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Do Symbolic Pardons Do More Harm than Good?
The Lenny Bruce and Swiss Humanitarian Cases


Wednesday, Jan. 07, 2004

Two recent parallel but unrelated efforts to rectify historical injustices raise difficult questions about the proper use of the pardon power.

On December 23, 2003, New York Governor George Pataki pardoned comedian Lenny Bruce for his conviction on obscenity charges stemming from a 1964 performance in Greenwich Village. Bruce has been dead for over 37 years.

Then, on New Year's Day, a new law took effect in Switzerland pardoning Swiss citizens who were convicted (and in some instances imprisoned) for helping Jews escape Nazi persecution during World War II--in violation of the formal Swiss policy of neutrality. As in the Lenny Bruce case, the benefit to the Swiss pardon recipients--many of whom have died in the intervening six decades--is largely symbolic. Although the Swiss humanitarians' judgments of conviction will be annulled, neither they nor--in the case of those who are deceased--their heirs, are entitled to any compensation under the new law.

On the surface, both uses of the pardon power appear to be cause for celebration, as the recipients did nothing wrong. Bruce's act, though profane by the standards of his time, should have been protected by the First Amendment. As for the courageous Swiss citizens who risked their own security in the face of a great evil, they not only did nothing wrong; their conduct should have made them heroes.

Yet in both instances, the pardons are troubling. Even with the best of intentions, they suggest an effort to whitewash history or to distract attention from ongoing wrongs.

Recent History of the Pardon Power in the U.S.

I do not pretend to any expertise in Swiss law, but in the United States, the pardon power is most commonly used by governors and Presidents to restore to good standing persons who have committed an offense, been convicted of that offense, and served at least some portion of their sentence.

The granting of a pardon does not usually signify that the underlying offense was not wrongful. On the contrary, people can receive pardons for committing very serious wrongs. However, because of some change in circumstances--such as the offender's having repented--the Executive may decide that he or she has suffered enough or that for the good of society as a whole, the wrong should be put in the past.

At the national level, there have been several quite controversial uses of the pardon power in recent history. In 1974, President Gerald Ford pardoned former President Richard Nixon for any wrongdoing in the Watergate scandal. Although Ford argued that a criminal trial of Nixon would distract the country from important policy tasks, critics thought the pardon--which came less than a month after Nixon's resignation led to Ford's ascendancy to the Oval Office--conveyed the appearance of an improper quid pro quo.

A day after his inauguration in 1977, President Jimmy Carter fulfilled a campaign promise by pardoning all those who had illegally failed to register for the draft or taken refuge abroad in an effort to avoid military service during the Vietnam War. As in the case of Ford's pardon of Nixon, Carter justified his use of the pardon power as an attempt to close the books on a painful chapter of our national history.

Whereas Ford and Carter began their Presidencies with pardon controversies, Bill Clinton ended his with one. In 2001 President Clinton was accused by critics of trading an eleventh-hour pardon of fugitive commodities trader Marc Rich for large campaign contributions to the Democratic Party.

In each of these three episodes, the President's respective critics thought that the pardon power was abused because the pardon recipients were unworthy: Nixon should have stood trial; draft dodgers should have suffered the consequences; and Rich should have paid for his offenses and his flight.

But who could object to pardons for people who never committed any wrong? Aren't the pardons for Lenny Bruce and the Swiss humanitarians an unalloyed good? Maybe not.

The Danger of the Bruce Pardon

There is a Wizard-of-Oz-like quality to the pardoning of Lenny Bruce. The Wizard--here Governor Pataki--can't actually give Bruce anything useful at this point, but that doesn't stop him from signing a piece of paper.

The pardon has almost nothing to do with Bruce and everything to do with contemporary politics. Pataki's prepared statement made the point expressly. He said: "Freedom of speech is one of the greatest American liberties, and I hope this pardon serves as a reminder of the precious freedoms we are fighting to preserve as we continue to wage the war on terror."

Translation: "Hey, don't give me and other government officials in New York and around the country a hard time if we appear to be running roughshod over civil liberties in the name of fighting terrorism. We wouldn't be doing it unless we really had to. You can be sure of that because we really love civil liberties. See: I just pardoned a dead guy for cursing."

It's true that First Amendment lawyers and many comedians who revere Bruce's memory asked the governor for the pardon, but I hope you'll pardon my cynicism if I point out that by granting it, the Governor was incidentally able to serve his own political ends. The big end-of-year First Amendment story in New York was the Bruce pardon rather than the fact that New York City--alone among the major free cities of the world in which there were anti-war protests last February--chose to confine peaceful demonstrators to "pens" behind metal police barricades.

The Swiss Pardon

Is the pardoning of Swiss altruists for their role in sheltering Jewish refugees from Germany and elsewhere an empty gesture? The fact that no compensation will be paid suggests that it may be.

By contrast, in 1988, when the United States finally got around to officially acknowledging the wrongfulness of the forcible removal and detention of Japanese and Japanese-Americans from the West Coast during World War II, Congress and President Reagan authorized the payment of $20,000 to every surviving internee.

The Civil Liberties Act of 1988--as the reparations law was titled--acknowledged that a grave injustice had been done when thousands of persons of undoubted loyalty to the United States were removed from their homes and held in detention camps, for no other reason than that they or their ancestors had come from Japan.

The Swiss pardon arguably sends a similar message: a terrible injustice was done. But the failure to provide any compensation complicates the message.

The Missing Message: Collective Responsibility

The issue is not simply a matter of money. Clearly, few if any of the interned Japanese were adequately compensated for the economic loss, physical deprivations, and humiliation to which they were subject. Twenty thousand dollars, though hardly a trivial sum, is far less than tort victims routinely receive for less severe treatment.

Nonetheless, by paying compensation from funds raised from current taxes, the Civil Liberties Act accepted that the wrong to Japanese and Japanese-Americans was in some sense committed by us, as a society, not just by our parents and grandparents. The Act accepted ongoing responsibility for a historic injustice.

On the other hand, the Swiss pardon, like apologies for slavery and the slave trade that include no tangible recognition of the ongoing impact those evils have, appears to put the wrong at a distance. "You suffered unjustly," it says, but not "and we accept responsibility for that suffering."

In this respect, it is worth recalling how differently East and West Germany (in the period before reunification) understood the Nazi period. In the communist east, Nazism was portrayed as an imperialist system that had been imposed upon the German people, whereas in the free west, there was no blinking the reality that Germans had perpetrated Nazism on themselves, Jews, and the world. Consequently, even as it struggled to rebuild its war-torn economy, West Germany paid compensation to surviving victims. By owning up to their own responsibility for Nazism, West Germans were able to create a free democratic society that really was far removed from its Nazi predecessor.

Perhaps I am being unfair in comparing Switzerland with the former East Germany. Perhaps the Swiss pardon should be viewed as merely one piece of a long-overdue effort to acknowledge and accept responsibility for Switzerland's facilitative role during the Holocaust. On this view, the pardon should be seen alongside the pending proposed billion-dollar settlement of claims against Swiss banks and other financial institutions. And in recent years, the Swiss government itself has backed its acknowledgments of complicity with millions of dollars in compensation.

But those measures do not benefit the Swiss citizens who have now been pardoned. The altruists have, to date, received nothing more than a pardon. If Lenny Bruce were alive today, I'm sure he'd have a few choice words to say about what such a pardon is worth.

Michael C. Dorf, is Professor of Law at Columbia University. His new book, Constitutional Law Stories, is published by Foundation Press.

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