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By Jason Couch, Esq.

Thanks to the Ken Burns documentary, Unforgivable Blackness: The Rise and Fall of Jack Johnson (2005), it is common knowledge that the President of the United States has been petitioned to pardon the former heavyweight boxing champion Jack Johnson. However, what the press has not discussed is the process behind the granting of a presidential pardon. [EN1] Here, I would like to briefly describe the process and give a few thoughts on issues that may affect the granting of an executive pardon.

The discretionary authority to pardon a federal crime rests solely with the President of the United States. [EN2] However, the Office of the Pardon Attorney, a division of the Department of Justice (DOJ), processes all petitions for executive pardons and offers advice to the President. [EN3] The eligibility for pardon as well as the application procedure is given in Title 28 of the Code of Federal Regulations (C.F.R.) §1.1 et seq.

As 28 C.F.R. § 1.11 indicates, those regulations are not binding on the President. Instead, they guide DOJ personnel as they process petitions. In other words, if you have the ear of a president, you don't need to follow the process. But what if you didn't donate enough to the last campaign? Then on with the process...

The pardoning power of the President only extends to "laws against the United States"; i.e., federal laws. [EN4] So, if you were convicted under state law (the vast majority of convictions), then you need to look at the clemency procedures of the state in which you were convicted, and apply to that state's governor or pardoning authority.

Why "clemency"? What happened to "pardon"? Clemency is the general term that encompasses the two forms of relief relevant here: pardon and commutation. Commutation is the reduction of a sentence; pardon is forgiveness for committing an offense.

First, you need to wait until you get out of jail, or if you never served time, until five years after the date of conviction. This means free and clear, too – generally, don't bother applying if you are still on probation or parole. [EN5] After seven years as a fugitive, Johnson eventually served his sentence for his Mann Act conviction and became eligible for pardon during the 1920s. He then died in an automobile accident in 1946, which leads one to ponder...

Don't worry, Jack, we've got you covered. You're not the first person of color mistreated by the U.S. government, and neither would you be the first to whom it has subsequently made amends. For example, Lt. Ossian Flipper (1856-1940) was the first African-American to graduate from the U.S. Military Academy at West Point. Several years later, in 1882, Flipper was court-martialed and discharged from the Army in an episode charged with racial animus. Lt. Flipper lobbied heavily but unsuccessfully during his lifetime for a pardon to clear his name, and in 1999, this was a factor in President Clinton's decision to pardon Flipper posthumously. There is evidence that Jack Johnson also sought clemency, although this was an application for commutation rather than a pardon. [EN6] So, while a posthumous pardon is possible, nothing says it will be easy.

An assumption of the petition process is that your conviction was just. [EN7] The regulations hint that proving otherwise will be a very difficult task: "Persons seeking a pardon on grounds of innocence or miscarriage of justice bear a formidable burden of persuasion." Were Lt. Flipper and Jack Johnson innocent? Well, not really, but a miscarriage of justice can occur regardless of the degree of innocence.

Lt. Flipper was court-martialed on the charges of 1) embezzlement and 2) conduct unbecoming an officer. Lt. Flipper became the Acting Commissary at Fort Davis in 1881. He discovered a couple thousand dollars missing from his books, so he wrote a false report to cover up the loss until he received payment from a book he had authored about his time at West Point. He was cleared of embezzlement, but dismissed for the false reporting, which in those days was considered conduct unbecoming of an officer.

Jack Johnson was convicted under the Mann Act, also known as the White Slave Traffic Act, which made it a felony for anyone to "transport... interstate... any woman or girl for the purpose of prostitution or debauchery or any other immoral purpose." [EN8] The basic facts are these: Johnson wired Belle Schreiber, a prostitute with whom he had a longstanding relationship, seventy-five dollars to travel to Chicago. Johnson then had sex with Schreiber shortly after her arrival.

In the federal court trial, Johnson was convicted under two counts, the first for transporting a woman for the purpose of prostitution, the second for transporting a woman for the immoral purpose of sexual intercourse.

