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Divine Forgiveness & Legal Pardon | Houston Baptist University - October 2017

On October 14, 2017, at Houston Baptist University Dr. Craig shares a paper exploring the analogy between divine forgiveness and legal pardon.


In this paper I wish to explore the analogy between divine forgiveness and legal pardon.

In his classic A Defence of the Catholic Faith concerning the Satisfaction of Christ, against Faustus Socinus (1617) the famed international jurist Hugo Grotius identified Socinus’ “fundamental error” in his critique of traditional atonement theories as his assumption that God is to be construed on the model of an offended party in a personal dispute, such as between a creditor and a debtor (II). For such a private person has no right to punish another. Certainly, God is offended by sin, but he does not act as merely the offended party in punishing it. Rather God should be considered to act as a Ruler. “For to inflict punishment, or to liberate any one from punishment . . . is only the prerogative of the ruler as such, primarily and per se; as, for example, of a father in a family, of a king in a state, of God in the universe” (II). God as Supreme Ruler is responsible for the administration of justice in the universe and so has the right of punishing and the right of forgiving. Although God has the right to forgive sins, Grotius thinks it would be unjust of God to let certain sins go unpunished, such as sins of the unrepentant. Therefore, it would be inconsistent with the justice of God that he should remit all punishment whatsoever.

On the contemporary scene legal philosopher Jeffrie Murphy has made a similar distinction between the private and public spheres in an effort to carve out conceptual space for exercises of mercy consistent with the demands of retributive justice. Distinguishing between a creditor in a civil lawsuit and a judge in a criminal case, Murphy maintains that as a litigant in a civil lawsuit, the creditor occupies a “private role” and so does not have “an antecedent obligation, required by the rules of justice, to impose harsh treatment” by demanding repayment of the debt owed.[1] He is therefore free to show mercy without prejudice to justice. By contrast a judge in a criminal case, “has an obligation to do justice—which means, at a minimum, an obligation to uphold the rule of law. Thus if he is moved, even by love or compassion, to act contrary to the rule of law—to the rules of justice—he acts wrongly.”[2] Murphy thinks that the judge qua judge cannot, like the creditor, act mercifully without prejudice to the demands of justice. Like Grotius, Murphy thinks that the executive power can exercise mercy but only within the limits of individualized justice.[3]

Given God's status as Judge and Ruler of the world, it is more accurate to think of divine forgiveness on the analogy of a legal pardon by a ruler than on the analogy of the forgiveness extended by a private person.

The philosophical literature typically treats forgiveness as a subjective change of attitude or judgment 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.[4] But God’s forgiveness accomplishes much more than a change of attitude toward sinners on God’s part. 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.”[5] [6]

The work of contemporary Christian philosophers exhibits a discouraging Socinian tendency to think of God in terms of a private person involved in a personal dispute, so that they miss the legal character of divine forgiveness as pardon. For example, Eleonore Stump’s approach to the doctrine of the atonement is based entirely on construing God on the analogy of a private person engaged in various personal relationships rather than as a Judge and Ruler. She frequently compares God and human persons with two friends Paula and Jerome, who have to deal with wrongs committed by one against the other. Focused as she is on private interpersonal relationships, Stump overlooks entirely the character of divine forgiveness as legal pardon.[7]

In fact, Stump’s characterization of forgiveness in subjective terms implies that God’s forgiving sinners is compatible with his exercising retributive justice by punishing those sinners. He both forgives their sins and punishes them for those sins, thereby realizing the nightmarish scenario envisioned by Moore. By ignoring pardon, Stump can make no sense of the way in which divine forgiveness frees one from the liability from punishment.

My point is that we are apt to make more progress in understanding divine forgiveness by conceiving of God along Grotian lines as Ruler (as well as Lawmaker and Judge) than along Socinian lines as an offended party in a private dispute. God's forgiving sins will thus have the character of a legal pardon by the executive power of the state.

What is a pardon? Chief Justice John Marshall in a landmark decision 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 (United States v. Wilson, 32 U.S. 150 (1833)).

