Thursday, April 3, 2008

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 control for the individuals who have served as U.S. Attorney General, Deputy Attorney General even those who have served in the Office of the Pardon Attorney as the U.S. Pardon Attorney. Compare these ommissions with a passage from a recent Washington Post article:
Rodgers, a Naval Academy graduate who had worked in a drug intelligence unit at Justice since 1999, declined interview requests ... Rodgers's law-and-order background also may influence the process. H. Abbie Erler, a professor at Kenyon College in Ohio, pointed out that Rodgers's record as a former military official and longtime investigator in the narcotics area may not make him amenable to granting mercy to convicted felons. "That sort of sets the tone," said Erler, who wrote a recent study about the factors that contribute to pardon grants.
I guess some insights are just too good to share with Presidential Stuides Quarterly! Similarly, 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!

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