13. Redemption: Justification and Appropriation of a Divine Pardon

We have seen that redemption is a function of divine pardon. As a result of Christ’s atoning death, a divine pardon is procured that blots out our guilt, sets us free, and gives us a new start. In this chapter we want to explore the justification and appropriation of such a pardon. Once again, it can prove insightful to examine first how executive pardons are justified and appropriated in our justice system.

Like the question of whether a pardon blots out the guilt of the pardoned offender, a question that has seemingly divided our courts is whether pardons are acts of mercy, and if so, what justifies such an act of clemency. H. R. T. Roberts provides a rough working explication of acting mercifully: “In all justice I am entitled to A from x, but it is mine to exact and I choose not to.” Alwynne Smart would add that the choice is made “solely through benevolence” and not, for example, out of constraint, self-interest, or ulterior motives. Morison makes the application to executive pardons:

The central question to be answered in this connection is, in Moore’s words, the following: given a retributivist theory of justice and of the role of the state, under what conditions is a pardon justified and under what conditions is it not justified? I hope to show that this question has profound theological significance.

As we have seen, early Supreme Court opinions, following English precedent, considered pardons to be acts of mercy on the part of the executive power. The landmark decision in this respect was United States v. Wilson (1833), in which Chief Justice Marshall wrote:

In this opinion we see clearly the reliance on English precedent, the subsequent characterization of a pardon as an act of grace, and the interesting characterization of a pardon as a private, though official, transaction between the executive and the criminal. We shall have more to say of this last element in the sequel; for now we focus on the description of a pardon as an act of grace.

According to Humbert, “In virtue of the stress which Marshall placed upon the grace and upon the private character of the presidential act, mercy or grace became, in strict legal theory, the reason for a pardon.” In 1927 a case came before the Supreme Court involving President Taft’s commutation of a criminal’s death sentence to life imprisonment, a commutation that the criminal, in a complex legal maneuver, claimed was invalid because he had not accepted it. Chief Justice Oliver Wendell Holmes wrote curtly:

In this opinion, Holmes brushes aside English precedent and appears to repudiate in no uncertain terms Marshall’s characterization of a pardon as an act of grace, and his opinion has been so interpreted. In fact, however, appearances are misleading: what the Biddle court rejects is not that a pardon is an act of grace but that it is a private transaction between the person in office and the criminal. It is the privacy of the act of grace to which Holmes objects.

Holmes’ opinion was carefully explicated by the Oregon Supreme Court in 2013 in a case involving a criminal’s rejection of the governor’s reprieve of his death sentence:

The Oregon court emphasizes that while pardons may be acts of grace, they are not, according to Biddle, private acts of grace. The court goes on to recognize that “historically, governors and presidents have granted clemency for a wide range of reasons, including reasons that may be political, personal, or ‘private.’ . . . Nonetheless, . . . the Governor’s clemency power is far from private: It is an important part of the constitutional scheme envisioned by the framers.”

On the basis of the Supreme Court decisions mentioned above, Jeffery Crouch concludes that the presidential clemency power has two equally valid rationales: “the idea that a pardon is an act of grace shown by the president to the offender and the diametrically opposed view that clemency should be granted as part of the constitutional scheme—that is, for the good of the public rather than for the benefit of the individual offender.” Crouch errs in seeing these rationales as opposed rather than complementary. Pardons can be granted for either reason—perhaps even for both. Two unanimous Supreme Court decisions have established these rationales, and Wilson was never overruled. Noting that the former U.S. pardon attorney Roger Adams has referred to pardon decision making as “all a matter of grace,” Crouch concludes that both rationales remain valid law today.

Pure retributivists like Kathleen Moore have, however, sharply challenged the validity of pardons issued solely on grounds of mercy. These theorists argue that pardons given for any other reason than furthering justice are of necessity unjust and therefore immoral, even if legal. In particular, pardons given out of mercy violate the principles of (positive) retributive justice because in such cases the guilty do not receive their just desert. On retributive theories of justice it is axiomatic that the guilty deserve punishment. To pardon someone out of mercy is therefore to subvert justice and so to act unjustly. Moreover, if pardons are acts of mercy, they may be given out arbitrarily, subverting the principle of equal treatment under the law.

