Scholarship: Modeling the Pardons Process

I have noted elsewhere that it is something of a tradition for law review articles to ignore the political science universe. It is much more rare, however, for political scientists attempting to publish in peer reviewed journals to ignore each other, especially if a particular field of research is new or highly specialized. So, far as I am aware, there have only been four articles published on the topic of federal executive clemency in social science journals since 1995. I am the author of three of those articles and the other authors are Andrew Whitford and Holoma Ochs. In that time, there have been several papers presented on the topic at the discipline's major conferences, most of which are readily available online.

In September of 2007, however, Presidential Studies Quarterly published an article entitled "Executive Clemency or Bureaucratic Discretion? Two Models of the Pardons Process," by H. Abbie Erler. The article is notable, in part, because it ignores three of the four articles mentioned above and every conference paper presented on the topic as well. In what must surely be considered a bizarre quirk in PSQ's peer review process, I am guessing (although I do not know with absolute certainty) that neither Whitford nor Ochs were consulted. I know I wasn't, despite the fact that two of my three articles were published in Presidential Studies Quarterly.

Erler's piece attempts to model the pardons process as "top-down" process (whereby presidents use pardons "to advance specific policy goals") or a "bottoms up" process (where the "preferences of officials within the Department of Justice" are the "key determinant of the number of pardons issued"). No suggestion is made that the first model has ever been particularly relevant in any administration (though there have been post-war amnesties) and, given the many other duties of the modern president, no suggestion is made that anyone has ever had reason to doubt the significance of routine, codified decision making by the numerous officials in the Department of Justice, at least not for the "typical" pardon. Therefore, the major question that is researched is somewhat uninteresting. Unsurpringly, the "bottoms-up" (or "agency") model is the more successful of the two, mathematically speaking.

However, Erler's mathematical models are, so far as I now, only the second to ever appear in a social science journal. Hence, the failure to recognize, build on, or address the mathematical models in the published work of Whitford and Ochs (2006) is inexcusable. Likewise, Erler ignored the work of Richard Posner and William Landes (January 2007) and mathematical models in several professional papers delivered at the major political science conferences - for example: Ruckman (1996), Jones, McGuire and Nice (2004), Whitford and Ochs (2004). Why all the studious neglect? It becomes even more difficult to figure out when Erler notes (without offering any citation or reference) that "over twenty-five thousand grants of pardons have been granted since George Washington's administration." Readers might find it interesting to discover the source of that information on their own because it is quite a trick to discover the figures for the period 1789 to 1932. I know because I am the first person to ever collect those data (see professional paper, from 1995, here).

Erler observes the "number of pardons has dropped precipitously since Ronald Reagan took office," an observation that is notable for the fact that it is the residue of the unnecessarily limited nature of the data she employs. Of course, such "drops" depend entirely upon what one uses as a point of reference. If the reference point is the previous administration, it is quite clear that there were drops which were equally precipitous - if not greater - in the administrations of Harding, Roosevelt (1st term) and Eisenhower (1st term). See data here. Nothing in this article recognizes, addresses or explains these drops.

In a discussion of a figure, the article says:

Figure 4 presents the percent of pardon applications approved per year for each president's administration, excluding Kennedy, Nixon, and Ford. (4) This figure lends some credence to the common imagery of a lame-duck president furiously signing pardon grants during his last few days in office. In over half of the administrations between 1953 and 1999--Eisenhower, Carter, Bush, and Clinton--the highest pardon rate of the president's entire administration occurs during the final year in office.

"Common imagery?" What in the world? Fourth year surges are an empirical fact. If conference papers and published research are any indication, this has been well-known in the discipline of political science for over a decade now. Click on the links to graphs of past administrations on the right side panel of this blog and observe what you see happening at the end of most terms. I suspect even the most casual web research skills could uncover 2-3 published articles which document such surges and several professional conference papers to boot. As a result, these are the sorts of blind-spots and blunders one would expect to see outside the discipline (see commentary here).

Erler argues that rule changes can have an impact on the pardon approval rate. She then correctly controls for the effects of changes that occurred in 1983. But, for some reason, she does not seem to consider the fact that the use of "master warrants" (in the Eisenhower administration) may have had a significant impact. Similarly, had she explored the research a little more thoroughly, she might have considered the following passage in a 1996 professional conference paper featuring mathematical modeling of the clemency process.

... two variables control for major policy changes which occurred in the time period covered by the data. The first tests the intervention effect of a policy change which took place in the Office of the Pardon Attorney during the Kennedy administration. Prior to 1962, the Office sent only those petitions to the president which, in the opinion of the Pardon Attorney, deserved "positive" action and those petitions involving the death penalty. Beginning in 1963, however, the Office began also sending petitions to the president for which it recommended denial (28 C.F.R. ' 1.3) ...

