situated is inherently unfair.

    An African community with such practices would practice injustice if under certain occassions particular criminals were not afforded the same ceremony.

    Do we really want justice (or equal treatment) always? As I mentioned that is another question altogether. On the one hand, the idea of the executive’s power to pardon is based on sound political theory (as mentioned as a check on the judicial power), but it is also checked by the electoral process (in part that is why most pardons are granted by lame duck presidents).

    Also, I think that people often times need to feel “special” and that they are receiving special treatment. From a psychological standpoint, one could argue that deviant behavior can be caused by an individual wanted to be treated special and to be shown that they are important enough to receive forgiveness. Think of children wanting the parents’ attention or couples trying to elicit jealously.

    In most highly bureacratic and even totalitarian societies, the rules and processes are so complicated to navigate that procedural injustice becomes the norm for receiving any public benefit (licenses, permits, etc).

  5. eric

    But, Ryan, as you say, “the courts love that”. That means that most judges and, believe it or not, lawyers believe in the system and want it to work.

    I think that legal education in the US is special in that is reinforces the importance of the practice of law as a societal necessity.

    The practice of medicine is about curing illness and the practice of law is about justice. Both practices have the flaws, unequal treament, and need improvement to make them more available to more people. But, if I were really sick, I would want to be treated in the US (in part because I know that medical malpractice lawsuits, although making health care more expensive, also inevitably lead to greater patient protections). And if I have to ask for a government license, have suffered an injury and want to sue, or am standing trial for a crime, I would rather be in the US legal systen than any other in the world.

    And that’s not saying that I am 100% pro American. It’s better not to be American when you’re outside of the States.

  6. TheCommentKiller

    Eric,

    I was being sarcastic about the “judges love” bit. But that i am not sure whether i disagree w/ you or not. I think most people go to law school for two reasons- sense of justice or to make money; most leave wanting to do the latter (for many reasons); those that stay at firms become robots; those that hang a shingle become shady and try to cut corners to make a buck; and those public interest folks, like me, become tainted.

    Health care, like everything in the US, is prolly of the best in the world, but for the haves only (M. Michael Moore says also includes the lumpen proletariat- i disagree). But I do agree w/ the importance and need for the med mal/trial lawyers (w/out caps); at the moment it is really the only thing on the planet that keeps the corporations in check- liability baby. I would love that to change.

  7. eric

    There is nothing wrong with wanting to make money or a buck. What happens with lawyers happens with almost every profession out there.

  8. TheCommentKiller

    The desire for money (and the disease of affluenza) leads to greed; and many lawyers (and other professors) suffer from this affliction… and as such begin to cut corners. And the result of this often undermines the court system and/or leads a detrimental result for the client.

    It would be interesting to hear what Mustapha (who has worked for a large firm, public interest firm, small firm and a solo) thinks about this.

    Nevertheless, in our current system of gov’t lawyers are necessary, as i mentioned before, there is no other mechanism in the US to hold corporations liable for willful, intentional and/or negligent acts. In theory the US has municipal regulatory bodies that are charged w/ protecting individuals from such harms, but these bodies have failed to enforce their own rules. That is why pvt rights of action and common law torts are important to protecting the health and welfare the people. I couldn’t imagine how out of control drug companies would be w/out personal injury lawyers. Why else do you think the republicans want to limit trial lawyers, it certainly isn’t for the benefit of their so called constituents… it is from their corporate backers.

  9. Gabriel

    I disagree with some on the comments on the US legal system. While far from perfect, it is still a very well run legal system by most standards. In fact, can anyone name other legal system that accomodates a large population which is run better? The time to process a case is far shorter than most other legal systems, the judges are competent and the decisions very consistent. How often do we see international companies choosing US venues and laws to govern their contracts? Sometimes a case will come up that will get people angry at the system (OJ Simpson comes to mind) but they are so outrageous precisely because they are rare.
    Maybe Libby did not deserve a presidential favoritism or maybe he did, but such a presidential action should have no effect on the US legal system as a whole. The power to pardon, as Eric indicated, is there to allow the president to take mitigating considerations into account, so it is an added protection. At least this “abuse” of power is legal!!

  10. TheCommentKiller

    Gabriel,

    I agree w/ much of what you have written. Particularly w/ regards to Libby.

