The Political Roots of
Executive Clemency
American Politics Research
Volume 34 Number 6
November 2006 825-846
© 2006 Sage Publications
10.1177/1532673X06291674
http://apr.sagepub.com
hosted at
http://online.sagepub.com
Andrew B. Whitford
University of Georgia
Holona L. Ochs
University of Kansas
It is widespread conventional wisdom that presidential pardons—the only
way for offenders to remove or eliminate all disabilities that arise from a federal or military offense—are political. We move beyond this belief and assess
five broad ways that federal pardons may be systematically influenced by the
policy agendas present in a separated powers system. We model the aggregate dispensation of clemency appeals (requests for pardons) using PraisWinsten regression and find that the probability of denials for executive
clemency reflects the president’s own agenda and ideological position, congressional attention to criminal justice issues, and the homicide rate. In sum,
both policy signals and the political processes they signify permeate the presidential pardons process.
Keywords: presidency; executive branch; pardons; clemency; executive
privilege; criminal justice; separated powers; policy signals; policy agendas
T
he waning days of the Clinton administration brought at least one unexpected surprise as the news media centered their investigations on
mounting evidence that the president, following earlier U.S. presidents, had
left a trail of controversial pardons in his wake. He pardoned or commuted
the prison sentences of 176 people on his last day in office, including fugitive
Marc Rich, a billionaire accused of tax evasion who also happened to be the
former husband of a major Clinton donor. Other notable pardoned individuals included Robert Fain and James Manning, tax felons from Arkansas who
Authors’ Note: We would like to thank the anonymous reviewers for their helpful comments.
We would also like to thank George Krause and Jeff Yates for their insights and suggestions.
A previous version of this article was presented at the 2005 Annual Meeting of the Midwest
Political Science Association. Correspondence concerning this article should be addressed to
Andrew B. Whitford, Department of Public Administration and Policy, University of Georgia,
204 Baldwin Hall, Athens, GA 30602-1615; e-mail: [email protected].
825
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paid lawyer Hugh Rodham, Hillary Clinton’s brother, $400,000 to lobby
their case, and Roger Clinton, who was pardoned for a 1985 narcotics conviction. Controversy over executive clemency began in 1795 when George
Washington issued an amnesty proclamation for the Whiskey Rebellion
(Ruckman, 1997). In fact, U.S. presidents have used their power to grant
irrevocable reprieves and pardons throughout history, and its use has long
raised questions about role of political actors in legal absolution for political
reasons. Of course, notable pardons exist on both sides of the partisan aisle,
including George Herbert Walker Bush’s pardoning of Caspar Weinberger,
Robert McFarlane, and others implicated in Iran-Contra and of Armand
Hammer for illicit contributions to Richard Nixon in the 1972 campaign;
Ronald Reagan’s pardon of two FBI officials implicated in break-ins of the
offices of Vietnam War protesters; Jimmy Carter’s pardon of Vietnam War
draft resisters; and certainly Gerald Ford’s pardon of Richard Nixon.
Is the provision of pardons—the granting of executive clemency—
political? We move beyond anecdotal evidence for the conventional wisdom that presidents exercise the pardon as a political tool to test the proposition that pardons are systematically influenced by the policy agendas that
help define our separated powers system. A broad number of recent studies
on the separated powers system show clearly that our national political
institutions, along with the public and the media, work together in a milieu
of complex cue-taking relationships (Cohen, 1997; Edwards & Wood,
1999; Flemming, Wood, & Bohte, 1999; Hill, 1998; Wood & Peake, 1998).
Of course, presidents hold a unique position that allows them to attract
national attention to issues (Andrade & Young, 1996; Canes-Wrone, 2001;
Cohen, 1995, 1997; Edwards & Wood, 1999; Kingdon, 1984; Light, 1999;
Schattschneider, 1960), and that position is often used to pursue the presidential agenda (Bond & Fleisher, 1990; Cohen, 1995, 1997; Light, 1999).
Presidents, though, operate in a system of contingent power, and although
presidential involvement can be a deciding factor in policymaking (Rosati,
1981), they are often attuned to the policy signals of political institutions
such as Congress and private organizational networks such as the media.
Even an institution such as the U.S. Supreme Court, which does not face
similar electoral pressures, is affected by the policy signals of the other
institutions in the system of separated powers (e.g., Epstein & Knight,
1998; Flemming et al., 1999; Flemming & Wood, 1997).
The existing literature focuses largely on the interactions of various
branches of government over shared power in policymaking. Absent from the
literature is a look at the bargaining behavior of these institutions when there
is no specific requirement to share power. Executive clemency has been
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described as an absolute power, entirely at the discretion of the president,
exercised unilaterally and often arbitrarily. Therefore, the pardons process
represents a unique environment to test the extent of “shared power” among
the branches of government.
We address five questions central to the aggregate dispensation of pardons
(or clemency appeals). First, do presidents process pardons in a way that is
consistent with the attention they give to criminal justice? Second, do presidents process pardons in a way that is consistent with their general political
ideology? Third, are presidents processing pardons in a manner responsive to
the attention that the Congress and the Supreme Court give to criminal justice issues? Fourth, is presidential pardoning behavior responsive to the
degree of broad national public attention to the issue of criminal justice? Last,
do presidents react to population-level data on the incidence of crime in the
United States when processing pardons?
We construct an integrated model of the pardons process and provide evidence that pardoning behavior reflects the residual effects of interinstitutional
signaling—that it depends on the tenor and tone of the policymaking community within which the pardons process operates. We do so using data on
the execution of clemency from the Office of the U.S. Pardon Attorney. We
estimate a model of time series data to test hypotheses about the role of the
president’s ideology and political position and the policy attention of other
proximate institutions on the probability that clemency appeals may be
denied. We demonstrate that the pattern of applications for executive
clemency denied reflects the president’s agenda and ideology, congressional
attention, and the homicide rate. Together, these results provide a uniquely
political perspective on the roots of the practice of executive clemency.
