The Libby Commutation and "News" Generation

In a July 4th posting at the website of Washington Monthly, Kevin Drum's "Political Animal" references an article in the Los Angeles Times and writes:

Sentencing experts cannot find a single other instance in American history in which someone sentenced to prison had received a presidential commutation without having served any part of that sentence. (Bush is quite a trailblazer.)

Actually, the relevant section of the Times article reads:

Sentencing experts said Bush's action appeared to be without recent precedent. They could not recall another case in which someone sentenced to prison had received a presidential commutation without having served any part of that sentence. Presidents have customarily commuted sentences only when someone has served substantial time."We can't find any cases, certainly in the last half century, where the president commuted a sentence before it had even started to be served," said Margaret Colgate Love, a former pardon attorney at the Justice Department. "This is really, really unusual."

I would approach the information presented in the Times article much differently than the "Political Animal":

First, I can't think of a single reason why any respectable reporter in the national news media today would consult a sentencing expert in matters related to federal executive clemency, not when there are experts on federal executive clemency living and breathing, and willing to discuss these matters with reporters. An expert on clemency, for example, would have probably come up with the name Philip Grossman in a matter of seconds. Ex Parte Grossman is, after all, one of a very small handful of famous cases involving federal executive clemency that have reached the United States Supreme Court.

Second, it would stand to reason that the granting of a commutation of sentence before a single day has been served would be "unusual" because it is a fairly rare thing for a commutation of sentence to be granted at all. Any kind of commutation of sentence is "unusual." Is it possible that anyone who looks into this topic seriously could not know this? Click here to see a picture.

Finally, what is so significant about "the last half century?" Why is that the bench mark for anything related to pardons or commutations? Did something special happen in pardon law a half century ago? Why is there certainty about commutations within the last half century, but a lack of certainty beforehand? One wonders if the Times reporters bothered to ask any of these questions.

Here are the answers: Even if one is unfamiliar with classic landmark Supreme Court decisions, examples of commutations granted before service can be found in the Annual Report of the Attorney General, beginning in the late 1800s and stretching up to 1932. All it takes is a library card and a little bit of effort. To be sure, I have some advantages, because I have have studied pardons for a while. But, still, in anticipation of something less than a full and uncondtional pardon for Libby way back in March, it took me all of about 17 minutes to come up with an example while looking through the Reports. Admittedly, Grossman and the less famous example that I found did not occur yesterday, "recently" or in the last "half century." But all of that is certainly irrelevant if the focus of interest is precedent or the constitutionality of presidential use of the power. If, on the other hand, the prurient interest or need to generate "news" is the determining factor ... I am certainly a bore with no information of interest.

At least what the folks at Washington Monthly wrote is interesting!

Given the cases that I know of, and in absence of complete certainty about the last "half century," I wouldn't even think to suggest that there have been no "recent" examples of commutations granted before the serving of a sentence. Indeed, the smart money would bet that there have been other examples and, having noted that, the true "expert" would confess that our knowledge of the historical use of the pardon power is - when all is said and done - quite meager.

The fact of the matter is that the "good old days" were when the Annual Report of the Attorney General reported the name of each clemency recipient, the date when clemency was granted, the state where the offense was committed, the sentence, the date of the sentence and the outcome of all appeals. In addition, on some occasions, commentary was provided by the president and/or attorney general. All of this ended in 1932, when the Report began reporting aggregate statistics on clemency arranged by fiscal year. A black hole was created that continues to allow for flimsy commentary, ungrounded intuition and "expert" commentary from people who have made no real effort to shed light on the historical use of the pardon power.