12. Redemption: Divine Pardon and Its Effects
REDEMPTION
Divine Pardon and Its Effects
INTRODUCTION
Redemption through Christ’s blood will be a third, vital facet of any biblical atonement theory. Christ’s atoning death frees us from the bondage of sin, death, and hell and so liberates us from Satan’s power. This emphasis is characteristic of classic Christus Victor theories. Contemporary Christus Victor theorists recognize that the ransom price of our redemption need not be thought of as paid to Satan to secure our release from bondage. Rather, the ransom price is paid to God to discharge the debt of punishment that we owe to divine justice. Just as we speak of a criminal’s having “paid his debt to society” by suffering the punishment prescribed for his crime, so we may speak of Christ’s having paid the debt of punishment we owe to God. Talk of ransom is thus a metaphor for penal substitution. Atonement theories emphasizing redemption should thus not be seen as stand-alone theories but rather serve to highlight one aspect of a multifaceted atonement theory that has penal substitution at its center.
DIVINE FORGIVENESS AS LEGAL PARDON
How, then, are condemned prisoners set free? If they are not to endure further punishment for their crimes, they must receive a full pardon. We have seen that it is more accurate to think of divine forgiveness on the analogy of a legal pardon by a ruler rather than on the analogy of the forgiveness extended by a private person. The philosophical literature typically treats forgiveness as a subjective change of attitude on the part of the person wronged, a determination to put away feelings of resentment, bitterness, or anger, a relinquishing of the desire for revenge or schadenfreude. But God’s forgiveness accomplishes much more than a change of attitude toward sinners on God’s part. God’s forgiving sins removes our liability to punishment and thus obviates the demands of retributive justice upon us: the just desert of our sins is gone. Because of the forgiveness that is to be found in Christ, one is no longer held accountable for one’s sins. “There is therefore now no condemnation for those who are in Christ Jesus” (Rom 8:1).
It is evident, then, that divine forgiveness is much more akin to legal pardon than to forgiveness as typically understood. Kathleen Moore has made the point forcefully by observing that when people ask God to forgive their sins, they are clearly hoping that God will not inflict the full measure of punishment they know they deserve. “These people would discover the seriousness of their conceptual confusion if God forgave their sins and punished them nevertheless—which is always an option for God.”
Samuel Morison, an attorney-advisor in the Office of Pardon Attorney, has therefore appropriately called the practice of executive clemency “the secular institutional expression of the traditional religious conception of reconciliation.” Now, of course, there will be significant disanalogies between divine pardon and the pardoning power as it exists in Anglo-American systems of justice—for example, a president may issue pardons for personal political advantage—but, still, given the similarities, we may expect to gain a good deal of insight into divine pardon by exploring the pardoning power vested in heads of government.
PARDON AND ITS EFFECTS
From ancient times, including the NT era, heads of state have exercised the power to pardon crimes. So the framers of the U.S. Constitution naturally included the pardoning power in the Constitution. Article 2, section 2 of the U.S. Constitution grants the president “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Since this power is not defined in the Constitution, U.S. courts have interpreted the presidential power to pardon on the model of the pardoning power of English monarchs, which the framers doubtless presupposed. The power of English monarchs to pardon was, in turn, understood as a divine right, an act of grace reflecting God’s ability to pardon sins. William Blackstone characterizes the granting of “the king’s most gracious pardon” as “the most amiable prerogative of the Crown.” So it is not surprising that the power of the executive to pardon strongly resembles divine pardon.
The U.S. Supreme Court has interpreted the pardon clause to comprise not only full pardons but by implication lesser acts of clemency, including commutations of sentence, reprieves, remissions of fines and penalties, and amnesties. Commutations are reductions of sentence for crimes of which the criminal is guilty. A reprieve is a temporary delay in the carrying out of a sentence. Remission of fines and penalties is the cancelation of such monetary obligations owed to the federal government for wrongdoing. Amnesties are similar to pardons but concern not individuals but classes of people.
What is a pardon? In a landmark decision, Chief Justice John Marshall describes a pardon as follows:
A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.
Marshall’s description was later cited by the Supreme Court as a correct characterization of a pardon in Burdick v. United States, 236 U.S. 79, 89 (1915). According to this characterization, a pardon is an act of mercy, coming from the person(s) possessing the power of the executive, which removes a criminal’s liability to punishment for a specific crime he has committed.
Marshall’s description seems an apt characterization of a divine pardon as well. God is the power Who executes His divine torah, and His pardon is an act of grace by which He exempts elect sinners, who have violated His law, from the punishment they deserve. Every element of Marshall’s definition finds a theological analogue. No wonder Daniel Kobil characterizes Marshall’s vision of a pardon as “something akin to divine forgiveness”!
There are very few limitations on the U.S. presidential pardoning power: (1) the president may pardon only federal offenses (“Offences against the United States”) and so is powerless to grant clemency in state criminal or civil cases, (2) the Constitution expressly prohibits the president from granting pardons “in Cases of Impeachment,” (3) the president may not pardon a crime before it occurs, and (4) the president may not pardon someone held in contempt in a case between private parties. Only the third of these limitations is theologically interesting. Plausibly, God cannot pardon sins before they are committed, since at that time the person has not yet done anything wrong (and may not yet even exist!) and so cannot be guilty. Hence, there is nothing to be pardoned. Pardon must take place after the sins have been committed.
One of the remarkable features of a presidential pardon is its absoluteness. It is not subject to either judicial review or to legislative restrictions. Even future presidents do not have the power to reverse a pardon. The president has the power to pardon whomever he wants for any reason he wants, and his pardon is irrevocable. The analogy to divine pardon is obvious. God as the supreme Ruler has absolute power to pardon sinners, and no one can gainsay His action. “Who will bring any charge against God’s elect? It is God justifies. Who is to condemn?” (Rom 8:33-34).