Rather than being narrowly political (responsive to individual political circumstances), the aggregate pardons process is broadly political—responsive
to the overall tenor of the policy signals that help define the policy space
within which the separated powers compete.
This article proceeds as follows. First, we review the foundations of our five
questions. Second, we specify the structural role of the policy signals in the
federal pardons process. We then offer details of the model’s construction and
estimation. Finally, we offer a discussion of this theory, our data, and this test.
Approaches to Understanding Clemency
Under Article II, Section 2, of the U.S. Constitution, the presidential
power to grant executive clemency, such as pardons or commutations, is
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unlimited. Neither Congress nor the courts can revoke the presidential
decision to grant clemency, which itself can take place for any reason.
Executive Order 11803 confers the responsibility for processing and screening clemency applications to the Justice Department. The Office of the
Pardon Attorney, in consultation with the attorney general, receives and
reviews all petitions for executive clemency, initiates and directs the necessary investigations, and prepares recommendations to the president for final
disposition (Federal Register, 2000, p. 58223). Of course, executive clemency
is one specific aspect of the administration of justice, and criminal justice is a
specific context of bureaucratic implementation. However, executive clemency
traditionally is an executive privilege, so the politicization of this context has
been narrowly identified with presidential manipulation of a criminal justice
outcome for his immediate political purposes. But this choice environment
also involves core conceptions of procedural and substantive fairness and
perceptions of the neutral operation of governance and executive power.
Specifically, executive clemency is a central mechanism to afford relief
from undue harshness or evident mistake in the operation of the legal system
or enforcement of criminal law (Ammons, 1994). It is therefore effectively a
check on the power of the judiciary. Clemency provisions are broadly found
to be fundamental aspects of major criminal justice systems worldwide, with
the exception of China (e.g., Madden, 1993). In the United States, executive
clemency may take the form of a pardon, commutation of sentence, remission
of fine or restitution, or reprieve. A pardon may reduce or set aside a sentence,
even before formal charges or conviction is acquired, but generally a pardon
only restores a person’s reputation or reinstates a citizen’s civil liberties
(Ammons, 1994); commutation of a sentence substitutes a milder sentence
without relieving the criminal stigma of the crime committed; and a reprieve
postpones a scheduled execution.
Legal scholars and presidential historians alike have engaged in substantial
hand-wringing about this power and its exercise. Alexander Hamilton argued
in Federalist 74 that pardoning insurgents or rebels may serve to restore tranquility; yet, the blanket pardons issued by Andrew Johnson to most former
confederates were, in Johnson’s own words to one senator, intended to ensure
that “white men alone must manage the south” (Foner, 1988, p. 84). Johnson’s
amnesty proclamation contributed to the decision in Ex Parte Garland (1866)
regarding the disbarment of former confederate officials that clearly decided in
favor of presidential prerogative. The Court’s interpretation of judicial jurisdiction, the limitation on the supremacy of legislature in checking this presidential
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power, and the implications for reconstruction render the Civil War pardons
particularly controversial in American history.
President Gerald Ford alludes to the restoration of tranquility as the motivation for pardoning former President Richard Nixon when he says, “It can
go on and on, or someone must write ‘The End’ to it. I have concluded that
only I can do that. And if I can, I must” (Cannon, 1994, p. 353). Although
the Nixon pardon has received particular attention (Becker, 2000; Boudin,
1976; Macgill, 1974; Rozell, 1994), along with Iran-Contra (Carter, 1992),
the most common treatment has consisted of straightforward historical
accounts (e.g., Duker, 1977; Moore, 1997; Ruckman, 1997) or calls for
reform (e.g., Joyner, 1979; Kobil, 1991). Political scientists have been
notably silent in recent years on the political determinants of the use of the
power to pardon. In 1940, Everrett Brown (1940) discussed the restoration
of civil and political rights by presidential pardon but centered his analysis
on the questions of what rights were lost and what rights could be restored.
In 1949, Gathings (1949) returned to this common concern with the restoration of rights and again emphasized the role of the president. What is missing from these and other studies of pardons is a framework that centers on
the power of the pardon as one of a battery of powers that—when the president exercises it—can have political consequences.
On one hand, executive clemency is a constitutional power of the president to check the power of the courts; on the other hand, the president works
within a system defined by political incentives and populated by political
institutions, actors, and populations that demand he be responsive in how he
implements policy. This is the starting point in the current study. The president regularly allocates resources on the basis of perceptions of responsiveness that flow from those choices, such as in how he allocates space in the
State of the Union Address (a standard venue for the study of presidential policymaking). The structure of the pardons process means that the execution of
clemency is both quasipresidential and quasibureaucratic. Yet it may be that
the pardons process is broadly political; that is, that the president is responsive to the overall tenor of the policy signals that help define the policy space
within which the vying, separated powers compete—just like presidents are
responsive when constructing their own policy agenda. Our research approach
bridges three standard literatures by constructing a model of presidential pardons that balances presidential political positions with their political ideologies, balances the policy attention of other political institutions with policy
positions from the media and public opinion, and tests the effect of broad
population-level crime conditions.
