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Final Report - Draft Outlines
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Final Report - Draft Outlines
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Charles E. Goodell Papers
Presidential Clemency Board Subject Files
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President (1974-1977 : Ford). Presidential Clemency Board. 9/16/1974-9/15/1975
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The original documents are located in Box 6, folder "Final Report - Draft Outlines" of the
Charles E. Goodell Papers at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Charles Goodell donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 6 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library
3/75
Memorandum to: Larry Baskir
From: Bill Strauss
Subject: Proposed Outline for PCB Final Report
The following is a possible outline for our final report.
I expect that a first draft could be completed by mid-summer,
making completion possible by September 15. Conjecturing
the length is difficult, but if all chapters are given the
attention I would like, 150 report pages should do it.
I. Chairman's Introduction
A. Personal view about what the program has and
has not accomplished
B. Justification for the breadth of this report
(and its focus on some non-clemency issues
which came to the Board's attention)
II. Overview
FORD & LIBRARY
A. Context of the amnesty issue; the "problem"
as perceived by the President and the Board
(i.e., national reconciliation)
B. The program philosophy -- clemency, not amnesty
-- earned re-entry -- case-by-case review, etc.
C. Problems initially perceived and anticipated
when the program was formed (e.q., opposition
from both sides, problem of winning the trust
of the draft resisters, lack of knowledge about
how many people were eligible)
D. Brief description of program, with emphasis on
how it was tailored to implement the "philosophy"
and deal with the problems in B and C
E. Problems actually occurring (especially the lack
of accurate information about the program and
the administrative challenge of dealing with
so many cases) -- and efforts taken to deal
with them
F. Summary of our evaluation (see below) of what
the program did and did not accomplish
G. Context of further decisions that might be made
by the President or the Congress about any
extension, alteration, or abandonment of the
existing clemency program
-- 2 --
III. Historical Perspective of the Program
A.
Precedent of amnesties and the Presidential
exercise of pardoning power; impact of those
actions upon beneficiaries, subsequent wars,
inscriptions, etc.
B. Analysis of AWOL and draft resistance before
Vietnam, during the War, and now
C. Brief socia1/statistical analysis of the
Vietnam era --- what happened to which groups,
why is this war different from others, how
this program is as uniquely suited to that war
as other amnesties have been to other wars
D. Alternatives that might have been available to
clemency recipients in the absence of this
program (and still are): Dropped prosecutions,
trials resulting in acquittals or sentences
to perform alternative service, state laws
restoring rights to convicted felons, discharge
upgrades, VA benefit reviews, etc.
IV. Description of the Program
A. Original proclamation and executive order;
basic jurisdictional divisions among agencies
and mandated differences among their programs
B. Eligibility criteria for all parts of the program
C. Application process and trends for all parts of
the program, plus a description of any outreach
efforts
D. Description of applicants for all parts of the
program (anecdotal and statistical) as much
as possible, description of non-applicants
E. Description of case processing for all parts
of the program (with a description of the PCB
large-scale processing, however it evolves)
F. Case dispositions for all parts of the program;
mitigating and aggravating factors, baseline
formula, and actual numbers of case dispositions
G. Description of the procedures and problems in
the alternative service phase of the program
(in as much detail as can be presented by the
time the report must be finished)
TORD
LIBRARY
-- 3 ---
H. Follow-up --- the actual issuance of upgrades
and pardons, and a description of any efforts
to make clemency discharge and pardons worthwhile
benefits
V. Evaluation of the Program
A. The inherent problems of evaluating such a program;
presence of intangible goals and factors, lack
of necessary data, requirement of time to give
a meaningful perspective, etc.
B. Overview of the criteria (described below) which
might be used to measure program performance
C. Analysis of participation rate
D. Evaluation of benefits to applicants, measured
against benefits they might otherwise have
obtained (e.g., from alternatives described
in III-D)
E. Impact upon non-applicants -- those eligible
(who might face either more or less discrimination
for not having applied), and those not eligible
(e.g., veterans competing in the same job market,
those not eligible for technical reasons whose
opportunity for other benefits might have been
affected through programs which this one may
have pre-empted, conscientious objectors who
completed their alternative service, veterans
with good discharges who went AWOL, etc.
