Theodore Roosevelt and the Pardon Power P.S. Ruckman, Jr.

Paper presented at the Theodore Roosevelt: Life, Times and Legacy international conference, Shreveport, Louisiana (October 2012). Introduction As a Governor of the State of New York (1899, 1900) and President of the United States (1901-1909), Theodore Roosevelt exercised executive clemency over a thousand times. The literature on Roosevelt is, of course, far from sparse. Yet, I am unaware of any significant discussion of his use of the pardon power, either as governor, or president, systematic or otherwise. This is remarkable, given Roosevelt’s relatively generous use of this power, but also for the fact that, both as governor and president, Roosevelt exercised clemency in several notable instances.

The inattention to this dimension of Roosevelt’s political behavior is far from necessary. The Public Papers of governors of the State of New York were published annually during his administration. These volumes include a separate section on clemency decisions and feature individual explanations for each grant. In addition, the Annual Report of the Attorney General of the United States provides considerable information on successful federal clemency applicants. One can also glean information from copies of individual clemency warrants found in the National Archives.1 Finally, relevant data can be found in W.H. Humbert’s classic work 1941 work The Pardoning Power of the President.2 Below, I review Roosevelt’s public commentary on clemency. I then explore his own use of clemency as governor and as president. Along the way, I attempt to assess to what degree the opinions and values expressed in public commentary are reflected in his actual use of the pardon power. Finally, I share my own thoughts as to how the world of federal executive clemency has (and has not) changed since Roosevelt’s presidency and why I believe the pardon power would benefit a great deal if someone like Theodore Roosevelt were to return to the White House. Roosevelt: Commentary on Clemency In 1913, Roosevelt wrote a piece for the Annals of the American Academy of Political and Social Science.3 The volume was actually dedicated to the topic of prison labor, and his contribution was entitled “The New Penology.” Roosevelt began by noting the progressive party had recently met in Chicago and called for the abolition of the convict labor system. Roosevelt explained that this stance was part of “growing insistence” throughout the United States upon the need for “drastic changes” in our penal-institutions. He noted this “new penology” insisted on justice for both the prison and society. It held that:

It is to the interest of both that the prisoner be secured his right to proper work, health, reasonable moral and mental training, and last, but by no means least, the right to rehabilitation so far as in him lies. Any prison system that does not give these rights fails to do its duty.

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But before Roosevelt commented further on the “new penology” and prison labor, he

discussed what he viewed as “one of the most objectionable points” of the prison system: the pardoning power. As he saw it, the primary issues were 1) whether or not the power should be in the hands of a “pardoning board” and “taken away from the governor” 2) whether or not such a board should be elected or appointed 3) and, if appointed, whether or not its members should be selected by the legislature or by the governor.

Roosevelt observed the New York Times had recently reported the results of a survey of twenty governors. 4 It revealed almost all of them supported the idea of a “board of pardons,” acting either in “advisory capacity” or as an “actual pardoning board.” The general argument was that these governors had too many “important matters” to deal with and, consequently, could not do “full justice” to clemency petitions. But Roosevelt added:

Fundamentally, the matter is much more serious than the incursion upon the governor’s time. The sense of justice of any community is very keen and not by any means always in proportion to the facts. Particularly sensitive are our people, as they should be, to the apparent abuse of the pardon power. The board of pardons should be deliberative and not hasty in its action. It would be subject to criticism and scrutiny of the people of the state from the standpoint only of this as its sole function. Such a pardoning board should be non-political and composed of men of high integrity and sound judgment. Roosevelt provided only a few more details of his view on pardoning boards. He advised,

for example, that governors serve on such boards along with three additional members. He also recommended that governors appoint these members.

Roosevelt’s 1913 Autobiography serves as a second, highly visible source of commentary on the pardon power. 5 Some of this commentary has a compelling ‘insider’ feel to it. Additional commentary is distinctly ‘political’ in nature. In Chapter VIII, for example, Roosevelt described the “refusing of pardons” as one of the “painful duties” of the chief executive. Or, as he put it, he rarely lost sleep over “governmental or official” matters, but it deeply disturbed him that, every now and then, he had to listen to “some poor mother making a plea” for a criminal “so wicked, so utterly brutal and depraved” that it would have been a “crime” to issue a pardon. Consequently, he insisted that nothing was “more necessary” than the ability to “steel one’s heart” when it came to granting pardons.

Roosevelt revealed that the pressure to grant clemency was always the greatest when capital punishment was in the mix, or when the applicant was “prominent socially and in the business world.” He observed that the “trouble” in such cases was that “emotional” persons “always see only the individual whose fate is up at the moment, and neither his victim nor the many millions of unknown individuals who would in the long run be harmed by what they ask.” Roosevelt noted:

… almost any criminal, however brutal, has usually some person, often a person he has greatly wronged, who will plead for him. If the mother is alive, she will always come, and she cannot help feeling that the case in which she is so concerned is peculiar, that in this case a pardon should be granted.

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Roosevelt’s Seventh Annual Message to Congress6 sounded similar concerns: …Vice in its cruder and more archaic forms shocks everybody; but there is very urgent need that public opinion should be just as severe in condemnation of the vice which hides itself behind class or professional loyalty, or which denies that it is vice if it can escape conviction in the courts … The members of the business community, the educators, or clergymen, who condone and encourage the first kind of wrongdoing, are no more dangerous to the community, but are morally even worse, than the labor men who are guilty of the second type of wrongdoing, because less is to be pardoned those who have no such excuse as is furnished either by ignorance or by dire need. On the other hand, Roosevelt’s Autobiography confessed that, in some instances, he

granted pardons “with very real pleasure.” He believed, for example, that the mandatory minimum sentence for horse stealing in the Indian Territory (5 years) was “disproportionate to the penalty for many other crimes.” He also recalled granting a pardon “outright” on the recommendation of a “friend.” Roosevelt explained that he had also “looked into” the case, but granted the pardon before even a month of prison time had been served. Such commentary strongly suggests Roosevelt did not see the exercises of clemency as interference with the legal system so much as legitimate - if not necessary - opportunities for the executive branch to participate in the government’s effort to approximate justice.

Roosevelt admitted requests for leniency in cases featuring certain crimes made him “angry.” Among those offenses were rape, circulation of indecent literature, white-slave trafficking, murder of one’s wife, gross cruelty to women and children, seduction, abandonment, or a responsible lover’s encouragement of abortion. And he lamented the fact that a “frankly long list” of men of “high standing” signed petitions, or wrote letters, requesting leniency in an “astonishing number” of these cases. Without mentioning anyone by name, he referred to two United States Senators, a governor, two judges, an editor, and some eminent lawyers and businessmen.

Finally, Roosevelt stated that his “experience” with the way in which pardons were “often granted” led him to conclude that the sentence of life imprisonment was not an adequate substitute for the death penalty in cases involving murder and rape. This conclusion was enhanced by his understanding that the average term of “so-called life imprisonment” in the United States was “only about fourteen years.”

Chapter X of the Autobiography took on a decidedly more ‘political’ tone. Roosevelt beat up on Republican William Howard Taft (who followed him as president), for granting a pardon to one of the “most conspicuous” defendants in the so-called Oregon Land Fraud cases – presumably a reference to John H. Hall - who, when all was said and done, was fined only $1,000 and given a mere 60-day prison sentence.7 President Taft actually granted additional pardons to Willard Jones,8 Franklin S. May 9 and Hamilton Hendricks,10 who were also convicted as a result of the land fraud cases. All three of the pardons were granted in the last year of Taft’s term.

Roosevelt probably took all such pardons somewhat personally because, as president, he had encouraged the Secret Service to conduct the original investigations in Oregon and insisted that federal prosecutors produce convictions. However, it did not go unnoticed that Roosevelt himself had pardoned Albert H. Tanner,11 assistant to primary culprit Senator John H. Mitchell

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(R). Roosevelt also granted a pardon to Stephen A.D. Puter, sensationalist author and self-proclaimed “king of the Oregon land fraud ring.”12

Chapter XII attacked President Taft for granting commutations of sentence to prominent businessmen Charles W. Morse13 and Charles R. Heike.14 While he was at it, Roosevelt threw barbs at Democrat Woodrow Wilson for exercising clemency in the case of one Lewis S. Banks.15 As if to draw sharp distinctions between himself and the Republican and the Democrat who followed him in office, Roosevelt reminded his readers of a very public rejection of a plea for pardon that occurred during his own administration (see discussion of the case of John H. Burley, below).

Roosevelt’s article in the Annals and his Autobiography suggest that he considered the pardon power important, but also a potential source of controversy. In his mind, the clemency process should be facilitated by the careful deliberation of a board, whose decisions are subject to public scrutiny. Ideally, decision makers would be immune to the potential effects of passionate, or largely emotional pleas, and the influence of social prominence. On the other hand, clemency decisions should unapologetically address disproportionate sentences and, on occasion, the executive should personally investigate the details of individual clemency petitions. Finally, Roosevelt seemed to feel that some crimes were more pardonable (or unpardonable) than others. In his mind, a death sentence for murder or rape was appropriate and should not be derailed by executive clemency.

But, to what extent were any of these views evident in Roosevelt’s actual use of the pardon power?

Governor In order to examine Roosevelt’s clemency record in New York, I went to the Public Papers of the Governor for 1899 and 1900. From January 3, 1899, to December 31, 1900, Roosevelt exercised clemency in 94 instances (21 pardons, 68 commutations of sentence, 2 conditional pardons and 3 respites). 51 of these grants were made in 1899 and 43 were granted in 1900. These annual figures are comparable with most governors in the State, back to 1880, although the two governors just previous to Roosevelt (Flower and Morton) broke the 100 mark in four of five years.16 The monthly distribution of Roosevelt’s grants was also fairly even. He averaged just under 8 per month and only 4 (of 24) months featured no clemency activity whatsoever.

The dominance of commutations of sentence was not without effect. While the average prison sentence across the 94 grants was 6.3 years, the average distance between sentencing and clemency was only 4 years. For pardons, the average distance between sentencing and clemency was only 1.8 years. These figures say a great deal about the relevance of Roosevelt’s grants. Consider, for example, the fact that, in President Obama’s first term, the average distance between sentencing and clemency grants was 24.3 years, and the entire lot consisted of persons who committed minor offenses (usually requiring no prison sentence at all). Roosevelt’s grants suggest a more aggressive sense that recipients should not have to wait until they are in their 60s and 70s to be rewarded for rehabilitation.

The analyses which follow would include any and all related information in the population of clemency petitions. Although that information is simply unobtainable, the data are not without probative value. For example, Table 1 lists the largest categories of offenses addressed in Roosevelt’s gubernatorial clemency decisions. With respect to the list of unpardonable offenses identified in the Autobiography, Roosevelt did commute the prison sense

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of one person convicted of attempted rape.17 But none of the other offenses appear to be in the grants. Thus, it would certainly be difficult to accuse Roosevelt of inconsistency, on this dimension, based on these data.

