Executive clemency in the United States: origins, development, and analysis.

Author:Ruckman, P.S., Jr.

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...

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