Amazingly, after all of the talk about bureaucrats and bureaucratic power, Erler's article does not even control for the individuals who have served as U.S. Attorney General, or those who have served in the Office of the Pardon Attorney as the U.S. Pardon Attorney. Since previous published research was pushed to the side, it probably never occurred to the author to control for the effects of presidential character (see "Presidential Character and Executive Clemency: A Reexamination." 76 Social Science Quarterly 213-221, 1995). Literature schmiterature!

Erler's major conclusion is that, for the "vast majority of cases," presidents act "merely as a rubber stamp at the end of a long and complex process" - again, a view which, to my knowledge no one has ever doubted in the slightest degree. She does, however, offer this spell-binding insight: "We should be wary of encouraging future presidents to follow Clinton's example." Discuss among yourselves. Here's a toast to the mysteries of the peer review process!

Scholarship: Clemency Powers and the Death Penalty

Last week, Professors Linda E. Carter and Mary-Beth Moylan of McGeorge School of Law (University of the Pacific) testified before the California Commission on the Fair Administration of Justice. Their testimony was supported by a remarkable document, a paper entitled, "Clemency in Capital Cases," which focused primarily on the death penalty in the State of California, procedures for clemency petitions in that state and reasons that have been offered in the past for granting or denying clemency. An additional section discusses clemency and death penalty cases in five other states (North Carolina, Texas, Ohio, Georgia and Nevada).

Carter and Moylan document that from 1893 to present, there have been 513 executions in the State of California. In that same time period, there were 105 commutations of sentence which spared individuals from the death penalty. Since 1976, however, there have been 14 petitions for clemency and every one of them have been denied. The authors then show similar patterns in other states, some of which have clemency processes that vary from California's. In North Carolina, for example, 43 people have been executed since 1984 and only 5 commutations of sentence have been granted. In Texas, 405 people have been executed since 1976 and only 2 commutations have been granted. In Ohio, 26 people have been executed since 1981, but there have been 10 commutations of sentence. In Georgia, there has been 40 executions since 1986 and only 6 commutations. Nevada has executed 12 people since 1976 and 1 commutation has been granted. These trends are then discussed by the authors in light of recent commentary by the American Bar Association.

While Carter and Moylan agree that clemency is "valuable" as a "unregulated, extra-judicial process," they offer several interesting recommendations - some of which should be heavenly music to the ears of my fellow political scientists. For example, they call for greater public access to materials submitted in clemency processes and ask that data be kept in accessible locations. I am reminded of 1) the first time I wondered, "How many people did James Buchanan pardon and what were their names? and 2) what all I went through to become the very first person to ever collect that list of names!

Looking beyond all of that, Carter and Moylan suggest that California Governors be given discretion in the matter of whether or not to refer requests for clemency to a Board for review and recommendation if the applicant is a twice-convicted felon. They also call for proper funding for things like provision of counsel, investigative resources for inmates and the investigation unit of the above mentioned Board. PardonPower readers may recall the recent controversies in the Office of the Pardon Attorney, U.S. Department of Justice have left some wondering if adequate funding / resources are not a problem there. Governors are also encouraged to have face-to-face meetings with attorneys from both sides of clemency petitions.

Finally, Carter and Moylan recommend what might seem at once the most ambitious / most rational / and yet, perhaps, the most unlikely thing. They call for a serious effort to better educate the public regarding the function of clemency. Checks and balances are such a popular feature of our political system and are clearly the residue of a political culture which places considerable value on freedom and, on occasion, questions authority (or at least recognizes the fallibility of decision makers and the possibility of both restitution and rehabilitation). And yet, the pardon power has suffered such a public relations blow that few governors or presidents are willing to use it. In the instance of the ultimate punishment, death, it seems reasonable enough to be fairly concerned about the relationship between the surface impressions of popular culture and evident, long-standing executive neglect of such an important power.

Download Carter and Moylan's very interesting paper here.

Scholarship: The Administrative State and Pardons

Harvard Law Review (121:1332, 2008) features an article by Rachel E. Barkow entitled "The Ascent of the Administrative State and the Demise of Mercy." It provides a sweeping discussion of the development of administrative law and what the author calls "the threat of unreviewable discretion." The general thrust of the piece is well summarized in this portion of the opening section:

With the rise of administrative law, our legal culture has come to view unreviewable discretion to decide individual cases as the very definition of lawlessness. Jury nullification and an unqualified executive power to grant clemency sit uneasily beside an administrative state that faces such scrutiny, for these exercises of mercy are precisely the type of unreviewable exercises of discretion that administrative law seeks to control ... The rise of administrative law undercuts executive clemency power and jury nullification in a second, related respect ... The dominance of agencies has necessarily been accompanied by an increase in statutes that govern those agencies; concomitantly, courts have faced an ever-growing number of regulatory cases involving statutory interpretation. Through their power to ensure that agency actions are consistent with statutes, courts have been given the authority to oversee the entire regulatory state ... And in exercising this power, courts use a variety of interpretive tools to ensure that individual exercises of agency decisionmaking are consistent with legislative intent. Legal academics and society at large have, in turn, looked to courts to guarantee that laws are fairly applied. In this legal culture, it is viewed as the role of courts, through statutory interpretation, to fix unfair applications of the law. A layperson juror or an elected executive has no obvious expertise in this world of statutes, so it is hard to understand why these actors should be permitted to operate unchecked.