What are the effects of a pardon? Marshall says that it exempts the individual from the punishment prescribed by the law for his crime. This much is uncontroversial. But pardons do much more than merely exempt a convicted criminal from punishment for his crime. A pardon removes all the legal consequences of the criminal’s conviction. A pardon thus restores to a person any civil rights which were restricted as a result of his conviction, such as the right to vote, to serve on a jury, or to obtain a business license. In Knote v. United States, the Supreme Court explained the effect of a pardon on its recipient:
A pardon is an act of grace by which an offender is released from the consequences of his offence, so far as such release is practicable and within control of the pardoning power, or of officers under its direction. It releases the offender from all disabilities imposed by the offense, and restores to him all his civil rights. In contemplation of law, it so far blots out the offence, that afterwards it cannot be imputed to him to prevent the assertion of his legal rights. It gives him new credit and capacity, and rehabilitates him to that extent in his former position.
We shall return to the effect of a pardon in restoring a person’s civil rights, a feature of pardons that is also uncontroversial, even if in some cases difficult to adjudicate.
The controversial question concerning pardons is whether a pardon serves to remove the criminal’s guilt. Following the English model, the U.S. courts were at first emphatic as to the effect of a pardon in expiating guilt. In Ex parte Garland the Supreme Court famously declared:
The inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.
Like Marshall’s description of a pardon, this characterization of the effects of a full pardon is a marvelous description of a divine pardon. “If anyone is in Christ, he is a new creation; the old has passed away, behold, the new has come” (2 Cor 5:17). The pardoned sinner’s guilt is expiated, so that he is legally innocent before God.
But as a description of the effects of human pardons, Garland’s sweeping assertions have been eroded by subsequent court decisions. In the Harvard Law Review of 1915 Samuel Williston published what has been called a “seminal” and “landmark” article, “Does a Pardon Blot Out Guilt?” in which he criticized Garland and its judicial progeny and which has been frequently cited by the courts. Williston complained, “Everybody . . . knows that the vast majority of pardoned convicts were in fact guilty; and when it is said that in the eye of the law they are as innocent as if they have never committed an offense, the natural rejoinder is, then the eyesight of the law is very bad.” The truth, says Williston, is rather as Lord Coke wrote: Poena mori potest, cupla perennis erit. A moment’s reflection suggests that Williston must understand by “guilt” simply the property or fact of having committed the crime. On this understanding, to be guilty of a crime is just to have committed the crime.
That this is how Williston understands guilt is evident from the remainder of his article. He blames the verdict of the English Court in Cuddington v. Wilkins (80 Eng. Rep. 231 [K.B. 1615]) as laying the main foundation for the view that after a pardon the law could not see the criminal’s guilt. Cuddington had brought an action against Wilkins for calling him a thief. Wilkins justified his appellation because Cuddington had once been convicted of theft. But Cuddington replied that he had been pardoned by the king for the alleged felony. The court decided for Cuddington, “for the whole court were of opinion that though he was a thief once, yet when the pardon came it took away, not only poenam, but reatum.”
Williston disagrees:
The true line of distinction seems to be this: The pardon removes all legal punishment for the offense. Therefore if the mere conviction involves certain disqualifications which would not follow from the commission of the crime without conviction, the pardon removes such disqualifications. On the other hand, if character is a necessary qualification and the commission of the crime would disqualify even though there had been no criminal prosecution for the crime, the fact that the criminal has been convicted and pardoned does not make him anymore eligible.
The point is this: a pardon removes the legal disqualifications (abridgment of civil rights) resulting from the fact of conviction, but a pardon does not affect any disqualifications resulting from the commission of the crime. The fact that a crime has been committed cannot be erased. It is this fact that Williston identifies as guilt. Though pardoned, the person still stole or lied or acted recklessly and so remains guilty of the crime he committed. As such he may, despite his pardon, be disqualified from certain activities, such as giving testimony or practicing law.
Thus, Williston blasts the New York Court of Appeals for the following “unpardonable reasoning” in a case involving disbarment of a pardonee:
The pardon does reach the offence for which he was convicted, and does blot it out, so that he may not now be looked upon as guilty of it. But it cannot wipe out the act that he did, which was adjudged an offence. It was done, and will remain in effect for all time.
Williston marvels, “How a man who ‘may not now be looked upon as guilty’ of a crime, nevertheless did the act which was a crime and must now be disbarred for it, it is difficult to imagine.” Henry Weihofen in a later review, citing Williston’s criticism of the court’s opinion in this case, complains of “the mischief that results when a court applies literally the unfounded dictum of Ex parte Garland that a pardon ‘blots out’ guilt, and makes the offender a ‘new man,’ etc.” The effect of a pardon (other than on grounds of innocence) is “to absolve from further punishment and restore civil rights, but not to undo what is past or blot out of existence a fact, namely, that the person has committed a crime and been sentenced and punished for it.”
An examination of various district, state, and appellate court cases walking back the assertions of Garland reveals that the courts in such cases tend to presuppose this same understanding of guilt as the property of having committed a crime. Consider the following examples:
It is petitioner’s contention that these pardons under Texas law wiped out the convictions as thoroughly as though they had never occurred, and that, therefore, giving full faith and credit to the law, no fact as to prior convictions existed. . . . It may be true (we do not so hold) that the Texas pardon law goes all the way and prohibits the Texas courts from giving any consideration to a pardoned offense. Yet such a law could not turn back the hand of time long enough to delete an actuality from its long course. It still remains true that petitioner was the subject of two prior final convictions when the law of California overtook him in the commission of another felony. Notwithstanding the Texas pardons, the stubborn fact remains that the habit of crime was upon him.
