Tuesday, February 5, 2008

Comment: The Times and the Pardon Power

I thought I would express some thoughts with regard to yesterday's New York Times editorial on the Bush administration and the pardon power. In the interest of full disclosure, I will say that the author, George Lardner, Jr. and I are in something like a contest to be the first to publish a book on the history of the pardon power. As I understand things, he is still writing, but already has a publisher. I have finished writing (and have received very positive reviews), but do not yet have a publisher. This all stands to reason as, while I certainly have my credentials and accomplishments, I am very "small fry" in comparison with Mr. Lardner. That all being said ...

I have never been one to make statements about how many pardons this or that president "should have" granted or "should be" granting. It seems more appropriate for me, as a political scientist, to think of clemency applications as individual affairs. I really have no idea how many legitimate, strong, complete, timely, uncontested, worthy applications there are in the Office of the Pardon Attorney in any given year. So, I have no comment on how they should generally be disposed of either. And I have no reason (theoretical, or otherwise) to argue that last year's trends in grants should be in any way related to this year's trends.

Lardner's editorial says that it was "widely speculated that [Bush] would hand out a big bunch of pardons before bowing out." But I know of no such speculation, certainly not by anyone of particular note. Are some contemplating a full, unconditional pardon for Scooter Libby? Sure. But that hardly constitutes a "big bunch" of pardons.

If anything, there has only been a slow, painful, growing recognition / acceptance of the fact that most of our Nation's presidents have increased clemency activity in the last year of their term - a fact that I have almost single-handedly brought to the fore - and with considerable effort (see my professional paper on the topic here). President Bush, incidentally, has steadily increased clemency activity across his own term (see chart here), albeit not as dramatically as Mr. Lardner would appear to desire.

Lardner seems to be aggrieved by the large number of petition denials and the "huge backlog" of clemency petitions in the "bureaucratic mill." He quotes former U.S. Pardon Attorney Margaret Colgate Love (1991 to 1997) as saying "it is hard to run an operation when you genuinely feel that what you are doing doesn't mean anything to anybody."

But, what I find interesting is the fact that the sharp upward trend in denials and pending applications began during Ms. Love's term as the Pardon Attorney. Why didn't Mr. Lardner bother to ask Ms. Love - while he was chatting with her - what was going on during her tenure, instead of simply beating up on the recently resigned Pardon Attorney (Roger Adams)? Well, I did what Lardner did not do. I asked Ms. Love about all of these issues myself, way back in August of 2007. Her very interesting explanation can be found here.

Lardner observes President Bush was "somewhat more generous" with pardons this past December. I guess I do not know for sure, but it does appear that he is not familiar with monthly trends in clemency in this administration and the last several administrations (see my commentary and relevant data here).

Finally, Lardner bemoans Bush's general stinginess with clemency in comparison with previous presidents - an option readily available to most journalists since the administration of Woodrow Wilson in the early 1900s (see chart here). I can only repeat what I have said elsewhere (here to be exact): there has never been a single reason in the world for anyone anywhere to think George W. Bush would be anything but extremely stingy with pardons. His administration came on the heels of a first-class clemency controversy (Clinton). Bush is a Republican and a former governor. As a governor, he set records for stinginess with pardons and knew what it was like to experience sharp criticism for use of the clemency power. And, as noted above, he is also riding the momentum of a trend that is 90 to 100 years in the making.

Bush may or may not grant a "big bunch" of pardons before he leaves. But, if he does, he certainly wouldn't be the first President to do so. That would be George Washington. And, if he (Bush) does grant a few, just how many would constitute a "bunch" will be entirely debatable. The only thing that seems clear to me is that Bush is in something like a no-win situation with his critics. And the expectations and calls for reform of the clemency process have been much greater during his administration than they ever were during the administration of Bill Clinton. In my mind, that says something in and of itself.

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