Moore argues that the major shift from consequentialism to retributivism that has occurred among legal philosophers with respect to the justification of punishment needs to be accompanied by a similar shift with respect to the justification of pardon. In Moore’s view retributivism requires pardons when there is no legal liability to punishment, and it permits pardons when there is liability without moral culpability. With respect to a pardon two questions control: (1) Is the offender legally liable to punishment (a lawbreaker)? If not, then he should be pardoned if convicted. (2) Is the offender morally deserving of punishment (without excuse or justification for his lawbreaking)? If he is, then punishment is obligatory; if not, the offender may be pardoned. So pardons are appropriate on retributive grounds only in cases of innocence, excusable crime, justified crime, and prevention of undeserved suffering.

The claim of the pure retributivists has enormous theological implications for divine pardon. For God is portrayed in the Bible as acting mercifully toward us and His pardoning our sins as an act of grace. “For by grace you have been saved through faith, and this is not your own doing; it is the gift of God—not the result of works, so that no one may boast” (Eph 2:8-9). “So it depends not upon man’s will or exertion, but upon God’s mercy” (Rom 9:16). Although we deserve condemnation and death, having neither excuse nor justification for our breaking of His law (Rom 1:32; 2:1-3; 3:20), God out of His great mercy has pardoned our sins and graciously reckoned us righteous. Thus, a divine pardon is, indeed, in Marshall’s words, “an act of grace.”

At the same time, the Bible portrays God as a positive retributivist with respect to justice (Exod 34:7). As we have seen, God’s judgment is described in the Bible as ultimately eschatological. God, in effect, carries out what Kant deemed to be necessary for a just society about to dissolve: to execute any prisoners condemned to death. In any case, the biblical view is that the wicked deserve punishment—“those who do such things deserve to die” (Rom 1:32; cf. Heb 10:29)—so that retributive justice belongs to God’s character.

Indeed, it is plausible, I think, that retributive justice belongs essentially to God. Brian Leftow observes that “the more central and prominent an attribute is in the Biblical picture of God, the stronger the case for taking it to be necessary to being God, ceteris paribus: this is the only reason philosophers usually treat being omniscient or omnipotent as thus necessary.” It is hard to think of an attribute more central and prominent in the biblical picture of God than His righteousness or justice. “Shall not the Judge of all the earth do right?” (Gen 18:25). “Is there injustice (adikia) on God’s part? By no means!” (Rom 9:14). It would have been inconceivable to the biblical authors that God might act unjustly.

But then God faces “the dilemma of the merciful judge”: when a judge tries to treat an offender mercifully, either the offender is given the penalty he deserves (in which case he is being shown justice, not mercy) or the offender is not given the penalty he deserves (in which case the judge acts unjustly). Thus, a judge in his official capacity cannot exercise either pseudo-mercy or real mercy; his choice is between being just or unjust. God in His capacity of Judge acts in conformity with the strict demands of justice, so that we sinners find ourselves condemned before His bar (Rom 3:19-20).

The official remission of punishment can be justified only through pardon by the executive. Since God is both Ruler and Judge, He is as Ruler in the rather odd situation described by Blackstone of undoing His own verdict as Judge. Not that He second-guesses the Judge’s determination of guilt, for He as Judge is infallible in His determination of justice. Justification should not, contrary to careless statements by some NT scholars, be thought to be a verdict of acquittal. The guilty verdict stands. But as Ruler God pardons us, so that whereas we were once guilty, we are now innocent before Him. God as Ruler thus does not contradict what He as Judge has determined.

But now God as Ruler faces a similar dilemma to the one described above: if the pardon is given by the executive to rectify some injustice, then the pardon is not an act of grace given out of mercy but is an expression of justice; but if it is given out of mercy, then the executive violates the principles of retributive justice and so is unjust. Clearly, God cannot give pardons to rectify some injustice, since His judicial condemnation of sinners is perfectly just. If He pardons, it must be out of mercy. But then He would seem to be acting unjustly. But given that retributive justice belongs to God’s character, it is impossible that He so act. He must give people what they deserve, on pain of acting contrary to His own nature.