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Research Design
We concentrate our construction of the model on five questions that we
believe to be central to the aggregate dispensation of pardons (or clemency
appeals). We identify variables that we believe measure factors that represent
the mechanisms implicit in each of these questions. We perform a multivariate statistical analysis of these factors in the context of a single primary
dependent variable. Our dependent variable of interest (percentage of appeals
denied) is the logit transformation of the percentage of formal petitions for
executive clemency denied, obtained from the U.S. Department of Justice’s
Office of the Pardon Attorney. The U.S. Department of Justice presents an
Annual Report of the Attorney General of the United States, in which fiscal
data on the action taken by the Office of the Pardon Attorney are made available. We use data from four decades (fiscal year 1954 to fiscal year 1994)
from the Department of Justice’s Sourcebook of Criminal Justice Statistics.
This period represents all the available data for the variables required to test
this model. Using data from four decades also provides a substantial period
from which to establish a rigorously tested pattern. Because our interest is in
processing of pardons broadly construed, we use the percentage of the applications denied in each fiscal year in the subsequent year as our dependent
variable. This variable is constructed by adding the clemency applications
pending and received to obtain the processed applications, then dividing the
number of applications denied by the number of applications processed. This
variable is then transformed to the logarithm of the odds, given the bounding
implicit in a measure of grouped data that is expressed as a proportion
(Greene, 2000, p. 834). Of course, although presidential prerogative may be
exacted outside of the formal pardons process, this is rare in the modern presidency. According to Tom Oliphant of the Boston Globe, the execution of
presidential pardons outside of the formal applications process has only happened five or six times (Public Broadcasting Service, 2001). This means that
the correct baseline comparison for presidential decision making is in reference
to the pardons with which he is presented: Does the president change the odds
of a pardon being denied in reference to other internal or external factors?
Figure 1 shows the time series for the dependent variable as a year-over-year
change. See the appendix for all measurement details for all variables.
In our context, the most proximate binding constraint on the president’s
aggregate pardons agenda is the position the president has staked out with
regard to the issue of crime. Do presidents process pardons in a way that is
consistent with the attention they give to criminal justice? Is the president’s
behavior internally consistent with the executive agenda that is being delivered
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Figure 1
Percentage Denied (Logit Transformation), 1954 to 1994
Percent Denied (Logit)
8
6
4
2
0
1950
1960
1970
1980
1990
2000
Year
to Congress and the public? Generally, the executive agenda is most readily
understood as a signal indicating what the president considers to be the priorities of the administration (Light, 1999). We recognize that the pardon attorney actually carries out the president’s wishes with regard to pardons, so our
analysis of this dynamic relationship between the president and the pardon
attorney centers on a measurement of presidential issue priorities. We also recognize that presidents, for electoral reasons, may desire consistency between
their own actions and the positions they have staked out (e.g., Sigelman &
Sigelman, 1986). We rely on the president’s annual State of the Union
Address, the president’s primary vehicle for promoting the policy priorities of
the administration (Cohen, 1993, 1995, 1997; Kessel, 1974; Light, 1999).
Public communications remain an important and effective method for the
president to influence public policy, and the State of the Union Address is
the primary statement of the executive policy priorities. Fersh (1961) defines
the State of the Union Address as a “view from the White House” that provides
insight into agenda and character of the executive. The symbolic leadership by
the executive has significant consequences with regard to the policy agenda,
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representing a direct signal to the public, other institutions, and the bureaucracy (Andrade & Young, 1996; Canes-Wrone, 2001). Studies have shown
that presidential rhetoric significantly affects the public agenda (Cohen, 1995;
Sorenson, 1994), the media (Druckman & Holmes, 2004), Congress (Bond &
Fleisher, 1990; Canes-Wrone, 2001), and the bureaucracy (Whitford & Yates,
2003). Our independent variable (presidential attention) is the percentage of
the State of the Union Address dedicated to the problem of crime and criminal justice concerns as compared with all other issues. We expect that the percentage of denied applications for clemency increases as the president gives
more attention to criminal justice issues in the annual address.
We also assess the degree to which presidential ideology constrains pardoning behavior. In other words, do presidents process pardons in a way
that is consistent with their general political ideology? Our measure (presidential ideology) is the rotated presidential Americans for Democratic
Action (ADA) scores developed by Krause (2000). Rotated presidential
ADA scores measure ideology on a left-right continuum that distinguishes
between the partisan and ideological behavior of presidents, allowing us to
parse out the responsiveness of the bureaucracy to the ideological dominance of the president. Generally, the liberal approach to addressing crime
and punishment is characterized by reformation and reintegration into
society, and the conservative approach is typically characterized by removal
from society (Ewald, 2002). Similarly, the conception of crime as a highpriority social problem is generally rooted in conservative views regarding
individual accountability and social control those considered to be the dangerous underclasses of American society (Beckett, 1997). We expect that
the percentage of the petitions for executive clemency denied increases
under ideologically conservative presidents.
We contrast these perspectives that emphasize the president’s ability to
enforce consistency between his policy agenda and his actions with two
views drawn from the literature on institutional signaling in a system of
separated powers. We generally expect that the percentage of appeals
denied is affected by the broad political process. Is it constrained by other
institutions? Does the presidential practice of pardons depend only on the
president’s agenda and ideology?
We balance this model of presidential attention and ideology with the
competing institutional powers of Congress and the court. Executive
clemency is a power that the president may exercise unilaterally, but it is
still part of the judicial process. The court’s attention to criminal procedure
shows how it is concerned with the functioning of the broader process of
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justice (see Caldeira, Wright, & Zorn, 1999). As the court takes on procedural issues through its attention to criminal justice cases, the pardons
process may also change, and, more importantly, the president may respond
to changes in the public’s perception of justice for which clemency was
constitutionally designed to serve.