The offender’s past conduct, including the commission of an offense against another sovereign, may be taken into account even though the offender has been pardoned by such other sovereign. The Constitution, which confers upon the President the power to pardon, does not confer upon him power to wipe out guilt.
If Garland ever had the broad impact on post-pardon proceedings which the sweep of its language implies, a century of judicial sculpturing has left more form than substance to the opinion. It can no longer be seriously contended, for example, that a pardon erases an offender’s past, making it “as if he had never committed the offense.” . . . While a pardon removes all legal punishments and disabilities attached to a conviction, we hold that it cannot erase the fact that the offender was convicted of an infamous crime and it is the fact of conviction alone, not its continuing viability, which renders the offender ineligible to hold public office. . . . As this Court said in Grant, 133 A. at 791: “[A pardon] . . . removes the disability, but does not change the common-law principle that the conviction of an infamous offense is evidence of bad character for truth.”
The undisputed legal effect of a pardon is to restore the civil rights to an ex-felon (suffrage, jury service, and the chance to seek public office). However, the Governor cannot overrule the judgment of a court of law. He has no “appellate” jurisdiction. There can be no doubt but that a final judgment was entered against the ex-felon. Regardless of the post-judgment procedural maneuvering, a final conviction does not disappear. A pardon implies guilt. Texas Courts may forgive, but they do not forget. The fact is not obliterated and there is no “wash.” Moreover, the granting of a pardon does not in any way indicate a defect in the process. It may remove some disabilities, but does not change the common-law principle that a conviction of an infamous offense is evidence of bad character.
[A]lthough the presidential pardon set aside Abrams’ convictions, as well as the consequences which the law attaches to those convictions, it could not and did not require the court to close its eyes to the fact that Abrams did what he did. . . . According to Abrams, the quoted language requires this court, in effect, to pretend that his pardoned wrongdoing never happened. . . . The implications of Abrams’ position are troubling to say the least. Let us consider an apt analogy. Suppose that an alcoholic surgeon performs an operation while intoxicated. He botches the surgery. The patient dies. The surgeon is convicted of manslaughter and is sentenced to imprisonment. The President grants him a full and unconditional pardon. According to Abrams, the surgeon now has the right, as a result of the pardon, to continue to operate on other patients, without any interference from the medical licensing authorities. . . . The presidential pardon would undoubtedly have precluded a sanction based on Abrams’ conviction. . . . Instead, the proceeding was brought to discipline Abrams for engaging in conduct which, according to Bar Counsel, violated the Code of Professional Responsibility.
Pursuant to the current expunction statute, a person will only qualify for a certificate of eligibility if he “[h]as not been adjudicated guilty of, or adjudicated delinquent for committing, any of the acts stemming from the arrest or alleged criminal activity to which the petition to expunge pertains.” § 943.0585(2)(e), Fla. Stat. (2002). . . . While a pardon removes the legal consequences of a crime, it does not remove the historical fact that the conviction occurred; a pardon does not mean that the conviction is gone. If a pardon had the effect of allowing an individual to declare that he had not been adjudicated guilty of a crime, the end result would be that all pardoned individuals would be eligible for expungement of their criminal history records. Today, we hold that a pardon does not have the effect of erasing guilt so that a conviction is treated as though it had never occurred.
To summarize: the legal effect of a presidential pardon is to preclude further punishment for the crime, but not to wipe out the fact of conviction. The CFTC did not violate the pardon clause by considering the conduct underlying Hirschberg’s conviction in determining whether he was qualified to do business as a floor trader, because its decision was grounded in protection of the public rather than in punishing Hirschberg as a convicted felon. . . . The effect of a pardon is not to prohibit all consequences of a pardoned conviction, but rather to preclude future punishment for the conviction. . . . In cases where governmental action has been held to violate the pardon clause, . . . the pardoned individual is stripped of his rights based not on the conduct underlying the conviction, but on the fact of conviction alone. . . . evidence of the CFTC’s non-punitive purpose in denying Hirschberg’s application is the fact that the conduct underlying Hirschberg’s mail fraud conviction would be cause for denial even if he had not been criminally convicted for it.
A pardon does not prevent any and all consequences of the pardoned offense: collateral consequences of the offense may still follow. For example, an attorney who has been pardoned for the offense of forgery may not be punished for that crime, but may be disbarred as a result of that offense. Our predecessor court also recognized that a gubernatorial pardon does not restore the character of the witness/pardonee, so that he or she could still be impeached as a felon. Thus, while a pardon will foreclose punishment of the offense itself, it does not erase the fact that the offense occurred, and that fact may later be used to the pardonee’s detriment.
The authorities cited are in accord: expunction is not a civil right. Based upon these well-reasoned authorities, we hereby retreat from our prior decisions . . . to the extent that they imply that a pardon blots out guilt and erases the historical fact of the underlying conviction. . . . Because we conclude that the effect of the pardon does not erase the historical fact of the conviction, we hold that there is nothing in the Nevada Constitution that creates a civil right to an expunction of the record of a criminal conviction.
The Court is bound by the Supreme Court’s eventual adoption of Professor’s Williston’s view of the effect of a Presidential pardon—namely, that a Presidential pardon relieves the pardonee of the legal disabilities incident to a conviction of an offense (in this case, the legal punishment of a general court-martial conviction), but does not eliminate the consideration of the conduct (being AWOL for 313 days) that led to that conviction. . . . Therefore, Mr. Robertson’s argument, that his Presidential pardon “blots out” the conduct that led to his discharge and prohibits VA from considering that conduct as a bar to benefits, must fail.