Critics of the pure retributivists have argued that the demands of retributive justice can be overridden by other considerations, so that the executive who pardons out of sheer mercy is not immoral. In a recent, lengthy review of the question Samuel Morison argues that sometimes leniency is morally justified when satisfying the prima facie demands of retributive justice is immoral or practically impossible. He criticizes Moore’s “moral rigorism,” commenting:

What is striking about Morison’s concerns is that they are inapplicable in God’s case, since God’s administration of eschatological justice will in no way infringe upon the rights and liberties of innocent citizens, so that divine justice is never unrequited, even if deferred (Matt 13:24-30; cf. Gen 18:22-33). Morison raises other concerns to show that the prima facie duty to punish retributively may not be an ultima facie duty. It is evident, however, that none of these concerns, such as protecting people against self-incrimination, unreasonable searches and seizures, and so on, is remotely relevant to the case of God’s administration of justice. An omniscient deity need not rely on self-incrimination or searches and seizures to convict the guilty. Morison actually admits that “such protections are merely a concession to the contingent imperfections of human nature” but thinks that “this is not an adequate reply to the foregoing objection, because it implicitly concedes that giving the guilty what they deserve is not, after all, of greater moral worth than avoiding the punishment of the innocent.” The theist, however, is not forced to play off the demands of positive and negative retributive justice against each other in this way; God can be equally committed to both insofar as human beings are concerned, delaying the full satisfaction of positive retributive justice while satisfying the demands of negative retributive justice in the meantime. He can give the guilty what they deserve while protecting the rights of the innocent.

Morison also complains that

Again, since God does not inhabit the world of retail justice, such worries are irrelevant to His administration of justice.

Noting that it is a ubiquitous feature of the criminal justice system that for both pragmatic and ethical reasons the large majority of persons accused of a crime do not receive the full measure of punishment that they arguably deserve based on retributive considerations alone, Morison warns that

Since God neither needs nor offers plea bargains, this limitation of divine retributive justice also falls to the wayside.

Turning from practical considerations to normative political theory, Morison contends that “it is also difficult to conceive any rational warrant for believing that it is the proper business of a liberal state to pursue the sort of moral objectives Moore envisions through the practice of punishment.” Obviously, this concern is irrelevant to divine justice. In fact, it is telling when Morison quotes approvingly Jeffrie Murphy’s declamation, “The liberal tradition would thus view it as silly (and perhaps impious) to make God’s ultimate justice the model for the state’s legal justice; and thus any attempt to identify criminal with sinner is to be avoided.” In fact, Morison states plainly, “The pursuit of the legitimate interest in securing social peace via state-sponsored legal punishment (as distinguished from divine retribution) does not entail any prima facie obligation to exact the full measure of morally justified punitive suffering merely because the offender deserves it.” Morison thus recognizes God’s obligation to exact the full measure of morally justified punitive suffering.

Perhaps I have belabored the point unnecessarily; but Morison’s defense of pardons on grounds of mercy is the fullest I have encountered in the literature, and yet it is stunningly irrelevant, as he recognizes, to the case of divine pardon. In the end Morison rejects “the implicit conflation of morality and justice, which assumes that the legitimate exercise of mercy always must be consistent with the demands of justice.” He cites George Rainbolt: “The fact that mercy counsels unjust acts on occasion does not imply that it is a vice. It only reflects the unfortunate fact that mercy and justice can conflict.” But that is precisely the problem for the Christian theist: God’s justice and mercy are both essential to Him and so neither can be sacrificed. We can agree with Morison “that the moral basis for the merciful extension of clemency is thus whatever ‘is right and good as judged against all moral considerations, rather than only those of justice. Any pertinent moral consideration may be taken into account.’” One should not, indeed, simply identify morality with justice. But none of the considerations that Morison has adduced for tempering justice with mercy in the case of the state applies to God. So how can God legitimately exercise mercy if doing so is inconsistent with the demands of His justice? Morison admits that that “there is no tidy conceptual solution to the problem of reconciling justice and mercy in the abstract.” He concludes that “the practice of punishment is informed by a plurality of values that may not be ultimately commensurable.”

