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. The statute remained a part of the law of pardons, but was considerably weakened by a general lack of enforcement and another string of parliamentary defeats.(21) By the time of Henry VIII (1535), the power to extend clemency became the sole right of the crown.(22)

The absolute vesting of clemency power in the crown remained essentially unchanged until 1678 when a controversy arose over whether Charles II could employ his power to grant clemency to frustrate Parliament's impeachment of Thomas Osborne, the Lord High Treasurer of England. Following Osborne's impeachment, Parliament restricted the king's authority to extend clemency by enacting measures prohibiting royal clemency in cases in which persons were convicted of causing others to be imprisoned outside the realm, depriving the king of the power to suspend the operation of a given law or to disregard its execution, and prohibiting the use of clemency in impeachment cases.(23)

English practice greatly influenced those who drafted the state constitutions during the Revolutionary War period. The general pattern in the royal colonies was to permit the governor to pardon in all cases except treason and willful murder. In the remaining colonies, the chief executive exercised the clemency power with occasional assistance from other authorities.(24) Post-revolution constitutions naturally sought to curtail the powers of the executive. Most states would not allow pardons in the case of impeachment. Some, like Pennsylvania and New York, would not allow pardons in cases involving treason. The Massachusetts Constitution of 1780 permitted pardons only after conviction. The Georgia Constitution of 1777 strictly forbade the governor from issuing pardons and the New Hampshire Constitution of 1784 vested such power exclusively in the legislature.(25)

There was "relative paucity of debate" at the Federal Convention on the matter of pardoning powers,(26) but the issue of pardons in the case of treason was "particularly troublesome" for the Framers. It "provoked an impassioned debate" that was not resolved until the last day of the Convention.(27) Charles Pickney's Draft of a Federal Government and Alexander Hamilton's Plan of Government included considerations of the pardoning power, but the major plans, the Virginia plan and the New Jersey plan, contained no such provisions.(28) The resolutions adopted by the Convention and submitted to the Committee on Detail were also silent on the topic. The Committee on Detail, however, adopted a suggestion placed in the margin of the Virginia plan by one of its members, John Rutledge of South Carolina.(29) Rutledge added to the powers of the executive "the power of pardoning" except in the case of "an impeachment".(30) The committee later reported a power "to grant reprieves and pardons," and added pardons "shall not [be] pleadable to an impeachment" Roger Sherman of Connecticut suggested limiting the granting of reprieves "until the ensuing session of the Senate" and allowing pardons "with the consent of the Senate." Luther Martin of Maryland moved to insert "after conviction" after the words "reprieves and pardons" The Convention accepted only a slight modification suggested by Virginia's George Mason: the words "except in cases of impeachment" were inserted after "pardon."(31) There was little further discussion of the pardoning power at the state ratifying conventions.(32)

The Supreme Court has been the ultimate interpreter of the clause granting the president clemency powers. While some commentators hold the view that the Court has granted the president a wider scope of authority than was enjoyed by the monarchs,(33) all agree that the scope of clemency powers is broad.(34) Chief Justice John Marshall set the tone for the Court's interpretation of the pardoning power in U.S. v. Wilson (1833).(35) Marshall described the power as "exercised from time immemorial by the executive of that nation whose language is our language" and prescribed looking "into their books for the rules prescribing the manner in which it is to be used." The Court has since declared the right of presidents to remit fines and forfeitures,(36) pardon criminal contempt of court,(37) award conditional pardons,(38) commute sentences(39)--even against the wishes of the individual(s) involved,(40) and has declared the pardoning power "unlimited" (with the exception of treason) and "not subject to legislative control."(41)

Highlights in Executive Clemency

George Washington initiated the use of the pardoning authority in 1795 when he issued a proclamation of amnesty to participants in the so-called Whiskey Rebellion.(42) In August of the previous year, Washington issued a proclamation commanding insurgents in western Pennsylvania to disband their increasingly organized protests of an excise tax on whiskey contained in Hamilton's fiscal program. Thirteen thousand militiamen (from Pennsylvania and surrounding states) were called out after a three-week "grace" period. The uprising quickly disintegrated and a few of its leaders were tried for treason.(43) Washington pardoned the only two persons convicted, describing one as a "simpleton" and the other as "insane."(44) Few grants of executive clemency have generated much controversy since the "whiskey rebels," but some acts have certainly been more notable than others.

In 1799, President John Adams faced another insurrection against the collection of a federal tax, this time in the eastern part of Pennsylvania. Federal assessors were assailed by a mob of German-American farmers who were, in turn, taken into custody by a federal marshal and his posse. Jacob Fries then led an armed group of about one hundred men against the Marshal, forcing the release of the farmers. Adams requested a contingent of militia from the governor of Pennsylvania, mobilized United States army troops stationed in New York and New Jersey, and sent members of a voluntary cavalry to the scene. There was no show of resistance upon the arrival of the forces, and Fries was apprehended peacefully. He and two others were indicted on the charge of treason, found guilty, and sentenced to be hanged.(45) Against the unanimous advice of his cabinet, Adams pardoned the condemned men and all of those involved in the affair. Page Smith notes "most Americans approved the pardon and applauded the President for granting it."(46)

The Alien and Sedition Acts (1798) made it illegal for any person to write, print, or publish "any false, scandalous and malicious writing [against] the government of the United States, or either House of Congress [or] the President [with] intent to defame [or] to bring them, or either of them, into contempt or disrepute; or to excite against them the hatred of the good people of the United States." The Adams administration vigorously enforced the Act, securing fifteen indictments and ten convictions.(47) Thomas Jefferson, however, described the Sedition Act as a "nullity" and compared it to Congress ordering all "to fall down and worship a golden image" After the elections of 1800, Jefferson pardoned every person prosecuted under the Acts. Later, Congress also pronounced the statute "unconstitutional" and "void," appropriating funds to reimburse those subjected to fines.(48)

In 1815, James Madison pardoned a class of individuals known as the "Barataria, a Pirates. The group, about 800 strong, was led by Jean Laffite and maintained its headquarters on one of the islands in the many bays and inlets on the Mississippi delta off the coast of Louisiana. The British government offered Laffite $30,000, a pardon, and a captaincy in exchange for assistance in the attack on New Orleans. Laffite not only refused the offer, but informed the government of the United States and offered it the services of barataria smugglers.(49)

Deserters and polygamists have also been the recipients of acts of executive clemency but, until the Civil War, the exercise of the pardoning authority had not provoked serious controversy or question.(50) From the very beginning of his administration, Lincoln "applied a policy intended to encourage desertions from the enemy without fear of punishment."(51) His December 1863 proclamation of general amnesty was greeted with much opposition by the people of the north and, consequently, many regarded his assassination as "a godsend to the country."(52) Andrew Johnson's 1865 clemency program sparked the initial threats of his impeachment,(53) but his December 25, 1868, pardon of Jefferson Davis and other confederate soldiers was certainly the most salient exercise of executive clemency to date. Davis was charged with complicity in the assassination of Lincoln and his captors were rewarded $100,000.(54) Johnson received thousands of passionate letters arguing for and against further punishment of Davis. To complicate matters, Davis (unlike General Lee) refused to petition the president for clemency. In fact, Davis told the 1884 Mississippi legislature, "repentance must precede the right of pardon, and I have not repented." Davis added he "would again do" what he did in 1861 "if it were to do over again."(55) As the end of Johnson's administration approached, Davis was the only civil leader of the Confederacy imprisoned. The awkward nature of the imprisonment and the persistent lobbying of prominent individuals encouraged Johnson to issue the amnesty.

