Justice and Mercy: To Pardon or Not?

Rabbi Gary S. Creditor
March 9, 2001

 

Our Rabbis understood the conflict and tension between executing complete justice and the reality of human fallibility, and the need for mercy. They embodied this in a Midrash about the creation of Adam and Eve. God said that He would make us in "our image." Since it couldn't be God's, the ministering angels thought it must be them. They came to God and argued. Some said to create us, and others opposed, each group citing Biblical verses. On one hand we could do deeds of love. This was countered that we would do deeds of falsehood. This was countered by our ability to do acts of righteousness. This was answered that we would be full of strife. The Midrash says: "Holy One, blessed be He, took Truth and cast it to the ground." Then it continues: "While the ministering angels were arguing with each other and disputing with each other, the Holy One, blessed be He, created him. Said He to them: 'What can you avail? Man has already been made!"

Our tradition clearly understands that if we, human beings, had to pass the bar, the litmus test of being totally just, we would fail. Every law system is made up of laws. There are many different types, with differing penalties. Yet the law, as a code, Jewish or civil, is an unfeeling accumulation of the letters on paper or parchment. They are applied by people who are fallible, who are biased and prejudiced. Imagine the state legislature passing laws of eugenics today! The laws themselves can be harsh, because the makers of the laws were harsh, or the laws had consequences that were unintended or unforeseen. Nevertheless, the laws are harsh. How do we survive this predicament, between the need for the strict justice, an unfeeling body of law, and the foibles of human beings?

Jewish law addressed this through the creation of a series of batei din, law courts, whose purpose was to seek the truth, yet in whose hands was the opportunity for mercy. They were structured in increasing numbers, usually an uneven number, so that there couldn't be a tie vote, with certain strictures so severe penalties needed more than a simple majority. They were empowered to look over the case from every angle. The law even had built-in safety nets, such as the need for warning and acknowledgement in particular cases. God's argument with the angels is played out on the pages of the Talmud when Rabbis argued between lenient and strict positions. Jewish law was most cognizant that none of us are perfect, everyone errs, and it can be that the law on the books and its punishments are inappropriate or sometimes, even unjust. It was felt that with the final decision lying in the hands of the court judges, justice tempered with mercy would be achieved. This is far different from American law courts based on the British structure with competing attorneys whose job it is to win, regardless of truth, with the opportunity for great mischief and mayhem. In evidence is the number of people awaiting execution that are truly innocent.

Jewish liturgy and our rituals internalized these ideas. This tension between justice and mercy is visible every time we conclude the Kaddish Shalem or the Amidah with the words: Oseh shalom bimromav, Hu ya'aseh shalom alyenu, v'al kol Yisrael, v'imru, amen. If you have watched the Cantor, myself and others on the bemah, when we were are facing the Aron HaKodesh, we bow first to the left, then to the right, and then face center. The Rabbis teach us to imagine that before is God, sitting on a metaphoric throne. God's right, which is our left, is the symbol of mercy. We bow and ask for that quality to be preeminent in God's disposition to us and our prayers. God's left, which is our right, is the symbol of justice and law. We bow towards that direction, acknowledging our God's demand for justice, too. Then we face center. In every Amidah and Kaddish Shalem or Kaddish Yatom, Mourners Kaddish, that is the protocol which accompanies the words. We ask for mercy to temper justice.

While he might deny it, Alexander Hamilton wrote like a good Jew, who understood everything I have just described. In paper number 74 of the Federalist Papers, he used this logic to argue for the presidential power to pardon. His language is particularly Jewish.

It may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance…On these accounts, one man appears to be a more eligible dispenser of the mercy of the government than a body of men.

Article II, Section 2 was based on two prototypes, one from New Jersey and one from Virginia. In the debates that ensued, there were three issues: should there be the power to pardon at all; who shall have the power to pardon; and, should there be any checks upon that power? The arguments were based on the grounds that Alexander Hamilton established, that the law can be too rigorous, it can be prone to error and seek vengeance, and that mercy is needed to mitigate injustice from occurring.

These are both the Jewish framework and a snapshot of the American underpinning of the presidential power to pardon. The most renown and recent use of that power was the pardon issued by President Gerald Ford for President Richard Nixon. Somewhere I have the sermon I delivered in my student pulpit railing against it. Now with more years and distance of time, I realize that with mercy for the country, President Ford spared us a terrible ordeal. Justice was served in the termination of President Nixon's tenure in office.

None of this is present in President Clinton's last minute wholesale dispatch of pardons. It was a subterfuge of procedure for cases and people that he pardoned. It is enlightening to learn that there exists The Office Pardon Attorney under the supervision of the Attorney General, with a staff of fourteen. And while the president can ignore it, as happened, there is a process that is supposed to be followed. What we have witnessed is an extreme abuse of this power, and a final disgrace to his presidency. It is also most unfortunate that by doing so, he has dragged Israel and Jews into his own personal morass.

None of these cases needed mercy.

None of these cases had too rigorous a law.

None of these cases were that of vengeance.

Indeed the one compelling case where the law was categorically unjust, where there was and is an unceasing vengeance and mercy is most definitely in order is the case of Jonathan Pollard. He should have thrown out all his other 140 pardons. This one is should have issued. I will be most interested to see the penalty issued to the man recently arrested in Northern Virginia for spying for Russia.

I hope and encourage the Attorney General to examine and find grounds to overturn and reverse these pardons.

As much as we desire mercy, we uphold the position that the violation of the law has consequences and punishments. These cases don't fit the bill.

Perhaps this unmitigated power to pardon now so visibly prone to abuse and misuse needs to be reviewed and revamped.

One day, I believe, President Clinton will also be called before the Divine bar of justice, and in need of the mercy that the power of pardons was meant to protect.

Meanwhile, as we recite Amidah and Kaddish, let us recognize for our own lives and how we look at others, that the power to judge, to criticize and to punish, often needs the great power of mercy. May God be kind and merciful to us all.

Amen.