Do presidents process pardons in a manner responsive to the attention that
the Congress and the Supreme Court give to criminal justice issues? We want
to be clear that our study is framed by the central findings of the signaling literature that the president is often responsive to how Congress and the Court
set their own policy agendas as the three institutions compete and cooperate
over the national policy space. This case is different, though, because of the
president’s unique power over the setting of the pardons agenda. The
Constitution assigns full discretion to the president in the timing and merits
of pardons in a very general and vague manner that resulted in the evolution
of the power over time. Because the Supreme Court held in Ex Parte Garland
(1866) that the pardoning power of the president is not subject to legislative
control, Congress cannot legislate the limits of this executive power but may
constrain the president’s pardons agenda. Perhaps the establishment of the
Office of the Pardon Clerk in 1865 increases the control of the legislature
through the budgetary process (see Downs, 1967), although our view is
that that mechanism is minimal. We offer the hypothesis that congressional
attention to crime, and thus the relative power of the legislature over the
Office of the Pardon Attorney will increase the percentage of appeals denied.
Our variable (congressional attention) is from the Policy Agendas Data
Project (e.g., Baumgartner & Jones, 1993). Generally, members of Congress
apportion their valuable time relative to how important they consider a policy
issue to be (Flemming et al., 1999). Our measure is the percentage of congressional hearings committed to criminal justice issues annually. We see this
hypothesis as having limited theoretical support—except that the signaling
literature makes no formal distinctions between the president’s practice of
unilateral and shared powers. If signaling is a dominant response function
between the separated powers, then we expect the president’s pardons
process to respond to congressional attention to crime.
However, commentators have noted the ability of the Supreme Court to
help determine national policy when deciding on cases of critical public interest (Harper & Rosenthal, 1950); similarly, the Court helps determine policy
when it chooses not to hear cases (Caldeira & Wright, 1988). This is particularly important because of the Court’s unique position of final arbiter in all
criminal proceedings, even if expressed irregularly and only in tension with
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the Court’s other duties in constitutional determination (Yalof, 1999). Our
variable (court attention) captures one way for the Supreme Court to guide
the president’s treatment of the power of executive clemency: the percentage
of cases it hears in a given year concerning criminal justice issues relative to
cases on all other issues. Our data are from the United States Supreme Court
Judicial Database, 1954 to 1994, developed by Harold Spaeth. Because we
are assessing the aggregate issue attention of the Supreme Court rather than
decisions on individual cases, the Court may send cues to either increase or
decrease denials; an example is when the Court takes on more cases as a way
of limiting the power of the state in criminal proceedings. Our working
hypothesis is that as the Court’s agenda increases in criminal justice cases, the
president’s pardons process shifts to a greater percentage of denials. We note
that the literature on presidential responsiveness to the courts is a tenuous
proposition (e.g., Yates & Whitford, 2005), and in fact it is more likely that
the courts respond to presidential issue attention (Yates, Whitford, &
Gillespie, 2005). Generally, though, we consider the theoretical support for
either the courts or Congress connection to be limited.
In contrast, the president may take cues in his pardoning behavior from
competing national influences such as the media and public opinion. Is the
pardoning behavior of presidents responsive to the degree of broad national
public attention to the issue of criminal justice? Although some downplay
the role of the media as an institutional player in national politics (e.g.,
Kingdon, 1984; Light, 1999), we agree with other studies that media attention to an issue plays an important informational and framing role (Cobb &
Elder, 1972; Cohen, 1995; Wood & Peake, 1988). We address media attention to criminal justice issues through content analysis data from the
New York Times. Our source for this measure is the Policy Agendas Project
and is based on a random sample of the New York Times Index. The measure (New York Times) denotes the percentage of entries in the New York
Times Index dealing with criminal justice issues out of all entries in the
index. Once again, our concern is with the aggregate level of attention to
the issue of crime and not the type of attention given to individual issues of
criminal justice, so we may find that the media’s role in guiding the bureaucracy may signal either emphasis on rehabilitation and reintegration or
more stringent punishment in the aggregate. Our hypothesis is that increasing attention by the media to crime will increase denials.
Because of the president’s concern with reelection, responsiveness in this
respect may be to public opinion as well. We measure the influence of the
public by employing survey data on crime as a public priority. This measure
(public opinion) is the percentage of respondents naming crime as the most
important problem facing the nation, using the Gallup Poll’s Most Important
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Problem Facing the U.S. question during the years 1954 to 1994. The institutional foundations for presidential responsiveness to the populace are
dependent on electoral circumstances (e.g., Andrade & Young, 1996; Cohen,
1993, 1997; Kessel, 1974), but we predict that presidents consistently
respond to increased concerns of the public by increasing the percentage of
denied petitions for clemency.
Last, do presidents react to population-level data on the incidence of crime
in the United States when processing pardons? The last two measures address
the role of specific population-level crime factors in the presidential use of
executive clemency. We center our investigation on two possible determinants: the national level of violent crime (per capita), and the national homicide rate. Violent crime per capita is obtained from various years of Crime in
the United States (Federal Bureau of Investigation Crime Reports). Homicide
is also obtained from this source. We expect that if presidents strategically
manipulate their pardoning behavior in response to known population-level
crime factors, the percentage of clemency appeals denied will increase when
either of these measures also increases.
Estimation and Results
Our model includes a natural one half to three fourths lag for the independent variables and the dependent variables because of the use of federal
fiscal year data (based on a different calendar system) and is expressed by
the following equation:
Percentage appeals denied = β0 + β1 presidential attention
+ β2 congressional attention
+ β3 court attention + β4 New York Times
+ β5 public opinion + β6 violent crime β1
homicide + e
Five variables fail the Dickey-Fuller test for unit roots (see the appendix). We
estimate the model with those variables expressed in terms of differences:
Percentage appeals denied = β0 + β1 presidential attention
+ β2∆ presidential ideology
+ β3∆ congressional attention
+ β4∆ court attention
+ β5∆ New York Times
+ β6∆ public opinion
+ β7∆ violent crime
+ β8∆ homicide + ε
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Because of autocorrelation in the residuals with the lagged dependent variable, ordinary least squares estimation is biased and inconsistent. We use
Prais-Winsten regression to correct for such autocorrelation, providing a
more rigorous test and more accurate standard errors.