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”![8]

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.[9] The controversial question 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.[10] In Ex parte Garland (1866)[11] 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 (Ex parte Garland, 71 U.S. 333, 380-1 (1866)).

Like Marshall’s description of a pardon, this characterization of the effects of a full pardon is an apt description of a divine pardon. The language of blotting out sin as well as creating a new man is biblical language (Ps 51, II 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 a human pardon, Garland’s sweeping assertions have been eroded by subsequent court decisions.[12] 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.[13] 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.”[14] The truth, says Williston, is rather as Lord Coke wrote: Poena mori potest, cupla perennis erit (that is to say, “Punishment may expire, but guilt will last forever”). 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 [punishment], but reatum [the guilt].”[15]

Williston disagrees. According to Williston, a pardon removes the legal disqualification resulting from the fact of conviction, but a pardon does not affect any disqualifications resulting from the commission of the crime.[16] 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.

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.

These cases typically have 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 which led to the conviction.[17]

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 by 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 theories of 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. Moreover, the counterfactual conditional “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 which held that a pardon expunges a person’s guilt recognized the importance of tense. In Cuddington v. Wilkins, for example, the court opined 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.”[18] The court’s decision turns upon taking tense seriously. Moreover, contrary to the opinions of many lower courts,[19] Garland is wholly consistent with the Supreme Court’s opinion in Burdick v. U.S. 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.[20] But now the person is pardoned, and so the effect of that verdict is canceled: though once guilty, the pardonee no longer is.[21]

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.

It is obvious that the Garland court has a very different conception of guilt than lower courts which see themselves as departing from Garland. Rather equate guilt with the facticity of a past event, Garland assumes that guilt is a property which can be temporarily exemplified and then lost though pardon or appropriate punishment. So what is this property? It seems to me that the most perspicuous understanding of guilt in this sense is that it is liability to punishment. Guilty verdicts in cases of strict liability (in which there may be neither wrongdoing nor culpability) show that guilt cannot be equated merely with culpable wrongdoing.[22] Rather a verdict of “Guilty” is plausibly a declaration that the person is liable to punishment. To be guilty of a crime is to be legally 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.

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 justly 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 legal 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. 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. Such 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.”[23]

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.[24] Sanctification is not a forensic transaction but a moral transformation of character and is therefore not wrought by divine pardon alone.

QUESTION: I have one question about your use of the word “innocent.” That when someone is pardoned they are made innocent. When I think of the word “innocent” I think “not guilty” and not just in a legal sense of not guilty but never committed a crime. Not “as if you've never committed a crime.” So maybe would it be more right to say that in pardoning someone that person doesn't become innocent but they are treated as though they were innocent even though they are not in fact innocent?

DR. CRAIG: I don't think so. And this simply gets down to what you understand guilt to be. The understanding of guilt that you enunciated is the one that is presupposed by Williston and a lot of lower courts. But as I've argued, that understanding of guilt is incompatible with retributive theories of justice which are the standard theories today in the legal community; it would mean that a pardoned or punished person still deserves further punishment. So if you want to use that sense of guilt, here's my bone that I'll throw to you. Let's distinguish between what I call factual guilt and legal guilt, and what you're talking about is factual guilt, and I don't think Garland denies that. But legal guilt I think is best thought of as liability to punishment.

QUESTION: I am very sympathetic to this idea of thinking of God’s forgiveness as a kind of pardon. I think also it is surely right to also think of it as a kind of personal forgiveness. Think about the Old Testament when he talks about desiring to reconcile himself with Israel in very personal terms – a spouse. I’m sure that that is something a full model of God’s justice would encompass. Correct?

