Suppose there are two inmates convicted of similar crimes. Both appear to be equally contrite and rehabilitated. One is black, the other white. The white one gets pardoned by the governor, the black one does not. Is this fair?
What if one was rich, the other poor? If one had political donors for friends, but not the other? And what if most of those pardoned by this same governor were white, rich, politically connected, or they were convicted of quite violent crimes?
Judging by the reactions to former Governor Haley Barbour's granting pardons or clemency to 200 or so felons on his last day as governor of Mississippi in January 2012, this seem to be the point at which many raise their hands, asking, "what is going on here?"
To my eyes, Gov. Barbour unfairly (and illegally?) pre-determined who was eligible to be pardoned based upon their professing the adoption of his religion.
Follow me on a not-so-hypothetical.
Suppose that one felon claimed personal salvation, that he had found Jesus, while another made no such proclamation. It is, after all, not unheard of for convicts going before a parole board to profess a newly found spirituality, to the point of being religiose.
Perhaps that second felon had some experience with religious charlatans in his earlier life and developed a strong aversion to such convenient "conversions." Would it be fair if that first felon were pardoned and the latter not?
Finally, what if each and every one of the several hundred felons granted pardons or clemency by a governor professed salvation and redemption?
There certainly is a great deal of fodder for criticism in Gov. Barbour's recent mass pardons. But not a lot of discussion on his Christian rehabilitation justification.
Barbour defended his pardons based on the Christian belief in forgiveness. "I have no doubt in my mind that these men have repented, have been redeemed, have come back hard working to prepare themselves to go out into the world," Barbour said.
The people of Mississippi must be blessed indeed that their previously elected executive is able to read the minds of his constituents and thereby gain the insight of who has, in fact, been redeemed.
Redeemed? Isn't that a religious formulation? Is this a separation of church and state issue?
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," begins the First Amendment.
OK, Gov. Barbour didn't seem to be establishing a religion or interfering with anyone's worship. And besides, one might argue, Mississippi is an incredibly religious state (the most religious state in the Union, according to a Pew Research Study).
Eighty-two percent of people in Mississippi say that religion is very important in their lives. And that religion is overwhelmingly a conservative protestant one. It's so incredibly religious, in fact, that its constitution makes clear that the use of the "Holy Bible" shall not be restricted in any public school. And it prohibits — uniquely among U.S. states — any person who "denies the existence of a Supreme Being" from holding state office.
Back to this religious/non-religious dichotomy in determining who to pardon — what would a governor have to say or do to violate the Establishment or Free Exercise Clauses of the First Amendment? Perhaps by directly tying state decisions to a specific religion? For my money, that's precisely what Barbour did.
Barbour told Fox News's Bret Baier, "But what the state does, and has done, is we follow the Christian -- most people in Mississippi are Christians, or profess to be Christians, and we believe in forgiveness..."
The state follows the Christian. Christian principle, Christian doctrine, Christianity? You choose, as any choice clearly points to the involvement of Christianity in the state's business.
The Christian Right typically cheers breaking down any walls between church and state. But Barbour's actions are an excellent example that bringing an overtly Christian morality into state decisions yields unintended and undesirable consequences.
I wonder if the conservative folks who are upset about letting murderers out of prison (let's not forget that Mississippi Old Testament values mean that criminals shall be punished, and punished harshly), are getting the point that the reason we separate church and state is precisely so the state cannot be the religiously inspired moral arbiter for all of us.
When one human takes it upon himself to determine when another is "redeemed," and that redemption is a prerequisite for that person's freedom, we are perilously close to the morally questionable slope of a theocracy.
I made this point on a recent NPR show, On Point (33:18 minute marker). In response, Prof. W. Martin Wiseman from the Mississippi State University commented, "I don't think that you will ever separate religion from government in the state of Mississippi."
Mississippi will be spending some time trying to come to terms with the results of their former governor's actions. Perhaps somewhere in the United States, if not in Mississippi, the lesson of keeping a bright line between the state's governance and the religious beliefs of the state's actors will be learned.
But in today's hyper-pandering political climate, I doubt it.
Martin Long is an entrepreneur and political scientist based in the Boston area. He is currently working on a book about Republican political discourse. He blogs at www.BornAgainDemocrat.com.