Looking at the clemency stats

We previously discussed Lieutenant Michael J. Marinello's outstanding article, Convening Authority Clemency: Is It Really an Accused's Best Chance of Relief?, 54 Naval L. Rev. 169 (2007). (And, no, it still doesn't appear to be on a publicly accessible web site.) LT Marinello conducted a random sampling of Navy and Marine Corps cases docketed with NMCCA between 1999 and 2004. He found that in 33% of those cases, the defense put in a clemency request and the request was granted in a little more than 4.3% of those cases (35/807).

MAJ John A. Hamner's article, The Rise and Fall of Post-Trial—Is It Time for the Legislature to Give Us All Some Clemency?, Army Law., Dec. 2007, at 1, is on a publicly available web site. Here's a link. (As an aside, the Naval Justice School's failure to make the Naval Law Review available online probably comes at a cost. If you went to all of the effort to write a law review article, in choosing where to submit it for publication, would you be indifferent as to how easily available it would be on the Web?)

MAJ Hamner's piece has some very interesting data. He looks at computer data accounting for all 9,081 Army courts-martial tried from 2000 through 2006. Id. at 16. He finds that in 28% of those cases, the CA cut the adjudged sentence. But some -- and probably most -- of those cases instances occurred in cases where a PTA compelled to reduce the sentence by that amount. So 28% represents the highest theoretically possible percent of cases resulting in clemency and we are sure that the actual number is much lower. So MAJ Hamner identified a discrete subset of cases in which we can isolate clemency that was likely not required by a PTA: fully contested cases resulting in conviction and clemency. He finds that clemency was granted in 1.7% of fully contested cases resulting in convictions. Id. While the number of such cases is small, the clemency tended to be significant. Again looking at just fully contested cases resulting in a conviction, in the 1.7% of cases where the CA granted clemency, the CA reduced the adjudged confinement by an average of 21%. Id. at 17.

Of course, it is certainly possible that convening authorities grant gratuitous clemency less frequently in fully contested cases than in guilty plea cases where the accused has demonstrated some degree of acceptance of responsibility. But now we have two limited data points, both pointing to clemency averages in the low single digits. As we discussed here, one study -- again looking at only a slice of the total court-martial pie (in this case SPCMs producing a BCD and docketed from 1998 to 2002) -- found that AFCCA, ACCA and NMCCA granted findings or sentence relief in 3% of the cases they decided.