Given Roosevelt’s public commentary, it seems somewhat surprising that murder (19 cases) and manslaughter (2 cases) are so prominent in the data. The manslaughter cases involved terms of a set number of months (36 and 69 respectively). As a result, Roosevelt’s commutations reduced a total of almost 9 years of prison sentences to two and a half years of actual service. 15

Table 1

Offenses Address by Roosevelt’s Clemency Decisions As Governor of New York (1899, 1900)

Offenses Grants Percent of Grants

Robbery / Burglary / Larceny 47 50% Murder / Manslaughter 21 22%

Assault 12 13% Forgery 5 5%

of the murder cases involved commutations of life sentences. While these grants ranged from 2 to 32 years after sentencing, on average, they were just eleven years afterward (recall Roosevelt’s Autobiography fretting about commutation of life sentences to only 14 years).

As it turned out, getting executed wasn’t the easiest thing to do when Theodore Roosevelt was governor. He granted one respite to an individual who was re-tried and eventually acquitted.18 Two additional respites were granted to an individual later declared insane.19 A fourth death sentence was commuted to life in prison. But the recipient was freed the following year by the governor who succeeded Roosevelt.20 I do not have data on death penalty cases involving clemency applications that were denied but, when was said and done, there were 10 executions in the state in 1899 and 1900.

Most of Roosevelt’s clemency decisions generated little or no publicity, much less anything like controversy. But some were certainly more notable than others. Just three months into his first term Martha Place, a “deliberate” murderer, was to have the honor of being the first New Yorker to face “electric execution.”21 Mrs. Place strangled her 17-year old step daughter after blinding her with acid, then attacked her own husband with an axe. But petitions for clemency rolled into the governor’s office and an advisor bluntly predicted Roosevelt could forget about ever becoming President if the execution was actually carried out.22

Despite what he called the “painful” nature of the case, Roosevelt found “no ground for interference” with the execution. In a public statement, he claimed he had “carefully” reviewed the evidence and that he written both the judge and the district attorney (neither of which recommended clemency). Roosevelt also appointed two doctors of “high standing” to judge Place’s sanity. The result was that there was “no question” as to her guilt or sanity.

So, in Roosevelt’s mind, the only question was whether or not Place’s life should be spared solely “on the ground of her sex.” As such, there was only “one course” of action: to refrain from interference with the sentence.23 Roosevelt asked the warden at Sing Sing to limit the number of reporters witnessing the execution to two, neither of which worked for Hearst or Pulitzer newspapers.24 Roosevelt’s concern was that the

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…solemn and painful act of justice [would] not be made an excuse for the species of hideous sensationalism which is more demoralizing than anything else to the public mind.25

Not to be outwitted, at least one Hearst paper presented its readers with a cartoon of Place’s lifeless body slumped over in the electric chair. An accompanying article informed readers that she had died in agony, and in a torturous manner.26

The New York Times also noticed when Roosevelt commuted the death sentence of Edward Wise, a member of “a well-known Boston family,”27 and delayed the execution of Howard C. Benham - the subject of a sensational murder trial following the poisoning of Mrs. Benham.28 But, typically, pardons and commutations of sentence were reported in brief paragraphs, appearing far from the front pages of newspapers and with little fanfare.29

Fortunately, the Public Papers of the Governor for 1899 and 1900 provide specific explanations / justifications for clemency decisions. When looking through this information, there is solid evidence that Roosevelt was indeed dedicated to the value of transparency in clemency processes. He consistently provided public explanations for his decisions. These explanations were certain to have satisfied some and displeased others but, in only two instances, did he provide no explanation whatsoever for granting clemency. Even then, the sentencing judges supported clemency in both instances.30 I examined each and every explanation and coded specific arguments therein. With particular interest in replicability, I only coded those arguments explicitly stated. I inferred nothing. As each justification was identified, I also made an attempt to create an associated category. Seven justifications in the Public Papers were notably idiosyncratic.31 But the end result was the

Table 2

Justifications for Roosevelt’s Clemency Decision As Governor of New York (1899, 1900)

Reasons for Clemency Number of Usages

Percent of Grants

Recommendation of the district attorney 44 47% Recommendation of sentencing judge 40 43%

Less culpable / minor or technical offense 32 34% Served much of sentence 28 30%

Good reputation before conviction 19 20% Excessive sentence 15 16%

Possibly innocent / induced by another 14 15% Evidence: problematic, circumstantial, suspect 11 12%

identification of 287 specific reasons for granting clemency that fit smartly within 33 broad categories.32 Roosevelt’s clear reliance upon the recommendations of judges and prosecutors is, of course, entirely consistent with the idea of relying upon the expertise of persons closest to (and

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most familiar with) each applicant. But the remaining justifications are also indicative of concern about overly harsh sentences, the role/functions of sentencing and outcomes of the judicial process. Roosevelt considered some sentences excessive. He factored in the amount of time that applicants had served as well as their reputation before conviction. But he also granted pardons and commutations to persons whose degree of culpability seemed minimal, whose convictions appeared unacceptably “technical” – if not outright questionable – and in instances when the quality of evidence seemed quite dubious.

On the whole, these justifications suggest that, while relying heavily on the recommendations of judges and prosecutors, when it came to the clemency process, Roosevelt considered himself a co-equal partner in the judicial process, not a mere rubber stamp. His justifications were more consistent with the notion of executive clemency as a relevant source of checks and balances, based on the assumption that the judicial and legislative branches are not always perfect, and the belief that systematic problems could (and should) be addressed by the executive branch through clemency powers.

President of the United States Before discussing Theodore Roosevelt’s clemency record as President of the United States, it seems productive to describe the general context of federal executive clemency in the early 1900s. Prior to 1890, the usual practice was to send federal prisoners to state facilities. In 1891, however Congress passed the so-called Three Prisons Act, which authorized the construction of three federal penitentiaries: Fort Leavenworth (1895), Atlanta (1902) and McNeil Island (1903).33 Prisoners were then gradually incorporated into the new federal facilities. Consequently, the average daily population for these institutions was only 301 in 1896.34 By 1904, a survey found the population had increased to 1,641.35

During the presidency of William McKinley (1897-1901), what we know today as the “federal prison population” increased dramatically (63 percent) in a fairly short span of time.36 W. H. Humbert suggests the “enormous expansion” in the federal prison population in this period (and thereafter) was “attributable to a number of factors.”37 But he argues the “most influential factor” was the increase in “national legislation as exemplified in the expansion of the criminal code.”38 Unsurprisingly, according to Humbert, clemency applications also increased 26 percent across McKinley’s term.39

But President McKinley did not stand by idly. He granted his first pardon after only eight days in office – the average wait for presidents before being well over two months. By the time his presidency ended, he had granted 947 pardons and commutations of sentence – a higher total than 20 of 23 presidents before him.40 Indeed, if his first term mark (833) was an indicator of things to come, McKinley may very well have granted more pardons and commutations than all of the presidents before him. Humbert’s presentation of data from 1896 to 1901 reveals that about 1 in every 4 of McKinley’s clemency grants were commutations of sentence.41 In sum, his clemency practices were generous, relevant and reactive to the circumstances.

Roosevelt’s administration faced similar circumstances. The average daily federal prison population increased almost doubled from 1901 to 1909.42 For the first time in history, the annual number of clemency applications topped 800 and a small backlog of applications for which “no action” was taken began to develop.43 If one looks through even the thickest, most thorough, popular and acclaimed biographies of Theodore Roosevelt, one might guess the man never granted a single pardon, commutation or respite as president. But, in fact, from September

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24, 1901, to March 3, 1909, he granted over a thousand. Indeed, Roosevelt delivered more grants of clemency than 22 of 24 presidents before him – the only exceptions being Ulysses S. Grant and Grover Cleveland (who both served six months longer than Roosevelt).

This sizeable number of grants was almost evenly distributed across Roosevelt’s succession term and first full term as president (499 and 534 grants respectively). As was the case when he was governor of New York, Roosevelt granted clemency steadily across the entire period. Indeed, he had an even higher monthly grant average (11.4) as president and only 2 (of 91) months featured no grants whatsoever. While we do not have comparative monthly data for

New York governors, we do have such data for more recent two-term (or 98-month) presidents.44 Ronald Reagan’s presidency, for example, featured 49 months with no grants of clemency. George W. Bush granted no pardons or commutations of sentence in 78 months as president. The Clinton administration featured 84 such months. Amazingly, in President Obama’s first term, only 3 (of 49) months featured even a single act of clemency.

Again, ideally, there would be access to the population of clemency applications in the Roosevelt administration. Yet the available data provide useful insights into the context of his clemency decision making. About 24 percent of successful applications described as having originated in the “territories” or “Indian territory.” Another 12 percent originated from states nearby (Arkansas, Texas and Missouri). A full 18 percent were military cases (most involving desertion). Humbert notes “war influences” are an important consideration when trying to

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understand variation in increases and decreases in clemency grants.45 On the Eastern side of the Nation, the highest number of grants was given to applicants from Washington, DC (76) and the State of New York (43). Table 3 proves data on the largest number of offenses addressed in Roosevelt’s clemency warrants. The supposedly unpardonable offenses are present in the data. Four pardons were granted to individuals convicted of having “carnal knowledge” of / intercourse with a female and three were granted to persons convicted of fornication. One person was pardoned for mailing an

Table 3 Offenses Address by Roosevelt’s Clemency Decisions

As President of the United States (1901-1909)

Offenses Grants Percent of Grants

Burglary / Robbery / Theft / Larceny 252 24% Desertion 172 17%

Alcohol-Related Offenses 95 9% Counterfeiting / Altering Currency 78 8%

Murder /Manslaughter 73 7% Violation of Banking / Revenue Laws 39 4%

Assault 31 3% “obscene” letter. Six persons were also pardoned (or had their sentences commuted) for the crime of rape. Again, it is difficult to make heavy-handed judgments about the data, without additional specific information on the population of clemency applications. Nonetheless, in the population of grants, the numbers are relatively small.

It seems significant that crimes related to burglary, robbery, theft and larceny constitute the highest category of grants - as was the case in the New York data. More specifically, over 100 grants involved larceny or theft of an animal (horses, ponies, hogs, cattle and mules). Again, the minimum sentence for horse, pony or mule theft was 60 months. In the data, two hog thieves were given 60 month sentences as well. Cattle thieves received sentences between 12 and 60 months. Roosevelt wrote that he thought the penalty for horse theft was too severe. His 81 grants to horse thieves (with an average sentence of over five years) typically cut such sentences in half.

The category of cases for murder (47) and manslaughter (26) constitute a much smaller percentage of clemency grants than was the case in the New York data. 29 (62 percent) of the murder cases involved imposition of the death penalty. Roosevelt commuted 12 of those sentences, pardoned 10 of the condemned prisoners outright and granted an additional 7 respites. Eventually, the lives of 5 of the 7 were spared as well.

15 of the murder cases featured life sentences and 2 featured terms of 240 and 360 months. Given Roosevelt’s public commentary, and the findings with respect to his commutations as governor, it seemed irresistible to examine the average distance between clemency for “lifers” and sentencing. The result: a distance of only 6 years! Interestingly, Roosevelt appeared to have a harder edge in manslaughter cases, where the average sentence was 80.5 months and the average clemency grant came 80.3 months afterward.46

In order to gain additional insight into Roosevelt’s clemency decision making, I went

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through the Annual Report of the Attorney General, from 1902 to 1909, and coded each and every argument listed in the column providing explanation for clemency. Today, no such information is provided in the Report (see discussion below). Before doing so, I removed the 210 military cases from the data. These cases featured references to recommendations by the Secretary of War or the Secretary of Navy, but no specific justifications for clemency are provided. I also removed Roosevelt’s Proclamation of amnesty (discussed below).