These cases have typically to do with whether a pardon serves to expunge one’s criminal record or to remove a particular disqualification (such as disbarment, banishment from the trading floor, or denial of veteran’s benefits) suffered by the pardonee as a consequence of his being convicted of the crime for which he received a pardon. In holding that Garland overstepped in asserting that a pardon blots out guilt because a pardon does not blot out the past conduct leading to the conviction, these courts equate guilt with having carried out the conduct that led to the conviction.
While such an understanding of the word “guilt” may accord with much of ordinary language, a little reflection reveals that, given standard retributive theories of justice, such a conception of guilt has bizarre consequences. For on this view a person’s guilt could never be expunged, whether by pardon or punishment. Even if a person has served his full sentence and so satisfied the demands of justice, he remains guilty, since it will be ineradicably and forever the case that once upon a time he did commit the crime. But then on standard theories of retributive justice, he still deserves punishment! For it is an axiom of retributive justice that the guilty deserve punishment. Such an understanding of guilt would thus, in effect, sentence everyone to hell, even for the most minor of crimes, since guilt could never be eradicated and, hence, the demands of justice satisfied. Indeed, even a divine pardon would not serve to remove guilt and save us from punishment, since even God cannot change the past. But such a conclusion is incoherent, since it is the function of pardon to cancel one’s liability to punishment. Therefore, this understanding of guilt is incompatible with standard theories of retributive justice.
The Garland court and its progeny should not be thought to consider a pardon to be a sort of judicial time machine, capable of erasing the past. It is logically incoherent to bring it about that an event which has occurred has not occurred, and it would be ungracious to attribute to our courts the absurd opinion that a pardon can erase from the past a person’s wrongdoing or conviction for a crime. Rather what the Garland court was doing, and what its detractors have failed to do, is what contemporary philosophers of time call “taking tense seriously.” When the Supreme Court declared that a pardon “blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence,” it takes seriously the tenses of the verbs involved. It recognizes that the offender was guilty, but as a result of his pardon he is now innocent in the law’s eyes. It is precisely for that reason that in the court’s opinion Congress’ attempt to prescribe further punishment for Mr. Garland was illegitimate: as a result of the pardon he is no longer guilty. Moreover, the counterfactual conditional signaled by “as if . . .” reveals that the law is not blind to his offense. The law can see his offense, but as a result of the pardon the offender is now as innocent as he would have been if he had never committed the offense.
From the beginning, courts that held that a pardon expunges a person’s guilt recognized the importance of tense. In Cuddington v. Wilkins, for example, the court opines that while Cuddington was once rightly called a thief, as a result of the king’s pardon he should no longer be called a thief. In Hobart’s report on the case, we read, “It was said, that he could no more call him thief, in the present tense, than to say a man hath the pox, or is a villain after he be cured or manumised, but that he had been a thief or villain he might say.” The court’s decision turns upon taking tense seriously. Similarly, the reasoning of the New York Court of Appeals, which Williston found unpardonable, emphasizes that though the pardonee was once guilty of the offense, “he may not now be looked upon as guilty of it.” The opinion is admittedly sloppy in saying that it is the offense rather than the guilt that is blotted out by a pardon, but in view of the court’s insistence that the criminal act cannot be “wipe[d] out,” its intention to agree with Garland is evident. Moreover, contrary to the opinions of several lower courts, Garland is wholly consistent with the Supreme Court’s opinion in Burdick v. United States that the pardon of an accused person, if accepted, actually implies his guilt (otherwise there would be nothing to be pardoned), for Garland has no interest in denying that the offender was guilty, so that the pardon, in taking away his guilt, implies that he was guilty. A pardon does not have an “appellate” function, as the courts have recognized, in that it does not imply a miscarriage of justice; the correctness of the guilty verdict rendered is not undermined. But now the person is pardoned, and so the effect of that verdict is canceled: though once guilty, the pardonee no longer is.
The opinion in Garland was properly explicated in In re Spenser (1878) as follows:
This is probably as strong and unqualified a statement of the scope and efficacy of a pardon as can be found in the books. And yet I do not suppose the opinion is to be understood as going the length of holding that while the party is to be deemed innocent of the crime by reason of the pardon from and after the taking effect thereof, that it is also to be deemed that he never did commit the crime or was convicted of it. The effect of the pardon is prospective and not retrospective. It removes the guilt and restores the party to a state of innocence. But it does not change the past and cannot annihilate the established fact that he was guilty of the offence.
The opinion in Garland is thus fully in accord with the prevailing view that a pardon has no effect upon the criminal conduct and conviction of the person pardoned.
Not only so, the opinion in Garland is also consistent with the view that some things (for example, having one’s criminal records sealed) may be prohibited to a pardonee because there is no civil right that may be restored in such cases; in other cases a pardon has no effect upon the susceptibility of the pardonee to certain actions because the actions involve private lawsuits. Garland is thus in accord with the prevailing opinion that a pardon serves to release a person from all the legal consequences of his conviction, including punishment, taken in abstraction from the wrongdoing itself.