President Warren G. Harding's December 23, 1921, commutation of the sentences of twenty-four political prisoners, including labor organizer and socialist Eugene Debs, received some notoriety. Debs's conviction and ten-year sentence had been upheld by justice Oliver Wendell Holmes and the Supreme Court in 1919.(56) Woodrow Wilson had also earlier announced the "traitor" (Debs) would "never" be pardoned during his administration.(57)

In 1971, Richard Nixon commuted the sentence of James R. Hoffa, former president of the International Brotherhood of Teamsters. The commutation was in many respects controversial. In 1960, the justice Department, under the Eisenhower administration, withdrew an indictment against Hoffa because he supported Nixon during the presidential election.(58) After Nixon's defeat by John F. Kennedy, the justice Department reactivated the indictment and Hoffa served time for convictions of mail fraud and jury tampering. Absent presidential action, Hoffa's parole application would have been considered in June 1972 and--even if denied--he would automatically have been released by November 1975.(59) Instead, his sentence was commuted to six-and-one-half years with the provision he refrain from "direct or indirect management of any labor organization." If the provision of the commutation was violated, Hoffa was to return to prison to complete his sentences.(60) Hoffa argued, in District Court, the noninvolvement condition was illegal, but lost. His case was then appealed to the Court of Appeal for the District of Columbia where it was argued, then removed from the calendar as a result of Hoffa's disappearance.

Nixon, of course, found himself on the other end of the clemency power just three years later. Gerald Ford told congressional confirmation committees "the American people would not stand for a [Nixon] pardon" and that he did not intend to grant one.(61) Within one month of assuming the presidency, however, Ford granted "a full, and free and absolute pardon" to Nixon "for all offenses against the United States [committed] or taken part in during the period from January 20, 1969 through August 9, 1974."(62) John Orman and Dorothy Rudoni conclude Ford "closed the decision-making process to dissenters, secretly developed his own response, and then took unilateral, non-reciprocal, discretionary action without adequately assessing the costs of his action on the criminal justice system."(63) Within one week of the pardon, Ford's public "approval rating" plummeted in the polls from 71 to 50 percent.(64) The pardon "haunted Ford throughout the remainder of his presidency and, in all likelihood, doomed his chances for election to that office."(65)

George Bush's decision to pardon former Secretary of Defense Caspar Weinberger and five other former Reagan administration officials on Christmas Eve 1992 was certainly the most controversial act of clemency since Ford's pardon of Richard Nixon.(66) A New York Times-CBS poll, taken during the Reagan administration, found 64 percent of the public were opposed to a pretrial pardon of the officials charged with conspiring to defraud the United States by illegally providing Nicaraguan rebels with profits from the sale of weapons to Iran.(67) Six years and thirty-five million dollars after the commencement of the independent counsel, Bush delivered six Christmas Eve pardons.(68) Close to 60 percent of the respondents in a December 1992 Gallup poll disapproved of Bush's action and 49 percent were willing to state their belief the pardons were issued by Bush "in order to protect himself from legal difficulties or embarrassment resulting from his own role in Iran-Contra."(69)

The Clemency Process

As the previous section illustrates, there have been relatively few instances in which the exercise of clemency has provoked widespread attention or public controversy. W. H. Humbert suggests the very "administration" of the power is "of such a character as not to attract wide attention."(70) The president looks to the Department of justice and the deputy attorney general for advice on matters concerning executive clemency. The deputy attorney general, in turn, depends upon recommendations drafted by the Office of the Pardon Attorney. The office was established by an 1891 Act of Congress to prepare cases for the president to consider.(71) In effect, the pardon attorney receives and reviews all applications for clemency and manages the paper flow throughout the remaining stages of process: investigation, preparation, consideration and action, and notification.(72) Investigations include a detailed background analysis by the Federal Bureau of Investigation, consultation with relevant parties (including sentencing judges, the prosecuting attorney, probation personnel, employers, and friends) and an examination of all pertinent documents and records. The pardon attorney's recommendation is then made to the president via the deputy attorney general and White House counsel.(73) The deputy attorney general's opinion carries great weight with the president, although some presidents, such as Andrew Johnson, have often insisted on reviewing the requests themselves.(74) In a 1984 article, Charles Clark notes the period of time from application to a presidential decision is generally two years.(75)

W. H. Humbert's 1941 study, The Pardoning Power of the President, suggests "the motives which prompt the executive in the exercise of the pardoning power are a topic of the greatest importance in clemency."(76) Humbert's work remains, however, the sole empirical investigation of the official justifications for clemency actions. Humbert compiles thirty-eight "principle" and fifty-six "less frequent" explanations cited in clemency statements from 1885 to 1931.(77) The discussion notes statements in the study typically contain more than one justification but, generally, "the brevity of the statements and the failure to distinguish [the] primary and secondary reasons for granting clemency" make it "very difficult to determine the president's real reason for granting clemency in each case."(78) The range of influential factors cited in presidential statements (from mental infirmity of judges to the desire to save a farmer's crops) is nonetheless remarkable. Presidents have been encouraged to grant clemency as a result of a petitioner's "poverty" or "friendless condition" They have been likewise moved by a petitioner's "respectable" family or "favorable home condition" Pardons have been extended both on the basis of "youth" and "old age" They have been given to those who are "sincerely penitent" and those who have engaged in "good conduct" and are "reformed" Clemency has also been granted to "encourage reformation" in individuals and "good conduct among other prisoners."

Despite the wide range of factors cited in executive statements, many of the explanations in Humbert's study are quite similar in nature. In fact, Humbert's study and commentary by other observers of the process reveal at least three broad but distinct categories of formal, public explanations for clemency actions. The first category of explanations are "legal" or "technical" in nature. Generally such explanations relate to: (1) the potential, probable, or certain innocence of the petitioner; (2) mitigating factors; or (3) concern for proportionate punishment. Humbert's study, for example, found the following factors cited in clemency statements: (1) irregularities at trial, insufficient evidence, conflicting testimony, mistaken identity, grave doubt as to the Justice of convictions, disclosure of new evidence, confessions of true offenders; (2) absence of premeditation, the heat of passion or extreme provocation, insanity, intoxication; (3) technical guilt, pettiness of the crime, excessive punishment, sufficient punishment, and a desire to equalize punishment for all participants in the crime.

"Legal" and "technical" explanations invite little controversy, and probably constitute the majority of explanations which would widely be considered "good" and "sufficient" reasons for executive clemency.(79) Thus, Franklin Roosevelt probably felt little anxiety in pardoning convicted bank robber Martin Prisament when Prisament was found "innocent" of the offense for which he was being held. Likewise, Ronald Reagan probably ran little risk commuting the three-year prison sentence of Marvin Mandel, former governor of Maryland. Mandel's co-defendants were each granted parole and the justice Department recommended action promoting equity in punishment.(80) "Legal" and "technical" explanations are not, however, exempt from criticism. The subjective hurdles in the classification and weighing of mitigating circumstances are a routine source of controversy in criminal law. Jimmy Carter's commutation of Patricia Hearst Shaw's sentence (to time served) on the basis of the coercive influence of the Symbionese Liberation Army well illustrates the potential for disagreement on these grounds.