The presidential exercise of the power of the pardon depends on both the
degree of the presidential attention to the issue of crime and the personal
political ideology of the president. The percentage of appeals for clemency
that the president denies is responsive to the president’s stated attention to
crime (as measured by composition of the State of the Union Address). In
addition, the pardoning behavior of presidents is responsive to changes in
their political ideology, which in this measurement form may change both
with the person in office and during any one administration in ways akin to
conversion and replacement effects. As the president becomes more conservative (negative ADA score), an increasing percentage of appeals is
denied grows (negative coefficient). This is consistent with the proposal
made here, and common in the literature, that conservatives are less likely
to exercise the power of the pardon in reflection of a general view of the
role of criminal punishment in society.
We also find the percentage of appeals for clemency that the president
denies decreases with increasing congressional attention. We calculated a
model using the Prais-Winsten method on the number of appeals processed
(see Table 2) and found that congressional attention to criminal justice issues
significantly increases the number of appeals processed. When the results
from Table 1 and Table 2 are taken together, we can see that the percentage of
appeals denied increases with congressional attention because of the impact
congressional attention and the homicide rate have on the number of appeals
processed. We also calculated a Prais-Winsten regression for the number of
appeals denied, which shows that congressional attention does not significantly affect the number of appeals denied (see Table 3). These findings are
congruent with the literature on clemency as a quasibureaucratic process in
that congressional attention appears to afford more resources to process more
appeals, but the influence is limited as is evident in the absence of a significant
effect on the number of appeals denied. This supports our hypothesis that the
pardons process is broadly political.
Alternatively, the pardons process does not change as the court’s attention to crime as an issue changes. Table 1 does show that presidential pardoning behavior does not respond directly to the changing treatment
of criminal justice and crime in the New York Times, which reflects a
broadly elite perspective on the American public agenda. The public’s
broad attention to crime, as reflected in the Gallup Polls data, likewise does
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Table 1
Model of Percentage Appeals Denied (Logit
Transformation), 1954 to 1994
Variable
Log presidential attention t-1
∆ presidential ideology t-1
∆ congressional attention t-1
Court attention t-1
∆ New York Times t-1
Log Gallup t-1
∆ violent crime per capita t-1
∆ homicide t-1
Constant
ρ
DW (transformed)
N
F(8, 33)
R2
RMSE
Estimate
SE
0.3378*
–0.0117*
–0.4818*
0.0602
0.0855
–0.0756
–0.0127
–1.6238**
0.9105
0.3340
2.0866
41
5.71***
.35
1.3848
0.1729
0.0061
0.2536
0.0556
0.1752
0.3280
0.0137
0.8015
0.2847
Note: DW = Durbin Watson statistic; RMSE = root mean squared error. All models were
estimated using stata. Details are available on request.
*p < .10, two-tailed. **p < .05, two-tailed. ***p < .01, two-tailed.
not significantly affect the pardons process. This means that presidential
pardons are not responsive to the public agenda irrespective of electoral
concerns. Future research may look at the impact that the public agenda
may have on the pardons agenda.
Finally, there is evidence that of population-level measures of crime’s
incidence in society affect the pardons process, although the process
appears to be attuned to the homicide rate but not the violent crime rate, as
can be seen when we compare Tables 1, 2, and 3 with Tables 4, 5, and 6.
The percentage of appeals denied is not affected by the incidence of violent
crime but is significantly affected by the homicide rate. As the homicide
rate decreases, the percentage of appeals denied decreases.
Conclusions
The American folk belief that presidents act politically when exercising
their constitutional power to grant clemency to offenders and restore their
political and civil liberties persists. The evidence we present contributes to
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Table 2
Model of Appeals Processed, 1954 to 1994
Variable
Log presidential attention t-1
∆ presidential ideology t-1
∆ congressional attention t-1
Court attention t-1
∆ New York Times t-1
Log Gallup t-1
∆ homicide t-1
Constant
ρ
DW (transformed)
N
F(8, 33)
R2
RMSE
Estimate
SE
–26.4441
–0.7718
67.7232***
9.9091
28.1881
22.4985
210.1558**
714.5510***
0.3186
1.7505
41
36.66***
.29
201.75
21.6967
1.1490
27.4834
8.0943
23.5674
34.0125
100.6473
188.4311
Note: DW = Durbin Watson statistic; RMSE = root mean squared error.
*p < .10, two-tailed. **p < .05, two-tailed. ***p < .01, two-tailed.
Table 3
Model of Appeals Denied, 1954 to 1994
Variable
Log presidential attention t-1
∆ presidential ideology t-1
∆ congressional attention t-1
Court attention t-1
∆ New York Times t-1
Log Gallup t-1
∆ Homicide t-1
Constant
ρ
DW (transformed)
N
F(8, 33)
R2
RMSE
Estimate
SE
–9.6172
–0.7015
36.2067
–4.3557
20.6740
11.2234
90.2745
495.8761***
0.1542
1.8055
41
31.27***
.14
169.64
18.8993
0.9878
22.2908
7.1723
23.4522
34.4490
77.4290
154.2965
Note: DW = Durbin Watson statistic; RMSE = root mean squared error.
*p < .10, two-tailed. **p < .05, two-tailed. ***p < .01, two-tailed.