F. Consistency and adequacy of process in all parts
of the program --- measured against each other
and against possible other standards
G. Consistency and equity of case dispositions
within and among different parts of the program
H. Socialiimpact, to the extent it can be measured
or analyzed (number of news articles, opinion
polls, acceptance of clemency recipients in
communities, etc.)
I. Administrative costs, direct and indirect
J. Anticipated precedential effect (if any) of
the program on future wars, conscriptions,
amnesties, and other related events (discharge
reviews, etc.)
4 I :
K. Comparison of the program with prior amnesties,
to the extent that is a suitable measure for
evaluating its performance
L. The bottom line, if there can be any
VI. The Broader Context of the Program
A. Circumstances in which other issues have risen
to the attention of the Board (case dispositions,
letters, travels across country, etc.)
B. Military issues of concern to the Board
1.. Personnel practices -- enlistment, procedures
for in-service COs or hardship discharges,
readjustment policies for Vietnam veterans,
etc.
2. The military justice system -- UD process,
equity of punishment, spin numbers, etc.
3. Discharge review procedures -- criteria,
process (e.g., absence of regional boards),
appeals, availability of counsel, etc.
C. Civilian justice issues of concern to the Board
1. The equity of the Vietnam era draft and
its penalties
2. Adequacy of legal advice for persons facing
or refusing induction, especially those
with low incomes
3. Alternative service performed by conscientious
objectors, especially as compared with
the service done by clemency recipients
4. Apparent lack of prosecution of all cases
of draft resistance, and lack of enforcement
of military desertion police bulletins about
people who stayed right at home while AWOL
VII. Conclusion: Further Clemency Options
A.
Possible catalytic effect of this program -
GRERALO
especially on the private sector, but perhaps
also on the public sector
B.
Identification and appraisal of options to
extend, alter, or abandon this clemency program
C. Recommendations (if any)
PRESIDENTIAL CLEMENCY BOARD
THE WHITE HOUSE
WASHINGTON, D.C. 20500
July 6, 1975
Memorandum to: Senator Goodell
Larry Baskir
Rick Tropp
Bob Knisely
Bob Horn
Gretchen Handwerger
Ray Mitchell
John Foote
From: Bill Strauss
Assistant Sny General Counsels
GERALD FORD LIBRARY
Subject: Draft Outline for the PCB Final Report
Attached is the draft outline for our final report. We need your
comments as soon as possible to assure that our work is on target;
shortly, we also shall need your comments on Lee Beck's demographic
analysis format, which will be a major contributing factor to our
report.
If you have any comments, please contact myself or the individuals
responsible for the appropriate chapters. Bob Standard and Wil Ebel
are working on Chapter III, Bob Terzian and Lee Beck on Chapter IV,
Mike Remington and Charlie Craig on Chapter V, Rob Quartel on Chapter VI,
and myself on Chapter VII. Chapters II (Executive Summary) and VIII
(Conclusions and Recommendations) will be prepared later.
In our report, we shall be including discussions of the DOJ and DOD
programs where they either shed light on our own policies or procedures
or are pertinent to the overall character of the President's clemency
program.