The convictions were immediately appealed. The prostitution count did not withstand appeal, but the second charge, transporting a woman for immoral purposes, did. Johnson's attorney argued to the appellate court that the Mann Act was intended to curb commercialized vice rather than merely unlawful sexual intercourse, but the appellate court, looking to the plain language of "transport... any woman for the purpose of... debauchery or any other immoral purpose," upheld the conviction. The court reasoned that because "debauchery" had no financial connotations, therefore "other immoral purposes" included (unlawful) sexual intercourse with no financial component. [EN9]

Although the Johnson case was very high profile, he was not the only (or even the first) person charged with the crime of transporting women for immoral purposes. The U.S. Supreme Court had ruled in an earlier immigration case, albeit under a different statute, that transporting a woman for the purpose of "prostitution or any other immoral purpose" included non-commercial acts of sexual intercourse. [EN10] That 1908 interpretation provided the basis for two similar Mann Act decisions in other federal circuits around the same time as Johnson. One of those decisions preceded the Johnson decision by nearly a year, and another was just a month later. [EN11]

But was there a miscarriage of justice? I'd say yes. Lt. Flipper's commanding officer treated him harsher because of his race and the investigation leading to Jack Johnson's conviction would not have been pursued to the same extent had he been a white fighter. Thus, the attorney for Johnson must broach the subject of a biased conviction (thereby hoping to influence the pardon decision), but at the same time, still address the balancing factors required by DOJ regulations.

The petitioner's post-conviction conduct plays a major part in the granting of clemency. Thus, Lt. Flipper's exemplary life after leaving the Army played a significant role in his eventual pardon.

An annotated version of the Jack Johnson pardon brief appears at http://ejmas.com/jcs/2004jcs/jcsart_svinth_0804.htm. The main argument advanced by the original authors of the petition is that the Mann Act violation was contrived in order to bring Johnson down. However, to meet the requirements set by the DOJ, the petition also details his post-conviction life.

The petition describes Johnson's achievements as well as the mood of the nation when he was convicted. This gives a sense of the "totality of the circumstances," but at the same time downplays the fact that, considered separately, most of the post-conviction factors do not weigh especially heavily in Johnson's favor.

Post-conviction factors considered include "the petitioner's financial and employment stability, responsibility toward family, reputation in the community, participation in community service, charitable or other meritorious activities and, if applicable, military record." [EN12] Johnson was released from prison in 1921 at the age of 43. Even though he didn't die until 1946, the major biographies on Jack Johnson devote little space to that final third of Johnson's life. [EN13] Due to that limitation, some of the requested information is simply unknown. That said, some of the petition's attempts at putting a positive spin on known aspects of Johnson's life are almost laughable. For example, a Texas State Senate Resolution, which carries no legal weight, is repeatedly cited for the "contrived charges," as are Johnson's alleged intelligence-gathering activities in Spain during World War I (something that no one but the Texas Senate appears to believe). In his time, Johnson was a notoriously bad credit risk, and creditors often pursued him. He was once convicted of smuggling. And, at least before his conviction, he tended to physically abuse the women in his life.

On the other hand, all that happened before he served his sentence. Afterwards, he continued to rack up traffic fines faster than the national deficit grew, but otherwise, there is no evidence that he intentionally broke any laws. In addition, Johnson was actively involved in political and charitable activities later in life. Thus, his later life is essentially what you'd expect from a gracefully aging heavyweight boxing champion.

The pardoning process takes into account the seriousness and recentness of the offense, and the convicted person's acceptance of responsibility for the crimes. [EN14] Johnson's conviction is obviously remote. The seriousness of his crime is astoundingly minor. And, although he never publicly admitted any wrongdoing, at least he never said, "I'm going to say this again. I never had sexual relations with that woman."

A petitioner's particular need for relief can also be considered. Since he's dead and left no heirs, Johnson derives no personal benefit one way or the other. Consequently, the arguments advanced are similar to those that were successful in the Flipper pardon: a grave injustice will be righted, and righting that injustice will heal the nation in some manner.

One final factor in the process is "official recommendations." This normally refers to the recommendations of the U.S. Attorney Office, which prosecutes federal crimes and so can be expected to have insight into the conviction. In this case, though, it's difficult to say what special insight the U.S. Attorney Office will offer inasmuch as the Johnson conviction is today purely a matter of historical record. In addition, because there were bribery allegations against some of the government officials involved with the original investigation, the U.S. Attorney Office may prefer to avoid looking into the matter altogether. As for the U.S. Senate and Texas State Senate resolutions, it's probably better to consider those as a barometer of the changing mood of the nation than assuming the legislators had any special knowledge of the Johnson case.

But enough fact and law, let's move into the area of wild-assed speculation...