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Table 4
Model of Percentage Appeals Denied
(Logit Transformation), 1954 to 1994
Variable
Estimate
SE
Log presidential attention t-1
∆ presidential ideology t-1
∆ congressional attention t-1
Court attention t-1
∆ New York Times t-1
Log Gallup t-1
∆ violent crime per capita t-1
Constant
ρ
DW (transformed)
N
F(8, 33)
R2
RMSE
0.3263*
–0.0143*
–0.4614*
0.0312
0.1145
-0.0035
–0.0180
1.5458
0.3075
2.1085
41
5.31***
.26
1.4773
0.1794
0.0067
0.2667
0.0607
0.1993
0.3289
0.0155
1.4534
Note: DW = Durbin Watson statistic; RMSE = root mean squared error.
*p < .10, two-tailed. **p < .05, two-tailed. ***p < .01, two-tailed.
Table 5
Model of Appeals Processed, 1954 to 1994
Variable
Estimate
Log presidential attention t-1
∆ presidential ideology t-1
∆ congressional attention t-1
Court attention t-1
∆ New York Times t-1
Log Gallup t-1
∆ violent crime per capita t-1
Constant
ρ
DW (transformed)
N
F(8, 33)
R2
RMSE
–22.7969
–0.2802
60.5008**
–4.6229
23.6250
10.2022
1.1520
619.765
0.4029
1.8267
41
30.41***
.19
216.17
Note: DW = Durbin Watson statistic; RMSE = root mean squared error.
*p < .10, two-tailed. **p < .05, two-tailed. ***p < .01, two-tailed.
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SE
26.1820
1.2856
28.9194
7.0651
22.2346
41.7564
1.4889
181.4155
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Table 6
Model of Appeals Denied, 1954 to 1994
Variable
Estimate
Log presidential attention t-1
∆ presidential ideology t-1
∆ congressional attention t-1
Court attention t-1
∆ New York Times t-1
Log Gallup t-1
∆ violent crime per capita t-1
Constant
ρ
DW (transformed)
N
F(8, 33)
R2
RMSE
7.9204
–0.5961
33.5250
–1.7214
18.5796
3.8750
0.2359
453.7509***
0.2065
1.8476
41
34.95***
.10
173.54
SE
21.6655
1.1103
24.2784
6.6158
22.9654
36.7364
1.4840
145.6117
Note: DW = Durbin Watson statistic; RMSE = root mean squared error.
*p < .10, two-tailed. **p < .05, two-tailed. ***p < .01, two-tailed.
our understanding by updating this belief and providing a more complete,
broadly political perspective on the processes underpinning the presidential
exercise of the power to pardon. Rather than being (just) narrowly political,
presidents exercise this power within a system of separated powers.
Presidents make aggregate decisions that are internally consistent with the
positions they take over large numbers of events and issues, which we offer
as a representation of their individual political agenda and ideology. In
ways that reflect the broader political environment, the pardons process
also reflects congressional attention. Last, the pardons process is responsive
to the homicide rate.
In each of these ways, presidential pardons—over large numbers of events
and across a long time scale—suggest a politicization that extends over the
past half-century (to the beginning of the modern presidency) and that reflects
long-term incentives for the chief executive. It is remarkable that this is so,
for the exercise of the pardon is one of the constitutional responsibilities and
enumerated powers that the president by definition exercises unilaterally. It is,
in the aggregate, also a broadly technical exercise. Although presidents
such as George W. Bush have criticized recent presidential use of the power to
pardon, they have also staunchly defended the president’s prerogative and constitutional power. Yet the evidence presented here suggests that significant
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Whitford, Ochs / Executive Clemency
841
constraints—some internal, some external—operate on its use even when unilateralism appears justified.
Since the 1940s, political scientists have spent time and effort considering
the effect of the pardon, and its exercise, on the provision of justice for criminal offenders and their return to society and all of its benefits. Over time, several high-profile cases and a continuing concern for pardons as an exercise in
constitutional law have framed their investigations, a view reinforced by the
treatment of the enumerated powers of presidents in standard political science
texts. The evidence we offer here marks a significant departure: The practice
of the pardon is constitutional yet political. The presidential exercise of this
power is unilateral yet constrained; and the dispensation of pardons during a
half century is part and parcel of the signaling environment that binds
together political institutions responding to criminal justice. In a very strong
sense, the folk belief gets it half right, just as the constitutional concern of
scholars also gets it half right. Pardons are both quasipresidential and quasibureaucratic, but they are fully political—in the broad sense. Thus, there is
further justification for the belief that pardons and politics move together.
Appendix
Variable Construction
Appeals Processed
We use data from four decades (fiscal year 1954 to 1994) from the Department
of Justice’s (DOJ) Sourcebook of Criminal Justice Statistics. This variable is constructed by adding the clemency applications pending and received to obtain the
number of processed applications.
Appeals Denied
This variable is the count of the applications denied as reported in the DOJ’s
Sourcebook of Criminal Justice Statistics.
Percentage Appeals Denied
This variable is constructed by dividing the number of applications denied by the
number of applications processed. Our dependent variable of interest is the logit
transformation of the percentage of appeals denied (Greene, 2000, p. 834).
Presidential Attention
Percentage of the annual State of the Union address devoted to criminal justice
issues. Similar to Cohen (1995), we counted the number of lines from the president’s State of the Union address devoted to criminal justice issues. We then divided
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this number by the total number of lines contained in the president’s State of the
Union address for a given year to discern the percentage of the speech concerning
criminal justice issues. Intercoder reliability for the measure was 95%. This variable
is logged to account for high skew.
Presidential Ideology
Rotated presidential Americans for Democratic Action scores measure ideology
on a left-right continuum that distinguishes between the partisan and ideological
behavior of presidents, allowing us to parse out the responsiveness of the bureaucracy to the ideological dominance of the president (Krause, 2000).