It seemed fitting to retain the categorization scheme employed when coding explanations for Roosevelt’s clemency decisions as governor. If the scheme is of little use in both settings, we might guess that – for whatever reason – it is simply not wise to compare clemency decisions at the state and federal level and/or we might guess that Roosevelt was not particularly consistent in either his rhetoric or his behavior.

The retention of the categorization scheme resulted in the identification of 2,350 specific reasons associated with the granting of 822 pardons, commutations of sentence and respites. Once again, a few of the reasons were entirely idiosyncratic (to allow a farmer to make a crop, the recipient learned trade, the jail was overcrowded, pregnancy, recipient needed a license, wanted contract with a city, recipient exposed escape plot, etc.),47 but almost all of the reasons (99 percent to be exact) fit comfortably into the categories created for the New York data.

Roosevelt’s dedication to the value of transparency and accountability is, once again, apparent in the data. The Annual Report provided substantive explanations for 95 percent of the

Table 4

Justifications for Roosevelt’s Clemency Decision As President of the United States (1901-1909)

Reasons for Clemency Number of Usages

Percent of Grants

Recommendation of district attorney 346 42% Recommendation of judge 256 31%

Recipient had served and been released 198 24% Good reputation after commission of offense 195 24%

Sentence was excessive 125 15% Less culpable / minor or technical offense 123 15%

Youth (current, or at the time of the offense) 98 12% Mandatory / minimum sentence imposed 88 11% Possible innocence / induced by another 84 10%

* Excluding military cases

president’s grants. The data also show heavy reliance upon the recommendation of district attorneys and judges. This reliance takes on additional significance because, as president, Roosevelt also had the assistance of the U.S. attorney general, who made recommendations on the basis of efforts by a pardon attorney in the Department of Justice’s Office of the Pardon Attorney.48 This bureaucratic apparatus more closely approximated Roosevelt’s idea of an expert board to facilitate the clemency process and only 6 of his clemency decisions were made without a recommendation from the attorney general49 or contrary to the attorney general’s

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recommendation.50 The rehabilitative function is evident in explanations focusing on the release into the

general population and reputation after the commission of offenses as is – at least arguably – the consideration of youthfulness. But, once again, Roosevelt’s concerns over substantive matters of law were also evident (via inflexible mandatory minimum sentences and sentences deemed excessive). The willingness to question the actual guilt of applicants, and to assess the degree of culpability and the seriousness of particular offenses, is, again, indicative of a view of clemency powers as a critical part of our system of checks and balances. Roosevelt’s clemency decisions are the by-product of rehabilitation and redemption. But they are also the by-product of human error, institutional failure, systematic glitches and conflict over policy.

Notable Acts of Clemency The journalistic tradition of identifying ‘controversial’ pardons as historical markers or points of comparison is problematic for several reasons. First, ‘controversy” is certainly in the eye of the beholder. Second, such exercises are, invariably, heavily screwed toward recent history (especially toward the post-Nixon era) – leaving the impression that such acts are a fairly recent phenomena. In a way, the popular labeling of Ford’s pardon of Richard Nixon as the all-time, most ‘controversial’ pardon may encourage this kind of short-sightedness. It seems (in effect) to say, “Here is the end of the world. Nothing to see beyond this point.”

Using a wider (and, I think, more useful and appropriate) lens, I have dedicated my own research to the study of what I call “notable” acts of federal executive clemency. Notable acts of clemency include both grants and denials. In either situation, I have considered large degrees of media coverage as well as widespread public support and/or criticism. I have also identified famous and / or influential persons (and their friends and relatives) who were recipients of clemency, or persons who became famous after being pardoned. Notable acts of clemency also include participants in particularly notorious or heinous crimes, and those decisions that have been challenged in the federal courts. The utility and potential value of my approach can be easily illustrated with a brief description of the case of Henry Starr. Starr came from interesting stock. His uncle was the notorious Sam Starr, husband to Belle Starr, a.k.a. “the Outlaw Queen.” These names are all standard fare in any well-written discussion of Wild West outlaws. Little Henry Starr robbed his first bank on horseback in 1893 and his last with the assistance of an automobile, in 1921. On his deathbed, he boasted that he had robbed more banks than any man in America.

But, along the way, Starr shot and killed a U.S. deputy marshal. He was caught in July of 1892, and sixteen months later, Judge Isaac Parker (see note 57, below) sentenced him to hang. Parker referred to Starr as “marvel of wickedness” who was “full of hatred” and “the very personification of the man of crime.” A front-page headline of the New York Times read: LAST OF A NOTED FAMILY and the associated article described Starr as a “bold, fearless” man who was “willing” to kill other men. It also noted Starr’s execution would “close the career” of a family notorious for its “leadership” in the profession of “evil.”

But the U.S. Supreme Court reversed Judge Parker’s decision and a second trial was conducted in September of 1895. Starr was again found guilty and Parker again suggested a trip to the gallows. The Supreme Court, however, found Parker’s second trial “fatally defective” and reversed the ruling just after Parker’s death.

Henry Starr’s third trial (October, 1897) resulted in a third conviction, for manslaughter

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and robbery. The result was a combined sentence of fifteen years. But Starr’s mother went straight to Washington to lobby Theodore Roosevelt for clemency. The President (supposedly impressed with a story of how Henry had disarmed a gunman named Cherokee Bill) sent a telegram to Starr which simply asked, “Will you be good if I set you free?” Starr answered, “Yes” and Roosevelt commuted the sentence to end January 16, 1903.

Starr returned to Oklahoma, worked in his mother’s restaurant, married and even named his child Theodore Roosevelt Starr. But, in 1908, he joined a gang to participate in bank robberies in Kansas and Colorado and, in 1909, he was arrested once again. There followed a trial, a twenty-five year prison sentence and, amazingly enough, the granting of parole in September of 1913. A dozen or so bank robberies later, Starr was arrested in Stroud, Oklahoma, sentenced to twenty-five years in the Oklahoma State Penitentiary and paroled in March of 1919.

Starr entered the motion picture industry playing himself in a film about a double bank robbery in Stroud, Oklahoma. The movie was an immediate success and Starr landed major parts in two more films before being shot dead during a real bank robbery in 1921.51

Now, imagine if George W. Bush had granted a commutation of sentence to a career armed robber, on the basis of a mother’s pleading and the mere promise to be “good.” And imagine if the recipient of that act of clemency went on to two additional convictions during a continuing career in armed robbery. Would we not all know about this? And yet what list of ‘controversial’ acts of clemency ever lists the name of Henry Starr? The answer is: none.

As far as biographers of Theodore Roosevelt are concerned, the man never granted a notable pardon, much less a ‘controversial’ pardon. Even worse, when reviewing or writing about highlights in Roosevelt’s administration, presidential scholars consistently ignore the Roosevelt’s clemency decisions. It is very clear that our focus on recent ‘controversial’ pardons is not serving us well. On the other hand, my analysis of Roosevelt’s 1,033 grants of federal executive clemency reveals almost 30 notable acts. And among these acts are a few which are both notable and signature.

Select Notable Acts of Clemency

In 1903, Roosevelt took an interest in secret service investigations into the problem of peonage in the South and asked the attorney general for a report. The attorney general promised “vigorous and uncompromising prosecutions” and did, in fact, convict George D. Cosby, Barancas F. Cosby and John W. Pace - three prominent wealthy land owners. But Roosevelt pardoned the Cosbys on September 14, 1903, after they had served less than a quarter of their one-year sentences. Pace had been given a five-year sentence, but remained out of jail during an appeal (which he lost) and while on bond, and received a pardon on March 30, 1906 (almost three years after his conviction).52

The case of Charles William Anderson (alias John William January) received considerable media attention. January was charged with breaking into an Oklahoma post office with intent to commit larceny. In 1895, the twenty-one year old was sentenced to five years in prison, where he became a “model prisoner.” But, after serving thirty-four months, Anderson escaped from Leavenworth.

The fugitive from justice first found a job with a railroad construction then moved to Kansas City and worked on a street railway. The Times said he was “steady and sober, worked hard, and saved his money.” After a few years, January bought a small restaurant, then sold the business for a “good price” and went looking for another in a more “thriving locality.” With his

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pockets lined with cash, January was considered one of the “best citizens” of the community - although some marveled at the fact that he never voted.

Then, one day, as January was out for walk, he encountered a former Leavenworth inmate. The ex-convict knew he could receive $60 reward for information leading to January’s arrest. So, in 1907, nine years after escape, the fugitive was caught. When President Roosevelt’s interest in the case was announced, Anderson became the hot topic in and outside of Washington. Roosevelt had requested a “prompt report” on January from Attorney Charles Joseph Bonaparte - promptness not being one of the primary characteristics of Bonapart’s Department of Justice. As the Times put it, "the most ordinary business" of the Department was prosecuted with noticeable "languor." It would respond to neither "kick" nor "prod." Roosevelt himself could not "stir" it.

Meanwhile, a “large number” (later reported to be in the “thousands”) of petitions were filed requesting clemency and the House of Representatives in the State of Missouri had approved of a resolution calling for such. The trial judge, the prosecuting attorney and the Warden at Leavenworth all supported a pardon. They were joined by Sen. William Warner (R-Missouri) and Rep. Edgar Ellis (R-Missouri) and a petition signed by 37,000 citizens of Kansas City. January, the post office robber, was frequently compared to Jean Valjean.53

The attorney general called a meeting of the press and bluntly told reporters he did not believe an “outright” presidential pardon was in order. Roosevelt, apparently felt differently, so a “compromise” was reached. January would return to prison, but a pardon would have the effect of commuting the sentence to a mere three months. In his Annual Report, Bonaparte (who called for public whippings of those who violated sedition laws and the death penalty for "habitual felons") felt to the need to emphasize his view that January still belonged in prison for “some appreciable time.”54

In 1907, Roosevelt pardoned Al Jennings, an outlaw and fearless self-promoter. Jennings claimed to have run away from home at the age of 11 and to have met the likes of Jesse James, Bat Masterson, Doc Holiday and Wyatt Earp. But his love of the law enabled him to become worthy of admittance to the bar of Comanche County, Kansas. In 1892, he was elected district attorney in El Reno, Oklahoma.

Two years later, Jennings was wanted for the murder of three men and a reward of five thousand dollars was placed on his head. As a “fugitive,” he joined a gang and robbed a general store and a saloon before being foiled by two safes that would not open during two separate attempts at train robbery. One general store robbery later, Jennings was arrested and given a 5-year prison sentence for assault with intent to kill and a life sentence for mail robbery.

On the claim that Jennings’ criminal career was spawned by a horrible false accusation, President McKinley commuted the life sentence to five years. So, in 1902, Jennings left prison and returned to Oklahoma where he was increasingly portrayed as a kind of modern day “Robin Hood.” Roosevelt restored Jennings’ civil rights five years later, by pardon, even though it could be “doubted” whether he had “been, on the whole, adequately punished.” The Annual Report of the attorney general argued Jennings had been a “good citizen and useful member of society.”