A second category of formal, public clemency explanations concerns humanitarian compassion or mercy. Clemency rationales in this category are criticized more frequently, but appeals to sympathy and emotion in this category of explanations may serve as a powerful shield to the executive.(81) Many pardons, for example, have been issued to federal prisoners near death.(82) While some may fail to find even the smallest degree of sympathy for a dying criminal, the most hard-line critic might take some satisfaction in the end of a criminal's life and may experience a sense of increased personal safety (however small or illusory).(83) In some instances, pardons have been issued to those whose health threatened that of other inmates.(84) A well-argued statement emphasizing the extreme age, ignorance, or questionable degree of sanity in the recipient of clemency may sway sympathy as wen as any "death bed" scenario. Interestingly, timing may contribute to both the willingness of the president to think in humanitarian terms and the willingness of the public to accept a pardon defended on such grounds. Lincoln and Johnson certainly counted on the Christmas season to soften hearts toward grants of amnesty.(85) George Bush drew a heavy handed "sympathy card" in his 1992 Christmas Eve pardon of Caspar Weinberger (75 years old and physically ailing). Bush took care to describe the pardon as "an act of compassion."(86)

A third and final category of formal, public clemency explanations concerns judgments on reform, or rehabilitation. Explanations in this category may well provide the greatest potential for controversy. As Kathleen Dean Moore notes, presidents run certain risks when they attempt to assess the reality and degree of a prisoner's "transformation."(87) How indeed does one know when another is truly a "new" person? In the past, presidents have been swayed by the religious conversion of prisoners, charity work,(88) and promises "never to violate the law again."(89) Ronald Reagan was impressed to see a former armed robber turned Boy Scout leader.(90)

Although Humbert's study and the analyses of other commentators support some classification of formal, public explanations for executive clemency actions, they also direct us to a distinct set of private-personal, political and administrative factors which influence the decision to extend clemency. Humbert assumes the difficulty of determining the "actual" reasons why positive clemency decisions are made since "officials favoring the granting of clemency probably give as their reasons only those which will evoke least opposition to the use of the pardoning power."(91) Most commentators would in fact agree "there are motivating forces which lead pardon officials to grant pardons or commutations [which] are not given as reasons for acting."(92)

Social background characteristics, experiences, attitudes and concerns of the president are occasionally reflected in the clemency process. Presidents Lincoln and Johnson were, for example, favorable toward the requests of petitioners from their native states, Kentucky and North Carolina.(93) Other presidents take office with a well-advertised "hard-line" stance on crime, the sincerity of which they may feel obligated to demonstrate in areas like the pardoning process. Humbert concludes "the most effective influence in checking the growth in acts of clemency" has been the "determination of officials, who administered the pardoning power [to] avoid any flagrant misuse" and the desire for "more rigid enforcement of the laws" by individual administrations.(94) Writing over forty years after Humbert, Clark attributes part of the decrease in pardons during the Reagan administration (the least generous administration in a half century) to its "hard line on crimes"(95) Thus, when explaining an administration's use of clemency powers, the partisan identification and political ideology of the president cannot be ignored.

Two studies note moderate relationships between the exercise of clemency and James David Barber's typology of presidential character.(96) Pederson examines the relationship between presidential character and formal amnesties granted by executive order or public proclamation.(97) Categorizing thirty-three presidents as active-positive, active-negative, passive-positive, or passive-negative,(98) Pederson notes active presidents have granted percent of the population of amnesties and active-positive presidents have granted more amnesties (55 percent of the population) than any other categorization of presidents.(99) P. S. Ruckman's frequency analysis of clemency from 1900 to 1993 finds, active presidents have issued 73 percent of the population of "positive" clemency actions.(100) Active-positive presidents have issued the highest total number of "positive" decisions among the four types (8,306), and have the highest average "positive" clemency rate (32 percent).

"Political" influences on clemency include (but are not limited to) such factors as public opinion, the social status of a petitioner and his/her supporters, specific foreign policy concerns or the outbreak of war. Influences in this category can be complex and, in some circumstances, are related. Public opinion, as noted above, can both encourage and discourage presidential action. Warren Harding supported amnesty for political prisoners in his campaign for the presidency, but there is little doubt three hundred thousand signatures and seven hundred organizational endorsements encouraged the release of Eugene Debs and twenty-three others.(101) Lyndon Johnson, on the other hand, received so much criticism for his 1966 and 1967 clemency actions, he reduced pardons and commutations significantly in 1968.(102) Andrew Johnson and Gerald Ford ignored public opinion (however mixed) with severe consequence.

Charles Clark notes social prominence "often appears to play a role" in who gets pardoned.(103) The eventual grant of clemency for Jefferson Davis was encouraged by lobbying from such notables as Horace Greeley and Cornelius Vanderbilt.(104) Jimmy Carter was also pressured by various opinion leaders to grant some form of clemency to Patricia Hearst.(105) There is probably little harm done to the odd of an extension of clemency if the potential recipient is a Jimmy Hoffa, George Steinbrenner III,(106) Armand Hammer,(107) or a former president of the United States.

Narrow and specific foreign policy considerations as well as the outbreak of war can affect executive decision making with respect to the clemency power. Jimmy Carter apparently viewed the opinion of the "international community" a factor more critical than lack of remorse in an individual who attempted to assassinate President Truman, and in three others who sprayed bullets from the gallery of the U. S. House of Representatives. Carter, in explaining the commutations, cited pressure from Puerto Ricans in and outside the United States and pressure from various Third World countries.(108) As noted above, British monarchs at war utilized clemency powers in a manner most beneficial to military recruitment. It is quite interesting that Humbert's study of clemency in the United States from 1885 to 1931 suggests wars "have perhaps occasioned the most distinctive increases and decreases in the use of the pardoning power."(109)

Finally, the exercise of clemency can be affected by administrative considerations. The number of pardons granted in any given year, for example, will be a function of the number of requests received. Changes in the procedures of the Office of the Pardon Attorney can also be relevant. 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 which involved the death penalty. In 1962, however, the office also began sending petitions to the president for which it recommended denial.

In May 1983, the Reagan Justice Department "tightened" the rules for granting clemency "by increasing the time that pardon applicants must wait to become eligible after completing a prison term, or after a conviction in cases where the sentence did not involve prison." Applicants were required to wait five years for lesser crimes and seven years for serious crimes ("the longest period ever") and the department "expanded its list of crimes considered serious enough to require the longer waiting period."(110)

It is also reasonable to expect a period of adjustment for incoming Justice Department officials. The clemency process is not likely to be a top-priority consideration in the early stages of an administration and officials may feel the need to familiarize themselves both with specific cases and the overall process before acting on applications.

The Exercise of Executive Clemency, 1900-1993

Executive clemency statistics for the period 1900 to 1993 have been provided to the author by the Office of the Pardon Attorney, U.S. Justice Department. The data are arranged by fiscal year(111) and include the number of clemency requests received, pending, granted (in the form of pardons, commutations, or remissions, see note 25), and denied or closed without presidential action. The data do not include clemency actions on draft resistors, or military deserters and absentees during the Vietnam era. Table One reports summary statistics for each of the seventeen administrations serving during this ninety-four-year period.

