Sunday, March 8, 2009

Scholarship: The Economics of Presidential Pardons and Commutations

It is perhaps not well known, but William M. Landes and Richard A. Posner have probably done more to advance our empirical understanding of federal executive clemency than any two other individuals around. They certainly have no equals in the discipline of political science, excepting perhaps W.H. Humbert, who has long since passed. It was Landes and Posner who first mapped out the landscape of individual acts of clemency from 1933 to 2001. Subsequent data trades resulted in a comprehensive data set, back to 1789. Now, Landes and Posner have published an article entitled "The Economics of Presidential Pardons and Commutations" which can be found at 38 Journal of Legal Studies 61-88 (2009). As one would expect from anything originating with scholar of this rank, the piece is a lively, thought-provoking read that is a perfect building block for future empirical research.

In developing their economic model of pardons, Landes and Posner suggest the benefits of clemency will decrease as the distance from the completion of a sentence lengthens and might also be smaller for "older persons." The costs of clemency can include legal fees, exposure to further investigation, the potential for adverse publicity and "performing whatever post conviction 'good works' are necessary to give a person a good shot at obtaining a pardon." It is also suggested that the "political costs" of a pardon are likely to be greater when there is "greater public anxiety over crime."

In explaining the model and its ramifications, the authors note about 60,000 persons are released from federal prisons per year. Over the last 20 years, this has resulted in a fivefold increase in the number of persons eligible for pardons. Of course, we also know that that while pardon applications have indeed been increasing, the number of grants of clemency has been decreasing.

Landes and Posner test their economic model in aggregate data of 20,729 pardons and commutations from 1900 to 2005. They note pardons account for 70 percent of the total grants, although the percentage has increased significantly over time. In recent years, the authors note that the average time between completion of sentence to the grant of clemency has increased - from about 5 to 20 years. Democratic presidents are more likely to use the pardon power than Republican presidents. The model also shows presidents are more likely to grant pardons in their second term but, "surprisingly," they "grant fewer pardons during their last year in office." One wonders, however, if this particular finding is not the residue of the fact that the data are aggregate and arranged by fiscal year.

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