Due to the number of petitions and the modest staff, the DOJ recommendation probably will not be submitted to the President until sometime in late 2006 or early 2007. A couple years ago, the backlog at the Office of the Pardon Attorney was somewhere in the 18-24 month range, and the number of petitions has subsequently increased. [EN15]

Of course, a president may by custom take notice of a notorious or well-known case. Indeed, if he wants, the president can even ignore the DOJ altogether. For example, toward the end of his administration, President Clinton entertained petitions sent directly to the White House, apparently in order to grant enough pardons to appear suitably generous to posterity. However, President Bush is unlikely to go outside of normal channels. For one thing, the furor created by Clinton's irregular pardons is something that Bush's staff presumably wants to avoid. There is also Bush's own history. Not only was he the rootin'-est, tootin'-est, most executin'-est governor in the history of the great State of Texas [EN16], but he also issued fewer pardons than any Texas governor since the 1940s. His explanation was not that he had anything against pardons, but that an early pardon had come back to bite him. [EN17]

In October 2004, a Freedom of Information Act request to the Office of the Pardon Attorney revealed that in the first four fiscal years of the Bush administration, a total of 669 petitions for pardon were received, and 19 were granted. [EN18] During the same period, 3,446 requests for commutation were received and only 2 were granted. These figures do not include the large backlog of petitions pending, which any given year runs between 500-1,000 petitions for pardon and 1,500-2,100 petitions for commutation. In March 2005, news sources announced that Bush issued 8 more pardons and that his total of pardons and commutations had reached 39. The reports did not distinguish between the two, but presumably his pardon total is now 27 and his commutation total is now 12. [EN19]

To place those numbers into context, the current President's father, George H. W. Bush, granted 77 pardons during his single term as president. The recent pardons place George W. Bush into position as the fifth-least forgiving president. The top two curmudgeons (James Garfield and William H. Harrison) didn't live long enough to pardon anyone. George Washington is Number 3, with just 16 pardons, but in his favor, he was also the first to exercise presidential clemency. John Adams, whose 21 pardons put him in fourth place, followed Washington. On the other side of the coin, Franklin D. Roosevelt takes the top honors with 3,687 pardons. [EN20]

If we go purely by statistical analysis, then the odds of any particular individual receiving a pardon are perhaps 3 in 100. However, the odds for Johnson are closer to even. For one thing, the DOJ will probably recommend a pardon. In addition, the Johnson story is big news. For example, during January 2005, Google News reported about 60 different news stories on the topic, and I didn't see one that urged against the pardon. There are also two resolutions brought before Congress. On October 5, 2004, Senator John McCain (R-Arizona), a signatory to the petition for pardon, introduced a resolution, S. Res. 447, that expressed the desire that the President should exercise his authority to pardon Jack Johnson. The resolution passed. The related bill in the House of Representatives, H. Con. Res. 526, was sent to committee on November 19, 2004. In April 2005, that bill remained in committee, too, notwithstanding popular reports that both houses passed the resolution. Nonetheless, resolution sponsors reiterated their wishes in a formal letter to the President sent late March 2005. And perhaps most importantly, in January 2005, Burns' documentary debuted to considerable fanfare.

As governor, Bush approved a Texas legislative resolution declaring a "Jack Johnson Day," which may indicate some favorable personal feeling for Johnson, a Texas native. In addition, both the Republican Party and President Bush have been making overtures to the African-American community, and a pardon would presumably help Republican standing in that arena. On the other hand, the conservative voters who elected Bush place great emphasis on moral values, and given his support for a constitutional amendment banning gay marriage, Bush has already indicated that he has strong opinions about what consenting adults do in private. Also, the President may be concerned about creating the appearance of a pardon being forced through by the efforts of an influential filmmaker. But Bush could avoid some of these issues by basing a pardon on a "healing the nation" argument, rather than any explicit criticism of the Mann Act itself. That way, the evangelical element cannot criticize his moral grounds, and the floodgates would not be opened for petitions from others convicted under similar circumstances.

Bottom-line? I believe that the President will grant the petition for pardon. After all, it isn't as if Johnson can come back and embarrass him. True, future scholarship may turn up unsavory information, but with all the recent research, that possibility is unlikely. So, in the end, it will come down to packaging. If Johnson remains "Li'l Arthur," the derogative that rendered Johnson harmless enough to be acceptable copy in the white newspapers of the 1920s, then a pardon would be a bromide acceptable to all. But, if sordid details of Johnson's past suddenly become revealed, or if for some reason Johnson should once again become associated in the public eye with "Papa Jack," the "Bad Nigger" sinner that flaunted convention, then Bush could conceivably seek to avoid controversy and pass on granting the petition.