In 1913, Jennings co-authored a book about his own “true life story” entitled Beating Back. It was published as a serial in the Saturday Evening Post and Jennings re-enacted his story of crime and redemption for moving-picture cameras in The Bank Robbery. It would turn out to be a critical point in motion picture history as Jennings would go on to serve as an actor and / or technical advisor in over a hundred “westerns.”

In 1914, Jennings declared his candidacy for Governor of Oklahoma, promising to “clean

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up” the Democratic party and ensure that “absolutely honest men” were at the head of government in Oklahoma. He would also “expose” various “political crooks [without] mercy” and asked – rhetorically – “[What] is the difference between the man who holds up a train at the point of a gun and he who loots the treasury of the State? The only difference [is] that the train robber is at least honest in acknowledging his character, while the spoilsman leads a double life.” When Jennings lost, a Times editorial complained that “romance” was “dead” in Oklahoma

Jennings went on to form his own film company and frequently enjoyed playing the role of villain. In 1945, at the age of eighty-two, he sued the Don Lee Broadcasting Company for defamation, seeking $100,000 in damages. Jennings was irate over an August 1944, broadcast of the Lone Ranger in which a Jennings-like character encouraged a young man to join a gang of outlaws. Even worse, the Lone Ranger shot a gun out of the character’s hand! A jury took all of twenty-minutes to disagree with the complaint. But Jennings death, in December 1961, was noted in the New York Times. An article accompanied a photograph that described him was “one of the most feared outlaws in the Southwest frontier days.” 55

A final example of a notable act of clemency was Roosevelt’s 1902 commutation of sentence for Gideon W. Marsh. Marsh was President of the Keystone National Bank when he was arrested in May of 1891. The bank owed over a million dollars to depositors and several hundred thousand to the City of Philadelphia. Marsh forfeited his bail, however, by fleeing to “parts unknown.” Some said he was in Canada. Others placed him in the “pines of New Jersey.” A detective was also seriously wounded in a shoot-out at a cottage where the former bank president was suspected to be hiding out. But Gideon stayed well out of sight until November of 1898, when he surrendered himself to his original bondsman. After pleading guilty on three counts, he was sentenced to twelve years in prison. But Roosevelt commuted the sentence to expire on Christmas Eve, 1902, after only four years, arguing the “seven years of punishment borne” while Marsh was a fugitive and his “voluntary return and surrender” made him a worthy consideration for clemency.56

Signature Acts of Clemency Over and above these notable acts of are a few which I see as clemency highlights, or signature acts in the Roosevelt administration. If you will, these are the acts of clemency with which every biographer and student of Roosevelt should be familiar because they say so much about Roosevelt himself or the context of clemency in his day.

Joe Martin

One day, Ernest Adams picked up a club and attacked Joe Martin of Yell County, Arkansas. Martin managed to escape and retreated to his own home. But Adams went to a friend’s house, borrowed a Winchester rifle and made his way to the Martin residence. As he approached the front door, Adams saw Martin sitting in a chair with his 4-year-old daughter, Nora. Adams then threatened to kill Martin, but Martin begged him not to. So, Adams forced Martin down a road and along a path.

Later, Martin's family heard a rifle shot coming from the woods. But, to their general astonishment, Joe Martin emerged alive. Adams was nowhere to be seen. Martin later claimed that, as he and Adams were walking along, they both thought that they heard the sound of another man’s footsteps in the woods. In that slight moment of concern and hesitation, Martin

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grabbed Adams’ gun and a struggle ensued. Martin said he then shot Adams in self-defense. Later, the body of a man was found floating in a river. It was wrapped in a bed quilt later linked to Martin. Unfortunately, the head of the corpse had been removed. As a result, the identification process was said to have been “very incomplete.”

Nonetheless, Joe Martin was arrested for the murder of Adams and tried in the court of “hanging” Judge Isaac Parker.57 The missing head made for an interesting trial and, to make matters worse, some testified that they had actually seen Ernest Adams walking around the day after Martin had allegedly killed him. Evidence was also introduced to suggest Adams “often disappeared” from home for “considerable periods” of time. But, at the end of the day, the jury found Martin guilty. In April of 1889, Parker scheduled a hanging for July 17.

President Benjamin Harrison entered the story less than a week before the scheduled execution by granting a respite - delaying the hanging until August 9. As it turned out, Harrison did not need that long to make a final decision. On August 2, he commuted Joe Martin’s death sentence to life imprisonment. Harrison was convinced that the evidence in the case was too circumstantial and, besides, even if Martin had committed the murder, Adams was clearly the “aggressor” and the killing occurred “during the course of a fight.” Oddly, Judge Parker’s views were mentioned in the Annual Report of the attorney general.

Joe Martin was thrilled to retain his life and, with little else to do in prison, petitioned the President Harrison for further acts of clemency, again and again. Despite three years of applications, Harrison did not see fit to build upon the commutation. So, when Harrison left the White House in 1893, Martin began petitioning Grover Cleveland, again and again, for four full years. When Cleveland left office, Martin went to work on William McKinley.

Eventually, Attorney General John Williams Griggs got tired of processing Joe Martin clemency applications. At the beginning of McKinley’s second term, Griggs took the unusual step of issuing a statement on the matter. He suggested that a “stop” be put to “frequent” applications for clemency. In the case of Martin, he argued that it was “obvious” that, when President Harrison granted the commutation of sentence, he “expected” the penalty of imprisonment for life to “stand” as “just” punishment. In Griggs’ view, additional extensions of clemency would “interfere” with Harrison’s conclusions and “encourage” continuous appeal of every other “final” and “deliberate” presidential decision. Applicants would file a “series” of clemency appeals to succeeding presidents until one “could be induced to change the deliberate judgment formulated by his predecessor.” The Attorney General complained that second-guessing of clemency decisions was already “too frequent.”

Joe Martin’s good fortune was that Griggs was on his way out of office. Indeed, less than a week after his public comments, he was replaced by Philander Chase Knox. And, five months later, Martin had a new president to petition as well - McKinley was assassinated. Martin had used the “normal” channels and “processes” for years. Now it was time for something different.

Eighteen-year-old Nora Martin had been saving her pennies for 14 years. She had also collected signatures and was now ready to head to Washington to obtain a presidential pardon for her father. The front page of the New York Times reported the poor farm girl had never even seen a train, much less ridden on one. But she managed to find the Department of Justice and the “plucky” daughter was said to have “haunted” its hallways for an entire week. When the new attorney general finally signed a statement recommending the release of her father, Nora Martin made her way to the White House. There, she stood across the street and carefully watched while the paperwork on the application was delivered inside.

On the following day, the “usual course” of such applications was further bypassed.

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Instead of the Department of Justice informing the Warden of Columbus jail of the President’s decision, Joe Martin’s presidential pardon was placed in the hands of his daughter. After having completed her life’s work, Nora Martin had successfully begged to personally deliver both the good news and the accompanying document.

Attorney General Knox would later say that he studied Martin’s case with “great care.” The Annual Report of 1903 repeated the concerns of President Harrison, but Knox added this commentary:

It is to be remembered that this conviction, and a number of others in the same district at about the same time, were obtained by the Government during a period when a reign of terror existed in the Indian Territory. It is said that Judge Parker, who was the trial judge in this case, tried and sentenced more murderers than any judge who ever sat within the limits of the United States. The new attorney general went on to say that his “review” of “several” cases convinced

him that many of Isaac Parker’s trials were conducted “without the regard to the rights of defendants which prevail[ed] in more settled and law abiding communities.” As a result, many of Judge Parker’s convictions “could not have been attained elsewhere.” He also notes that Martin did not commit a premeditated murder and he had served a sentence equivalent to the “usual sentence” for murder in the second degree. Knox thus recommended that his sentence be “commuted to expire immediately.” Theodore Roosevelt agreed and granted a pardon to Joe Martin on October 24, 1902. The other hand, the unorthodox tactics of “plucky” Nora Martin are nowhere mentioned in the annual Report.58

John W. Burley

In the tenth chapter of his 1913 Autobiography, Theodore Roosevelt took the time to reproduce a memorandum he had once written in response to an application for a presidential pardon. The memo had been published in the New York Times and Washington Post and other newspapers throughout the Nation back in 1904. The case involved one John W. Burley who was indicted for rape in 1892, but acquitted. Later, in the same year, Burley was convicted for having carnal knowledge of a girl under the age of 16 and sentenced to 12 years in the penitentiary at Albany. The sentence was reduced to four years and four months for good behavior, however, and, in September of 1901, Burley was charged with indecent assault and sentenced to 364 days in jail.

The fifty-two year old Burley made the headlines in December of 1903 when he was taken into custody for the rape of 4-and-a-half-year-old Ella Turner. As the police pulled him out of the stable loft where the crime was committed, the prisoner complained, “Whenever anything is done you always come for Burley. One of these days Burley is going to kill a policeman.” The Washington Post noted the girl appeared at trial and “described the outrage so simply and with such apparent frankness and truth that Burley’s doom was sounded then and there.” For the first time since the adoption of a new section (808) of the criminal code, the jury exercised its option to sentence the rapist to death.

Roosevelt’s memo on Burley was published in the Nation's newspapers in August of 1904. It expressed his opinion that the jury had performed its “duty” by recommending the death penalty. After all, Burley’s “monstrous deed” was “the most hideous crime known to our laws.” Roosevelt added that there was “no justification whatever” to pay attention to allegations that Burley was “not of sound mind,” especially since those allegations were only made after trial

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and conviction. These allegations were forwarded by the Rev. John Roberts of the Y.M.C.A., who circulated a petition in the Washington area and obtained many signatures in the process. A jail physician likewise agreed Burley was “utterly irresponsible” for the crime for which he was convicted because he was an “imbecile.” Another “expert” concluded Burley was “far from being a normal man” and “demented.” The “expert” also noted the rapist had “very peculiar ideas regarding his acquaintanceship with the Almighty.” Finally, the presiding judge expressed some doubts as to Burley’s sanity.

But Roosevelt bluntly observed that no one would “pretend” that there had ever been any degree of “mental unsoundness,” nor would have ever even considered sending Burley to an asylum, if he had not committed the rape. Similarly, Attorney General William Moody emphasized Burley had “gone about his usual pursuits and vocations all his life [without] any suggestion that he was of unsound mind.”

On the topic of insanity pleas, generally, Roosevelt wrote: I have scant sympathy with the plea of insanity advanced to save a man from the consequences of crime, when unless that crime had been committed it would have been impossible to persuade any responsible authority to commit him to an asylum as insane. Among the most dangerous criminals, and especially among those prone to commit this particular kind of offense, there are plenty of a temper so fiendish or so brutal as to be incompatible with any other than a brutish order of intelligence; but these men are nevertheless responsible for their acts; and nothing more tends to encourage crime among such men than the belief that through the plea of insanity or any other method it is possible for them to escape paying the just penalty of their crimes. Roosevelt considered Burley’s crime “so revolting” that he was not entitled to “one

particle of sympathy from any human being.” He was only entitled to punishment that was “certain” and “swift.” The Post’s headline read BURLEY TO BE HANGED. The Galveston Daily News went with NEGRO MUST SWING.