TABLE 1
Executive Clemency Statistics (1900-1993)

                                                            Commu-
President (Fiscal Years)         Requests(a)  Pardons(b)  tations(c)

William McKinley (1900-1901)         1,473       291         129
Theodore Roosevelt (1902-1908)       4,050       578         319
William Taft (1909-1912)             1,913       391         319
Woodrow Wilson (1913-1920)           6,891       995(f)      1,403
Warren Harding (1921-1923)           3,685       474         733
Calvin Coolidge (1924-1928)          6,502       613         613
Herbert Hoover (1929-1933)           6,318       832         585
Franklin D. Roosevelt (1934-1945)   13,343       2,721       491
Harry S. Truman (1945-1953)          5,030       1,911       120
Dwight Eisenhower (1953-1961)        4,100       1,110       47
John F. Kennedy (1961-1963)          1,749       472         100
Lyndon B. Johnson (1963-1969)        4,537       959         227
Richard M. Nixon (1969-1974)         2,591       863         62
Gerald Ford (1974-1977)              1,527       382         27
Jimmy Carter (1977-1981)             2,627       534         32
Ronald Reagan (1981-1989)            3,404       393         13
George Bush (1989-1993)              1,465       74          3

President (Fiscal Years)             Remissions(d)     Denials(e)

William McKinley (1900-1901)               26            1,028
Theodore Roosevelt (1902-1908)             51            2,957
William Taft (1909-1912)                   64            1,203
Woodrow Wilson (1913-1920)                152            4,213
Warren Harding (1921-1923)                 51            2,516
Calvin Coolidge (1924-1928)                97            5,059
Herbert Hoover (1929-1933)                149            4,600
Franklin D. Roosevelt (1934-1945)         475            9,575
Harry S. Truman (1945-1953)                13            2,887
Dwight Eisenhower (1953-1961)               0            3,179
John F. Kennedy (1961-1963)                 3              831
Lyndon B. Johnson (1963-1969)               1            2,830
Richard M. Nixon (1969-1974)                1            2,614
Gerald Ford (1974-1977)                     0              900
Jimmy Carter (1977-1981)                    0              746
Ronald Reagan (1981-1989)                   0            1,517
George Bush (1989-1993)                     0              519

(a) Includes cases in previous years that were re-opened.

(b) Includes full pardons, pardons to restore civil rights, and "conditional pardons."

(c) Includes reprieves and remissions of jail sentences. Since 1953, may also include remissions of fines which are not reported separately.

(d) Includes remissions of costs and forfeited recognizance. After 1952, may be included with commutations if not reported separately.

(e) Includes cases closed administratively (e.g., the petitioner was paroled, the prison term had expired, the application was premature, or the applicant failed to provided additional required information).

(f) Includes a presidential proclamation of pardon and amnesty dated June 14, 1917, for an indeterminate number of cases in which sentences had been deferred or suspended. Issued in response to a 1916 decision of the United States Supreme Court making suspension of the imposition or execution of sentences by judges illegal.

Source: Office of the Pardon Attorney, U.S. Department of Justice.

There are several striking aspects to the data. First, the seventeen presidents from William McKinley to George Bush received a total of 71,205 requests for clemency. This results in an average of 4,189 requests per president, 756 requests per year. If we also factor in the number of requests pending from previous years, the yearly average rises to 1,225 considerations.(112) The one-hundred-and-forty-one-month administration of Franklin Roosevelt considered the largest number of requests (13,343) while the Bush administration received the lowest number of requests (1,465) since the administration of William McKinley. Further calculations revealed the Bush administration also had, on average, the lowest number of requests per year (366). The administration of Calvin Coolidge, on the other hand, had the highest average number of requests per year (1,626).

Many may not be astonished by the large number of requests for executive clemency in the data, but few might expect the seventeen presidents to have authorized close to twenty thousand acts of executive clemency. This total includes 13,593 pardons, 5,223 commutations, and 1,083 remissions of fines. In fact, the seventeen presidents averaged over two hundred acts of clemency per year. The administration with the highest average number of "positive" clemency actions is that of Warren Harding. Harding's administration, covering portions of three fiscal years, granted an average of 419 acts of clemency per fiscal year unit. Woodrow Wilson's administration (two terms) has the second highest average, with 319 grants per year. Once again, the Bush administration is distinguished by relatively low averages. In two complete fiscal years of the Bush administration (1990 and 1992), no pardons, commutations, or remissions were granted.(113) In the last eight and a half months of 1989, only ten warrants were issued (nine pardons and one commutation). As a result, the Bush administration has the lowest average number of "positive" clemency actions per year, nineteen (fifteen per fiscal year unit).

The data do reveal some differences in terms of partisanship. The six Democratic presidents,(114) covering portions of forty-four fiscal years, averaged 1,768 acts of clemency--241 per fiscal year unit. The eleven Republican presidents averaged 844 positive actions in portions of fifty-nine fiscal years--157 per fiscal year unit. There is, of course, no small danger in attempting comparative analysis on the basis of the data in Table One. The total number of fiscal years covered by an administration will be directly related to the length of the president's term. Likewise, the length of the president's term will affect both the number of requests a president will potentially receive and, consequently, the potential number of positive clemency actions. Furthermore, as noted, the Office of the Pardon Attorney has arranged the data by fiscal year. As a result, more than one president is represented in the same year, for several years (see note 32).

To view the data in a manner more convenient for comparative analysis, Table Two employs the frequency and result of clemency requests in each fiscal year unit to compute the outcomes of requests in terms of percentages. Average percentage scores allow a comprehensive view of each administration's exercise of the clemency power without reference to the span of the administration, the number of fiscal years in which it operates, or the number of months covered in any given fiscal year unit.

TABLE 2
Comparative Executive Clemency Statistics (1900-1993)

                                         Total Requests(a)
                                           (Fiscal Year
                                          Unit Average(c))

                                    Granted   Denied   Pending
President (Fiscal Years)              (%)       (%)      (%)

William McKinley (1900-1091)          29        65       7
Theodore Roosevelt (1902-1908)        21        64       15
William Taft (1909-1912)              33        50       18
Woodrow Wilson (1913-1920)            30        51       19
Warren Harding (1921-1923)            29        58       13
Calvin Coolidge (1924-1928)           18        68       14
Herbert Hoover (1929-1933)            21        63       16
Franklin D. Roosevelt (1934-1945)     19        49       32
Harry S. Truman (1945-1953)           21        28       51
Dwight Eisenhower (1953-1964)         14        35       51
John F. Kennedy (1961-1963)           15        23       63
Lyndon B. Johnson (1963-1969)         12        30       58
Richard M. Nixon (1969-1974)          15        36       49
Gerald Ford (1974-1977)               15        32       53
Jimmy Carter (1977-1981)              10        34       56
Ronald Reagan (1981-1989)              4        29       66
George Bush (1989-1993)                2        37       61

                                       Total Actions(b)
                                         (Fiscal Year
                                       Unit Average(c))

                                    Granted     Denied
President (Fiscal Years)              (%)         (%)

William McKinley (1900-1091)          31          70
Theodore Roosevelt (1902-1908)        24          76
William Taft (1909-1912)              40          61
Woodrow Wilson (1913-1920)            37          63
Warren Harding (1921-1923)            34          66
Calvin Coolidge (1924-1928)           21          79
Herbert Hoover (1929-1933)            26          74
Franklin D. Roosevelt (1934-1945)     28          72
Harry S. Truman (1945-1953)           42          58
Dwight Eisenhower (1953-1964)         27          73
John F. Kennedy (1961-1963)           39          62
Lyndon B. Johnson (1963-1969)         25          75
Richard M. Nixon (1969-1974)          24          76
Gerald Ford (1974-1977)               35          65
Jimmy Carter (1977-1981)              22          78
Ronald Reagan (1981-1989)             13          87
George Bush (1989-1993)                5          95

(a) Calculated as the sum of requests received (including cases in previous years that were reopened) and requests pending.