DRAFT OUTLINE FOR
PRESIDENTIAL CLEMENCY BOARD FINAL REPORT
I. CHAIRMAN'S INTRODUCTION
II. EXECUTIVE SUMMARY
III. THE SOCIAL, HISTORICAL, AND LEGAL CONTEXT OF CLEMENCY
A. The Era
1. Unsettling Period
2. Casualties
3. Unresolved Problems Facing a New Presidency
B. The War in Vietnam
1. Impact on Nation
2. Impact on those who served or otherwise sacrificed
3. Impact on those who did not serve
4. The need for reconciliation
a. The mood of the country
b. The basic objectives of a clemency program
C. Historical Perspective
1. What is "clemency"?
2. What is its constitutional basis?
633440 FORD LIBRARY
a. Anglo-American heritage
b. Attitude of the Founding Fathers
C. Constitutionally-Mandated Clemency Powers
3. What is its Historical Basis?
a. Whiskey rebellion
b. War of 1812
C. Civil War
d. Early 20th Century
e. World War II and Korean War
f. Recent developments in the exercise of Executive Clemency
- 2 -
4. What is the recent International Perspective?
a. Australia
b. France
D. Legal Parameters of the President's Executive Clemency
Powers
1. Pardon Powers
a. Scope
b. Discretion
C. Conditions
2. Other Powers of Executive Clemency
a. Authority to Uphold and Enforce Laws
b. Authority as Commander-in-Chief
E. Tailoring a Clemency Program to the Needs of an Era
1. Broad historical precedents and legal options
2. Constraint Qua Objective: Developing a program
which the greatest number of people would
accept as reasonable and fair as a means of
reconciling the Nation.
IV. THE PERSONAL CONTEXT OF CLEMENCY
A. Introduction
GERALD FORD LIBRARY
1. Impact of Vietnam Era on all draft-age men,
but particularly on those who resisted or
deserted --- with an analysis of 29,000,000-man
"Pipeline"
2. What were these potentially eligible peopel like?
a. Outline of Demographic analysis
1. Methodology
a. constructed sample of 1500 cases, including
a. an over-sample of civilian cases
- 3 -
b. Official documents
C. Summary condensation
2. Caveats
a. Inconsistencies on science or record
b. Inability to compare applicants with
eligible non-applicants
b. Distinction between civilian and military applicants
1. Procedural distinctions
2. Data availability distinctions
3. PCB/DOJ + PCB-m/DOD comparability
B. The Civilian in Need of Clemency
1. Definition
2. Who were they --- and how do they compare with
the overall pool of draft-eligible men?
a. Background characteristics of PCB eligibles
1. Year of birth
2. Race
3. Family characteristics
4. Place of residence
5. Religion
6. Education
FORD i GERALD LIBRARY
7. I.Q.
8. Marital status
9. Employment status
10. Criminal record
b. Differences between PCB eligibles and all draft-
eligible men
- 4 -
3. What was their offense --- and why did they do it?
a. Offense
b. Reasons for offense
C. Activities while at large
d. Surrender/apprehension
4. What was their judicial proceeding and punishment?
a. Plea
b. Proceedings (e.g., dismissals)
C. Sentences
d. Time actually served in prison
e. Probation and parole
5. What has been the impact of their experience?
a. Felony conviction record
b. Intangible effects of draft resistance and
imprisonment
C. The Serviceman in Need of Clemency
1. Overview of the Vietnam era's effect on the military
2. Overview of the Vietnam era's effect on individual
soldiers
3. Description of the soldier applicant
FORD i GERALD LIBRARY
a. Background characteristics
- 5 -
1. Year of birth
2. Race
3. Family characteristics
4. Place of residence
5. Religion
6. Education
7. I.Q.
8. Marital status
9. Employment status
10. Criminal record
b. Vietnam-era recruit
1. Recruitment standards
a. induction
b. draft-induced enlistment
C. judicially-induced enlistment
d. special exemptions (Project 100,000)
2. Basic training, AIT, the AFQT, and MOS
a. The training of persons who had been ex-
empted from usual recruitment standards
b. Assignment to specialties
3. Hardship and CO applications
a. changes in law
FORD is GERALD LIBRARY
b. types of allegations in support of hardship
C. the new "special war" objector
C. The problem of AWOL
1. Incidence and types
2. Reasons for AWOL
6 -
3. Activities while AWOL
4. Apprehension/surrender
d. Nature and impact of military justice
1. NJP
2. Judicial process
a. Chapter 10 discharges
b. Court-Martials
3. Administrative separation (Chapter 13)
4. Impact of bad discharges
a. The widespread denial of benefits
(including medical benefits) to those
with Vietnam combat service
b. Economic and social impact of bad discharges
C. Discharge appeal procedures
4. The post-war adjustment - new personnel practices,
policies and goals
V. THE PRESIDENTIAL CLEMENCY PROGRAM
A. The Presidential philosophy behind the Program
1. Clemency , not amnesty: Reconciling past differences
and healing some wounds -- but not forgetting all
that has taken place.