The convicted rapist, who claimed to be one of forty-six children, was said to be “hardly able” to “comprehend” efforts made on his behalf or the “significance of their failure.” In the midst of laughter and jests with guards and fellow prisoners, Burley said he did not want a pardon and even claimed that he had rejected clemency because he had a “good job” in prison. The condemned man could only repeat, over and over, “I don’t see how they could do it, boss; I don’t see how they could do it.” On occasion, he referred to his sentence as a “joke” or a “put up job” and demanded a new trial.

John W. Burley was said to have “slept well” the night before his execution, and, on the following day, newspaper reporters took meticulous notes on the details of his “hearty” breakfast and “plentiful” lunch. At 12:07:55, he stepped onto the “trap” of the gallows, and a noose was adjusted around his neck while his legs were strapped. Burley mumbled that the noose should not be made “too tight” because he wanted to “talk.” After reciting “God, have mercy on my soul,” the prisoner was dropped six feet and left hanging for 45 minutes.

On the face of things, it all may have looked like nothing more than a very brutal ending to a very brutal story. But a letter to the Post, which followed the publication of Roosevelt’s memo, emphasized another angle on the case. The letter observed the President was up for re-election and voters of the Nation would be making their decision in less than three months. It

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thus credited Roosevelt for playing “to the Southern gallery” and for playing “this kind of politics just at this particular time.” Burley happened to be an African-American, and the author of the letter was annoyed that the President’s public rejection memo made an odd comparison between the crime of rape and lynching. The letter closed with the wish that Roosevelt not “forget” to deal out “even-handed justice and fairness” in the “excitement and anxiety of a great political contest and his eagerness to succeed himself.”

As it happened, Roosevelt won 56 percent of the popular vote and 71 percent of the electoral vote in Election of 1904. But, when all was said and done, he did not win the electoral vote of a single Southern state.59

Arthur Adams and Robert Sawyer

The Harry A. Berwind pulled out of docks of Mobile (Ala.) on September 23, 1905 and headed for Philadelphia. By October 12, the Nation’s newspapers were reporting a “quarrel’ had resulted in the shooting deaths of Capt. E.R. Rumill, Mate John T. Hall, engineer C.L. Smith and cook John Falbe. The bodies were thrown overboard by “mutineers,” but the New York Times reported there was no shortage of evidence of a “fierce encounter.” The decks of the Berwind were said to have been “crimson with blood.” It was later learned that a fifth individual, had been murdered in a separate attack.

Henry Scott, Arthur Adams, and Robert Sawyer were the defendants in a case where there were five dead men, no bodies, one known murderer, three suspected murderers, and plenty of blood everywhere. Arthur Adams and Robert Sawyer fiercely maintained their own innocence, claiming Scott had committed all five murders while they were sleeping. Nonetheless, they were both found guilty of murder.

Scott was also convicted for murder, afterward, although he claimed Adams and Sawyer had planned a mutiny before the Berwind had even left the docks. As it turned out, there were references to mutinous actions of sailors in the ship’s log, and the captain had, in fact, singled out Adams and Sawyer as the cause.

Just four days before Scott was to be hanged, Theodore Roosevelt granted a respite, delaying the hanging until July 1. It was the first of nine acts of clemency Roosevelt would grant in relation to the case.60 The Annual Report of the attorney general for 1906 stated that the district attorney requested that the President grant the respite to Scott “in order that he might be used as a witness against Adams and Sawyer [in] the event a new trial of their cases would be granted.” As a result, on July 6, 1906, when it appeared there would be no hope for Adams and Sawyer in the appellate process, Scott walked up the steps of the gallows.

In a statement read just before the hanging, Scott acknowledged his own guilt, but claimed Arthur Adams and Robert Sawyer were actually innocent! He had made the same confession to a “spiritual advisor” six months earlier and had signed a sworn statement to similar effect about one week before the execution. Solicitor General Henry M. Hoyt considered the last-minute confession mere “bravado” to “defeat the ends of justice.” But the Times reported President Roosevelt would be asked to pardon Scott’s “supposed accomplices.”

Adams and Sawyer were sentenced to be hanged two weeks later. But ten days beforehand, Roosevelt granted another respite, and the double execution was delayed until November 1. At the end of October, two ministers visited the White House and spoke with the President and the attorney general on behalf of Adams and Sawyer. Roosevelt granted a second respite until December 15. Once again, 10 days before the scheduled execution, Roosevelt

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exercised the power of executive clemency. But this time, he spared the lives of the convicted murderers. The Annual Report of the attorney general for 1907 reported the sentences of Adams and Sawyer were commuted to “imprisonment for life.” Unlike most of the other decisions listed in the Report for that year, no explanation whatsoever was provided.

Four years and four months later, Arthur Adams and Robert Sawyer were serving out their sentences in the federal prison at Atlanta. But they managed to enlist the support of actor H.B. Warner,61 who hired a lawyer to put together a clemency application and gain the support of the judge, prosecuting attorney and hundreds of others. The lawyer then obtained a private meeting with President Taft. Taft, already familiar with the case and convinced the Adams and Sawyer had been wronged, assured Warner’s lawyer that he would remedy the situation. Indeed, a second commutation of sentence was granted on January 2, 1912, and Adams and Sawyer were released from prison. Sticking to a tradition of sorts, the Report made no mention whatsoever of stage-star H.B. Warner or the efforts of his energetic lawyer.62

Vuco Perovich

Theodore Roosevelt was on the front end of a three-president clemency score by Vuco Perovich, whose case would eventually result in a landmark decision by the United States Supreme Court. Although versions of his saga vary considerably,63 Perovich was charged with the murder a local fisherman whose body was burned but never actually identified. The five-day trial was a public sensation. The courthouse was packed and those who could not actually get inside stood on boxes outside the building and peered through the window.

Perovich was convicted of murder in August of 1905 and his execution was scheduled for December. An appeal was filed, however, so Perovich wore special boots, chained to the floor of his six-by-six cell for about a year and half, when the U.S. Supreme Court upheld the conviction.64 The hanging was rescheduled for August of 1907, but Perovich applied for a commutation of sentence. The so-called Political Code of 1900 allowed the governor of Alaska to grant further reprieves and, finally, in January of 1908, Roosevelt denied the request for a commutation and granted Perovich an additional respite, delaying the execution until March of 1908. With additional delays, Perovich survived all of 1908, and the election of a new president.

William Howard Taft commuted Perovich’s death sentence to life in prison on June 5, 1909. The Annual Report of the U.S. Attorney General noted the evidence in the case was “wholly circumstantial” and that Perovich was denied an interpreter. In addition, “many” of the “best people” of Alaska had expressed doubt as to his guilt and petitioned the president to stop the execution. The trial judge was in agreement with these sentiments. Perovich kept himself busy learning more than a dozen languages, studying law and training mice to sit up, wash their faces, climb strings and jump but, in February of 1925, he took a somewhat non-traditional step by filing an application for a writ of habeas corpus to a U.S. District Court. The application argued that the commutation of sentence which saved Perovich’s life was “without his consent and without legal authority.” On the receiving end of the application was one John C. Pollock, an appointee of Theodore Roosevelt.

Judge Pollock believed that a commutation of sentence, properly speaking, should amount to a “reduction in the degree of punishment.” Reducing a sentence from life imprisonment to 20 years would clearly meet that definition. But his opinion dared to wonder:

… but who would say that a sentence of imprisonment for one year is a less

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punishment than that of exile for two years? The two punishments are so different in kind that they cannot be compared. Again, is life imprisonment preferable to death? To some, it might be; to others, it might not be. The two punishments differ in their very nature and character. To an innocent man, imprisonment for life might well be a life of torture, a living hell, compared to which death might be a kindness. Pollock the President could not “change the sentence from death to life imprisonment

[simply] because to his mind it might appear preferable.” If anything, in Pollock’s view, Taft’s grant of clemency was actually more like a conditional pardon which, in his mind, required the “consent or acceptance of the accused.” 65 So, two full decades after his conviction, Perovich was suddenly a free man.

By 1927, the government’s appeal reached the U.S. Supreme Court, and William Howard Taft had become Chief Justice. So, Justice Holmes wrote the opinion for a unanimous Court after Taft recused himself. The decision would become a classic for constitutional understanding of the pardon power of the president.66 Holmes discarded Judge Pollack’s primary arguments as “immaterial” and noted it was “common understanding” that life in prison was a “less penalty” than death. More significantly, Holmes argued pardons are not merely “private acts of grace,” from one individual to another. They are, instead, part of a “Constitutional scheme” which involves a determination of how the welfare of the public will best be served. Just as the original punishment was imposed without Perovich’s “consent” and “in the teeth of his will, whether he liked it or not,” the president, in consideration of the public welfare (not Perovich’s “consent”), had determined that his punishment should be reduced.

Since Taft’s 1909 commutation was ruled constitutional, Perovich – at least in theory - was on his way back to prison. But, as one author notes, there was “apparently little appetite” for rounding him up. Just to be safe, Perovich filed an application for a presidential pardon! On July 25, 1927, President Calvin Coolidge granted – somewhat ironically – a pardon “on conditions similar to parole.”67

1902 Amnesty

On July 4, 1902, Roosevelt granted amnesty to the “many” inhabitants of the Philippine archipelago who “were in insurrection against the authority and sovereignty of the kingdom of Spain at divers times from August, 1896, until the cession of the archipelago by that kingdom to the United States of America.” The Proclamation declared:

… it is deemed to be wise and humane, in accordance with the beneficent purposes of the government of the United States toward the Filipino people, and conducive to peace, order and loyalty among them, that the doers of such acts who have not already suffered punishment shall not be held criminally responsible, but shall be relieved from punishment for participation in these insurrections and for unlawful acts committed during the course thereof by a general amnesty and pardon.

The pardon was granted “without reservation or condition” except that it did not apply to those who committed crimes after May 1, 1902, or to persons previously convicted of “murder, rape, arson, or robbery, by any military or civil tribunal organized under the authority of Spain or

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of the United States of America.” Finally, those that sought the protection of the amnesty had to take an oath recognizing and accepting the “supreme authority” of the United States of America in the Philippine Islands and pledging to “maintain true faith and allegiance thereto.”

Above, I have provided the first thorough investigation of Theodore Roosevelt’s use of the pardon power, both as governor and as president. The data suggest Roosevelt’s personal opinions influenced his decision making, in both offices, and there appears to be is fair amount of agreement between his words and his actions. In the following section, I explain how the analysis has value over and above the fact that Roosevelt is a popular subject and this aspect of his political life has been hitherto ignored.

