Wednesday, March 26, 2008

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.

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