a. Those convicted of their offenses will not have
their records expunged.
b. In addition, for former military personnel,
clemency does not mean full discharge upgrades,
nor does it necessarily mean Veterans Administration
benefits.
- 7 -
2. A limited, not universal, program: The
jurisdictional limits.
a. Civilians: the list of Section 12 and 6 (j)
offenses listed in the Executive Order and
the Proclamation.
b. Present and former military personnel:
violations of Article 85, 86, or 87.
C. Violations must have "occurred" (DOD "commenced")
between August 4, 1964 and March 28, 1973, in-
clusive.
3. A program of definite, not indefinite, length:
setting an application deadline.
4. A case-by-case, not blanket, approach: considering
each case on its own merits.
a. The creation of a Presidential Clemency Board
b. Delegation of authority to a DOD Joint Clemency
Processing Center and to U.S. Attorneys
B. The creation of the Program: Three organizations with
distinct areas of responsibility.
1. Military Selective Service Act violators who have
never been adjudged quilty of their draft offense
FORD & GERALD LIBRARY
are within the jurisdiction of DoJ.
2. Current military absentees are within the jurisdiction
of DoD.
3. The PCB has jurisdiction over draft violators who have
been convicted and former military personnel who have
received punitive or undesirable discharges for their
absentee offenses.
- 8 -
a. Appointment of Chairman and first nine Board
members.
1. Letter from President to PCB
2. Transcript of what President said during his first
meeting with the PCB. His first signing of
pardons/warrants, and his Press Conferences.
b. Reflecting the Presidential intent to heal the
Nation's wounds, a good cross section of persons
and points of view is represented on the Board.
C. The Implementation of the President's Program
1. Clemency, not Amnesty:
a. Upon successful completion of alternative
service, a DOJ applicant would never be prose-
cuted for his draft violation.
b. Upon turning himself in to the Secretary of
the relevant military branch, a DOD applicant
would receive an undesirable discharge. Upon
successful completion of alternative service,
a DOD applicant receives a Clemency Discharge
but no pardon and, probably, no Veterans
Administration benefits.
C. Pursuant to Executive Order 11803, wherein it
is stated:
"
the Board shall also recommend
the form that such clemency should take
"
-9-
the PCB recommended to the President that for
PCB recipients "clemency" means pardons. This
is in addition to commutation of sentence and,
where applicable, Clemency Discharges.
1. What a pardon confers and means to
Clemency Recipients
2. Why pardons are given to those with un-
desirable discharges
2. A Limited, not Universal Program: Jurisdictional
Issues
a. Clear cases of jurisdiction
b. Clear cases of non-jurisdiction
1. Those with General or Honorable Discharges.
2. Those whose last discharge was executed
before August 4, 1964
3. Those where, within the qualifying period,
a military applicant never committed an
offense that was closely related to an AWOL
offense
4. Those where, within the qualifying period,
a civilian applicant never committed an
offense that was closely related to a draft
evasion offense
C. Difficult jurisdictional questions
1. Offenses that straddled the August 4, 1964 or
_10_
March 28, 1973 qualifying dates.
