Showing posts with label scholarship. Show all posts
Showing posts with label scholarship. Show all posts

Friday, April 15, 2016

Heritage on the Apocalyptic Pardon Horseman

In a piece at Heritage.Org, entitled, "A New Approach to the Texas v. United States Immigration Case: Discretion, Dispensation, Suspension, and Pardon—The Four Horsemen of Article II," Paul Larkin suggests the famous Biblical passage "can be used to signify the end of the Barack Obama presidency."

Larkin says President Obama "worked with Congress to enact as law policies that he believed were necessary to benefit the nation" early in his administration. When the Democratic Party lost control of Congress, however, the President "shifted gears."
Since then, he has often used executive orders or administrative decrees (issued by different departments) rather than legislation to create law. In fact, sometimes he has issued such decrees in the teeth of the very laws that he helped enact early in his first term, such as Obamacare. One of the horsemen he has ridden is the pardon power. 
Well, that certainly is a different slant. President Obama's first four years in office represented the least merciful term since John Adams. To date, there is little about his record on pardons and commutations of sentence that would intuitively encourage comparison with the Four Horsemen of the Apocalypse, or even any one one them!

Larkin makes the routine linkage of the pardon power to the King of England, but says nothing of its logical place in a constitutional, federal system of separation of powers and checks and balances. One guesses he is not aware that Hamilton (in the Federalist papers) argued there should be "easy access" to mercy. Larkin does note that the Pardon Clause "enables the President to reduce the punishment imposed by a court or to erase a judgment of conviction entirely" ... which is true, among other things. He then states that the President "created the Clemency Project 2014" so he could commute the sentences of "deserving prisoners who could not take advantage of" the Fair Sentencing Act of 2010.

Of course, the President could pardon (commute the sentence) of any one that he wanted, for any federal crime, for any reason, or no reason at all, well before CP14 every showed up in this world.

Larkin then suggests that the discretionary use (or, in Obama's case, general non-use) of the pardon power is comparable to the situation re immigration. Congress has refused to pass the so-called DREAM Act, so the President
... has relied on an Article II power different from the Pardon Clause: the President’s authority to exercise discretion in the enforcement of the law ... In the government’s view, the DHS has the discretion to decide how to allocate its scarce resources to those instances in which the immigration laws and the nation’s interests are best served. The new policy [subordinates] to more pressing deportation proceedings the need to institute hearings to deport aliens whose presence in the nation poses no risk to national or internal security and whose deportation would pose a serious hardship on them. 
Larkin argues "English legal and political background" reveal there are "two implicit but clear limitations on the President’s authority: The President cannot dispense with the application of the law for particular people, and he cannot suspend the operation of a law in its entirety." One wonders, immediately, what this then has to do with the pardon power?

After a whirl through history, Larkin concludes the President can "decide" or be "selective" about "which cases to select for prosecution, suit, or deportation." But, he insists, it is "not obvious" that the source of that power is the Take Care Clause ... and "it certainly cannot be the Pardon Clause."
Parliament clipped the crown’s wings by legislating that no king or queen could dispense with or suspend the law absent Parliament’s authorization. The Framers did not wrest that power from Congress and give it to the President. Instead, they imposed on the President a duty to see to the faithful execution of the law. Whatever the reach of the President’s discretionary authority to enforce the law, he cannot go so far as to dispense with or suspend its application. 
This idea, while fun and interesting, can, of course, easily abused by over-zealous rhetoricians and tunnel visioned partisan hacks. President Obama - to date - has granted 248 commutations of sentence. 22,000 applications sit in DOJ and 36,000 more are being juggled by CP14. Do the .004 percent of applications granted constitute tossing "the law" in the garbage, or a suspension of its application? Are they "tantamount to dispensing with or suspending the operation of the law for one or more people?" Do they amount to destroying the "rule of law?" We guess no reasonable person could actually reach such conclusions but, unfortunately, we are not so certain about Larkin.

