The adversarial system may be the best way for a society to adjudicate criminal charges to a result that will warrant public trust. But sometimes it feels like the US culture of adversarialness is just that – a pervasive method of dealing with everything that comes our way, and not simply in the courtroom. Our current political scene is certainly a reflection of that, as is the political gridlock.
A recent op-ed in the New York Times, titled President Obama’s Department of Injustice by Alec Karakatsanis, raises the question of whether our historical reliance on adversarialness – its intentional use for a good societal purpose – may have become reflexive, or unthinking, or may have simply gone too far.
On a similar topic, another example of cultural over-reaction, take a moment to view the July 26th episode of Last Week Tonight with John Oliver, in which Mr. Oliver addresses the phenomenon of mandatory minimum sentencing and President Obama’s recent grants (and denials) of clemency to some low level offenders serving mandatory minimums. In doing so, he “explains why we treat some turkeys better than most low-level offenders.”
Margaret Colgate Love specializes in tracking the use and abuse of the executive power to pardon. In her 2010 article The Twilight of the Pardon Power she points out how, since 1980, the presidential pardon power has fallen into disuse.
[I]ts benign purposes frustrated by politicians’ fear of making a mistake, and subverted by unfairness in the way pardons are granted. The diminished role of clemency is unfortunate, since federal law makes almost no provision for shortening a prison term and none at all for mitigating the collateral consequences of conviction.
Ms. Love urged President Obama to revive the pardon power and to use it wisely, but that doesn’t seem to have happened. Professor Bennett Gershman writes about the case of Donald Seligman, ex-governor of Alabama, who was convicted of bribery under troubling circumstances after an earlier indictment had been dismissed by a judge who characterized it as “completely without legal merit” and “the most unfounded criminal case over which I presided in my entire judicial career.” Over 100 attorneys general from both political parties have condemned the legality of Seligman’s criminal prosecution. The politics behind this prosecution continue to have a major impact on the case because of the political nature of the pardon power. For more on this case click here.
You can also read more about the pardon power, as well as sentencing and the collateral consequences of sentences at Ms. Love’s website.