It is obvious that the Garland court has a very different conception of guilt than lower courts that see themselves as departing from Garland. Rather than assume the incoherent understanding that equates guilt with the facticity of a past event, Garland assumes that guilt is a property that can be temporarily exemplified and then lost though pardon or appropriate punishment. So what is this property? In criminal law guilt is typically determined by establishing that someone has committed a wrongful act (actus reus) while possessing a blameworthy mental state (mens rea). Perhaps guilt is the property of being a culpable wrongdoer, a property that can be temporarily exemplified but lost through sufficient punishment or pardon. But wrongdoing and culpability are merely sufficient, not necessary, conditions for guilt. Guilty verdicts in cases of strict liability (in which there may be neither wrongdoing nor culpability) show that guilt cannot be equated merely with being a culpable wrongdoer.
So what is guilt? It may be convenient to think of guilt just as liability to punishment. A verdict of “guilty” is plausibly a declaration that the person is liable to punishment. To be guilty of a crime is to be liable to punishment for that crime. Such an understanding of guilt makes it perspicuous why punishment or pardon serves to expiate guilt. A person who has served his sentence has “paid his debt to society” and so is now no longer guilty, that is to say, no longer liable to punishment. Similarly, a person who has been pardoned is by all accounts no longer liable to punishment for the crime he committed. In any case, however we define guilt, if at all, given a retributive theory of justice, guilt entails liability to punishment. It follows logically that if a pardon removes one’s liability to punishment, then it also blots out guilt. It is impossible that a person be pardoned and yet remain guilty.
To return, then, to the concerns of theology, it seems to me that Garland’s statement of the effects of a pardon is a marvelous description of the effects of a divine pardon of a person’s sins. By taking tense seriously, we understand how a person who was once guilty may, in virtue of a pardon, be no longer guilty, despite the ineradicable fact that he did commit the sin for which he was condemned. The decisions of certain lower U.S. courts do not compromise Garland, for they are assuming a different understanding of guilt, which equates guilt with the facticity of the past offense, which Garland would not think to deny. Like punishment, pardon expiates a person’s guilt, so that he is no longer condemned and liable to punishment.
These debates over the effects of a pardon provide insight into the nature of divine justification. In contrast to Catholic theologians, who saw justification as involving only infused righteousness, the Protestant Reformers recaptured the Pauline doctrine of imputed righteousness. Alister McGrath highlights three distinctive features of the Protestant doctrine of justification:
(1) Justification involves a forensic declaration of righteousness that effects a change in legal status before God, as opposed to a process that actually makes one righteous.
(2) There is a clear conceptual difference between justification (“the act by which God declares the sinner to be righteous”) and either regeneration or sanctification (the actual “internal process of renewal by the Holy Spirit”).
(3) Justifying righteousness is understood as an external, “alien” righteousness graciously imputed to the Christian through the act of faith.
Not that the Reformers denied that God infuses righteousness into us, that is to say, makes us righteous by a moral transformation of our character! They affirmed such an infused righteousness but saw it as belonging properly to sanctification, that gradual transformation of character into conformity with Christ’s image by the power of the indwelling Holy Spirit (2 Cor 3:18). Justification in Paul’s view is a forensic notion, God’s legal declaration that we are righteous. While justification may involve more than divine pardon of our sins, at the heart of forensic justification lies divine pardon. By God’s pardon we are freed of our liability to punishment, so that legally we are innocent before the bar of His justice.
Our legal pardon by God no more transforms our character and makes us virtuous people than does a human pardon a convicted criminal. Again and again, the courts have insisted that a person may suffer various disabilities, despite his pardon, because of the flawed character that led to his conviction. The conviction alone, now pardoned, may not serve as grounds of disability, but it may serve as evidence of a corrupt character and conduct that are disabling. So, for example, in the case In re Abrams, Elliott Abrams was deemed unfit to practice law despite his pardon because a pardon did nothing to restore the moral character necessary for him to continue to practice law. Although the District of Columbia Court of Appeals agreed with Abrams that his pardon set aside his convictions and the legal consequences thereof, still his pardon “could not and did not require the court to close its eyes to the fact that Abrams did what he did.” Similarly, in Hirschberg v. Commodity Futures Trading Commission, the Seventh Circuit U.S. Court of Appeals found that “the conduct underlying Hirschberg’s mail fraud conviction would be cause for denial even if he had not been criminally convicted for it. . . . The CFTC appropriately considered the conviction as evidence of Hirschberg’s inability to work as an ethical floor broker.” These cases nicely illustrate Williston’s point that “while pardon dispenses with punishment, it cannot change character, and where character is a qualification for an office, a pardoned offence as much as an unpardoned offence is evidence of a lack of the necessary qualification.”
Similarly, while a divine pardon makes us legally innocent before God, free of liability to punishment, it is powerless of itself to effect moral transformation of character. To that end we need regeneration through the Holy Spirit and His sanctifying influence to make us over time into the men and women that God wants us to be. Sanctification in this sense is not a forensic transaction but a moral transformation of character and is not therefore wrought by divine pardon alone.
CONCLUDING REMARKS
In summary, at the heart of redemption lies divine pardon. Our liberation from sin and death and hell and our victory over Satan, so emphasized by the Christus Victor theory, is achieved via a divine pardon procured as a result of Christ’s atoning death, which satisfied the demands of divine justice, so that we might go free. A pardon annuls our liability to punishment, and so blots out our guilt, and constitutes us new persons, now as innocent in God’s sight as if we had never committed sin. The effect of a divine pardon may be supplemented, if we like, by affirming a positive imputation of righteousness to us, so that we are much more than merely innocent but have the new legal standing of being positively righteous in God’s eyes.