Then, the piece gets even more muddy. Larkin says "background" reveals "that a President may exercise a dispensation or suspension authority only insofar as Congress empowers him to do so"  - a conclusion no one would reach reading the plain language of the Constitution. The Framers, he writes, "did not give George Washington the power claimed by James II to dispense with or suspend the operation of the laws." But we all know Washington granted group pardons / amnesties to participants in the Whiskey Rebellion. If, likewise, President Obama, tomorrow, were to grant an amnesty to all-first time, non-violent drug offenders who had long, exemplary prison records and who would not even be in prison were they sentenced under the current laws ... well, we know what the routine would be.

As if there is no empirical research on the topic, Larkin writes that it "is not uncommon to see Presidents ride two of the four available horses—Discretion and Pardon—in the twilight hours of their time in the Oval Office." In fact, it is quite uncommon - at least in the case of pardons - depending on how literal one interprets the language "twilight hours." Larkin's reference to Bill Clinton, as a probative historical example, is pretty sloppy indeed. See the entire piece here.

Monday, January 23, 2012

Brief Report on Thomson Reuters Mississippi Prison Status Data

EDITOR Because the Editor of this blog has a keen interest in empirical study of the pardon power, state and federal, it seemed worthwhile to try to look past some previous negative experiences with authors and ask the statisticians at the University of Georgia about their recent analysis of clemency in Mississippi. As expected, they were both very generous with their time and quite open about the details of their effort. So, an additional, brief summary was requested, and they have graciously provided it here (below). The Editor is quite thankful and has renewed faith in the collegiality of scholars.

Prepared for the UGA SCC by Dr. Kim Love-Myers and Dr. Jaxk Reeves:


We were provided with the data below, regarding the current prison status of 25,480 individuals in Mississippi.

Of the 222 on the pardons list: 142 are white
                                                   68 are black
                                                   12 are unidentified

Of a total population of 25,258: 8572 are white
                                                 16386 are black
                                                    222 are Hispanic
                                                      31 are Native American
                                                      37 are Asian
                                                      10 could not be identified

Monday, January 16, 2012

Scholarship: Morison on the Jurisdiction of the ATS

Samuel T. Morison (Government of the United States of America - Department of Defense, and former attorney adviser in the Office of the Pardon Attorney - Department of Justice) has posted a new paper at SSRN entitled, "Accepting Sosa’s Invitation: Did Congress Expand the Subject Matter Jurisdiction of the ATS in the Military Commissions Act?" and is thus available for download. The abstract of the article reads:
The Alien Tort Statute (ATS) provides a federal forum for aliens to seek tort damages for certain violations of customary international law, including war crimes. In Sosa, the Supreme Court admonished the lower courts to exercise caution when creating new causes of action under the ATS, but this is entirely a matter of respecting the separation of powers. If Congress enacts a statute that “occupies the field,” the Court observed, then a judge’s task is to faithfully enforce the norms delineated in the statute. To date, the Military Commissions Act (MCA) has been almost completely ignored in human rights litigation under the ATS, perhaps because it does not, in terms, provide for civil remedies. But this overlooks the fact that the MCA is not an ordinary domestic criminal statute with a long-arm provision. Instead, the statute purports to “occupy the field” of war crimes, at least for U.S. domestic purposes. Perhaps most importantly, the MCA penalizes terrorism, broadly construed, providing material support for terrorism and conspiracy as war crimes, when committed by private, non-state actors in the context of and associated with an armed conflict. If this is a valid exercise of Congress’s prescriptive authority to define and punish violations against the law of nations, it follows that such norms should be actionable in ATS litigation. Accordingly, if the constitutionality of the MCA is ultimately affirmed by the Supreme Court, the decision will come with a previously unacknowledged systemic cost, namely a sharp increase in the scope of ATS liability.
Morison also informs PardonPower that piece essentially highlights the tension between the government's desire to expand the conception of "war crimes" under the MCA (because that helps win convictions) and its desire to narrow the conception of "violations against the law of nations" under the ATS (because it doesn't want foreign nationals harmed by large US corporations collecting huge damage awards in federal court). See Morison's article here.