DR. CRAIG: You're absolutely right, and this gets into the question of whether or not God needs to be propitiated or merely sin expiated. Today it is very unpopular among theologians to think that God needs to be reconciled to humanity. Rather, the view is that humanity needs to be reconciled to a God who stands with open arms, who is not wrathful, who does not need to be propitiated. But I think that you're correct – in the biblical view of God, unbelievers stand under God's wrath. This is the burden of the first three chapters of the book of Romans, and therefore propitiation is necessary. That means that while divine forgiveness would entail pardon, we shouldn't, I think, reduce it to pardon. But if you do adopt this more modern view that God doesn't need to be reconciled then all the more my argument goes through that divine forgiveness is legal pardon because he doesn't have to forgive on that other view.

QUESTION: Does forgiveness need a subjective element? Does it need that personal relationship? I think on Stump’s view, she is very keen to say we need a subjective thing in the atonement itself.

DR. CRAIG: The problem with her view is she reduces it entirely to that. She has no place for legal pardon. I would just reiterate what I said. I think a biblically adequate view of divine forgiveness will include a change of attitude on God's part, the amelioration of his wrath, but then it will also involve the pardon of our sins and the removal of our liability to punishment.

QUESTION: What if somebody were to say Jesus is our substitute, he takes our guilt, but then he's pardoned as well? So that seems like God doesn't need to punish anybody, but he's also taken our guilt away because Jesus bore it and then was pardoned.

DR. CRAIG: My interest is in annunciating not only a philosophically coherent but a biblical theory of the atonement. It's clear, I think, in the New Testament that Jesus is punished for our sins, not just pardoned for them; that our sins are imputed to Christ, he who knew no sin was made to be sin for us (Paul says in 2 Corinthians 5:17), and then he bears our sins, he bears the just desert that our sins carry. So I don't think we should think of God's pardoning Jesus as opposed to exercising punishment.

QUESTION: Is that more of an expressive function as to why he wouldn’t have been pardoned?

DR. CRAIG: No, I think what it does is it satisfies the demands of divine justice. If we think, as the speaker previously in the previous session suggested, if we think of retributive justice as essential to the nature of God then this will satisfy the demands of God's justice that would be intrinsic to his very nature. So retributive punishment of our sins in Christ would satisfy that justice.

QUESTION: So it would have been unjust for God to pardon Jesus?

DR. CRAIG: Well, I'd have to think about that some more. I suspect that that wouldn't satisfy the demands of retributive justice, but even if it did it wouldn't be a biblical theory. And that’s the key thing.

QUESTION: You said during your talk you should be careful with parsing the tenses of the language that we use. My question was more to expand further on the analogy of divine forgiveness. Does the pardon that's associated with divine forgiveness – when does that occur on the timeline of a believer? When they convert, does that pardon upon their salvation, does that account for sins that they will surely commit in the future since we are all condemned?

DR. CRAIG: This is a really controversial theological question. I will simply give my opinion that I do not think that redemption actually takes place at the cross. I think the substitutionary punishment takes place at the cross, but then the process of redemption is a historical process that is realized in history as people come to appropriate and accept God's pardon. One of the interesting features that I did not have time to discuss is whether a pardon needs to be accepted in order to be efficacious. Courts have been divided on this issue, but as it now stands a full pardon needs to be accepted by the person on whom it is bestowed; it is not enough for the governor or the president to issue a pardon. That pardon will not be efficacious until it is accepted. And I think that's wonderfully analogous to the pardon that God grants us in Christ through substitutionary punishment, but then it is actualized historically as people come to faith and submit to baptism and so are incorporated into Christ and thereby justified and cleansed.

 

[1] Jeffrie Murphy, “Mercy and Legal Justice,” in Forgiveness and Mercy, ed. Jeffrie G. Murphy and Jean Hampton (Cambridge: Cambridge University Press, 1988), pp. 175-6.