Stanford Encyclopedia of Philosophy, s.v. “Forgiveness,” by Paul M. Hughes, §1, December 23, 2014, https://plato.stanford.edu/entries/forgiveness/. Hughes proceeds in §3.1 to differentiate legal pardon from forgiveness, concluding that “despite some similarities, pardon and forgiveness are significantly different notions.” See also discussion in Kathleen Dean Moore, Pardons: Justice, Mercy, and the Public Interest (Oxford: Oxford University Press, 1989), chap. 16. For a helpful survey of the literature on the nature of divine forgiveness as either change of emotions or forbearance of punishment, see Brandon Warmke, “Divine Forgiveness I: Emotion and Punishment-Forbearance Theories,” Philosophy Compass 12, no. 9 (2017): e12440, https://doi.org/10.1111/phc3.12440. Obviously, these alternatives are not mutually exclusive. Warmke’s characterization of pardon as mere punishment-forbearance is inadequate, however, since an executive power could choose to forswear punishment without pardoning the lawbreaker. See n48 below. N.B. that if we take the nature of divine forgiveness to be pardon, then what Warmke calls the “standing question” and the “normativity question” simply evaporate, since God as chief executive has the standing to pardon crimes and the right to pardon third parties.
We encounter here the debate over whether the Levitical sacrifices and Christ’s sacrificial death served to propitiate God, to change His attitude toward sinners from wrath to acceptance. It has become conventional wisdom among contemporary theologians that because the NT authors use katalassō (reconcile) and its cognates only with respect to human beings, not God, God does not need to be reconciled to humanity, but only humanity to a welcoming God. I leave aside whether such an argument from silence is cogent. But if God does not need to be reconciled to sinners, that fact shows all the more that divine forgiveness is not a change of attitude on God’s part, in the way that forgiveness is usually understood by contemporary philosophers analyzing human relationships.
The nature of divine forgiveness as legal pardon would be all the more obvious if some theorists were right in arguing that it is logically impossible for God to forgive sins, in the usual sense of the word (H. J. N. Horsbrugh, “Forgiveness,” Canadian Journal of Philosophy 4, no. 2 [1974]: 269–82; Anne C. Minas, “God and Forgiveness,” Philosophical Quarterly 25, no. 99 [1975]: 138–50; “Forgiveness,” by Paul M. Hughes, §7; cf. the contrary view expressed by Meirlys Lewis, “On Forgiveness,” Philosophical Quarterly 30, no. 120 [1980]: 236–45). For the proffered arguments against God’s forgiving sins are admittedly inapplicable to His legally pardoning sins.
For better or worse, however, the arguments for the claim that it is logically impossible for God to forgive sins are scarcely plausible. God’s attitude toward sinners could obviously go from wrath to acceptance, which is sufficient for forgiveness in the usual sense of the word. The fact that God, being omnipotent, cannot be harmed by sinners’ wrongdoing does not entail that He be indifferent to their wrongdoing rather than incensed by it, as His holiness and love of the victims of sin demand. Moreover, if God is wronged, if not harmed, by sin, then His forgiveness is not a case of third-party forgiveness, which many theorists claim to be impossible. As St. Anselm understood, sinners’ failure to give God His due in honor and obedience is a gross wrong committed against God. Pace Hughes, God’s interests in establishing His Kingdom among mankind can be obviously set back, despite His omnipotence, through the free rebellion of creatures, as discussions of theodicy have made plain.
Moore, Pardons, 184. One may forgive without pardoning and pardon without forgiving. But recall that punishment and forgiveness are not incompatible with each other.
Morison, “Politics of Grace,” 137. Recall that biblically speaking reconciliation is atonement in the broad sense. See also Mark W. Osler, “A Biblical Value in the Constitution: Mercy, Clemency, Faith and History,” University of St. Thomas Law Journal 9, no. 3 (2012): 769–82.
Noah Messing lists seven motivations underlying presidential pardons: (1) justice: correcting excessive or improper punishments; (2) mercy: exercising compassion; (3) cronyism: extending favors to political loyalists and the wealthy; (4) military strategy: helping to win and end military conflicts; (5) legislative overreach: countering illegal or immoral legislation; (6) inter-administration consistency: lessening the punishments meted out during an overly harsh prior administration; (7) economic efficiency: offering relief from laws that harm economic growth (Noah A. Messing, “A New Power? Civil Offenses and Presidential Clemency,” Buffalo Law Review 64 [2016]: 732–38). Most of these motivations are obviously inapplicable to divine pardon.
An executive pardon plays a pivotal role in the crucifixion of Jesus, according to Luke. The Roman prefect Pontius Pilate pardons the insurrectionist Barabbas instead of releasing Jesus, thereby condemning the Nazarene to the cross.
It is intriguing that much of the New Testament was written by a man who near the end of his life became embroiled in a legal dispute within the Roman justice system. When Paul appealed to the Roman emperor to try his case, he was not asking the emperor to pardon him, though that lay within Caesar’s power. Nor was Paul appealing the verdict in his case, since Paul had never been tried and convicted. Rather, as a Roman citizen, Paul was exercising his right to be tried within the Roman system of justice rather than within the Jewish justice system and, moreover, asking for a change of venue for his case from Jerusalem to Rome, since Jewish pressures made it impossible for him to get a fair trial even before Roman officials resident in Palestine.
Helpful surveys of the history of the pardon power may be found in Crouch, Presidential Pardon Power; W. H. Humbert, The Pardoning Power of the President (Washington, D.C.: American Council on Public Affairs, 1941); and Moore, Pardons.