    However, just to clarify my stance on the US legal system… in the US there is a two tier system of justice, one of the haves and one for the rest of society (like in many parts of US society), and I am not just referring to the criminal justice system. The US criminal justice is clearly two tiered, from the bottom up… meaning from the profiling all the way to sentencing, there are even two sets of laws for rich and poor.

    What most people overlook is civil law and then the gray areas of the law- like immigration laws and the so called enemy combatants.

    Civil law in the US is rigged for the haves. It would be financially impossible for a middle class (arguably any class) person to litigate a case (pro se) against a corporation. The litigation fees alone are prohibitive. So most Americans are forced to hire Plaintiffs’ attys that charge a contingency and are not likely going to take the case unless he/she sees a big pay day at the end of the road. But at the end of the day, this is works out pretty well for the wealthy and middle income… who generally only use the courts for personal injury cases.

    But what about the low-income? What about those people whose employer refuses to pay them, or who are unlawfully fired, or whose landlord won’t make basic repairs or illegally evict them, or who get scammed by a home improvement contractor, a 2nd hand auto dealer, and the list goes on and on. These issues may seem trivial to us, they certainly aren’t on the radar screen of the legislators who write the laws or the courts. (and marginalized and isolated populations, such as the elderly and disabled, have even less access to the legal system)

    And what about those low-income ‘Defendants’ in civil cases? In Manhattan alone (not even counting the other four boros) more housing cases are filed each year (these are only cases where the landlord seeks possession of the apt) than all of the Federal Court cases that are filed in a year. And 98% of these tenants are unrepresented and as result lose the closest thing they had to affordable housing to a system that is completely desensitized to pro se litigants. I don’t know how many cases I have been in where the judge has started the case off by asking the landlord’s atty, “so what do you want to do w/ this case.”

    And what about debt collection agencies, I would wager that 99% of these complaints are defective (both procedurally and substantively). Not to mention that most of the cases are won b/c of sewer service and the court looks the other way and rubber stamps default judgments against the defendants. In every debt collection case I have litigated the other side immediately folds b/c they have no case… for them it is a numbers game.

    Oh yeah… family court… if you ever have a bad day or feel like your life sucks, go hang out in family court for a day.

    Immigration laws (which are considered civil) are inherently flawed as many litigants face detention, yet aren’t afforded the minimal protections (namely the right to counsel) afforded litigants in criminal court.

    And then to tie this all up… America needs to stop talking about how it is the freest country in world as virtually no developed country (other than maybe China- who doesn’t publish its figures) has as many citizens incarcerated as the US. And the majority of the inmates are in for non-violent drug offenses.

    And i think the US internationalized its system of justice w/ their treatment of so called ‘terrorists’ in Guantanamo, prisons in Afghanistan, Iraq and all of the secret prisons across the world.

    That being said, I actually generally agree w/ what you wrote.

    anyway, sorry for the long post.

  11. Gabriel

    Dear TheCommentKiller, your long reply deserves a response:

    You raise some very interesting points on how the system favors the privileged. It is true that money will buy you the best attorneys and give you more influence. Unfortunately, that is an inherent problem in any legal system.

    That said, the US legal system includes a lot of protective measures that favor the less privileged. You note that it is difficult for the common people to bring suits against corporations because of the high costs. Attorney costs are high but the US is known for being very litigious. Access to attorneys is easy and often courts will award the winning party attorney costs. Also, there is the threat of punitive damages. That’s a powerful weapon for the people. Stockholder derivative suits is another example.

    With respect to tenant/landlord laws, let me just tell you that our family has a few rental properties. US rental laws include a lot of protection for tenants (amount of deposit, notice to vacate, right to withhold rent if repairs are not done, etc) but at the same time the possibility of vacating a non-paying tenant is there. Which is what keep landlords in business. I know that Spain does not have a good rental market like the US. In Poland, if you rent you can never vacate that person, so I just heard a case of a family refusing to take an aunt because they were scare of not being able to sell the house.

    Immigration? Well that system IS screwed up. Still, immigrants have a lot of rights and different options to remain in this country. They can apply for assylum and be entitled to remain for years while the application is pending. As you know, if you are born in the US, you are a citizen. Clearly, that law favors the common people. What other western country has that law?

