Tempering Justice With Compassion

The ancient tension between justice and mercy is not an obstacle to be overcome, but the soul that animates our system of courts and laws.

Without clear notions of justice, compassion becomes just another empty gesture in a world of random events--a gesture indistinguishable from indifference or folly. Without mercy, justice sharpens to a glinting, blood-stained abstraction, a perverse instrument of social surgery that cuts, but does not heal.

The resolution of this tension in individual cases is a hellishly difficult, often unsettling business. Take the case of confessed spy Jonathan Pollard, who four years ago pleaded guilty to passing U.S. secrets to Israel. His situation makes simultaneous and compelling claims on our patriotism, our belief in unbiased justice and our impulse toward simple compassion.

Jonathan Pollard, who in the 1980s worked as a civilian intelligence analyst for the U.S. Navy, approached Israeli intelligence operatives and offered to supply them with top-secret U.S. information on the Mideast. Pollard, a Jew and an ardent Zionist, believed this material had been withheld from Israel by his superiors in violation of an executive agreement signed by then-President Ronald Reagan in 1983.

The material he subsequently gave to his Israeli contacts included satellite and other information on Soviet weapons shipments to Arab states, on terrorist plots against Israel and on Iraqi and Syrian attempts to develop chemical and biological weapons.

What the government did to Pollard--and to his wife, Anne, whom he enlisted in the plot--is not nearly so clear-cut. Federal prosecutors promised Pollard that, if he would cooperate in their investigation, enter a plea of guilty and agree to be sentenced in secret, they would not ask that a life sentence be imposed on him. Instead, they would recommend only “a substantial period of incarceration” for him and a lesser sentence for his wife, who was by then seriously ill.

Pollard lived up to his part of the deal; the government did not. Despite promises to the contrary, prosecutors denounced his conduct to the sentencing judge as “traitorous,” though Pollard never was charged with treason. Worse, then-Secretary of Defense Caspar Weinberger submitted to the judge a hand-delivered, still-classified 46-page memo demanding imposition of “severe punishment.” Reportedly, Weinberger also described Pollard’s conduct as “treason.”

In our system, that’s about as close as you get to a star chamber. And, in it, federal judge Aubrey Robinson, ignoring the terms of the agreement, sentenced Pollard to life in prison and recommended that he never be granted parole. Anne Pollard received two concurrent five-year sentences. She since has been paroled, lives in Israel and has divorced Jonathan.

Initially and inexplicably, Pollard was confined in the United States Medical Center for Federal Prisoners in Springfield, Mo., an asylum for the criminally insane. Ten months later--after his family’s congressman, Lee Hamilton of Indiana, intervened--Pollard was transferred to the maximum security prison in Marion, Ill. For the past five years, he has spent 23 hours of every day in a solitary, underground cell there.

A federal appeals court is deliberating on whether to grant Pollard’s appeal. Since the government broke its word, he wants to withdraw his guilty plea and either stand public trial or be resentenced by a lower court.

In the meantime, his family and friends continue to press his case. If the appeal fails, they hope he will be granted executive clemency on compassionate grounds.

They argue, moreover, that over the past 10 years no other individual convicted of spying for a friendly country has received anything like Pollard’s sentence: Stephen Baba, a Navy ensign who sold electronic weapons secrets to South Africa, got only two years, while Thomas J. Dolce, an army weapons analyst who sold Pretoria a variety of secrets, got just 10.

Samuel Morrison, who worked in the same office as Pollard, stole 4,200 secret documents and 3,600 classified photos. He served eight months in prison.

Sharon Scranage, a CIA employee who spied for Ghana, went to prison for two years, while Abdelkader Helmy, a rocket scientist, who tried to sell missile parts to Egypt, will serve a little more than three years behind bars.

As the Jesuit lawyer and former Massachusetts congressman Father Robert Drinan put it in a note he attached to a friend-of-the-court brief submitted with Pollard’s appeal: “To send a man to jail for life for helping Israel? It’s crazy!”

Pollard’s staunchest--and most realistic--advocate is his father, Morris, a distinguished medical researcher and holder of an endowed chair in microbiology at the University of Notre Dame. He unflinchingly describes the son he clearly loves as a misguided “Zionist ideologue” and makes it clear he does not condone his crime.

Still, he says, “Jonathan never intended to hurt the United States, and no one has ever argued that he did. People who have done far worse things than Jay has done were never treated the way he has been treated. He was a very naive young man. You know, I had urged him not take that job with the Navy. I said: ‘Jay, you’re an idealist, and intelligence work is no place for an idealist.’ Unfortunately, I was right.

“I feel that the United States of America is the greatest experiment in human living in the entire history of mankind. I have no sense of antagonism toward our country for what has happened to my son. But what has happened to him raises questions about our system of justice that, as an American, I never would have entertained.”

It is perplexing case: a foolish and self-righteous young man; a deceitful, bullying prosecution; a stricken father; and two unanswered questions: Has Jonathan Pollard received justice? Should he receive compassion?