(b) Calculated as the sum of pardons (including full pardons, pardons to restore civil rights, and "conditional pardons"), commutations (including reprieves and remissions of jail sentences), remissions (of costs and forfeited recognizance) and cases denied, including those closed administratively (e.g., the petitioner was paroled, the prison term had expired, the application was premature or the applicant failed to provide additional required information).

(c) Some totals greater than 100 due to rounding.

Source: Office of the Pardon Attorney, U.S. Department of Justice.

Table Two also presents percentages for request outcomes from the standpoint of two populations: the total number of requests in the fiscal year unit and the total number of requests for which some action was taken. The first column presents averages for the outcomes of clemency requests for each administration in terms of the population of requests for each fiscal year unit. During the administration of Theodore Roosevelt, for example, an average fiscal year unit would find 21 percent of the requests resulting in a pardon, commutation, or remission. Roosevelt's administration also denied 64 percent of the total requests, on average, and left 15 percent pending. By these calculations, it appears the administration of William Taft is the most lenient of the seventeen, granting an average of 33 percent of the requests it received per fiscal year unit. The Bush administration, on the other hand, appears to be the least generous administration, granting an average of 2 percent of the requests received per fiscal year unit.(115)

The second column represents a different approach to comparative analysis utilized by Clark.(116) The column measures grants of clemency as a percentage of requests for which some action was taken. A president's generosity, or severity, is thus not measured in terms of cases which remain "pending" in a given period of time. The failure to act is removed from the equation. This measure has some appeal (especially in terms of judging the general attitude of an administration toward clemency)(117) and appears to make a considerable difference in the overall portrait of several administrations. Truman, for example, now appears to be the most lenient president in the ninety-four-year period (granting an average of 42 percent of the requests acted upon per fiscal year unit). Presidents Kennedy, Ford, Eisenhower, Johnson, and Carter also appear much more generous with respect to clemency by this measure.(118) On average, shifting the population of focus (from total requests in a fiscal year unit to total actions) raises each president's score in the "granted" columns eight percentage points. President Bush's score for clemency grants increases only three percentage points, however, and remains the lowest for the seventeen presidents.

Once again, a closer look at the data reveals differences between Republican and Democratic administrations. In terms of the population of requests per fiscal year unit (first column), Democratic administrations have an average "positive" decision rate of 19 percent. Republican administrations, on the other hand, have an average "positive" decision rate of 16 percent. In terms of requests for which some action was taken (second column), Democratic administrations have an average "positive" decision rate of 32 percent. Republican administrations have an average "positive" decision rate of 23 percent.

Whether we examine the number of requests received, the number of "positive" clemency actions, or the average number of requests granted per fiscal year unit (from the total population or cases acted upon), the administration of George Bush stands out as the least lenient, or least generous administration of the century. The Reagan administration appears to run a close second for this distinction. It is entirely possible however, that the Bush and Reagan administrations are less distinctive if one considers trends in clemency actions throughout the ninety-four-year period. The Reagan and Bush data may in fact represent points in a more general trend (or a set of trends) throughout the data. Rising crime rates and public concern about crime, for example, have not always been central elements of campaign rhetoric. The data may be sensitive to the rise of the "law and order" campaign rhetoric which developed in the 1960s and remains a critical element in presidential elections. In order to explore the possibility of trends in the data, Figure One plots each fiscal year score for the percentage of total actions which are "positive" (second column in Table Two).(119)

[Figure 1 ILLUSTRATION OMITTED]

Figure One reveals wide variation in the percentage of requests granted per fiscal year by the seventeen administrations. Several unusual patterns appear in the data, but the trend line indicates a distinct negative trend in the exercise of clemency. Thus, while the Bush administration has been the least generous with respect to clemency policy, the data indicate that administration follows a trend beginning (arguably) in the early 1950s.

Future research might explore explanations for trends in these data through more sophisticated forms of statistical analyses.(120) This study, however, provides an important theoretical foundation for hypothesis building. It is quite possible, for example, that the long- and short-term trends in Figure One may be explained by some of the factors discussed above. The most recent decline in the rate of "positive" clemency actions does in fact appear to coincide with recent public concern about crime. The period is, of course, also characterized by Republican dominance in the White House. The apparent relationship between the outcomes of clemency applications and the partisan identification of the president is discussed above, but there may be additional value in directing future research toward the relationship between the outcomes of clemency policy and more specific measures of public concern about crime.

The data (which, again, do not include clemency actions on draft resistors, or military deserters and absentees during the Vietnam era) do not appear to be particularly sensitive to engagement in war. In exploring the relationship between war and clemency policy, future research might focus both on the immediate impact of war (if any) and potential variation in clemency policy in the aftermath of war. The impact of war on these data may be quite complex and beyond discovery absent sophisticated statistical modeling techniques which would allow us to capture the "true effects" of war as a result of considering (or controlling for) the individual and combined impact of other factors which potentially influence clemency policy. Similarly, the separate and distinct effects of policy changes in the Office of the Pardon Attorney might be more properly estimated through the use of multivariate statistical models.

As presented, the data in Figure One do seem to support the notion that administrations require a period of time to adjust to process. Adjustment, in turn, results in an increase in "positive" clemency actions. The average "positive" clemency rate for administrations in their first fiscal year unit is 22 percent. In their second and third fiscal year units, administrations have average "positive" clemency rates of 24 percent and 29 percent, respectively. The average for the last fiscal year unit of each of the seventeen administrations (regardless of length of tenure) is 33 percent. It will be interesting to see if the idea of an "adjustment" period remains plausible after future studies conduct simultaneous tests of the various alternative hypotheses presented in this study.

Conclusion

Analyses of executive clemency in the United States are typically historical, legal, or theoretical and normative. For this reason, they largely appear outside the social science journal format and do not include presentation or analysis of data. This study summarizes major conclusions in the literature to date and, in doing so, provides a foundation for empirical analysis of this interesting, but often ignored topic. A glance at Table One will indeed convince many that executive clemency is exercised with much greater frequency than is commonly supposed. Table Two demonstrates wide variation among administrations in the use of clemency, and Figure One reveals a distinct general decline in the rate of "positive" clemency decisions. The author believes the categorization of factors influencing clemency introduced here provides a useful base upon which to build and test hypotheses in multivariate models. 4s the discussion above reveals, it is impossible to control for all of the potentially important influences in the decision making of the executive. Multivariate political models may, however, serve as useful tools for discovering intriguing relationships between quantifiable nonlegal factors and outcomes of the process.