Modern Clemency Environment (Similar Environment and Different Response)

Interestingly, the environment in which Roosevelt exercised executive clemency is remarkably similar to the environment in which today’s presidents operate. Today, for example, the federal prison population is booming. A recent report by the Congressional Research Service notes the number of inmates has increased, on average, by 6,100 per year since FY1980. The result is an increase in the overall population from 24,640 federal prisoners (in 1980) to well over 200,000 in 2012.68 In FY2012, Bureau of Prisons facilities were operating at 38% over their rated capacity. High-security prisons for males were operating 51% over their rated capacity.69 One consequence of over-crowding is an increased reliance upon so-called “contract facilities” to “manage” the federal prison population. By FY 2010, nearly 18% of federal prisoners were housed in such facilities. 70 The typical explanations for these trends are an unmistakable echo of the Roosevelt era. The above-mentioned report notes the enactment of federal mandatory minimum penalties (totaling almost two hundred by 2011)71 has, in part, “contributed to the growing federal prison population” because:

They have increased in number, have been applied to more offenses, required longer terms of imprisonment, and are used more frequently than they were 20 years ago.72

In addition, the abolition of federal parole in 1984 (Comprehensive Crime Control Act, P.L. 98-473) has resulted in both longer sentences and a higher prison population.73

The “expanding criminal code”74 and the “federalization” of crime75 have also played a part. Interestingly, these kinds of concerns have, in recent years, alerted political conservatives to the importance of the pardon power. A high profile web page, Right on Crime, notes:

Thousands of harmless activities are now classified as crimes in the

United States. These are not typical common law crimes such as murder, rape, or theft. Instead they encompass a series of business activities such as importing orchids without the proper paperwork, shipping lobster tails in plastic bags, and even failing to return a library book. There are over 4,000 existing federal criminal laws. (The exact number of laws is unknown because the attorneys at Congressional Research Service who were assigned to count them ran out of resources before they could complete the herculean task.) … The creation of these often unknowable and redundant crimes, the federalization of certain crimes

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traditionally prosecuted at the state level, and the removal of traditional mens rea requirements all contribute to a relentless trend known as overcriminalization.76

“Hanging” Judge Isaac Parker is long gone, but rigidity in the law and emphasis on

deterrence and retribution are still very much with us. While Parker’s edgy enthusiasm and narrow view of the law affected hundreds of what were perhaps the most violent offenders in his court, today, similar dispositions in law and politics affect hundreds of thousands of lives on a daily basis, and for reasons far less compelling.

Finally, as was the case in Roosevelt’s day, clemency applications have, in recent years, increased at an impressive rate. The Office of the Pardon Attorney (Department of Justice) reports the Reagan administration received more than 3,000 applications while the Clinton administration topped the 7,000 mark. The administration of George W. Bush received over 11,000 applications and President Obama’s first term had already topped the 8,000 mark.77 There is every reason in the world to expect that, before Obama leaves office, he will have received a higher number of clemency applications than any president in history.

While the clemency environment today is remarkably similar to that of Roosevelt’s day, clemency practices could not be more different. In order to research President Roosevelt’s clemency decisions, I employed a wealth of information in the Annual Report of the U.S. Attorney General. But the transparency provided by this publication was all but obliterated in 1933, when a bureaucrat decided to “decrease the expense of printing a large number of exhibits not required by law.”78 Since then, the Annual Report had provided only aggregate data on clemency, arranged by fiscal year.

To make matters worse, the Public Affairs Office in the Department of Justice recently stopped the long-standing practice of issuing memoranda (or “public affairs notices”) when president granted pardons. As a result, clemency decision making is less-transparent than it was in 1902. Indeed, in 1998, when Pulitzer Prize-winning Washington Post journalist George Lardner wanted to obtain information on denied clemency applications, he had to battle (and beat) the Obama administration in federal court.79

Table 5

Commutations of Sentence Theodore Roosevelt v. Eight Recent Administrations

Roosevelt Number % of All Grants 80

Recent Administrations Number % of All

Grants 81 FY 1902 92 27 Nixon 60 6 FY 1903 70 43 Ford 22 5 FY 1904 87 38 Carter 29 5 FY 1905 116 31 Reagan 13 3 FY 1906 66 42 H.W. Bush 3 3 FY 1907 71 26 Clinton 61 13 FY 1908 53 26 W. Bush 11 5 FY 1909 90 34 Obama 1 4 Totals 645 200

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On average, President Roosevelt granted, 45 commutations of sentence per fiscal year. As a result, 34 percent of all of his clemency grants, were commutations of sentence. Today, however, the vast majority of clemency grants are pardons, given to persons who committed minor offenses years (if not decades) ago. The effect of these pardons is to simply restore the civil rights of recipients.82 Consequently, commutations of sentence are now freakishly rare. Presidents Nixon, Ford and Carter all granted commutations to at least 1 in every 40 applicants. Presidents Reagan and Clinton granted commutations to at least 1 in every 100. With the administration of George H.W. Bush, the grant/application ratio rose to 1 in every 245. George W. Bush granted commutations to 1 in every 779 applicants. At the end of his first term, President Obama had granted a single commutation of sentence to more than 6,700 applicants.83 Amazingly, Roosevelt granted three times more commutations of sentence across eight fiscal years than all of the presidents over the last 45 years combined! 84 Today, when presidents exercise the pardon power, it is rarely done in anything like a steady, consistent manner, across the term. Instead, presidents have increasingly waited longer and longer to issue the first grants of their terms,85 and they have felt increasingly free to go many additional months without granting any pardons or commutations. Indeed, 9 of the last 11 presidential terms have featured 30 months (of a possible 49 for each the term) without a single act of clemency. More disturbingly, 5 of the last 6 presidential terms have featured at least one stretch of 11 or more consecutive months without a grant.86 The only semblance of consistency appears to be the fact that 1 of every 2 presidential pardons granted over the last 39 years has been granted in the month of December.87

Finally, another considerable difference the practices of Roosevelt and recent presidents can be seen in overall outcomes of the clemency process. A full 20 percent of the applications filed in the Roosevelt administration resulted in a grant of clemency. 88 In recent year, however, the odds of filing a successful application have gotten steadily worse. Bill Clinton granted only, 396 pardons and 61 commutations of sentence - of course, many of them were controversially spit out on his last day in office. George W. Bush followed with 189 pardons and 11

Table 6 Percentage of Clemency Applications Granted

Theodore Roosevelt v. Eight Recent Administrations

Roosevelt Percent Recent Administrations Percent

FY 1902 17 Nixon 36 FY 1903 21 Ford 27 FY 1904 24 Carter 22 FY 1905 25 Reagan 12 FY 1906 18 H.W. Bush 5 FY 1907 19 Clinton 6 FY 1908 17 W. Bush 2 FY 1909 25 Obama <1 Average 21 14

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commutations of sentence across two full terms. When his first term had ended, Barack Obama had granted a mere 22 pardons and a single commutation of sentence.89 Consequently, no president has been as active, or as generous, in the use of the pardon power as Theodore Roosevelt since Lyndon Johnson. 90

Today, observers of the clemency process refer to the “disinclination” of the Department of Justice officials to be supportive of clemency,91 or an outright “hostility” to forgiveness that is “institutionalized.”92 They think of the Office of the Pardon Attorney as a place where clemency applications “go to die.”93 They refer to “atrophy” in the pardon process94 and a “dysfunctional” Department of Justice, as well as presidential “abdication of responsibility.”95 Commentators are also concerned that irregular use of the pardon power erodes “public confidence” in the “legitimacy” of the pardon process.96

The current U.S. pardon attorney (who has overseen more clemency denials than all of the pardon attorneys twenty-six years before him combined)97 has been rebuked by the Office of the Inspector General for failure to “accurately represent” the views of a U.S. attorney in correspondence concerning a clemency application and for falling “substantially short” of the “high standards to be expected of Department of Justice employees” and his “duty” to the President.”98 There are even concerns that racism plays a factor in the clemency process.99

Conclusion – Roosevelt and Clemency Reform Above, I have noted how the environment of federal executive clemency today is remarkably similar to that of Theodore Roosevelt’s day. Roosevelt’s response to that environment was to pardon frequently (generously), regularly, and in a diverse manner (granting pardons, commutations and respites as well as an amnesty), and in a relevant and transparent manner. In sharp contrast, recent presidents are notably stingy with pardons, which are granted with little or no degree of regularity. Commutations of sentence are almost non-existent and the value of transparency seems largely irrelevant to the process. Assuming the current state of affairs it not as it should be, what can/ought to be done?

As it turns out, today, Roosevelt’s views on clemency reform could not be more relevant. In his 1913 Annals article, he spoke of “growing insistence” upon the need for “drastic changes” and called for the creation of clemency boards, appointed by governors. Today, increasingly, scholars and commentators (and even politicians) are drawn to the conclusion that this model should be incorporated at the federal level. In December of 2012, Representative Robert C. "Bobby" Scott (D-Va.), ranking member of the Crime Subcommittee of the House Judiciary Committee, and Representative John Conyers, Jr. (D-Mich.), ranking member of the full House Judiciary Committee joined 20 other members of Congress a letter to President Obama requesting that he “establish a process” for considering appropriate clemency for those in prison who were sentenced prior to enactment of the Fair Sentencing Act of 2010 (FSA). The Act reduced the infamous sentencing ratio between crack cocaine and powder cocaine from 100 to 1 to 18 to 1. The letter noted:

… In the past, systemic clemency has been used to address injustices for which there was a similarly strong national consensus. For instance, President Gerald Ford established a commission to make recommendations to him on clemency for those imprisoned or subject to imprisonment for draft dodging during the Vietnam War era …100

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The New York Times has since expressed concern that today’s pardon process is generally tainted by the “prosecutorial mindset” of the Department of Justice and has recommended that a person of “stature and energy” be selected to “steward” all pardon applications with the assistance of a “new bipartisan commission.”101 A former U.S. Pardon Attorney has even agreed that there might be considerable value in establishing a panel of “distinguished citizens” to “advise on pardon policy and make recommendations in particular cases.” 102 These conclusions are far from anything like the residue of a “new penology.” Humbert (a political scientist) argued, in 1941, that “better results” in the use of the pardoning power could be obtained if there were “impartial studies” of “detailed data” for each clemency applicant.103 Humbert believed that if “accurate, impartial, and scientific” information of this kind were available, the executive branch could be more independent in exercising its own judgment and “greater uniformity of treatment” would be promoted.104 He also noted that “better results” would “probably” be produced by the creation of a “small board,” equipped with a staff to conduct “impartial studies.”105 In sum, this analysis finds still yet another point upon which to argue that Theodore Roosevelt was more than a man whose significance is easily encased by personal limitations and the boundaries of his era. Given the current clemency environment, and the unimpressive (if not highly problematic) response of recent presidents, it appears we would be fortunate indeed to be able, once again, to enjoy the presence of someone in the White House with the values, understanding, energy, mercy and foresight of Theodore Roosevelt.