2. Unfitness Discharge
3. Discharges under Article 90, 91, or 92 that
could have been discharges under Article 85,
86, or 87
4. Discharges for civil convictions
5. Suspended discharges that are later executed
6. Persons who apply to more than one Clemency
Program
7. Persons who mistakenly apply to the wrong
Clemency Program
8. Applicants who fail to perfect their applications
3. A program of Definite, not Indefinite Length:
The Application Deadline
a. Early application trends
b. Outreach efforts
1. Direct contact with eligibles
2. Contact with counselors in touch with eligi-
bles
3. Public Service Campaigns
4. A Case-By-Case, not Blanket, Approach
FORD i GERALD LIBRARY
a. Publication of Regulations to satisfy re-
quirements of notice and to insure fairness.
(1) Solicitation of other views concerning the
_.11_
decision making process, although neither
solicitation of other views nor publi-
cation of regulations was required
2. Subsequent amending of Regulations
b. Information used in making case dispositions
1. Official documents
2. Correspondence from applicant
3. Ex parte conversations with applicant
C. Fairness to the applicant
1. Openness of the process
a. files
b. proceedings
2. Confidentiality of case materials
a. Treatment of files
b. Publication of case dispositions
3. Right to assistance by counsel
4. Case preparation
a. Reliance on written case summary
b. The control of discretion and mis-
takes in the case summary by having
internal quality control review
C. Communication of case summary to the
applicant
5. Presentation to decision -makers
-12-
a.
Composition of decision-making panel
b. Opportunity for personal appearance
by the applicant or his representative
C. Non-adversary procedure
1. staff input
2. Presentation and use of case
materials
d. Evidentiary questions
1. Privilege against self-incrimination
2. Patient-physician, husband-wife
privileges
3. Hearsay evidence rule
4. Evidence of similar actions or
crimes
6. Findings of decision -makers and communication
of decision
7. Administrative review of decision
a. By decision-makers themselves
b. By staff
8. Presidential action
FORD & 074870 LIBRARY
9. Opportunity to appeal
10. Sealing records of Qualifying offenses
a. Impact of pardons
b. Relationship of the Federal Youth
-13-
Corrections Act.
d. Decision-making criteria
1. Procedures by which criteria
are established
2. The use of established criteria
as Policy Precedents
3. Calculation of Baseline period
of alternative service.
4. Aggravating and Mitigating Cir-
cumstances
a, Civilian applicants
1. Background and character.
a, Aggravating Factors:1, 2, 6,
7
b. Mitigating Factors:1, 2, 3,
4,
2. Criminal record
a. Aggravating Factors:1, 7
3. Reasons for Offense
a. Aggravating Factors: 5
b. Mitigating Factors:8,9, 10.
4. Circumstances of Offense
a. Aggravating Factors: 12
b. Mitigating Factor: 11
b, Military Applicants
1. Background and character
a
Aggravating Factors: 1.2. 7
-14-
b. Mitigating Factor: 1, 2, 3, 4.
2, Criminal Record
a. Aggravating Factors: 1, 7.
3, Service Record
a, Aggravating Factors: 1, 7, 8,
9, 11.
b, Mitigating Factors: 5, 6, 7, 8,
13, 14, 15, 16.
