The Bush Administration and the Pardon Power: The Untold Story

It seems to me that there is a story yet to be told with respect to the Bush administration and the use of the pardon power. For years, there has been a constant harping on the relatively low number of pardons that have been granted and, occasionally, the suggestion that Bush's stinginess is part of some "new," or "recent," trend in presidential behavior (see my commentary on this clumsy but persistent misconception here). And, of course, there has been some attention given to the commutation of sentence granted to Scooter Libby. Then again, as this blog has dwell demonstrated, "controversial" pardons (and commutations) are a dime a dozen.

So, ultimately, the really distinctive feature of the Bush administration and the clemency power has yet to be identified and analyzed. But here is what I see:

It starts with the first fiscal year covered by the Bush administration, 2002. One notes there were 1,466 requests for commutations denied in that period. That is the highest number of commutation requests denied in a single fiscal year since 1977, when Department of Justice statistical summaries first separated "denials" of petitions from petitions which were "closed without presidential action." Up to that point in time, Clinton had the highest mark, with only 790 denials (in fiscal year 2000). Number of news stories in the national news media on this record mark set by the Bush administration: zero.

But that is not all ... In fiscal year 2002, there were 519 requests for pardons which were denied. This is also the highest number of denials for any fiscal year since 1977 - second place going to George H.W. Bush, with 390 denials in fiscal year 1991. Number of news reports on this truly banner year for clemency rejections: zero.

Having seen these unusual marks, other things start to emerge from the data. To date, the Bush Justice Department has reviewed and denied a total of 5,130 applications for pardons and commutations (compared to only 3,042 denials by Clinton - 1,105 by George H.W. Bush - 1,287 by Reagan - and 1,311 by Jimmy Carter). Bush, incidentally, has received a smaller number of "new" petitions for pardons and commutations (7,050) than Clinton (7,489).

While everyone was going on about Scooter Libby's commutation, they could have also noted this: 1,724 petitions for commutations have been closed without presidential action in the Bush administration - again, the most for any administration since 1977 - and the highest number of petitions closed without action in a single year - again, since 1977 - was 315, for fiscal year 2006.

The conventional wisdom is that the pardon power is in atrophy. But these data could easily be interpreted to suggest otherwise. The Clinton Justice Department acted upon only 5,013 clemency petitions (grants, denials or closures). The Reagan Justice Department only acted on 3,210 petitions. Carter's acted upon only 2,622. But the Bush Justice Department has acted on 7,285 petitions to date, with the fourth year of the term still ahead.

But what of the context of all of these figures?

I mentioned, above, that Clinton had more "new" applications for clemency. But there is certainly more to that story. Here is a chart of "new" clemency applications from 1977 to 2007 and here is a chart of clemency applications pending at the beginning of each fiscal year, from 1977 to 2007. While the number of pardons and commutations that are being granted clearly reflects a ninety year trend, the pattern of applications and cases pending from one fiscal year to the next appears to be a function of a cause (or a set of causes) much more recent. The high levels of requests are not unprecedented (see the same data over the last 147 years here), but the exponential increase in pending applications appears more unique (see data for pending applications over the last 107 years here).

Either way, the first year and a half of the Clinton administration seems to be the hot spot. Let the investigative reporting begin!