    Finally, I agree 100% with your comment about Americans stating that America is the freest country. It goes in line with their celebration of the “world series” or naming any national champion, the “world champion.” The US is a bit naive in that respect. But their laws, for the most part, are reflective of a well functioning legal system.

  12. TheCommentKiller

    Again, I mostly agree. I think we can agree that US does often provide forums for the average person which is wonderful, but many of these forums are inherently flawed. I interned w/ the EEOC’s administrative judges, and i was saddened by how narrow the law was. Not a single employee won a case all summer, despite what i thought were clear cases of discrimination. Then there is Workers’ Comp, but there too employees lack real advocates. It is a volume business for the lawyers, so they literally spend less than 15 minutes on each case (which includes mtg the client), meanwhile these matters are of the utmost importance to the employees that may never work again. At the end of the day each lawyer uses the same exact doctor each time and both doctors give polarized results. The system makes no sense.

    The same goes for the Social Security Administration’s administrative courts, and the state-level administrative bodies.

    Housing court, varies from state to state (and i think many states don’t even have such a forum- which isn’t necessarily a bad thing), I am really only familiar w/ NY and MD. You brought up the issue of attys fees (and/or costs); in housing cases one is only entitled to attys fees if it is in their lease or otherwise provided for under the law (which is quite rare). If a Defendant is does win a case, the judges will tell them to commence a separate plenary action to seek these fees. Generally defendants don’t have to pay costs so that is not an issue. And I guess one of the things i left out in my previous post (b/c it may be unique to NYC) was that in NYC landlords frequently commence frivolous and baseless actions against tenants. So landlords knowing that 98% of the tenants are going to be unrepresented will roll the dice and hope to bully, trick and/or force the tenants out. And the courts really don’t care. Recently I had a case where the landlord knew that he had no case, he didn’t even have a single witness to prove his case, i pushed the case to trial (despite the landlord’s numerous threats, offers of $20,000 if my client vacated his apt). The landlord called the managing agent to testify, she proved a landlord tenant relationship, nothing else, and then he asked for a continuance to “find” a witness. Over my objections the court gave him two months to “find his witness.” They spent two months harassing me and my client and then came to court and withdrew the case. I passionately asked for attys fees and the court told me to start a plenary action. And here the tenant was represented. My client would have caved w/out an atty.

    I used to think this was unique to housing court, but rest of the civil system, particularly for low-income defendants, is awful. Debt collection is the arena where creditors are trying all sorts of new tricks, unlawfully freezing bank accounts (marginalizing populations that already reluctant to use or lack access to traditional banks), obtaining judgments for nonexistent debt, and more.

    So the courts may grant Plaintiff’s costs, but first someone has to front those costs, which is of no help to a pro se. And so Plaintiff’s attys may take a big discrimination case, but not a simple wage and hour case, unless it involves a large amount of workers.

    In my opinion, the costs of litigation (meaning filing fees only, not discovery) should either be on a sliding scale (kind of like a progressive tax); nonexistent or significantly higher. B/c the current costs are not prohibitive to the mid-size or large corporations. If the costs were significantly higher, landlords, debt collectors and other corporations that prey on the poor would think twice before commencing a frivolous case.

    Punitive damages is a wonderful concept, but pretty much non-existent under the law. One cannot seek punitive damages unless it is provided for in a given law. So if a Plaintiff brings a baseless case against my client, i can’t just counter-claim for punitive damages, there has to be a law (which there rarely is) providing for such damages. And as a Plaintiff many laws don’t even provide for a pvt right of action for common people, much less a punitive damages provision. Ex. Let’s say a Nursing Home has taken advantage of a patient, by selling their money (I am not referring Medical Malpractice cases). Many of the laws only give standing to the Dep’t of Health (AG’s office) with the power to enforce those laws- bring a suit. Many laws don’t even provide for any sort of claim for damages, let alone attys fees.

    “Access to attys is easy.” I’m not sure if that is a comparative statement or if you mean that a consultation w/ an atty is possible. But beyond that i disagree. If you are a victim of a personal injury case, yeah access to attys is pretty good, but beyond that access is pretty much nonexistent.