If none of the reasons that go to justify pardons based on mercy rather than on justice applies in the case of divine pardon, then it is difficult to see how God can mercifully pardon sins; indeed, it is difficult to see how divine pardon is possible at all, since neither can it be justified on grounds of justice. What seems to be needed is a way of reconciling divine mercy and justice that justifies a pardon without sacrificing the demands of either virtue.

In fact, we seem to have backed into a persuasive argument for the conviction of Anselm and the Reformers that the satisfaction of divine justice is a necessary condition of salvation. Theologians have long debated the question of whether God could have simply pardoned our sin without Christ’s atoning death or, more broadly, the satisfaction of divine justice. Thomas Aquinas followed most of the early Church Fathers in thinking that this is possible, although less suitable for God’s purposes. Following the rise of Socinianism, most Protestant theologians, with the notable exception of Hugo Grotius, followed Anselm’s lead in holding that divine justice had to be satisfied if salvation from sin were to be possible. Our inquiry suggests the following argument in support of the necessitarian perspective:

In support of (1) we have seen that the centrality and prominence of divine retributive justice in the biblical scheme supports its being essential to God. Moreover, to mention an ad hominem consideration, neo-Socinian opponents of penal substitution need (1) if they are to argue successfully for the injustice of penal substitution, for otherwise God may determine that it is not unjust to punish a substitute in our place. Given that there is no higher law to which God must conform, He will be bound only by His own nature in determining what is just or unjust.

The support for (2) lies in the absence of any apparent justification for pardons of sheer mercy on God’s part. It is difficult to see what would justify waiving the demands of retributive justice essential to God’s nature. We say “justly punishes” to ensure the truth of (3), since only proportionate punishment of sins committed will satisfy the demands of retributive justice.

From the three premises, (4) follows. Divine justice is satisfied so long as no sin goes unpunished. This will be the case whether there are no human beings and, hence, no sin, or whether there are in fact sinners. (5) in turn follows, since any proposition implies a necessary truth. It also follows that if divine justice is not satisfied, then no human beings are saved; indeed, that it is impossible that any human beings are saved.

If this is right, then God’s pardoning us for our sins demands the satisfaction of God’s justice. This is exactly what the atonement theories of Anselm and the Reformers offer. On the Reformers’ view Christ as our substitute and representative bears the punishment due for every sin, so that the demands of divine retributive justice are fully met. The demands of divine justice thus satisfied, God can in turn pardon us of our sins. God’s pardon is thus predicated on Christ’s satisfying for us the demands of divine retributive justice. Indeed, in a sense, such a divine pardon meets the requirements of even the pure retributivists, for given Christ’s satisfaction of divine retributive justice on our behalf, nothing more is due from us. God’s pardon of us is therefore required by justice. Nonetheless, God’s provision of Christ as our penal substitute is an active expression of God’s mercy and grace, giving us what we did not deserve. The whole scheme is motivated by and justified by God’s grace: “For by grace you have been saved through faith, and this is not your own doing; it is the gift of God—not the result of works, so that no one may boast” (Eph 2:8-9). In this passage the word “this,” being masculine in the Greek, does not take “faith,” which is feminine, as its antecedent; rather the antecedent is the whole salvific arrangement of salvation by grace through faith. This atoning arrangement is a gift of God to us, not based on human merit. In this sense God’s pardon of us, while consistent with divine justice, is a pardon grounded ultimately in mercy.

A final question of theological significance that remains to be addressed is whether a pardon, to be effective, must be accepted by the criminal who is the intended beneficiary. Courts and legal theorists have tended to answer this question based on whether a pardon is considered a private communication of the executive to the criminal or a public proclamation of the executive that is known to the court. Again, United States v. Wilson is the seminal case here. Drawing upon English precedent, Chief Justice Marshall held that a presidential pardon

The idea here is that something that is not brought officially before the court must be treated as though it were nonexistent. A pardon is just such an item, since it is not communicated by the executive to the court but to the accused and so remains, in effect, unknown until the accused introduces it into court. By contrast, “The reason why a court must ex officio take notice of pardon by act of parliament, is that it is considered as a public law; having the same effect on the case, as if the general law punishing the offence had been repealed or annulled.” So in the case of United States v. Wilson, “This court is of opinion, that the pardon in the proceedings mentioned, not having been brought judicially before the court, by plea, motion or otherwise, cannot be noticed by the judges.”

