There's a furor over morality right now in Oregon. On November 22, Governor John Kitzhaber announced that he was issuing a moratorium on executions in that state, and that the first reprieve was going to Gary Haugen, a double-murderer. Haugen was scheduled to die on December 6, and had waived all appeals as he sought his own execution.
People are mad about this -- angry because what Kitzhaber did was contrary to the will of people of Oregon in passing (in 1984) a referendum in favor of the death penalty, and contrary to the verdict of a jury. Many in Oregon feel that one man's conscience is thwarting the majority will. They are right, and that is part of what makes this situation so interesting. It is rare in our nation that we so openly see individual conscience trump public consensus.
In issuing the moratorium, Kitzhaber (who in a prior stint as governor oversaw two executions) said that "I simply cannot participate once again in something that I believe to be morally wrong." Though Kitzhaber did not rely on religious arguments, he might as well have (if that is a source of his morality). In commuting the sentences of 15 death-row inmates earlier this year, Governor Pat Quinn of Illinois talked explicitly about his Catholic faith and described one particular influence on his thinking -- Cardinal Joseph Bernardin, who advocated a "consistent ethic of life." Earlier, in 2003, Illinois Governor George Ryan commuted 167 death sentences after telling his staff "I can't play God."
Can, and should, the religious conscience of one powerful individual be able to trump the popular will?
The framers of this Republic, the men responsible for the shape of our governments, answered that question squarely with a "yes." In putting the pardon power, unchecked, into the president's hands (a move later replicated by the states), the Founding Fathers established a mechanism by which one person's conscience could trump the popular will behind statutes and jury verdicts. Alexander Hamilton argued that "one man appears to be a more eligible dispenser of the mercy of government, than a body of men," and his view prevailed.
Hamilton was right. Mercy is poorly allocated by committees. It is often an act of bravery, and the provision of mercy sometimes comes at great cost. No doubt, there are those in Oregon who are planning a painful cost for Governor Kitzhaber at this moment, in fact.
Democracy is important, but we do not live in an unregulated democracy. Rather, we live in one where the structure of government allows for sometimes contrary movements in the form of mercy, leadership, and bold action, and the clemency power can embody all three. In this way it is like the similarly-antidemocratic institution of judicial review of statutes, an oft-derided institution which brought us such moments of genius as Brown v. Board of Education.
If a governor's conscience, like John Kitzhaber's, will not brook a killing by the state he leads, that is his choice to make. It may be troubling to many, it may be upsetting to prosecutors, it may be viewed as unfair to victims, but it is thrilling to watch, and profoundly American.
Placing this as an issue of individual conscience vs democratic will is a bit off because such issues can come up both in cases in which it would be civil disobedience to act on individual conscience and cases like this one in which an individual is acting on a power given to him through legal means.
These are very different cases, even though either might be cases in which morality supports either side. My basic point though is that it is a mistake to present a very specific case as if it has more general consequences than it does.
To the extent that human discernment regarding right and wrong is fallible, achieving the appropriate result appears to be less the goal than is achieving a freedom-safe way of achieving a result. The problem appears to be the potential for achieving a freedom-endangering wrong result via a supposedly freedom-safe method.
As a fan of “Biblical God theory”, so to speak, that apparently reasonable recognition appears to be a good point at which to mention that the Bible appears to suggest that fallible human discernment is a result of individual rejection of intimate relationship with and sovereign leadership by God. The Bible appears to also suggest that the solution, is voluntary individual restoration of the intimate relationship with and sovereign leadership by God.
"Though Kitzhaber did not rely on religious arguments, he might as well have."
Actually, the point is, he did not.