1 More specifically, in Microfilm Set T-967 2 W. H. Humbert. The Pardoning Power of the President (1941). 3 Theodore Roosevelt. “The New Penology.” Volume XLVI The Annals: Prison Labor 4, March (1913). 4 “Governors Discuss the Granting of Pardons.” New York Times, January 19, 1913. 5 “Theodore Roosevelt: An Autobiography. 1913. Charles Scribner and Sons: New York. 6 December 3, 1907. 7 Pardon granted December 19, 1912. 8 Pardon granted June 2, 1912. 9 Pardoned granted June 17, 1912. 10 Pardon granted December 31, 1912. 11 Pardoned granted June 26, 1906. 12 Pardon granted December 31, 1907. 13 Morse (known as the “Ice King,” the “Steamship King” and the “Admiral of the Atlantic Coast”) controlled fourteen banks and trust companies in New York, Maine and New Hampshire. Eventually, he joined forces with the president of the Mercantile National Bank to organize a copper pool, which generated considerable profit until it collapsed – an event generally recognized as a leading cause of the Financial Panic of 1907. Roosevelt responded by allowing J.P. Morgan to work with secretary of treasury and the government deposited millions of dollars in distressed banks. Morse was convicted of misapplication of bank funds and permitting false entries in bank books and given a 15-year prison sentence. For some time, President Taft resisted relentless lobbying on Morse’s behalf, but commuted the sentence on January 18, 1912, on the premise Morse was very near death. Within weeks his release, Morse was out and about, vacationing in Europe and ready to return to Wall Street. Indeed, he outlived Taft! It was later revealed that Morse promised $125,000 to Harry Daugherty (future U.S. Attorney General) if clemency could be obtained. The Department of Justice also developed evidence suggesting Morse had ingested soapsuds or chemicals designed to produce a hemorrhage of the kidneys from which

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he could (and did) quickly recuperate. 14 In 1910, Heike was convicted of making false entries in customs books and conspiracy to defraud the United States in the so-called Sugar Trust Cases. The result was an eight-month ticket to prison and a fine of $5,000. Three years later, when his highly technical appeals ended, there were only two days left in the administration of William Howard Taft. But Taft commuted the sentence to the fine and costs because "eminent physicians" had confirmed Heike's health was in a "precarious condition." Consequently, Heike avoided prison altogether. An assistant district attorney complained that the commutation was "a direct interference with the administration of justice” and concluded there was "one law for the rich and another for the poor man." 15 Banks was convicted of assault to rape in May of 1900 and given a sentence of twenty-one years in the Ohio Penitentiary. Wilson commuted the sentence to expire at once in May of 1913, however, because the violation "was technical rather than real" and the sentence, "under the circumstances," was "unusually severe." On the other hand, the public press reported Banks was release because of "poor health." 16 “Gov. Cleveland’s Pardons.” Albany Times, November 17, 1884; “Gov. Morton’s Clemency.” New York Times, May 25, 1897; “Gov. Roosevelt’s Pardons.” New York Times, November 23, 1899; Public Papers of the Governors of New York. 17 Bruce Porter. Commutation of sentence granted on October 22, 1895. 18 Howard C. Benham. Respite granted on December 28, 1899. See Note 28 below. See also “Lunacy Commission for Tankard.” New York Times, January 3, 1900; “Murder at Summer Camp.” New York Times, July 6, 1899; “Must die in Electric Chair.” New York Times, November 28, 1899. 19 SQUIRE TANKARD: Respites granted January 11, 1900 and June 7, 1900. See “Lunacy Commission for Tankard.” New York Times, January 3, 1900; “Murder at Summer Camp.” New York Times, July 6, 1899; “Must die in Electric Chair.” New York Times, November 28, 1899. 20 Commutation of death to life in prison granted to Edward Wise (July 27, 1900). On September 28th of the following year, Governor John A. Dix commuted Wise’s sentence to time served (Public Papers of John A. Dix. 1911. Page 499). 21 Paul Grondahl. I Rose Like A Rocket: The Political Education of Theodore Roosevelt (2004). 22 Id. at 319. 23 Public Papers of Governor Roosevelt, “Relative to the Application for Commutation of Sentence for Martha Place.” March 15, 1899. Pages 49-51. 24 Kathleen Dalton. Theodore Roosevelt: A Strenuous Life (2002). 25 Public Papers of Governor Roosevelt. 1899. “Letter to the Warden of Sing Sing Prison Relative to Execution of Martha Place.” March 16, at 52. 26 Martin Gitlin and David W. Pfaff. Joseph Pulitzer: Historic Newspaper Publisher (2009) at 75. 27 “Wise Escapes the Chair.” New York Times, July 26, 1900. 28 HOWARD C. BENHAM: “Alleged Wife-Poisoning.” New York Times, January 10, 1897; “Benham Guilty of Murder.” New York Times, July 30, 1922; “Benham Sentenced to Die.” New York Times, September 12, 1897; “The Benham Murder Case.” New York Times, July 31, 1897; “H.C. Benham Acquitted.” New York Times, June 22, 1900; “Howard Benham to be Resentenced.” October 25, 1899; “Howard C. Benham to be an Actor.” New York Times, July 19, 1900; “New Trial for Howard C. Benham.” February 7, 1900; “Respite for Howard C. Benham.” New York Times, December 29, 1899 29 See, for example: “Governor Extends Clemency.” New York Times, March 11, 1899; “The Governor Extends Clemency.” New York Times, February 22, 1899; “Governor Liberates Burglar.” New York Times, March 22, 1899; “Governor Pardons Convicts.” New York Times, January 1, 1901; “Governor Releases Life Convict.” New York Times, May 17, 1899; “Pardoned by Gov. Roosevelt.” New York Times, January 26, 1899; “Pardoned by the Governor.” New York Times, October 11, 1899; 30 The recipients were Angelo Sartori and Michael Casello who were convicted of murder. Roosevelt commuted each of their sentences to life in prison on April 25, 1893. 31 Death of a father, an ill brother, rescued an officer who was attacked, services rendered, clemency

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needed to travel, more needed for consideration of a motion, saved a child in a fire. 32 1. Recipient assisted authorities / plea bargain 2. Credit for time served 3. Disparity / Co-Defendant was pardoned 4. Evidence: circumstantial, suspect, etc. 5. Consideration of family, dependents 6. First offense 7. Fugitive, but turned himself in 8. Good prison record 9. Good reputation before conviction 10. Good reputation after conviction 11. Health considerations 12. Ignorant 13. Less culpable / minor offense / technical conviction 14. Minimum mandatory sentence 15. General misfortune / mitigating circumstance 16. No explanation whatsoever 17. Old age 18. Possibly innocent / induced to commit crime by another 19. Poverty 20. Promised employment / home / mental or physical care 21. Recommendation by the district attorney 22. Recommended the sentencing judge 23. Recommendation by members of the jury 24. Recommendation of citizens / others 25. Reformed / contrite disposition 26. Restitution 27. Sanity questions / influence of alcohol 28. Sentence was excessive 29. Served or will have served much of sentence 30. Served sentence and was released 31. Needed to testify 32. Problems with trial, procedural questions 33. Youth. 33 Three Prisons Act, ch. 529, 26 Stat. 839 (1891) 34 Historical Corrections Statistics in the United States, 1850-1984, U.S. Department of Justice, Bureau of Statistics (1986). P. 145 35 Id. at 29. 36 Id. at 145. 37 Humbert, supra note 2 at 113. 38 Id. 39 Humbert, supra note 2 at 96-8. 40 The only three presidents with higher numbers being Ulysses S. Grant, Rutherford B. Hayes and Grover Cleveland. 41 Humbert, supra note 2 at 96-8. 42 Historical Corrections, supra note 34 at 145. 43 Humbert, supra note 2 at 96-8. 44 The PardonPower blog. “Obama: More Dubious Pardon History-Making.” Posted January 24, 2013 at http://www.pardonpower.com/2013/01/obama-more-dubious-pardon-history-making.html 45 Humbert, supra note 2 at 122-3. 46 One manslaughter case involved a suspended sentence of 120 months (Luther Potts, Commutation of sentence granted Feb. 5. 1906). 47 Other idiosyncratic reasons included: case delayed, saved a life, died, reverence for law, years were added to sentence because of an escape, studied, military service, service as doctor, injured in fall, new law enacted just two weeks after sentence, to deliver prisoner to another state, paid fines, statute was modified, got legitimate job, stopped criminal activity before arrest, was semi-barbarians, would reform, would benefit from clemency, was unruly, in the public interest, was not white, sound policy, promised to behave, to fulfill the redemptive purpose of the law, law declared unconstitutional, not dangerous, claimed to be prosperous, would not work, less harm outside, supported family, was industrious, to remove stigma and humiliation, test case. 48 The Office was established in the Department of Justice by an Act of Congress in 1891 to prepare cases for the president to consider (26 Stat. 946). Previously, the clemency process was housed in the Department of State (1789 to 1854). 49 Pardon granted to Edward P. Aler (August, 1, 1904), commutation of sentence granted to James H. Ekas (June 13, 1906), pardon granted to Arthur Hunkele (December 5, 1906). 50 Commutation of sentence granted to John Bolan (January 1, 1904), commutation of sentence granted to Theodore C. Treyens (May 22, 1905), commutation of sentence granted to Jerome Stone (December 18, 1905). 51 HENRY STARR: “Last of a Noted Family.” New York Times. November 14, 1893; Glenn Shirley. 1965. Henry Starr: Last of the Real Bad Men. David McKay Company: New York, New York; Henry