The primary discussion of executive clemency begins at page 1345 and continues to page 1351. The first thing that jumps out, in a quick scan, is the continued presence of a major divide between the world of legal scholarship and the discipline of political science. Barkow's footnote references are primarily directed to other law review articles and newspaper articles. As things stand, you are much more likely to see law review articles cite the New York Times, L.A. Times or Boston Globe than you are to see them cite empirical research in the American Political Science Review, Journal of Politics or American Journal of Political Science. Sometimes, it seems like the world has not changed much since Harvard Law Review beat up on C. Herman Pritchett for bloc analysis of Supreme Court decision making back in the 1930s (a practice which the Review now mimics without second thought).

One of the consequences of the great divide is the fact that law review articles on the clemency power - like this one - frequently make assertions that one would never see in a journal of political science - or at least not without extensive discussion of data and methods. Barkow, for example, says the exercise of the pardon power "did not plummet until after significant developments in administrative law" (1346). No specific developments are identified and it is quite a trick to figure out just what point in time she is referring to. Barkow notes, for example, that the administrative state was "forming" in 1895 (1341). But she also says federal grants of clemency applications have "declined sharply" (without identifying a starting point) with the "biggest drop" occurring "from President Nixon's presidency until today" (1348). Still yet another impression is made with the assertion that "pardons remained vital throughout the 1970s" and "the decline in clemency correlates with the get-tough era" (1349).

Granted there was a time when authors could discuss clemency trends without reference to hard data and win a level of deserved sympathy. But those days are certainly behind us - or at least behind those of us in the discipline of political science. There is simply no need to speculate about many general trends in federal executive clemency. We have Microfilm Set T967, the Annual Reports of the Attorney General and a CD set from the Office of the Pardon Attorney (Department of Justice). A footnote (number 78 at page 1349) does refer to some percentage figures from data found on the web, but they begin with the Nixon administration. Given the above assertions, a political scientist would be more likely to consider these data. Otherwise, there are lot of critical issues that need to be addressed with regard to the methodology behind Barkow's assertions. These data are not much more kind to her contentions. And these don't paint a pretty picture either.

A second feature of the clemency section is that it fails to clearly show how administrative law has in any way dampened the exercise of federal executive clemency. The absence of such a demonstration is, of course, confounded by the fact that we are left to guess as to exactly what point in history is under consideration. At best, there is a discussion of how certain members of the Supreme Court appeared willing to review clemency decisions in light of the Due Process Clause during the course of a 1998 case - presumably long after the administrative state developed / emerged and certainly well after the Nixon administration. Administrative law is said to be "playing a key role" in clemency trends but no specific law or statute is mentioned. As a result, no specific impact is identified. A footnote mentions "advisory" guidelines being developed for federal pardons, again, in the late 1800s (no. 91, 1351). But, that is it. I can just imagine an anonymous reviewer for a political science journal writing, "Nice thoughts. Any data at all to support any of these claims?"

At the other end of the concern spectrum, one as to wonder: just how successful the administrative state has limited the unbridled discretion commonly associated with the exercise of federal executive clemency? And tossing out a limited amount of readily available aggregate data does not strike me as a very good measure of such an impact. The pardons of George Steinbrenner, Armand Hammer, Peter Yarrow, Iran Contra defendants, Marc Rich, Roger Clinton, Watergate co-conspirators, Frederic Ingram, the FALN terrorists, etc. tell me developments in administrative law have a long way to go. There is a lot more constraining to be done before any of us have to start seriously worrying about the demise of the clemency power - from a legal standpoint. At best, it would be more appropriate to focus on the manner in which bureaucracies and bureaucratic rules and procedures interact with media to constrain elite behavior - a consideration which is only indirectly referred to, in passing.

I think it would have also been helpful if the author had explained how her general theory applies to the end of presidential terms, when presidents usually grant the highest number of pardons. When all is said and done, I can hardly contest the notion that unbridled discretion and the administration of decision making in accordance with rules and procedures can be conflicting currents. But, if one is looking for even a semi-rigorous empirical demonstration of when such conflicts began to impact federal executive clemency, and to what extent, this is just not the article to read.

See the complete Harvard Law Review article here. I welcome the comments and observations of readers.