Notes

(1.) Bruce Ledewitz and Scott Staples, "The Role of Executive Clemency in Modem Death Penalty Cases," University of Richmond Law Review 27 (1993): 227-39.

(2.) John M. Orman and Dorothy Rudom, "Exercise of the President's Discretionary Power in Criminal Justice Policy," Presidential Studies Quarterly 9 (1979): 415-27.

(3.) Leonard B. Boudin, "The Presidential Pardon of James R. Hoffa and Richard M. Nixon: Have the Limitations on the Pardon Power been Exceeded?" University of Colorado Law Review 48 (1976): 1-39.

(4.) David C. Stephenson, "Office of the Pardon Attorney," in Annual Report of the Attorney General of the United States. Office of the Attorney General (U.S. Justice Department, 1980).

(5.) David Gray Adler, "The President's Pardon Power," in Inventing the American Presidency, Thomas E. Cronin, ed. (Lawrence, KS: University Press of Kansas, 1989), p. 209.

(6.) Leslie Sebba, "Amnesty and Pardon," in Encyclopedia of American Justice, Sanford H. Kadish, ed. (New York: The Free Press, 1983).

(7.) Adler, "The President's Pardon Power," p. 209.

(8.) Daniel Kobil, "Due Process in Death Penalty Commutations: Life, Liberty, and the Pursuit of Clemency," University of Richmond Law Review 27 (1993): 201-26.

(9.) See, for example, Adler, "The President's Pardon Power"; Boudin, "The Presidential Pardon of James R. Hoffa"; Patrick R. Cowlishaw, "The Conditional Presidential Pardon," Stanford Law Review 28 (1975): 149-77; William F. Duker, "The Presidential Power to Pardon: A Constitutional History," William and Mary Law Review, 18 (1990): 255-72; Kobil, "Due Process in Death Penalty Commutation"; Ledewitz and Staples, "The Role of Executive Clemency in Death Penalty Cases"; Michael L. Radelet and Barbara A. Zsembik, "Executive Clemency in Post Furman Capital Cases," University of Richmond Law Review 27 (1993): 289-314.

(10.) Elkan Abramowitz and David Paget, "Executive Clemency in Capital Cases," New York University Law Review 39 (1964): 136-92; Hugo Adam Bedau, "The Decline of Executive Clemency in Capital Cases," Review of Law and Social Change 18 (1990): 255-72; Kobil, "Due Process in Death Penalty Commutation"; Ledewitz and Staples, "The Role of Executive Clemency in Death Penalty Cases"; Michael L. Radelet and Barbara A. Zsembik, "Executive Clemency in Post Furman Capital Cases," University of Richmond Law Review 27 (1993): 289-314.

(11.) Adler, "The President's Pardon Power"; Boudin, "The Presidential Pardon of James R. Hoffa"; Charles S. Clark, "Reagan Parsimonious Use of Pardon Power," Congressional Quarterly Digest 42 (November 3, 1984): 2878-80; Jorgensen, "Clemency and Pardons Note"; Orman and Rudom, "Exercise of the President's Discretionary Power"; Mark J. Rozell, "President Ford's Pardon of Richard M. Nixon: Constitutional and Political Considerations," Presidential Studies Quarterly 24 (1994): 121-37; David Shichor and Donald R. Ranish, "President Carter's Vietnam Amnesty: An Analysis of a Public Policy Decision," Presidential Studies Quarterly 10 (1980): 443-50; Christopher E. Smith and Scott P. Johnson, "Presidential Pardons and Accountability in the Executive Branch," The Wayne Law Review 35 (1989): 1113-31.

(12.) The author's extensive review of the literature uncovered a mere four articles related to executive clemency in social science journals. Each appeared in Presidential Studies Quarterly (Orman and Rudom, "Exercise of the President's Discretionary Power"; William D. Pederson, "Amnesty and Presidential Behavior: A `Barbarian' Test," Presidential Studies Quarterly 7 (1977): 175-85; Rozell, "President Ford's Pardon of Richard M. Nixon"; Shichor and Ranish, "President Carter's Vietnam Amnesty.").

(13.) Jorgensen, "Clemency and Pardons Note," p. 349.

(14.) Solie M. Ringold, "The Dynamics of Executive Clemency," American Bar Association Journal 52 (1966): 240-3.

(15.) Adler, "The President's Pardon Power," p. 213.

(16.) James II sold pardons for 16,000 pounds sterling. He kept half and divided the rest between the two ladies "then most in favor" (Kathleen Dean Moore, "Pardon for Good and Sufficient Reasons," University of Richmond Law Review 27 [1993]: 281-8). Also see comments in Adler, "The President's Pardon Power"; Cowlishaw, "The Conditional Presidential Pardon."

(17.) Cowlishaw, "The Conditional Presidential Pardon," pp. 159-60.

(18.) Duker, "The Presidential Power to Pardon," p. 478.

(19.) Ibid., p. 479.

(20.) Adler, "The President's Pardon Power," p. 213.

(21.) Ibid.; Duker, "The Presidential Power to Pardon," p. 485.

(22.) Adler, "The President's Pardon Power," p. 213; Duker, "The Presidential Power to Pardon," pp. 480-7. For a brief but excellent discussion of the development of the pardoning power prior to 1300, see Duker, "The Presidential Power to Pardon," pp. 476-80.

(23.) Habeas Corpus Act of 1679 (31 Car. 2, ch. 2, [sections] 11 Eng). 1689 Bill of Rights (W. & M., ch. 2, [sections] 2 Eng). Act of Settlement (13 H.C. Jour. 625-1700, 16 H.L. Jour. 738-1700).

(24.) Abramowitz and Paget, "Executive Clemency in Capital Cases," pp. 140-1.

(25.) Adler, "The President's Pardon Power," p. 215.

(26.) Jorgensen, "Clemency and Pardons Note," p. 352.

(27.) Adler, "The President's Pardon Power," p. 216.

(28.) Draft of Government provided that the executive "shall have power to grant pardons and reprieves, except in impeachments." Plan of Government provided "the supreme executive authority [the] power of pardoning all offenses, except in treason, which he shall not pardon, without the approbation of the Senate." W. H. Humbert, The Pardoning Power of the President (Washington, D.C.: American Council on Public Affairs, 1941), p. 15.

(29.) Rutledge served on the Committee along with William Randolph of Virginia, Nathaniel Gorham of Massachusetts, Oliver Ellsworth of Connecticut, and James Wilson of Pennsylvania.

(30.) Ibid.

(31.) Adler, "The President's Pardon Power," p. 216; Duker, "The Presidential Power to Pardon," pp. 501-2. Edmund Randolph of Virginia, with the support of George Mason (also of Virginia), sought to further except "cases of treason" (Adler, "The President's Pardon Power," p. 216; Duker, "The Presidential Power to Pardon," p. 502; Jorgensen, "Clemency and Pardons Note," pp. 345, 352 at note 54).

(32.) Duker, "The Presidential Power to Pardon"; Humbert, The Pardoning Power, "Some arguments against placing the power of granting pardons in the executive, except in the case of impeachment, were presented. These arguments in turn evoked replies, most of which can be found in the number of The Federalist [74] contributed by Hamilton" (Humbert, The Pardoning Power, p. 17).