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Starr. 1982. Thrilling Events: Life of Henry Starr. Creative Publishing Company: College Station, Texas; “Starr Dies From Wounds.” New York Times. February 23, 1921; “Starr Fights to Live; Blames Debt for Fall.” New York Times. February 20, 1921; “Starr, Noted Bandit, Shot Down in Bank.” New York Times. February 19, 1921; “300 Men in Chase of 5 Bank Robbers.” New York Times. March 28, 1915. 52 Pete Daniel. The Shadow of Slavery (1972). 53 The pitiable (but fictitious) character in Hugo’s Les Miserables Valjean, incidentally, spent time in prison for stealing bread from a broken shop window. 54 CHARLES W. ANDERSON: Annual Report of the Attorney General, 1907, p. 75. “Bonaparte Busy, But Is Overruled.” New York Times, May 9, 1907; “Compromise Again Unsatisfactory.” New York Times, May 10, 1907; “January’s Short Sentence.” New York Times, May 9, 1907; “May Pardon January.” New York Times, May 1, 1907; “Whole of Missouri Pleads for Convict.” New York Times, April 30, 1907. 55 AL JENNINGS: “Al Jennings as Counsel.” New York Times, September 15, 1921; “Al Jennings, Ex-Outlaw Dies at 98.” New York Times, December 27, 1961; “Al Jennings Loses Suit.” October 3, 1945; “Al Jennings ‘Robbed Some Trains, No Banks,’ He Tells Jury In His Wild West Radio Suit.” New York Times, September 28, 1945; “The Bandit Candidate.” New York Times Editorial, August 9, 1914; Cecilia Rasmussen. “A Badman Who Went Straight – to Hollywood.” Los Angeles Times. August 14, 1995; “Convicts See ‘Beating Back’,” New York Times, May 24, 1915; “Ex-Outlaw Aspires to Govern a State.” New York Times, January 7, 1914; “Real Bandit Yarns Told to Newsboys.” New York Times, January 11, 1914; Carl Safikas. 1982. The Encyclopedia of American Crime. Facts on File: New York, New York. 56 GIDEON MARSH: Annual Report of the Attorney General. 1902, p. 228; “The Fugitive President.” New York Times, June 24, 1891; “G.W. Marsh Pleads Guilty.” New York Times, December 8, 1898; “Gideon W. Marsh Returns.” New York Times, November 4, 1898; “Leniency for Bank Official.” New York Times, December 10, 1902; “The Keystone Defalcation.” New York Times, May 5, 1891; “Ruined With the Bank.” New York Times, May 22, 1891; “Still Hunting for Marsh.” New York Times, May 23, 1891. 57 President Grant sent Isaac Parker to the Western District of Arkansas in 1875, for a brief period of time, in order to “get things straightened out.” Instead, Judge Parker stayed twenty-one years, erected a guillotine suitable for multiple executions outside of his office window and operated with relatively little interference - so long as fellow Republicans were presidents. Democrat Grover Cleveland was a different story, however. Cleveland used the pardon power 104 times in relation to Parker defendants and referenced Parker’s own “recommendation” in less than half of those decisions. He also used the pardon power in relation to 35 of Parker’s death sentences. 58 JOE MARTIN: Annual Report of the Attorney General, 1888-1896; 1903, pp. 44-47; Homer Croy. 1952. He Hanged Them. Duell, Sloan and Pearce: New York, New York; Fred Harvey Harrington. 1951. Hanging Judge. The Caxton Printers, Ltd.: Caldwell, Idaho; Microfilm Set T967, National Archives; “President Gives Girl Her ‘Pap’s’ Pardon For Murder.” New York Times, October 26, 1902; “Seeks Father’s Freedom.” New York Times, October 25, 1902; “Too Many Ask Pardons.” New York Times, March 23, 1901. 59 JOHN W. BURLEY: Annual Report of the Attorney General. 1913, pp. 351, 353; “Burial of John Burley.” Washington Post, August 28, 1904; “Burley to Be Hanged.” Washington Post, August 9, 1904; “Chance of Escaping Gallows.” Washington Post, August 7, 1904; “Corrects Mr. Roosevelt.” Washington Post, August 15, 1904; “Death Penalty Demanded by President Roosevelt for Revolting Assaults.” Post Standard, August 9, 1904; “Death Penalty Imposed.” Washington Post, December 9, 1903; “Must Pay the Just Penalty.” Cedar Rapids Evening Gazette, August 9, 1904; “Neck Broken by Drop.” Washington Post, August 27, 1904; “Negro Doomed by Roosevelt.” Atlanta Constitution, August 9, 1904; “Negro Hanged in Washington.” Reno Evening Gazette, August 26, 1904; “Negro Must Swing.” Galveston Daily News, August 9, 1904; “President Upholds Sentence.” New York Times, August 9, 1904; “Report of Burley’s Application.” Washington Post, August 6, 1904; “Roosevelt Will Not Interfere.” Oakland Tribune, August 9, 1904; Theodore Roosevelt. 1925. An Autobiography. Charles Scribner’s Sons: New

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York, New York; “Scaffold But A Joke.” Washington Post, August 22, 1904. 60 Roosevelt granted respites to Adams and Sawyer on January 22, August 7, and October 26, 1906. His commutation of their sentences was granted on December 5, 1906. 61 Warner played Jesus Christ in The King of Kings (1927) and also appeared in Mr. Smith Goes to Washington (1939), It’s a Wonderful Life (1946) and The Ten Commandments (1956). 62 AURTHUR ADAMS and ROBERT SAWYER: “Accuse Scott of Murder.” Washington Post, November 7, 1905; “Actor Aids Life Convicts.” New York Times, August 11, 1911; "Actor Saves Seamen Charged With Murder." Racine Daily Journal, August 14, 1911; Annual Report of the Attorney General, 1907, pp. 63, 67 and 68. Annual Report of the Attorney General 1912, page 347; “Berwind Sailors Indicted.” Washington Post, November 2, 1905; “Big Thrill in New Play by Armstrong.” New York Times, January 22, 1910; “Evidence Against Scott.” Washington Post, November 9, 1905; “Found Guilty of Murder.” Washington Post, November 8, 1905; “H.B. Warner, Acted in Films 42 Years.” New York Times, December 23, 1958; “Hanged for Crew’s Murder.” New York Times, July 7, 1906; “Jimmy Valentine Benefit for “Lifers.” New York Times, April 18, 1910; “Mutineers Convicted of Murder.” New York Times, November 8, 1905; “Mutineers Kill Five, Including the Captain.” New York Times, October 12, 1905; “Mutineers On Stand.” Washington Post, October 13, 1905; “Mutineers Will Be Hanged.” Washington Post, October 16, 1906; “Plea for Negro Murderers.” Atlanta Constitution, October 23, 1906; “Roosevelt Clement to Negroes.” Atlanta Constitution, December 6, 1906; “Sailors Convicted of Murder at Sea Freed by Actor.” New York Times, May 3, 1912; Sawyer v. United States, 202 U.S. 150 (1906); “Sentenced to Hang.” Washington Post, November 11, 1905; “The Story of the Mutineers.” The Landmark, October 17, 1905; “Thrilling Adventure at Sea.” Washington Post, January 21, 1912; “2 Pardoned By Taft.” Washington Post, Jan 3, 1912; "Will Free Life Convicts." Middletown Daily Times-Press, August 12, 1911. 63 By one account, Perovich was having a drink in a Fairbanks bar when a business partner stumbled through the door, the apparent victim of a brutal beating. Perovich returned to their cabin, where the three assailants were still in the process of pillaging the premises. All three pulled out knives and attacked Perovich who managed to defend himself with a board. The somewhat rattled Perovich was arrested for “assault” a few days later. A second account suggests Perovich was arrested at the end of a six-day hunt. The arrest was not so much for “assault” as it was for the fact that Perovich (who identified himself “Charlie Mitchell”) was found wearing the clothes of a murder victim and was carrying around the victim’s gold watch and jackknife. 64 Perovich v. United States, 205 U.S. 86 (1907). 65 Ex Parte Perovich, 9F.2d 124 (1925). 66 Biddle v. Perovich, 274 U.S. 480 (1927). 67 VUCO PEROVICH: Annual Report of the U.S. Attorney General (1909); Annual Report of the U.S. Attorney General (1928); “Fight for Liberty Lasts 22 Years.” New York Times, May 3, 1926; Claus-M. Naske. “The Case of Vuco Perovich.” 78 Pacific Northwest Quarterly 2; “Perovich Seeks a Pardon.” New York Times, June 30, 1927; Samuel T. Morison, “Presidential Pardons and Immigration Law.” 6 Stanford Journal of Criminal Rights and Civil Liberties 253; TIME, “The Judiciary: Supreme Court’s Week” June 13, 1927. 68 Federal Prison Population Buildup: Overview, Policy Changes, Issues, and Options. Nathan James, Congressional Research Service, January 22, 2013. Page 1. 69 Id. at 22 (Table 2). 70 Id. at 3 (Figure 1). 71 Id. at 8. 72 Id. 8. 73 Id. at 8-9. 74 Id. at 7. 75 Id. at 9.

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76 http://www.rightoncrime.com/priority-issues/overcriminalization/ 77 http://www.justice.gov/pardon/statistics.htm 78 Daniel M. Lyons, Pardon Attorney. “Memorandum to the Attorney General, Dated January 26, 1953. 79 Lardner v. Department of Justice, 638 F. Supp. 2d 14 - Dist. Court, Dist. of Columbia, 2009; Lardner v. United States Department of Justice, No. 09-5337, 2010 WL 4366062 (D.C. Cir. Oct. 28, 2010), unpublished. 80 Humbert, supra note 2 at 96-8. 81 http://www.justice.gov/pardon/statistics.htm 82 The right to vote, serve on a jury, hold public office, own a hunting rifle, etc. 83 The PardonPower blog. “President Sitting on a Dozen Positive Clemency Recommendations” Posted November 2, 2012. Updated February 4, 2013. http://www.pardonpower.com/2012/11/president-sitting-on-dozen-positive.html 84 The decrease is attributed, in part, to media reaction to Lyndon Johnson’s commutation of the ten-year sentence of organized crime figure John Alfred Gay. With the commutation and good behavior credit, Gay left prison after only four and a half years. The Cleveland Plain Dealer then discovered the commutation was granted over the objection of the U.S. Attorney's office and that none of the references in Gay's clemency application were "checked." The PardonPower blog. “How the Media Killed the Commutation.” Posted March 29, 2010. http://www.pardonpower.com/2010/03/how-media-killed-commutation.html 85 Bill Clinton, George W. Bush and Barack Obama all waited almost two full years before granting their first acts of executive clemency. On average, historically, presidents have waited just over one hundred days. Chart at PardonResearch.com, “Number of Days Till First Pardon.” http://pardonresearch.com/topics/FirstPardons.htm 86 The PardonPower blog. “Obama: More Dubious History-Making.” Posted January 24, 2013 at http://www.pardonpower.com/2013/01/obama-more-dubious-pardon-history-making.html 87 P.S. Ruckman, Jr. “Seasonal Clemency Revisited: An Empirical Analysis.” 11 White House Studies 21 (2011) 88 Annual Report of the U.S. Attorney General, 1902-1909. 89 Office of the Pardon Attorney, U.S. Department of Justice. http://www.justice.gov/pardon/statistics.htm 90 http://pardonresearch.com/prescomp/pardcommAdmin.htm (The ranking above Roosevelt – in order – are: Franklin D. Roosevelt, Woodrow Wilson, Harry S Truman, Calvin Coolidge, Ulysses S. Grant, Herbert Hoover, Lyndon Johnson, Dwight Eisenhower and Grover Cleveland). 91 “Pres. Obama Pardons Few in First Term.” Brian Arola, Minnesota Daily, November 27, 2012. Quoting Prof. Mark Osler, University of St. Thomas Law School of Law. 92 Paul Rosenzweig, “Presidential-Pardon Process is a Legal Turkey.” Washington Times, November 21, 2012. 93 Margaret Colgate Love. "Final Report Card on Pardoning by George W. Bush." Unpublished article dated December 1, 2009. Posted at http://PardonLaw.com. 94 Margaret Colgate Love. “Reinventing the President’s Pardon Process.” American Constitution Society, November 2007. 95 Jeffrey Crouch. “The Toussie Pardon, “Unpardon,”” and the Abdication of Responsibility in Clemency Cases. 38 Congress and the Presidency” 77 (2011). 96 P.S. Ruckman, Jr. “Seasonal Clemency Revisited: An Empirical Analysis.” 11 White House Studies 21 ( 2011). 97 The PardonPower blog. “No No No No. No No No and No.” Posted September 30, 2012 at http://www.pardonpower.com/2012/09/no-no-no-no-no-no-no-and-no.html 98 “A Review of the Pardon Attorney’s Consideration of Clarence Aaron’s Petition for Clemency.” Office of the Inspector General (Department of Justice), Oversight and Review Division, December 2012. 99 “Politics, Race Play Role in Presidential Pardons Investigation Finds.” PBS Newshour, aired December

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5, 2011. 100 Letter to the White House, from Congress, dated December 17, 2012. 101 Editorial. “The Quality of Mercy Strained.” New York Times, January 5, 2013. 102 “Reinvigorating the Federal Pardon Process: What the President Can Learn from the States.” Margaret Colgate Love. Issue Brief by the American Constitution Society, January 2013. 103 Humbert, supra note 2 at 140. 104 Id. at 141. 105 Id. at 140.