Tuesday, March 15, 2011

Quote of the Day: The Same as It Ever Was

[Criticism of the pardon power] has occurred sporadically and has pointed to the necessity for greater circumspection by the pardoning authority rather than to the need for restriction of presidential action or for modification of the pardoning process. Recommendations on applications for clemency of United States Judges and Attorneys should not be relied upon to as great an extent in the future as in the past in deciding what should be done with applications for clemency. [There] are reasons demanding that recommendations from these official should be scrutinized very carefully.

Because of the nature of the information which a judge received on a case, because of the danger of partiality which the experiences of a judge in criminal cases engender, and because of insufficient time to collect facts relevant to a decision in clemency cases, the United States Judge's recommendations should be critically examined. The judges imposed the sentence and they are loathe to admit any error in their original sentence.

[This] last objection applies with equal force to the practice of relying upon the recommendation of the United States Attorneys . The United States Attorneys who frequently reach their offices because of political preferment, are often fired with a zeal to make a record by numerous convictions in order to secure further promotion. Their ardor may bring out a great number of convictions, some of which are unwarranted. But will these men be wiling, afterwards, to recommend clemency in the cases in which over-zealousness brought about a wrongful conviction or too severe a sentence?

[More] security to both the pardoning authority and the applicants for clemency and better results in the use of the pardoning power would probably be produced by creating a small board, equipped with a staff to make impartial studies of detailed data on each applicant for clemency, including the data submitted by the United States Attorneys and Judges, a board clothed with the present authority of the pardon attorney to make recommendations on applications for clemency to the Attorney General and the President. [Such] a process would definitely fix responsibility for action, promote greater uniformity of treatment, and obviate the necessity for relying to as great extent as at present upon recommendations from the United States Judges and Attorneys and from other officials.

Better use of the pardoning power, not abandonment of it, should be sought. The errors which occur in the administration of justice provide a sufficient reason for retention of the pardoning power in the government of the United States. There comes, moreover, a time during the incarceration of the more intelligent prisoners when clemency to them, in the proper form, will be productive of a more good both to them and to society than would ensure from insistence upon strict observance of the sentences. [By] granting clemency at the proper juncture, a social attitude may be created and the development of a vindictive spirit on the part of the convict may be avoided. Something may be lost thereby in the way of certainty of execution of sentence but compensation may be looked for through the restoration of the convict as a useful member of society.
- W.H. Humbert (1941)

Sunday, March 13, 2011

Scholarship: Humbert Online!

We are pleased to announce that we have added W. H. Humbert's classic, The Pardoning Power of the President, to our Online Bookshelf listings (left column).

Monday, January 24, 2011

National Archives Pardon "Scandal"

One of the problems any serious researcher of Abraham Lincoln is keenly aware of is the difficult task of separating fact from fiction. Lincoln had his critics, more than willing to misrepresent the general situation in order to slander their target. But he also had (and continues to have ) overly enthusiastic admirers, individuals who not only defended him against the critics, but who were also more than a little willing to fabricate the record for the purpose of making Lincoln look better (more witty, more wise, more kind, more merciful, more understanding, etc.) than he actually may have been. In 1999, David Kincaid and I noted:
As with any dimension of Lincoln scholarship, sifting fact from the fiction can be a formidable task. Apocryphal tales abound of pardons issued minutes before hangings, and convicted youths fighting and dying valiantly after receiving a pardon from the Commander-in-Chief. Many such stories are facially dubious and have little corroborating evidence. "Inside Lincoln's Clemency Decision Making." 29 Presidential Studies Quarterly 84-99 (Winter 1999).
Now, the National Archives reports that 78-year old Thomas P. Lowry, a longtime "Abraham Lincoln researcher," has been caught "telling a big lie about Honest Abe." A "big lie?" Wow! Those are big words! What was the lie? The Washington Post reports Mr Lowry:
has acknowledged that he used a fountain pen with special ink to change the date on a presidential pardon issued by Lincoln to a military deserter, making it appear that Lowry had uncovered a document of historical significance. Specifically, Lowry changed the date of the pardon from April 14, 1864 to April 14, 1865. The Archive said the change made it look as if Lowry had discovered a document that was perhaps Lincoln's final official act before he was assassinated that evening at Ford's Theatre.
A date is a date. But how anyone discerned (or pretended to discern), from a document that was merely dated, that it might represent Lincoln's "final official act" is quite difficult for us to grasp. Nonetheless, the Post reports Lowry's "purported discovery" - thirteen years ago - was "hailed by historians," placed in a prominent display and he was credited with having made "a unique and substantial contribution to Lincoln research and to the study of the Civil War." Holy Schnikies!