But Marshall goes further than this. Wilson had already accepted the pardon; otherwise, he would have been executed. He was simply declining to bring the existence of the pardon to the attention of the court in another trial. But Marshall held not merely that a pardon may be rendered judicially invisible by the pardonee’s refusing to plead it; he held that a pardon may be rendered ineffectual by one’s refusing to accept it. “A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him.” Marshall cites English precedent for this opinion:

On this view, then, failure to bring one’s pardon to the attention of the court is to waive it; it becomes ineffectual.

Marshall’s opinion was ratified in Burdick v. United States 236 U.S. 79 (1915). In answer to the question “Is the acceptance of a pardon necessary?” the court followed United States v. Wilson to a tee, since “all of the principles upon which its solution depends were there considered.” Citing Marshall’s words, the court declared:

Here a pardon is called private to signal “its functional deficiency if not accepted by him to whom it is tendered.”

Like the Wilson opinion, the Burdick opinion considers a pardon to be an act of grace. But the court takes a realistic view:

The pardon in Burdick’s case was really intended to wrest testimony from him, not to benefit him personally, and so might be thought of as a pretense; and in accepting the pardon Burdick would be implicitly admitting his guilt, so that his pardon, in bringing this shame upon him, might only seem to relieve his predicament. As the court notes, an innocent man might well reject the pardon and suffer the consequences rather than implicitly confess to being guilty of a crime he did not commit. All this goes to undergird the right of the accused to refuse a pardon proffered him.

In 1927, the Supreme Court considered the case of a convicted criminal who, to claim wrongful imprisonment, disputed the commutation of his death sentence to life imprisonment. As we have seen, Chief Justice Holmes curtly declared, “A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.” Marshall would, of course, have agreed with Holmes that a pardon is part of our constitutional scheme. So wherein lies their disagreement?

Holmes seems to think that pardons are granted solely out of consideration for the public welfare. He repeatedly returns to this theme in the opinion:

The idea that pardons are granted always for the public welfare is, however, patently false. While some pardons are granted for the sake of the public welfare, such as President Ford’s pardon of Richard Nixon, other pardons have notoriously been granted for considerations wholly apart from the public good. Moreover, as a number of legal theorists have remarked, the fact that a pardon has been granted for the public welfare is irrelevant to whether it requires acceptance in order to be efficacious.

Holmes does give some additional argument for why a commutation of sentence ought not to be refusable by the convicted criminal:

The claim here is that if the original sentence was justified and enforced without the criminal’s consent, then the reduced sentence is automatically implicit in it and therefore requires no consent from the criminal. This argument, however persuasive it might be for commutations and reprieves, does not apply pari passu to pardons. From the fact that a man deserves imprisonment of, say, thirty years, it does not follow that he deserves no imprisonment. On the contrary, from the fact that he deserves an imprisonment of thirty years, it follows that he deserves some imprisonment. Therefore, pardons are not implicit in sentences issued. Moreover, pardons may be issued prior to conviction and sentencing (not to mention after sentence has been served) and in such cases are independent of criminal sentences. It is noteworthy that the court in Biddle did not overturn Burdick but concluded merely that the reasoning of Burdick “is not to be extended to the present case.”

The key phrase in Holmes’ opinion seems to be “the determination of the ultimate authority.” Holmes sees a pardon as a unilateral determination of the sovereign authority that cannot be gainsaid. Similarly, the Oregon Supreme Court said,

In any case, the courts remain unclear on whether a pardon requires acceptance in order to be efficacious. Fortunately, or perhaps unfortunately, this question is unlikely to come before the Supreme Court today, since pardons are virtually always given in response to applicants to the Office of Pardon Attorney asking for a pardon and not bestowed upon unwitting criminals. People who receive pardons are those who want them.

