Sunday, April 22, 2012

Presentation: University of St. Thomas School of Law Symposium

The Study of Mercy: What Political Scientists Know 
(and Don’t Know)
About the Pardon Power 

P.S. Ruckman, Jr., 
University of St. Thomas School of Law Symposium 
April 20, 2012 

The paper I have worked on in preparation for this symposium is entitled, “The Study of Mercy: What Political Scientists Know (and Don’t Know) About the Pardon Power.” In one of its sections, I note, with disappointment, that, in the past, political scientists and members of the legal profession have seemingly been expert at ignoring each other’s research and commentary on the pardon power. The fact that Professor Crouch and I were invited to participate here today, I think, says something very positive and wonderful about the thinking of the individuals who have put all of this together.

Speaking for myself, I have no doubt whatsoever that everything could be done very well here today without any contribution whatsoever from me. So, I am flattered and deeply honored to have been invited, and I am excited to be able to meet, for the very first time, some individuals whose scholarship, commentary and dedicated interest to clemency I have admired for years.

When political scientists write on clemency, they tend to suggest that the discipline has largely ignored the topic. I confess to having made such observations myself, in the past. But, with the writing of this paper, I don’t think I will do so again. At present, I feel comfortable taking the position that political scientists have actually given this topic a fair amount of attention. It is also true, however, that the quality of our work and our methods has varied considerably, communication between scholars has been quite poor and there has been precious little development of cumulative systematic knowledge.

The decision making rule I employed was to focus on books and articles on clemency that have been written by political scientists as well as research and commentary on clemency that has appeared in political science journals but was written by individuals from other disciplines and professions. I also exempted multivariate statistical analyses of public opinion or voting which featured Gerald Ford’s pardon of Richard Nixon as one independent variable among many.

Frankly, I did not attempt to “review” each work per se, so much as I attempted to identify primary conclusions and major findings. I report the results of this effort in the second section of the paper – the section I will be sharing with you here this morning. In the third and final section of the paper, I speak to the future, how I see political scientists researching and writing with respect to the pardon power in the years to come. I do this with a fair amount of confidence as this field of study is currently dominated by a “gang of two” – professor Crouch and I.

Political scientists have generally been comfortable with the idea that clemency powers are an integral part of our system of checks and balances and separation of powers. To some, the use of the death penalty renders such powers an absolute necessity.

While most have seen pardon “abuses” as rare exceptions, almost all agree that specifically amending the clemency power is more desirable than abolishing it altogether, or even instituting major changes. Some go so far as to see a distinct “duty” to pardon and have been willing to define “abuse” of the pardon power to include failure to act when appropriate or necessary.

The literature on clemency displays a steady, consistent concern about news media reaction to (and potential impact of news media on) the use of pardons. The clear anxiety is that media will rarely be as fair and accurate as it could be and, as a result, gubernatorial popularity and civic understanding and acceptance of clemency will suffer. Finally, there has been a clear sense that the use of parole has (and perhaps should have) a negative impact on the use of clemency.

At the state level, several political scientists have conducted surveys of clemency powers. Invariably, these exercises uncover a wide range of practices. There is little sense, however, that state procedure and practice informs federal procedure and practice (or should). Most of the literature on clemency in the states has been sympathetic to the idea popularized during the Progressive Movement – of creating clemency boards to assist governors in decision making – to reduce the possibility of “abuse,” ease the workload of governors, to deflect criticism and/or to generally increase the quality of decision making.

At the federal level, multivariate statistical analyses suggest the pardon power is “unilateral” yet somewhat affected (if not actually “limited”) by subtle signals sent by other political institutions and that presidential decisions typically represent the last step of a “highly bureaucratized and routine process.”

Political scientists have been cognizant of a clear decline in the use of the pardon power. Slide5. Nonetheless, today, the typical act of federal executive clemency is a presidential pardon, granted to an individual who has already served his/her time (if time was required), taken care of all associated fines and has integrated back into the community as a law abiding citizen (as documented by character affidavits and an FBI investigation). The effect of the pardon is to simply restore the recipient’s civil rights. Violent criminals are not being yanked from the prisons and tossed into the streets. There is little or no controversy or backlash. No political capital is spent.

Meanwhile, at the federal level, commutations of sentence, once quite commonplace, have become exceedingly rare. Of equal importance, political scientists have given attention to increases in the Slide7. annual number of new applications for clemency, the number of cases left pending from one fiscal year to the next, and increases in the overall workload of the office of the pardon attorney. These interests follow quite naturally from the discipline’s general view that the non-decisions of decision makers can constitute a substantive category of decision making in and of itself.

Political scientists from the 1940s have expressed concern that the clemency process may be too heavily influenced by federal judges and U.S. attorneys.

Most recently, they have taken the position that pardons and commutations should be granted 1) much more often and 2) on a regular basis throughout the term. The justifications for greater use range from concern for equilibrium in our system of checks and balances to the over-criminalization of the law, the economic burden of booming prison populations and the harmful effects of mandatory sentencing laws.

More recently, we have recommended that presidents should give some attention to systematic outlining of broad goals with respect to the exercise of the pardon power and the creation of associated decision making guidelines. Put another way, the pardon power should not be so much of an afterthought, and should be taken more seriously.

There is some evidence to suggest the partisan identification of the president has an impact on clemency policy (Democrats being more generous with pardons than Republicans). But few other personal attributes of presidents have been tested, or even discussed, in any systematic manner.

Some authors have placed the primary blame for the overall decline in clemency on recent administrations. But here are the data by: 1. Fiscal year, 2. Presidents, and Terms. These data, however sliced, strongly suggest the downward trend actually began in the early 1900s and, if anything, has probably continued for a variety of reasons which have been prominent at different points in time.

Bill Clinton’s last-minute pardon splurge was far from “normal,” but the evidence shows that, throughout history, most presidents have granted the largest number of pardon in the fourth and final year of the term.

Pardon activity seemed to increase in the months of May and June, previous to the 1930s. Slide11. However, one out of every two acts of clemency granted for the last thirty-nine years has been granted in the month of December. This trend clearly remains even if one excludes Decembers which occur in the fourth and final year of the term.

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