Sunday, August 16, 2009

Virginia: Editorial on Norfolk Four

Richard Cullen has a piece in the Washington Post which reflects positively on Governor Kaine's decision making in the recent case of the so-called "Norfolk Four." While generally a good read, the piece is not without its awkward moments.

Cullen describes the governor's pardon power as "the right to substitute his judgment for that of a jury and the court system," an accurate description, but only in an exceptionally limited sense. The decision making of juries and courts are sometimes made in haste, relegated by strict rules or procedure, affected by inequalities in representation, weaved in an environment of conflict, influenced by expediency and passion and, of course, without the benefit of hindsight. Even the "winners" are aware of the fact (and sometimes admit!) that one little twist here or there, or one less unexpected breeze of fortune, might have radically altered the outcome.

All of this is hardly comparable to a governor calmly considering a record of good conduct throughout a lengthy prison sentence. Weighing and assessing empirical evidence of rehabilitation is no task for juries and courts. Their proper focus is incapacitation and retribution. A governor can consider what was not considered by juries and courts but, arguably, should have been. No one should complain about limited, less accurate information being replaced with a more accurate "big picture."

Cullen also writes that "an unconditional pardon is, in essence, an absolute finding of actual innocence." he says it is like the state saying "it made a mistake" and is "sorry." While there may very well be some clump of decisions from the State of Virginia that support this notion, there is certainly no federal analogy. Bill Clinton did not claim the government made a mistake when he pardons Patricia Hearst. The bank camera did not lie! A pardon merely ends whatever form of punishment an individual may endure. It is not a formal treatise on actual guilt or innocence. See complete editorial here.

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