I was once chatting to a Garda sergeant who was planning his retirement after a long career in the force. In the course of proudly recounting his unblemished record as a guard, and later as sergeant, he emphasised that he had always strived to treat everyone fairly and, as he put it, he would never pass the opportunity to; “straighten the load on another man’s back”
I remember thinking at the time, but I didn’t say it, that it might have been more in his line, from time to time, to lighten the load on the another man’s back, rather than just straighten it.
However, looking at that question now, I’m not sure that my mental reservation was appropriate. As law enforcers the guards have a fundamental obligation and duty to act fairly and impartially, and this duty extends to all who are involved in the administration of justice. Allowing discretion in the performance of this duty leads inevitably to corruption. Whatever about the value of forgiveness to society, it is not something which is a feature of our law.
The act of forgiving implies a level of empathy and compassion, and these are, at least to some extent, incompatible with the legal ideal of impartiality. It is understandable why it should not be open to the legal system to bestow forgiveness on a criminal. Real forgiveness can only come from the person injured by the crime, that is the victim, and from time to time that forgiveness is given.
While society also suffers from the effects of crime, in a secondary way, it would be an affront to our notions of justice if our law enforcers had the discretion to ignore the victim and forgive the wrongdoer. While our justice system does not allow forgiveness of a wrongdoer, the State itself, through the President, has the power under our Constitution to pardon or to commute or remit punishment. Such a pardon is the official act of the State forgiving a crime. It is not a declaration that the person has not committed the crime, but it means that the record of the criminal conviction is removed and there can be no further punishment for the crime.
We have a number of instances of this in Ireland. Nicky Kelly received a presidential pardon in 1992 in connection with his conviction and imprisonment over his alleged part in the Sallins train robbery. Very recently a pardon and amnesty was granted, perhaps a little late in the day, to soldiers who deserted the Irish Army to fight for the Allies during the Second World War.
The background to this was that in August 1945, the government, through an Emergency Powers Order, dealt with soldiers who absented themselves during the war by summarily dismissing them from the Defence Forces and disqualifying them for seven years from holding any State employment.
State pardons, here and worldwide, can be controversial. One common feature of such pardons is that in deserving cases they invariably come too late, often after the pardoned person has died, whether naturally or through execution. Another common feature is that they are frequently granted quite freely in questionable circumstances.
In the united States for example there are many instances of Presidents dishing out pardons to the favoured few in the days before they vacate the White house. There are instances worldwide of amnesty been given to despotic tyrants and murderers as a trade off for the introduction of democracy.
While these are pragmatic decisions of State, they do highlight the fact that allowing a discretionary interpretation of the Rule of Law is an open door to corruption.