(33.) See, for example, Jorgenson, "Clemency and Pardons Note."

(34.) For a brief discussion of the Court rulings dealing with the limitations of executive clemency, see Jorgensen, "Clemency and Pardons Note," pp. 357-8.

(35.) 32 U.S. (7 Pet.) 150.

(36.) The Laura, 114 U.S. 411 (1885), Illinois Central Railroad v. Bosworth, 133 U.S. 92 (1890).

(37.) Ex Parte Grossman, 267 U.S. 87 (1925).

(38.) Ex Parte Wells, 59 U.S. (18 How.).

(39.) Armstrong v. United States 1080 U.S. (13 Wall) 128 (1871).

(40.) Chapman v. Scott, 10 F.2d 156 (D. Conn. 1925), Biddle v. Perovich, 274 U.S. 480 (1927).

(41.) Ex Parte Garland, 71 U.S. (4 Wall) 333 (1866).

(42.) Adler, "The President's Pardon Power," p. 218.

(43.) Alfred H. Kelley, Winfred A. Harbison, and Herman Belz, The American Constitution: Its Origins and Development (New York: W. W Norton and Company, 1991), p. 128.

(44.) Richard A. Ifft, "Treason in the Early Republic," in The Whiskey Rebellion: Past and Present Perspectives, Steven R. Boyd, ed. (Westport, CT: Greenwood Press, 1985), p. 176.

(45.) The guilty verdict of the first trial was nullified as it was established that one of the jury members used harsh expressions respecting Fries a after being summoned. A second trial was conducted by Supreme Court Justice James Iredell in Philadelphia.

(46.) Page Smith, John Adams (Garden City, NY: Doubleday and Company, Inc., 1962), p. 1034.

(47.) Kelley, Harbison, and Belz, The American Constitution, p. 132.

(48.) Louis Fisher, American Constitutional Law (New York: McGraw-Hill Publishing Company, 1990), pp. 641, 620.

(49.) Donald R. Hickey, The War of 1812 (Chicago, IL: University of Illinois Press, 1989); John K. Mahon, The War of 1812 (Gainesville, FL: University of Florida Press, 1972). After the war, Laffite established the town "Campeachy" on Galveston Island and proclaimed himself governor. Returning to his pirating ways, he raided the coast of Louisiana and scuttled an American ship. In 1821, the U.S. government sent an expedition to destroy the establishment. Laffite, however, set the island a fire and sailed away. For further study of clemency in the early republic, see P. S. Ruckman, Jr., "Policy as an Indicator of Original Understanding: Executive Clemency in the Early Republic (1789-1817)." Presented at the Annual Meeting of the Southern Political Science Association: Atlanta, GA (November, 1994).

(50.) Adler, "The President's Pardon Power," p. 219; Boudin, "The Presidential Pardon of James R. Hoffa,"p. 14; Duker, "The Presidential Power to Pardon," p. 509; Humbert, The Pardoning Power, pp. 36-7; Sebba, "Amnesty and Pardon," p. 59.

(51.) Jonathon Truman Dorris, Pardon and Amnesty under Lincoln and Johnson (Chapel Hill, NC: The University of North Carolina Press, 1953), p. 86.

(52.) Ibid., p. 94.

(53.) Ibid., p. 305.

(54.) Dorris notes "no indictment for murder was ever returned against [Davis]. In fact, the evidence upon which the atrocious charge was made proved to be absolutely fraudulent" (Ibid., p. 279).

(55.) Ibid., p. 304.

(56.) Debs v. United States, 249 U.S. 211, 39 S.Ct. 252, 63 L.Ed. 566.

(57.) Adler, "The President's Pardon Power," p. 220.

(58.) Orman and Rudom, "Exercise of the President's Discretionary Power," p. 421.

(59.) Boudin, "The Presidential Pardon of James R. Hoffa," pp. 21-2.

(60.) Boudin provides interesting details of the origin and execution of the commutation (Ibid., pp. 21-2).

(61.) Orman and Rudom, "Exercise of the President's Discretionary Power," p. 420.

(62.) Pres. Proc. 4311, 39 Fed. Reg. 32601-02 (1974).

(63.) Orman and Rudom, "Exercise of the President's Discretionary Power," p. 420.

(64.) Ibid.

(65.) Adler, "The President's Pardon Power," p. 223.

(66.) Bush pardoned Weinberger, Robert C. McFarlane, Elliot Abrams, Duane R. Clarridge, and Alan D. Fiers, Jr., and Clair George. Five others (Carl R. Channell, Richard R. Miner, Albert A. Hakim, Richard V. Second, and Thomas G. Clines) were found guilty, but not pardoned, and three others (John M. Poindexter, Joseph M. Fernandez, and Oliver L. North) had their cases dismissed (Jorgensen, "Clemency and Pardons Note," at note 136).

(67.) Adler, "The President's Pardon Power," p. 223.

(68.) Kenneth Jost, "Walsh, Bush Tarnished By Pardons," American Bar Association Journal 79 (February 1993): 19.

(69.) Larry Hugick, "Iran Contra Pardons Opposed," The Gallup Poll Monthly (December 1992): pp. 21-2.

(70.) Humbert, The Pardoning Power, p. 5.

(71.) 26 Stat. 946. The clemency process was previously housed in the Department of State (1789 to 1854). Humbert notes "using a record book from 1854 to 1884, the Attorney General or his assistant fairly accurately recorded data on clemency cases except for the first six years of this period. After 1884, the Attorney General included in his annual reports uniform and reliable data on clemency cases" (Ibid., p. 95). See also P. S. Ruckman, Jr., "Executive Clemency 1789-1993, A Preliminary Report." Paper presented at the annual meeting of the Southern Political Science Association: Tampa, Fl, (November 1995).

(72.) The clemency power includes: pardons, amnesties, reprieves, commutations and remissions of fines. Pardons may be extended before or after conviction and may be full or partial. Pardons may also be absolute, or conditioned upon the performance or nonperformance of specified actions. Amnesties are typically extended to individuals who are subject to trial but have not yet been convicted while reprieves postpone the execution of a sentence for a specific period of time. Commutations substitute a lesser sentence for the original punishment. The president's power to remit fines and forfeitures is limited to monetary penalties which have not yet been paid to the United States (see Cowlishaw, "The Conditional Presidential Pardon"; Jorgensen, "Clemency and Pardons Note"; Knote v. United States, 95 U.S. 149, 1877).

(73.) Clark, "Reagan Parsimonious Use."

(74.) Adler, "The President's Pardon Power," p. 212.

(75.) Clark, "Reagan Parsimonious Use of Pardon Power," p. 2879.

(76.) Humbert, The Pardoning Power, p. 124.

(77.) Ibid., Tables V and VI inserted at 124.

(78.) Ibid., p. 124-5.

(79.) See additional comments in Moore, "Pardon for Good and Sufficient Reasons."

(80.) Clark, "Reagan Parsimonious Use," p. 2879.

(81.) Moore holds "a president abuses the pardoning power when he makes decisions based only on self-interest or narrow partisan interest, or when he is moved by pity or concern for the welfare of the accused. A president uses the pardoning power properly when he uses it to prevent or correct a potential injustice" (Moore, "Pardon for Good and Sufficient Reasons," p. 285).