    But despite the length of my post i mostly agree. In the US there are forums, administrative bodies, small claims court (which is also joke), courts, but these are flawed. I think civil Gideon is a cost effective solution. I would wager that Civil Gideon would curb 75% of the cases filed in housing court in NYC (which as i said is grossly overburden system) and civil court related to debt collection cases, and even the USCIS (INS) would also bring far fewer cases if they knew they would have to face an atty. I represented an alleged terrorist in 2002, the USCIS wanted to keep this guy in indefinite detention w/out any evidence other than jihadist materials (which turned out to be his roommates Koran). W/out a lawyer (and I think i did a shitty job as i knew little about that forum) the court would have rubber stamped his indefinite detention- which they wanted to do. The judge said to me, “the headlines are going to read that i released a terrorists.” I had a field day w/ that comment.

    anyway, again- sorry for the super long post.

  13. eric

    I see things in the same light as Gab, but then again we went to the same law school, with the same professors, the same view of the importance of lawyers, and the same brain washing.

    And yes, there are definitely problems in the legal system. Lawyers are given the monopoly over treating injustices. Unfortunately, lawyers often do not want to take on poor clients. They have the huge pressure to meet billable hours and also wanting to get home to their family and friends. Working for free is a huge burden.

    Nevertheless, the US legal system, regardless of everyone in the rest of the world wants you to think, actually works better than most, for all of the reasons that Gab highlights. It even has a bunch of other incentives for lawyers to take on big corporations in favor of clients with less financial resources. These incentives are often laughed at in other countries, but things like class actions suits and contingency fees (prohibited in most legal systems), gives lawyers a profitable way to represent the small guy against the Man and also, in theory, dissaude against frivolous lawsuits — if you don’t think you are going to win, you don’t represent the client.

    On the other side of the coin, in most countries that do not have class actions, contigency fees or punitive damages, citizens simply do not bring cases against big corporations and the Man is never held accountable. The government often takes the role of prosecuting corporate abuse (civil and penal trials are combined into the same judicial procedure), but because the government is generally involved (directly or indirectly), a case is brought but there is suspiciously never enough evidence to hold anyone responsible. In Europe, negligence is generally just bad luck, to be left at that. Finally, in most continental jurisdictions, bureacratic institutions like the public notary or registrar charge huge fees for civil transactions of all sorts that add another financial layer that keeps justice out of the hand of the poor.

    The US legal system takes the government out of the equation and incentivizes the lawyers and scares the corporations.

  14. TheCommentKiller

    Great point about class actions! i have read that in many places in Europe class action laws are expanding. My comments were strictly ethnocentric as I do not know enough about the legal system in other countries to make a comparative analysis.

    Depending on what you mean by ‘given’, I disagree w/ your statement that “lawyers are given a monopoly of treating injustices.” I spend a lot of time thinking and learning about different models for social change (particularly w/ regards to injustices) and historically much of the larger scale social changes that have occured had nothing to do with the legal system. Although, in some instances, they were carried out by lawyers, such as Mandela and Gandhi.

    Anyway.

  15. Gabriel

    Eric, thank you for the support.
    TheCommentKiller, it seems that we agree on principle about the US legal system, but when you look at it closely with respect to how it treats the population which it is suppossed to provide for, you see it “half empty” while I see it “half full.”
    Based on your post, you obviously have a lot of insight knowledge in the various local courts, so that may explain your cynicism and my lack thereof. Anyway, nice chatting with you on this topic. Thank you Eric for providing the forum.

  16. Entertaining drift on the thread; ethic of Justice falling down to the social stupidity and morays of law.

    Classic. LMAO.

  17. TheCommentKiller

    Gabriel,

    Thanks for the discussion. It helped me reflect and take a step back and think more concretely about some of these issues and possible solutions.

    I try not to characterize my views as ‘half empty’ as purely negative feelings lead to inaction. And I am cautiously optimistic that the legal could change; and in someways is, civil Gideon projects are being piloted.

    Eric, I think I read your “lawyers are given a monopoly of treating injustices” in correctly. I think what you were saying was that lawyers are the only ones that can be advocates for people in court, with few minor exceptions, that is correct. Sorry i read it in haste and just started blabbing.. . typical.

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