In Moore’s pithy conclusion, “Presidents used pardons as they chose, having been given a pardoning power patterned after that of the English Kings, which was patterned after God’s” (Pardons, 51). She says that the pardoning power of English monarchs “was analogous in theory and practice to divine grace. Like grace . . . a royal pardon was thought of as a personal gift. Therefore, it required no justification and was not subject to criticism” (Kathleen Dean Moore, “Pardon for Good and Sufficient Reasons,” University of Richmond Law Review 27, no. 2 [1993]: 282). So “pardon has historically been understood as an act of grace, a gift freely given from a God-like monarch to a subject” (Moore, Pardons, 9). Crouch suggests that in ancient cultures where the law was synonymous with justice, there would be no need to create exceptions to the law in order to further justice. The law was by definition just, so if an exception to the law was granted, it had to be for reasons unrelated to rectifying injustices. Ancient Judaism would seem to be a good example, for the Torah was God-given and therefore infallible. If an exception were granted, it could only be by an act of divine grace. While corrupt or incompetent judges might make the pardoning power of the king necessary in order to correct injustices, in God’s case injustices are impossible, and so divine pardons could only be acts of mercy.
William Blackstone, Commentaries on the Laws of England in Four Books, 2nd ed. rev. (Chicago: Callaghan, 1879), 4:395. Interestingly, Blackstone opines that the power to pardon could never subsist in a republic, since then the power of judging and the power of pardoning would be vested in the same person, forcing him to undo his own pronouncements. The U.S. framers solved this problem by separating the judicial and executive branches of government and vesting the power to pardon solely in the latter. As observed above, in God’s case the legislative, judicial, and executive functions of government are all rolled into one, but since God is both omniscient and morally perfect, injustice in His government of the world is logically impossible.
United States v. Wilson, 32 U.S. 150 (1833).
Daniel T. Kobil, “The Quality of Mercy Strained: Wresting the Pardoning Power from the King,” Texas Law Review 69 (1991): 594.
Messing, “A New Power?” 668–69.
Thus, Turretin argues that prior to a person’s birth his sins cannot be said to have been remitted because nonentities have no properties and, hence, no sin and guilt to be remitted (Francis Turretin, Institutes of Elenctic Theology, 3 vols., trans. George Musgrave Giger, ed. James T. Dennison Jr. [Phillipsburg, N.J.: P&R, 1992], 16.5). Such a person is not yet in union with Christ and so not yet justified. For Turretin, justification, though eternally decreed, takes place in this life in the moment of God’s effectual calling, by which the sinner is transferred from a state of sin to a state of grace and is united to Christ, his head, by faith.
“Most jurists and scholars who have discussed this issue accept Chief Justice Marshall’s dictum that ‘[a] pardon . . . exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed’” (Messing, “A New Power?” 678).
Knote v. United States, 95 U.S. 149, 153 (1877).
See Samuel Williston, “Does a Pardon Blot Out Guilt?” Harvard Law Review 28, no. 7 (1915): 648–52.
A. H. Garland, a former member of the Confederate Senate, received a full presidential pardon in July 1865 but was barred from practicing law because of an oath enacted by Congress as a prerequisite to appearing before a federal court. One had to swear that one had never supported, aided, or served in office in the Confederacy. Unable to take this oath, Garland sued to set aside this congressional prerequisite. The Supreme Court ruled that the oath was an improper legislative encroachment on the president’s pardoning power.
Ex parte Garland, 71 U.S. 333, 380–81 (1866).
For a thorough review of the relevant judicial decisions see In re Sang Man Shin, 125 Nev. 100, 104–9 (2009); Robertson v. Shinseki, 26 Vet. App. 169, 176–79 (2013).
E.g., Robertson v. Shinseki at 177.
Williston, “Does a Pardon Blot Out Guilt?” 648.
“Punishment may expire, but guilt will last forever.”
Hob. 67, 81, cited by Williston, “Does a Pardon Blot Out Guilt?” 651.
Williston, “Does a Pardon Blot Out Guilt?” 653.
Among the effects of a pardon Morison includes preventing deportation, easing foreign travel restrictions, restoring firearms rights, and facilitating the acquisition of a wide variety of valuable goods, such as naturalized citizenship, welfare, veterans and other government benefits, military enlistment, government contracts, various business and professional licenses, and employment in many regulated industries. But a pardon does not create the fiction that the offense never occurred or entitle the recipient to an expungement of his criminal record (Morison, “Politics of Grace,” 32–34).
In re an Attorney, 86 N.Y. 563, 569 (1881).
Morison, “Politics of Grace,” 656.
Henry Weihofen, “The Effect of a Pardon,” University of Pennsylvania Law Review 88 (1939): 181; cf. 189–90.
Weihofen, “Effect of a Pardon” (emphasis added).
Groseclose v. Plummer, 106 F.2d 311, 313 (9th Cir. 1939).
People ex rel. Prisament v. Brophy, 287 N.Y. 132, 137–38 (1941).
State ex rel. Wier v. Peterson, 369 A.2d 1076, 1080, 1081 (Del. 1976).
Dixon v. McMullen, 527 F. Supp. 711, 717–18 (N.D. Tex. 1981).
In re Abrams, 689 A.2d 6, 7, 10–11 (D.C. 1997).
R. J. L. v. State, 887 So.2d 1268, 1280–81 (Fla. 2004).
Hirschberg v. Commodity Futures Trading Commission, 414 F.3d 679, 682, 683 (7th Cir. 2005).
Fletcher v. Graham, 192 S.W.3d 350, 362–63 (Ky. 2006).
In re Sang Man Shin, 125 Nev. at 110.
Robertson v. Shinseki at 179.