The theological analogue to this question is whether a divine pardon must be accepted in order to be efficacious. Taking divine pardons to be acts of grace does not serve to resolve this question, since theologians have differed on whether grace is intrinsically efficacious and so irresistible by him upon whom it is bestowed or whether grace is extrinsically efficacious and so requires the free consent of the creaturely will in order to produce its effect. The concern with checks and balances is hardly appropriate to the divine government, since God is both Supreme Judge and Executive. Divine pardons are never bestowed to rectify judicial injustices but must be acts of grace motivated by mercy and love. Given God’s love for those whom He pardons, God’s pardons are intensely personal and in this sense private. Though official acts, they are motivated out of concern for the individual and not just for the general welfare. Whether a divine pardon requires acceptance by the person to whom it is granted is going to depend more on theological considerations such as freedom of the will and the nature of divine grace than upon the nature of a pardon.

In any case, what we have not mentioned thus far is that pardons may be conditional, in which case they undisputedly depend for their effect upon the pardonee’s agreeing to the conditions of the proffered pardon. While the president may not demand just any condition for a pardon—for example, that the pardonee vote forever after only for the president’s political party—nevertheless the conditions that the president may lay down for a pardon are endless. In fact, no federal court has ever held any condition invalid. A divine pardon, then, can be granted on the conditions of repentance and faith. If God desires people to come freely into His Kingdom, then He may offer His pardon to everyone who will freely accept it. Anyone who refuses a divine pardon therefore remains guilty before God’s bar and so liable to punishment.

We have seen that redemption is accomplished legally via a divine pardon, which frees us from the prison house of sin. The Church Fathers’ instincts were thus correct when they insisted that we ought to think of redemption as accomplished in accord with justice rather than by raw power alone. Moreover, contra Socinus, given God’s roles in the government of the world as Judge and Ruler, divine forgiveness is much more akin to a legal pardon of a condemned criminal than to the remission of a debt or the forgiveness of an offense.

But can God pardon us of our sins if Christ has satisfied divine justice by being vicariously punished for those sins? Absolutely; it is precisely on the basis of Christ’s vicariously meeting the demands of divine justice that a perfectly just God can in His mercy pardon us. Pardons granted on grounds of innocence and wrongful conviction already show that a pardon is wholly compatible with justice’s demands’ being satisfied. Pardons to achieve remedial justice do not imply the guilt of the person involved or his failure to satisfy the demands of justice. Indeed, quite the opposite is the case. Moreover, the vast majority of pardons are granted after the criminal’s sentence has been fully served. The U.S. Office of Pardon Attorney will not even permit applications for a presidential pardon until at least five years have elapsed since the sentence of the criminal has been fully satisfied. A pardon in such a case does not imply that the pardonee has failed to satisfy justice’s demands. Even though the convicted person is no longer liable to punishment, a pardon serves to restore to him all his civil rights voided by his conviction. Similarly, a divine pardon serves to bestow upon us the full rights and privileges of a child of God, such as adoption into God’s family (Eph 1:5), an inheritance in heaven (1 Pet 1:4), citizenship in God’s Kingdom (Phil 3:20), access to the Father (Rom 5:2), and so on (all, interestingly, legal notions).

Because Christ has borne the punishment for our sins, God can be both just and the justifier of him who has faith in Jesus (Rom 3:26). Because God’s justice has been fully satisfied, God can pardon us on the basis of Christ’s sacrifice without prejudice to His justice. Paul says, “When you were dead in trespasses . . . , God made you alive together with him, when he forgave us all our trespasses, erasing the record that stood against us with its legal demands. He set this aside, nailing it to the cross” (Col 2:13-14). Forgiveness in this legal sense is based on the fact that the penalty has been fully paid and therefore we may be pardoned.

A divine pardon is rooted in God’s grace, for it is by His mercy that God determines to supply a satisfaction of His justice that we might in turn be pardoned. Because it is Christ and not we who has discharged the sentence for our sins, our redemption is not accomplished unless and until we receive God’s pardon. In contrast to the criminal who has fulfilled his sentence, we remain in our state of judicial condemnation until we accept the pardon offered us by God. If anyone refuses the pardon offered by God, then Christ’s sacrifice avails him nothing, for he has rejected the satisfaction of God’s justice wrought by Christ. The necessity of accepting God’s pardon is especially evident if it is conditional on repentance and faith, for apart from fulfillment of its conditions, the pardon is ineffectual. Thus, “those who receive the abundance of grace and the free gift of righteousness will reign in life through the one man Jesus Christ” (Rom 5:17).