(82.) Adler, "The President's Pardon Power," p. 218; Humbert, The Pardoning Power, p. 127-9.

(83.) Taft once pardoned two men after being assured by prison authorities that death was "Imminent." In the words of Taft: "one man died and kept his contract. The other recovered at once, and seems to be as healthy and active as any one I know" (Humbert, The Pardoning Power, p. 129).

(84.) Ibid.

(85.) Truman issued a proclamation on Christmas Eve, 1945, restoring the rights of exconvicts who had served in the military for at least a year and had been honorably discharged. Harding is said to have moved up the effective date of Debs's commutation because of a desire to see Debs "eat his Christmas dinner with his wife" (Daniel Kobil, "The Quality of Mercy Strained: Wresting the Pardoning Power from the King," University of Richmond Law Review 69 [1991]: 569-641).

(86.) Jost, "Walsh, Bush Tainted," p. 19.

(87.) Moore, "Pardon for Good and Sufficient Reasons."

(88.) Clark, "Reagan Parsimonious Use," p. 2879.

(89.) Humbert, The Pardoning Power, p. 124.

(90.) Moore, "Pardon for Good and Sufficient Reasons."

(91.) Humbert, The Pardoning Power, p. 124.

(92.) Charles L. Newman, Sourcebook on Probation, Parole and Pardons (Springfield, IL: Charles C. Thomas, 1968).

(93.) Dorris, "Pardon and Amnesty"; P.S. Ruckman, Jr. and David Kincaid, "Inside Lincoln's Clemency Decision Making," Presidential Studies Quarterly (forthcoming).

(94.) Humbert, The Pardoning Power, 120-1.

(95.) Clark, "Reagan Parsimonious Use," p. 2878.

(96.) James David Barber, The Presidential Character. Predicting Performance in the White House (Englewood Cliffs, NJ: Prentice Hall, 1992).

(97.) Pederson, "Amnesty and Presidential Behavior."

(98.) To complete categorization of each president, Pederson utilizes Maranell's 1970 study of nearly 600 American historians (Gary M. Maranell, "The Evaluation of Presidents: An Extension of the Schlesinger Polls," Journal of American History 57: 104-13). Maranell employed dimensions of "activeness" and "flexibility" in his own study and Pederson juxtaposes Maranell's rankings to create a new four-fold typology (Pederson, "Amnesty and Presidential Behavior," Table 1, at p. 178). Pederson notes "strong agreement" between the categorization schemes of Barber, the rankings of Maranell and rankings in a study by Hargrove (Erwin C. Hargrove, Presidential Leadership. Personality and Political Style (New York: MacMillan, 1966).

(99.) "Active-negatives" granted 35 percent of the amnesties. "Passive-positive" presidents granted 7.5 percent and "passive-negatives" granted 2.5 percent.

(100.) P. S. Ruckman, Jr., "Presidential Character and Executive Clemency: A Reexamination," Social Science Quarterly 76 (1995): 213-21. Ruckman employs Barber for the categorization of each president, although Barber considers his own categorization of Carter tentative in nature, "pending intimate revelations yet to come" (Barber, Presidential Character, p. 447). Ruckman's categorizations for T. Roosevelt and McKinley are obtained from Maranell, "The Evaluation of Presidents" and Pederson, "Amnesty and Presidential Behavior."

(101.) Adler, "The President's Pardon Power," pp. 219-20.

(102.) Clark, "Reagan Parsimonious Use," p. 2879.

(103.) Ibid., p. 2879.

(104.) Dorris, Pardon and Amnesty.

(105.) Orman and Rudoni, "Exercise of the President's Discretionary Power," p. 421.

(106.) New York Yankees baseball club owner pardoned by Ronald Reagan in 1989 after being convicted of making illegal contributions to Richard Nixon's 1972 re-election campaign.

(107.) Chairman of Occidental Petroleum, pardoned in 1989 by George Bush after pleading guilty to illegally contributing to Richard Nixon's 1972 re-election campaign.

(108.) Clark, "Reagan Parsimonious Use," pp. 2879-80.

(109.) Humbert, The Pardoning Power, p. 122.

(110.) Clark, "Reagan Parsimonious Use," p. 2879. The waiting period was changed back to five years for all offenses in October 1993, by President Clinton (personal correspondence with the Office of the Pardon Attorney, March 1, 1994).

(111.) Eighty-six of the 104 fiscal year units in the data represent a length of time equivalent to a full calendar year. In twelve instances, more than one president served in the fiscal year unit as a result of the election of a new president (1953, 1961, 1969, 1977, 1981, and 1989). In six additional instances, multiple presidents served in the fiscal year unit as a result of presidential death or resignation (1954, 1964, and 1975).

(112.) In the ninety-four year period, 44,087 cases were categorized as "pending" from a previous period (an average of 469 per year).

(113.) Only one other complete fiscal year is characterized by an absolute halt in "positive" clemency action. In 1969, Presidents Johnson (serving 6.5 months) and Nixon (serving 5.5 months) issued no clemency warrants.

(114.) Wilson, Roosevelt, Truman, Kennedy, Johnson, and Carter.

(115.) The range for percentage of total requests granted in each fiscal year unit extends from "0" (1969, Johnson; 1969, Nixon; 1975, Nixon; 1977, Carter; 1981, Reagan; 1990, Bush; 1992, Bush) to "49" (1920, Wilson). The range for percentage of total requests denied in each fiscal year unit extends from 16 (1964, Kennedy) to "100" (1969, Nixon; 1975, Nixon; 1977, Carter; 1981, Reagan; 1990, Bush; and 1992, Bush). The range of percentage of total requests left pending in each fiscal year unit extends from "0" (1975, Nixon) and "6" (1901, McKinley) to "88" (1969, Nixon).

(116.) Clark, "Reagan Parsimonious Use," p. 2878.

(117.) See comments in Ruckman, "Presidential Character and Executive Clemency," pp. 216-7

(118.) The range for percentage of actions involving a grant of clemency in each fiscal year unit extends from "0" (1968, Johnson; 1968, Nixon; 1975, Nixon; 1977, Carter; 1990, Bush; 1992, Bush) to "59" (1961, Eisenhower).

(119.) Multiple presidents served in nine fiscal year units (see note 32 above). In such instances, I have entered the average of the percentage scores of each president.

(120.) Multivariate time-series models are appropriate tools for analysis of these data. In developing and testing hypotheses with respect to the outcomes of the clemency process, it will be particularly important for researchers to employ variables which control for the effects of the variety of other factors which can influence presidential decision making in this area. This is especially true absent information with regard to the specific content of individual clemency warrants. When properly employed, multivariate models allow for explications of processes which are both rigorous and cautious. See, for example, P. S. Ruckman, Jr., "Federal Executive Clemency in the United States, 1934-1994: An Empirical Analysis" Annual Meeting of the Southern Political Science Association: Atlanta, GA (November 1996).

The author sincerely thanks the Office of the Pardon Attorney for providing statistical data for this study and emphasizes commentary and speculation herein do not, in any way, represent the views of the Office of the Pardon Attorney or the Department of Justice. The author also acknowledges the valuable research assistance of David Kincaid. Any errors herein may be attributed to the author.

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