Such enthusiasm invites disappointment at so many levels!

In this case, the party spoiler was one archivist, Thomas Plante, who was troubled by the fact that the number '5' on the clemency warrant (pictured above) appeared darker than the rest of the document, and was perhaps covering another number (like a "4"). Indeed, when he checked the document against other sources that were available to him, Plante concluded the date should have been 1864 (Plante, incidentally, gained a measure of fame with his own, unrelated, Lincoln "discovery").

It is reported that, at that point, Mr. Lowry, a psychiatrist, signed a written "confession" admitting to violation of the integrity of the Lincoln document - a federal crime - his weapon of choice being a Pelikan pen. But it is also now reported that Lowry denies the allegations against him, claiming that he was "pressured" for two whole hours to confess by federal agents (while wearing his bathrobe no less). Either way, he is banned from the Archives "for life."

Prosecution is not expected - the statute of limitations being 5 years. But, of course, it would be just too good if President Obama were to grant a pardon to the poor fellow! See Post reporting here and here.

Friday, December 31, 2010

Conditional Pardons, eh?

With all of the chatter re Haley Barbour's conditional pardon of the Scott sisters, it is a great time for interested readers to review Harold Krent's fine work entitled Presidential Powers (2005), a work, in part spring-boarded by a 2001 California Law Review article by Krent on conditional pardons.

Many presidential pardons and commutations have been conditioned upon the recipient leaving the country - usually “soon” but, in some instances, “forever.” And, in most of those instances, "forever" constituted a longer period of time than their original sentence!

Curiously, many acts of clemency have required the individuals to simply leave the Washington, D.C. area. Benjamin Ahley was pardoned in 1853 on the condition that he leave Washington until he was twenty-one years of age. In 1861, Charles de Villies was asked to leave the same area, but only for a period of five years. Jesus Pena (1920) was released on the condition that he be deported to Mexico. Victoria Pool (1877) was pardoned on the condition that she leave Washington and “be removed” to North Carolina. Samuel Edgar McIlhenny was allowed to leave prison in 1922, but only if he left with his mother. And, she had to take his little butt right back to Dallas.

Wednesday, December 15, 2010

New: The Justice of Mercy

From the University of Michigan Press: The Justice of Mercy, with text by Linda Ross Meyer
Paper 978-0-472-11745-1 / $65.00

"This book addresses a question both ancient and urgently timely: how to reconcile the law's call to justice with the heart's call to mercy? Linda Ross Meyer's answer is both philosophical and pragmatic, taking us from the conceptual roots of the supposed conflict between justice and mercy to concrete examples in both fiction and contemporary criminal law. Energetic, eloquent, and moving, this book's defense of mercy will resonate with philosophers, legal scholars, lawyers, and policymakers engaged with criminal justice, and anyone concerned about our current harshly punitive legal system." Carol Steiker, Harvard Law School

How can granting mercy be just if it gives a criminal less punishment than he "deserves" and treats his case differently from others like it? This ancient question has become central to debates over truth and reconciliation commissions, alternative dispute resolution, and other new forms of restorative justice. The traditional response has been to marginalize mercy and to cast doubt on its ability to coexist with forms of legal justice.

Monday, December 6, 2010

Speaking of Pardons and Immigration Law ...

As Governor Paterson (NY) appears serious about using the pardon power to address weaknesses in immigration law and policy, we encourage our readers to check out Samuel T. Morison's article entitled “Presidential Pardons and Immigration Law," which is forthcoming in the Stanford Journal of Civil Rights and Civil Liberties, vol. 6, No. 2 (2010).