Congressional Attention
Percentage of congressional hearings devoted to criminal justice issues from the
Policy Agenda Data Project (1953 to 1994) headed by Frank Baumgartner and
Bryan Jones. The data used here were originally collected by Frank R. Baumgartner
and Bryan D. Jones, with the support of National Science Foundation (NSF) Grant
SBR 9320922 and were distributed through the Center for American Politics and
Public Policy at the University of Washington and/or the Department of Political
Science at Penn State University. Neither NSF nor the original collectors of the data
bear any responsibility for the analysis reported here.
Court Attention
Percentage of the Court’s formally decided opinions devoted to criminal justice
issues, as defined by Harold Spaeth’s United States Supreme Court Judicial Database,
1953 to 1995. The Spaeth Database field “issue” identifies the case’s subject matter and
is based on the Court’s own statements. Criminal procedure (Issues 10-199) includes an
array of issues involving criminal justice concerns: involuntary confession, plea bargaining, search and seizure, cruel and unusual punishment, right to counsel, discovery,
entrapment, the Federal Rules of Criminal Procedure, statutory construction of criminal
laws, and double jeopardy issues. Not included are the due process rights of prisoners.
New York Times
We address media attention to criminal justice issues through content analysis
data from the New York Times. Our source for this measure is the Policy Agendas
Project and is based on a random sample of the New York Times Index. The measure
(New York Times) denotes the percentage of entries in the New York Times Index
dealing with criminal justice issues out of all entries in the index.
Public Opinion
The percentage of respondents naming crime as the most important problem using
the Gallup Poll’s most important problem facing the U.S. question (various years).
This variable is logged to account for high skew.
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843
Violent Crime Per Capita
Violent crime per capita is obtained from various years of crime in the United
States (FBI crime reports).
Homicide
Homicide is obtained from various years of crime in the United States (FBI
crime reports).
Table A1 provides sample statistics for the variables examined in this study.
Table A1
Sample Statistics
Variable
Percentage denied
Processed
Denied
Log presidential attention t-1
∆ presidential ideology t-1
∆ congressional attention t-1
Court attention t-1
∆ New York Times t-1
Log Gallup t-1
∆ violent crime per capita t-1
∆ homicide t-1
M
SD
Dickey-Fuller
1.7596
559.8000
427.7000
–0.2259
1.5585
0.1050
21.3500
0.0425
0.9619
14.9903
0.1200
1.5934
231.6523
166.3287
1.7039
26.1150
1.1211
4.2761
1.2514
0.9784
24.0379
0.4462
–5.120***
–4.332***
–5.149***
–4.843***
–2.407
–2.325
–4.237***
–2.749
–3.107**
–0.226
–1.164
Note: Dickey-Fuller statistics and tests are for the original (base) variables. First differencing
presidential ideology, congress attention, New York Times, violent crime per capita, and homicide makes the variables stationary.
*p < .10, two-tailed. **p < .05, two-tailed. ***p < .01, two-tailed.
Note
1. See Hamilton (1994) for a standard introduction to the estimation of AR(p) processes.
References
Ammons, L. (1994). Discretionary justice: A legal and policy analysis of a governor’s use of
the clemency power in the cases of incarcerated battered women. Journal of Law and
Polity, 3(1), 30.
Andrade, L., & Young, G. (1996). Presidential agenda setting: Influences on the emphasis of
foreign policy. Political Research Quarterly, 49, 591-605.
Baumgartner, F., & Jones, B. D. (1993). Agendas and instability in American politics.
Chicago: University of Chicago Press.
Becker, B. (2000). The history of the Nixon pardon. Cumberland Law Review, 30, 31.
Downloaded from apr.sagepub.com at PENNSYLVANIA STATE UNIV on May 8, 2016
844
American Politics Research
Beckett, K. (1997). Making crime pay: Law and order in contemporary American politics.
New York: Oxford University Press.
Bond, J. R., & Fleisher, R. (1990). The president in the legislative arena. Chicago: University
of Chicago Press.
Boudin, L. B. (1976). The presidential pardons of James R. Hoffa and Richard M. Nixon: Have the
limitations on the pardon power been exceeded? University of Colorado Law Review, 48, 1.
Brown, E. S. (1940). The restoration of civil and political rights by presidential pardon.
American Political Science Review, 34, 295-300.
Caldeira, G. A., & Wright, J. R. (1988). Organized interests and agenda setting in the U.S.
Supreme Court. American Political Science Review, 82, 1109-1127.
Caldeira, G. A., Wright, J. R., & Zorn, C. (1999). Sophisticated voting and gate-keeping in the
Supreme Court. The Journal of Law, Economics, and Organization, 15, 549-572.
Canes-Wrone, B. (2001). The president’s legislative influence from public appeals. American
Journal of Political Science, 45, 313-329.
Cannon, James M. 1994. Time and chance: Gerald Ford's appointment with history. Ann
Arbor: University of Michigan Press.
Carter, S. L. (1992). The Iran-Contra pardon mess. Houston Law Review, 29, 883.
Cobb, R. W., & Elder, C. D. (1972). Participation in American politics: The dynamics of
agenda-building. Baltimore: Johns Hopkins University Press.
Cohen, J. E. (1993). The dynamics and interaction between the president’s and the public’s
civil rights agendas: A study in presidential leadership and representation. Policy Studies
Journal, 21, 514-521.
Cohen, J. E. (1995). Presidential rhetoric and the public agenda. American Journal of Political
Science, 39, 87-107.
Cohen, J. E. (1997). Presidential responsiveness and public policy-making. Ann Arbor:
University of Michigan Press.
Downs, A. (1967). Inside bureaucracy. Boston: Little, Brown.