[2] Ibid., p. 175. See also H. R. T. Roberts, “Mercy,” Philosophy, 46/178 (1971): pp. 352-353, in response to Alwynne Smart, “Mercy,” Philosophy 43/166 (1968): pp. 345-359. Roberts criticizes Smart for confining her attention to the courtroom, which leaves her unable to provide any examples of genuine mercy. That is because cases of so-called judicial mercy are really cases of determining that exaction of the full penalty allowed by law would not be just. “Whereas in ordinary life a person could weigh every relevant factor and yet properly say, 'In all justice x owes me A, but it is mine to exact and I choose not to,’ a judge, though perhaps required to decide on a debt due to an individual, “is never required to pronounce on one due to himself and so can never exercise real mercy” (Ibid., p. 353).

[3] See comments by Samuel T. Morison, “The Politics of Grace: On the Moral Justification of Executive Clemency,” Buffalo Criminal Law Review 9/1 (2005): 89-90.

[4] Stanford Encyclopedia of Philosophy, s.v. “Forgiveness,” by Paul M. Hughes, §1, Dec. 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.

[5] Moore, Pardons, p. 184. Significantly, punishment and forgiveness are not incompatible with each other. One may forgive without pardoning and pardon without forgiving.

[6] 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 4/2 [1974]: pp. 269-282; Anne C. Minas, “God and Forgiveness,” Philosophical Quarterly 25/99 [1975]: pp. 138-150; “Forgiveness,” by Paul M. Hughes, §7; cf. the contrary view expressed by Meirlys Lewis, “On Forgiveness,” Philosophical Quarterly 30/120 [1980]: pp. 236-245). 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.

[7] In general, Stump’s treatment neglects legal aspects of the atonement and ignores forensic motifs in the New Testament. Her doctrine of justification, for example, is non-forensic, being a matter of God’s infused righteousness into the believer, not the legal verdict of acquittal by the righteous Judge or pardon by the Ruler.

[8] Daniel T. Kobil, “The Quality of Mercy Strained: Wresting the Pardoning Power from the King,” Texas Law Review 69 (1991): 594.

[9] “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?,” p. 678).

[10] See Samuel Williston, “Does a Pardon Blot Out Guilt?” Harvard Law Review 28/7 (1915): 648-52.

[11] A.H. Garland, a former member of the Confederate Senate, received a full presidential pardon in July 1865 but was barred from practicing law due to 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 prerequsite. The Supreme Court ruled that the oath was an improper legislative encroachment on the President’s pardoning power.

[12] 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, 176-9 (2013).

[13] E.g., Robertson v. Shinseki, 26 Vet. App. 169, 177 (2013).

[14] Williston, “Does a Pardon Blot Out Guilt?,” p. 648.

[15] Hob. 67, 81, cited by Williston, “Does a Pardon Blot Out Guilt?,” p. 651.

[16] 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, “The Politics of Grace,” pp. 32-4).

[17] So also Ashley M. Steiner, “Remission of Guilt or Removal of Punishment? The Effects of a Presidential Pardon,” Emory Law Journal 46 (1997): 996-7, 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: (i) a pardon obliterates both the conviction and the guilt; (ii) a pardon obliterates the conviction but not the guilt (which she inexplicably identifies as Williston’s view); or (iii) 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, (iv) a pardon obliterates the guilt but not the conviction. Alternative (ii) 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 (ii) and (iii) are incoherent, as explained below, since—a criminal being forever after guilty—a pardon could not obviate punishment. Although some courts have affirmed (i) 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 (iv).

[18] Hob. 81, 82 (1615), cited in Williston, “Does a Pardon Blot Out Guilt?,” p. 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.

[19] For example, the opinion of the Supreme Court of Nevada, which stated, “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, 125 Nev. 100, 105 (2009)). A pardon can take away the guilt that it implies, and enduring social stigma is definitely not guilt.

[20] 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.

[21] 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 judgement 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,” p. 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?,” p. 672; Schoenburg, “Clemency, War Powers, and Guantánamo,” p. 924). This distinction seems to make sense only if a pardon annuls the guilt of the offender.

[22] 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, Smith and Hogan’s Criminal Law, 13th ed. (Oxford: Oxford University Press, 2011), chap.7.

[23] Williston, “Does a Pardon Blot Out Guilt?,” p. 657.

[24] 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.