So also Ashley M. Steiner, “Remission of Guilt or Removal of Punishment? The Effects of a Presidential Pardon,” Emory Law Journal 46 (1997): 996–97, who, without ever defining “guilt,” claims that it is “illogical to assert that the pardon ‘blots out of existence the guilt’ of the offender,” since “the acts leading to the conviction, whether or not they are punished, remain.” She observes that after Williston’s article, courts generally adopted one of three views regarding the effects of a presidential pardon: (1) a pardon obliterates both the conviction and the guilt; (2) a pardon obliterates the conviction but not the guilt (which she inexplicably identifies as Williston’s view); or (3) a pardon obliterates neither the conviction nor the guilt (Williston’s actual view). She takes no cognizance of a fourth alternative staring us in the face; namely, (4) a pardon obliterates the guilt but not the conviction. Alternative (2) is incoherent, since in the absence of a conviction, legal (as opposed to moral) guilt cannot exist. Moreover, given a retributive theory of justice, both (2) and (3) are incoherent, as explained below, since—a criminal being forever after guilty—a pardon could not obviate punishment. Although some courts have affirmed (1) in stating that not simply the guilt of the offender but the offense itself is blotted out, Garland does not affirm that a pardon blots out the offense. Accordingly, Garland and its progeny are best interpreted as affirming (4).
The phrase was apparently inspired by the great Oxford tense logician A. N. Prior, who, in reaction to W. V. O. Quine’s extolling the tenselessness of modern logic, praised medieval logic because it “took tenses far more seriously than our own common logic does” (Prior, “The Syntax of Time Distinctions,” Franciscan Studies 18, no. 2 [1958]: 117). I am grateful to Prior scholar David Jakobsen for alerting me to this article, which was originally Prior’s presidential address to the New Zealand Congress of Philosophy in 1954.
See discussion by Samuel E. Schoenburg, “Clemency, War Powers, and Guantánamo,” New York University Law Review 91, no. 4 (2016): 930–31.
Hob. 81, 82 (1615), cited in Williston, “Does a Pardon Blot Out Guilt?” 652. Williston notes that “the principal case was followed in Leyman v. Latimer, 3 Ex. D. 15 (1877), on very similar facts, and the court upheld the validity of the distinction taken in Cuddington v. Wilkins, between the legality of using the present and the past tense,” and yet fails himself to appreciate the importance of this distinction.
For example, the opinion of the Supreme Court of Nevada, which states, “In Burdick, the Court implicitly acknowledged that the mere act of accepting a preconviction pardon carried an unremovable social stigma, an acknowledgement that is inconsistent with a position that a pardon blots out all existence of guilt” (In re Sang Man Shin at 105). A pardon can take away the guilt that it implies, and enduring social stigma is definitely not guilt.
The Supreme Court of Indiana was in accord with Garland when it wrote, “An innocent man suffering from an illegal sentence, procured by fraud or extorted by violence, may desire a trial and an acquittal which shall remove from his character the stain of guilt, and this the exercise of the pardoning power cannot do” (Sanders v. State, 85 Ind. 318, 322 [1882]). A pardon cannot remove the stain of past guilt, even if it renders the pardonee no longer guilty.
A number of scholars have noted that pardons differ from other forms of executive clemency in that the latter, unlike pardons, do not negate the criminal’s conviction but leave intact the judgment of guilt. For example, President Carter, in proclaiming an amnesty for Vietnam War draft dodgers, said poignantly that their crimes have been forgotten, not forgiven. Similarly, recipients of commutations and reprieves remain guilty (Kobil, “Quality of Mercy Strained,” 577; Stacy Caplow, “Governors! Seize the Law: A Call to Expand the Use of Pardons to Provide Relief from Deportation,” Boston University Public Interest Law Journal 22 [2013]: 299; Messing, “A New Power?” 672; Schoenburg, “Clemency, War Powers, and Guantánamo,” 924). This distinction seems to make sense only if a pardon annuls the guilt of the offender.
In re Spenser, 22 F. Cas. 921, 922 (Cir. Ct. D. Or. 1878).
These just are the conditions Michael Moore identifies as just desert (Placing Blame: A Theory of Criminal Law [Oxford: Oxford University Press, 1997], 33, 91, 168, 403–4).
On strict liability see L. H. Leigh, Strict and Vicarious Liability: A Study in Administrative Criminal Law, Modern Legal Studies (London: Sweet and Maxwell, 1982); David Ormerod and Karl Laird, Smith, Hogan, and Ormerod’s Criminal Law, 15th ed. (Oxford: Oxford University Press, 2018), chap. 5.
Alister McGrath, “Forerunners of the Reformation? A Critical Examination of the Evidence for Precursors of the Reformation Doctrines of Justification,” Harvard Theological Review 75, no. 2 (1982): 223.
For example, Turretin emphasizes that imputation is a purely forensic notion and does not involve an infusion of Christ’s righteousness into us (Turretin, Institutes of Elenctic Theology, 14.16). While agreeing that by the grace of Christ righteousness is infused into us, Turretin insists that it plays no role in justification: “For the righteousness of Christ alone imputed to us is the foundation and meritorious cause upon which our absolutary sentence rests, so that for no other reason does God bestow the pardon of sin and the right to life than on account of the most perfect righteousness of Christ imputed to us and apprehended by faith” (16.1).
In re Abrams at 7.
Hirschberg v. Commodity Futures Trading Commission, 414 F.3d at 683, 684.
Williston, “Does a Pardon Blot Out Guilt?” 657.
Emphasis upon the work of the Holy Spirit in achieving what she calls “at onement” with God is the principal merit of Eleonore Stump’s recent study of the atonement. Unfortunately, she knows nothing of imputed righteousness but only infused righteousness and has no place in her theory for satisfaction of divine justice.
Whether that righteousness is procured by Christ’s complete obedience to the law or is immediately from God is an in-house debate that need not be finally resolved.