Druckman, J. N., & Holmes, J. W. (2004). Does presidential rhetoric matter? Priming and
presidential approval. Presidential Studies Quarterly, 34, 755-778.
Duker, W. F. (1977). The president’s power to pardon: A constitutional history. William &
Mary Law Review, 18, 475.
Epstein, L., & Knight, J. (1998). The choices justices make. Washington, DC: Congressional
Quarterly.
Ewald, A. C. (2002). “Civil death”: The ideological paradox of criminal disenfranchisement
law in the United States. Wisconsin Law Review, 9, 1045-1137.
Ex Parte Garland, 71 US 333 (1866).
Federal Register of the National Archives and Records Administration of the United States.
(2000). “Rules governing petitions for executive clemency”. 65(189), 58223-58224.
Fersh, S. H. (1961). The view from the White House: A study of the presidential state of the
union messages. Washington, DC: Public Affairs Press.
Flemming, R. B., & Wood, B. D. (1997). The public and the Supreme Court: Individual justice responsiveness to American policy moods. American Journal of Political Science, 41,
468-498.
Flemming, R. B., Wood, B. D., & Bohte, J. (1999). Attention to issues in a system of separated
powers: The macro-dynamics of American policy agendas. Journal of Politics, 61(1), 76-108.
Foner, E. (1988). Reconstruction: America’s unfinished revolution, 1863-1877. New York:
Harper and Row.
Downloaded from apr.sagepub.com at PENNSYLVANIA STATE UNIV on May 8, 2016
Whitford, Ochs / Executive Clemency
845
Gathings, J. A. (1949). Loss of citizenship and civil rights for conviction of crime. American
Political Science Review, 43, 1228-1234.
Greene, W. H. (2000). Econometric analysis (4th ed.). Upper Saddle River, NJ: Prentice Hall.
Hamilton, J. D. (1994). Time series analysis. Princeton, NJ: Princeton University Press.
Harper, F., & Rosenthal, A. (1950). What the Supreme Court did not do in the 1949 term.
University of Pennsylvania Law Review, 99, 293.
Hill, K. Q. (1998). The policy agendas of the president and the mass public: A research validation and extension. American Journal of Political Science, 42, 1328-1334.
Joyner, C. C. (1979). Rethinking the president’s power of executive pardon. Federal Probation,
43, 16.
Kessel, J. (1974). Parameters of presidential politics. Social Science Quarterly, 55, 8-24.
Kingdon, J. W. (1984). Agendas, alternatives, and public policies. Boston: Little, Brown.
Kobil, D. T. (1991). The quality of mercy strained: Wresting the pardoning power from the
king. Texas Law Review, 69, 569.
Krause, G. A. (1999). A two-way street: The institutional dynamics of the modern administrative state. Pittsburgh, PA: University of Pittsburgh Press.
Krause, G. A. (2000). Partisan and ideological sources of fiscal deficits in the United States.
American Journal of Political Science, 44, 541-559.
Light, P. (1999). The president’s agenda: Domestic policy choice from Kennedy to Reagan.
Baltimore: Johns Hopkins University Press.
Macgill, H. C. (1974). The Nixon pardon: Limits on the benign prerogative. Connecticut Law
Review, 7, 56.
Madden, A. (1993). Clemency for battered women who kill their abusers: Finding a just
forum. Hastings Women’s Law Journal, 4(1), 1-86.
Moore, K. D. (1997). Pardons: Justice, mercy, and the public interest. Oxford, UK: Oxford
University Press.
Public Broadcasting Service. (2001, February 8). Online NewsHour: Pardons probe. Retrieved
April 27, 2006, from http://www.pbs.org/newshour/bb/politics/jan-june01/pardonprobe_
02-08.html
Rosati, J. A. (1981). Developing a decision-making framework: Bureaucratic politics in perspective. World Politics, 34, 234-252.
Rozell, M. J. (1994). President Ford’s pardon of Richard M. Nixon: Constitutional and political considerations. Presidential Studies Quarterly, 24, 121.
Ruckman, P. S., Jr. (1997). Executive clemency in the United States: Origins, development,
and analysis (1900-1993). Presidential Studies Quarterly, 27, 251.
Schattschneider, E. E. (1960). The semi-sovereign people. Hinsdale, IL: Dyden.
Sigelman, L., & Sigelman, C. K. (1986). Shattered expectations: Public responses to outof-character presidential actions. Political Behavior, 8, 262-286.
Sorenson, T. (1994). Foreign policy in a presidential democracy. Political Science Quarterly,
109, 249-254.
Whitford, A. B., & Yates, J. (2003). Policy signals and executive governance: Presidential
rhetoric in the war on drugs. Journal of Politics, 65, 995-1012.
Wood, B. D., & Peake, J. S. (1988). The dynamics of foreign policy agenda setting. American
Political Science Review, 92, 173-184.
Yalof, D. A. (1999). Pursuit of justices: Presidential politics and the selection of Supreme
Court nominees. Chicago: University of Chicago Press.
Downloaded from apr.sagepub.com at PENNSYLVANIA STATE UNIV on May 8, 2016
846
American Politics Research
Yates, J., & Whitford, A. B. (2005). Institutional foundations of the president’s issue agenda.
Political Research Quarterly, 58, 587-595.
Yates, J., Whitford, A. B., & Gillespie, W. (2005). Agenda setting, issue priorities, and organizational maintenance: The U.S. Supreme Court, 1955 to 1994. British Journal of
Political Science, 35, 369-381.
Andrew B. Whitford is an associate professor in the Department of Public Administration
and Policy at the University of Georgia.
Holona LeAnne Ochs is a graduate student in the Department of Political Science at the
University of Kansas.
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