Even better, the article can downloaded right this very moment from Morison's SSRN page at

Wednesday, September 29, 2010

Scholarship: Judicial Recommendations of Clemency

Joanna M Huang, a law student at Duke University, has written a piece entitled, "Correcting Mandatory Injustice: Judicial Recommendation of Executive Clemency." (60 Duke Law Journal 131, 2010). Huang suggests that, for 18 years mandatory minimum sentencing forced judges to impose sentences which they believed unjust. In 2005, the Supreme Court's Booker decision eased the tension by rendering the guidelines "advisory." Booker, however, does not apply retroactively. Huang, therefore, recommends that judges (who, so far as we know, have always had the opportunity to contribute to the clemency process) play a more proactive role by explicitly recommending clemency at sentencing (as opposed to years later, when clemency applications are filed).

Huang then offers guidelines for judges to recommend clemency (in cases of miscarriage of justice, unusually  lengthy sentences, the commission of non-violent crimes, disproportionate sentences, first time offenses, youthfulness, consideration for dependents, etc.). These are, of course, are among the reasons that presidents have granted pardons for hundreds of years - many times with the explicit recommendation of the sentencing judge.

What the piece cries out for, of course, is data. How often do judges recommend clemency at sententing and/or support clemency applications? If judicial recommendations of clemency are rare at sentencing, why? Is it possible that judges are more satisfied with sentencing outcomes than Huang would suggest? If not, what on earth has prevented them from speaking out? Is a law review article the only thing between them and doing so? When judges do speak in favor of clemency at sentencing and/or support applications, are the odds of a grant of clemency in any way affected? When judges recommend clemency, do they reference any of the suggestions made by Huang? If so, to what degree? See complete article here. See also the discussion at Sentencing Law and Policy here.

Friday, June 25, 2010

Researching the Pardon Power

Anyone interested in the pardoning power of the president will find the most recent Newsletter of the Presidency Research Group (PRG) of the American Political Science Association of interest. More specifically, Volume XXXII, Number 2 (Spring 2010) contains an article by Heidi and P.S. Ruckman, Jr. on researching federal executive clemency (pages 16-18).The article also contains information on current and future projects related to this blog.

For the .pdf file of this full issue of the PRG Newsletter, click here.

Tuesday, January 5, 2010

Southern Political Science Meeting: Atlanta, GA

The Exercise of Power During the George W. Bush and Barack Obama Administrations

Executive and Presidential Politics
Schedule Information:
Scheduled Time: Thu, Jan 7 - 9:45am - 11:15am Building/Room: Crowne Plaza Hotel- Ravinia / Camellia
Session Participants:
Organizer: Adam L. Warber (Clemson University)
Bush and the Pardon Power
P.S. Ruckman, Jr. (Rock Valley College)
May the President "Unpardon"?
Jeffrey Crouch (American University)
Discussant: Karen Hult (Virginia Tech)
Chair: Adam L. Warber (Clemson University)

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.

Monday, December 1, 2008

Scholarship: Tis' The Season to be Pardoned

FROM THE EDITOR: Interested readers can look over a professional paper that I intend to deliver at the upcoming meeting of the Southern Political Science Association, in January, in New Orleans. The topic of the paper is the notion of "seasonal clemency" and its relevance to the actual use of the pardon power. In a previous study, of 16,000 clemency warrants signed from 1789 to 1933, I found that the most popular months to be pardoned were March and June.

In this latest study, of more than 10,000 clemency warrants signed between 1931 and 2008, I find that December has generally been the month of choice for the last 12 presidents. Almost a quarter (2,453) of the pardons granted in this time period have been granted in a single month, December, and the remaining 75 percent are dispersed in such a way, across the remaining 11 months, that the second highest month (June with 1,005) and third highest month (January with 882) are far behind. See chart here.

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.

Tuesday, April 1, 2008

Scholarship: Clemency Powers and the Death Penalty

Last week, Professors Linda E. Carter and Mary-Beth Moylan of McGeorge School of Law (University of the Pacific) testified before the California Commission on the Fair Administration of Justice. Their testimony was supported by a remarkable document, a paper entitled, "Clemency in Capital Cases," which focused primarily on the death penalty in the State of California, procedures for clemency petitions in that state and reasons that have been offered in the past for granting or denying clemency. An additional section discusses clemency and death penalty cases in five other states (North Carolina, Texas, Ohio, Georgia and Nevada).

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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