Executive Clemency in the United States: Origins, Development, and Analysis

Article excerpt

The Constitution vests the President of the United States with "power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment" (art. ii, sec. 2). The granting of pardons, reprieves, and other manifestations of the clemency power have been variously described as "entirely discretionary,"(1) "unilateral," "notoriously non-reciprocal,"(2) "virtually unassailable,"(3) "absolute,"(4) and "perhaps the most imperial" of presidential, powers.(5) On the other hand, these powers have also been described as "anomalous,"(6) "delicate,"(7) "shrouded in mystery," and "fraught with arbitrariness at a time when other aspects of our judicial system are becoming more open and fair pursuant to the dictates of the Due Process Clause."(8)

Academic discussions of the clemency power typically trace its interesting origins and transformation in common law, its brief consideration at the Constitutional Convention, and subsequent developments in classic Supreme Court decisions.(9) Other scholars have focused on the exercise of clemency in such areas of law as the death penalty,(10) or have addressed more political concerns in highly publicized, controversial cases.(11) Current examinations of the clemency power do however share two common characteristics. They usually appear outside the social science journal format and rarely involve the analysis, or even presentation, of data.(12)

This study briefly reviews the current literature with respect to the origins and development of executive clemency in the United States and explains procedural guidelines for federal clemency applications. An examination of the literature's more prominent explanations for the actions of the president follows. Summary statistics on clemency from the administration of William McKinley (in 1900) to that of George Bush are then provided. After a review of summary statistics more appropriate for comparative analysis (between administrations), attention is given to trends in clemency actions throughout the century. Concluding remarks address the importance of this study as well as the need for (and appropriateness of) multivariate statistical analyses of clemency decision making.

Origins and Development of Executive Clemency

At common law, the king possessed broad powers to pardon offenses, with or without condition, either before or after indictment, conviction, and sentencing.(13) Although the clemency power ultimately became an exclusive royal prerogative, the crown originally had many competitors vying for this power; including the church, the great earls, the feudal courts, and Parliament.(14)

David Gray Adler notes "the pardon was not so much an act of grace as it was a tool of pecuniary and political aggrandizement. From the outset, the pardon was abused for personal gain."(15) The sale of pardons was a common abuse and pardons requiring fees occasionally allowed for the possibility of deferred payments.(16) Conditional pardons were used as a means of populating the colonies(17) and general pardons were customarily issued subsequent to declarations of war. Armies were supplemented by the forgiveness of homicides and felonies in return for one year's service in the military.(18) On one occasion, Edward III granted a "general and special pardon for all crimes, treason itself not excepted, without any fine, or paying of fees [and] set all debts to the crown, and prisoners for criminal matters at liberty" in order to celebrate his fiftieth year of rule.(19)

The systematic abuse of the pardoning power and the "arbitrary and irrelevant" reasons supporting issuances provoked several complaints from Parliament.(20) Numerous defeats followed the first formal complaint in 1309 but, in 1389, Parliament enacted a statute that forbade the issue of pardons in the case of serious crimes unless the pardon specified the nature of the crime and contained the name of the culprit. …