EN1. This lack of coverage can be blamed partly on the opaque clemency process. For example, while DOJ reports overall statistics, it provides no summarized lists of dates of pardons, names of offenders, etc.

EN2. U.S. Const., art. II, § 2: "The President... shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

EN3. The Office of the Pardon Attorney has existed by that designation since 1894. From 1789-1893, the Secretary of State and the Attorney General shared the delegated pardoning powers. The DOJ was created in 1891, and pardoning authority was transferred exclusively to the DOJ by executive order in 1893.

EN4. U.S. Const., art. II, § 2

EN5. 28 C.F.R. § 1.2; Again, the president is not bound by the regulations: notable exceptions include President Ford's immediate pardon of Richard Nixon and President Clinton's pardon of indicted fugitive Marc Rich.

EN6. Cleveland Advocate, November 27, 1920. Johnson had served two months of his year-and-a-day sentence when his attorney announced he would petition the pardon board for commutation of the remainder of the sentence. Johnson was never granted parole and served the full sentence, apparently due to a scandalous report submitted by the U.S. Attorney Office.

EN7. United States Attorney's Manual, Standards for Consideration of Clemency Petitions §1.211: "As general matter, in clemency cases the correctness of the underlying conviction is assumed, and the question of guilt or innocence is not generally at issue." See also 28 C.F.R. § 1.2112 (3): "Persons seeking a pardon on grounds of innocence or miscarriage of justice bear a formidable burden of persuasion."

EN8. The Mann Act was at that time codified at 18 U.S.C.A. § 397, et seq., and the term "White Slave" was a euphemism for "prostitution."

EN9. Johnson v. United States, 215 F. 679, 683 (7th Cir. 1914).

EN10. United States v. Bitty, 208 U.S. 393 (1908).

EN11. See United States v. Flaspoller, 205 F. 1006 (D. La. 1913); Johnson v. United States, 215 F. 679 (7th Cir. 1914); and Suslak v. United States, 213 F. 913 (9th Cir. 1914). Chronologically, Flaspoller was decided May 3, 1913, Johnson on April 14, 1914, and Suslak on May 4, 1914. Note, however, that the latter two were appellate decisions of the circuit courts, so the original convictions would have been earlier. For example, Jack Johnson was first convicted eleven months earlier, on May 14, 1913.

EN12. Department of Justice, United States Attorney's Manual: Standards for Consideration of Clemency Petitions § 1-2.112(1) (2002), available at http://www.usdoj.gov/pardon/petitions.htm.

EN13. See Randy Roberts' Papa Jack: Jack Johnson and the Era of White Hopes and Geoffrey C. Ward's Unforgivable Blackness: The Rise and Fall of Jack Johnson. The first book devotes a handful of pages to Johnson's post-prison life, and while the second goes into more detail, that section still comprises less than 7% of the work. Johnson's autobiography was published in 1927, so could hardly detail the later period of his life.

EN14. The DOJ manual provides that "when an offense is very old and relatively minor, the equities may weigh more heavily in favor of forgiveness, provided the petitioner is otherwise a suitable candidate for pardon." This appears to be a primary factor in the first seven pardons issued by President Bush (not counting the Thanksgiving turkeys), described here: http://usgovinfo.about.com/library/weekly/aabushpardons.htm.

EN15. See http://jurist.law.pitt.edu/pardonop6.htm. Of course, this assumes the Johnson petition is not fast-tracked due to political pressure.

EN16. In Texas, execution became a state rather than county function in 1923, and during the next 70 years, there were just over 400 legal executions in Texas. During Bush's six-year tenure as governor (1995-2000) around 150 executions took place, which was more than all 37 other death-penalty states combined. See http://www.txexecutions.org/default.asp and http://www.tdcj.state.tx.us/stat/deathrow.htm. As for justice in the Wild West, Judge Isaac C. Parker sentenced 160 men to death during his 23 years as federal judge for the Indian Territory, and after appeals, he hanged 86. For details, see http://www.nps.gov/fosm/home.

EN17. See http://jurist.law.pitt.edu/pardons0a.htm, which notes that:

EN18. Office of the Pardon Attorney, Presidential Clemency Actions by Administration: 1945 to Present, October 5, 2004.

EN19. Because that breakdown was not given, and because updated totals of petitions were not released, I relied on the October 2004 figures for the statistical analysis.

EN20. For a list of presidential pardoning numbers, see http://jurist.law.pitt.edu/pardonspres1.htm.