4, Reasons for offense
a. Aggravating Factors: 5, 10
b, Mitigating Factors: 8, 9, 10,
12
5, Circumstances of offense
a. Aggravating Factors: 3,4,8,
9, 10, 12
b, Mitigating Factors: 11
5. Conditional, not Unconditional Amnesty:
Alternative Service
a. Definition of Acceptable Alternative Service
b. Assignment of Clemency Recipients to Alternative
Service
C. Administration of the Alternative Service Program
VI. Managing A Clemency Program
A. Introduction-Special Attributes of the PCB
-15-
1. Emphasis on Production
2. Crisis Management Atmosphere
3. Persistent Focus on Presenting a Fair Legal Process
B. Government as A Production Unit
1. The Usual Context of Government VS. Private
Enterprise
a. Fixed VS. flexible short-term resources
b. Intangible VS. tangible short-term goals
C. Unquantifiable VS. quantifiable indices of
performance
2. The PCB as a typical. Production Unit in Government
a. Characteristics
1. Flexible resources
2. tangible short-term goals
3. quantifiable indices of performance
b. Impact on operations
1. Management analysis can be more effective
2. Resources can be applied interchangeably
3. Line managers can be held accountable in the
short-run
C. Crisis Management Planning
1. Identifying the problem
-16-
a. objectives
b. constraints
2. Setting systems goals
a. Reaction time
b. Obtaining resources
C. achieving peak production and systems output
3. Developing necessary resources
a. Management requirements
1. Developing a line management cadre
2. Developing a planning capability
b. Personnel Requirements
1. Identifying Requirements
2. Absorbing new personnel
a. Hiring
b. Training
C. Learning curve
3. Structuring incentives
4. Maintaining task assignment flexibility
C. Support requirements
1. Budget
2. Personnel services
3. Physical plant and overhead items
-17-
4. Managing the Process
a. Information as a Management tool
1. Management information system
2. Pipeline analysis
3. Productivity Analysis
4. Information feedback
b. Developing a work plan
C. Exercise of management authority
1. Inventory control
2. Resource control
d. Perturbations
1. Controllables
2. Uncontrollables
5. Evaluating System Performance
a. Evaluating Goal Achievement
1. Redefining Goals
2. Measuring output
b. Evaluating Accomplishment of program objectives
1. Setting criteria
2. obtaining data
3. providing a public record
6. Phasing down
a. Reappraisal of resource needs
b. Utilizing resource flexibility
C. Reducing resources
-18--
D. Preservation of a Fair Legal Process in
a Crisis Management Unit
1. Maintaining Casework quality in spite of time
a. identifying production and quality constraints
b. choosing a methodology
C. setting and fulfilling production requirements
2. Assuring consistency of case dispositions
a. risks of speeding up case disposition
procedures
b. assuring consistency in case dispositions
1. establishing dispositions precedent
2. applying and enforcing precedent
3. Maintaining the legitimacy of the process
a. enforcing board policy decisions with the staff
b. keeping promises to applicants
C. maintaining the openness of the process
VII.
What Did the Program Accomplish?
A. How successful was the program in carrying out the
mandate of the Presidential Proclamation?
B. What were its goals?
1. To reconcile the nation
2. To provide benefits to applicants
3. To offer a free choice to eligible individuals
(i.e., do no harm to those who do not apply or
are denied clemency)
-19-
4. To avoid harm to those who served or sacrificed
5. To prevent impairment of future ability to en-
force conscription or military discipline
C. What were its accomplishments?
1. Reconciling the nation
a. Re-integrating clemency recipients into society
1. Tangible economic benefits
2. intangible social benefits
b. Healing the wounds of the Vietnam era by im-
plementing a program which is justifiable,
acceptable, and fair
1. justifiability
2. Acceptability
a. legitimacy
b. acceptance by eligible persons
C. acceptance by concerned interest groups
d. acceptance by the public at large
3. Fairness
a. fairness of process
FORD is 9ERALD LIBRARY
b. equitability of case dispositions
2. Benefits of applicants
a. universe of eligible individuals
1. scope of benefits
2. "drawing the line" on jurisdiction--equity
problems
-20-
b. application rate
1. comparability to other government programs
2. special characteristics
C. Benefits from remedies
1. tangible
a. rights restored
b. job and other economic opportunities obtained
2. intangible
a. applicants' perceptions of themselves
b. applicants' perceptions of the government
d. disbenefits from remedies
1. uncertainty while waiting for one's case disposition
to be announced
2. obligation of alternative service
3. possible stigma of a clemency discharge
3. Impacts upon eligible nonapplicants or those denied
clemency
a. benefits- more favorable public view of everyone who
committed draft or AWOL offenses during the Vietnam era
b. disbenefits
1. hindrance of efforts to obtain other remedies
(e.g., discharge appeals through normal channels)
2. possible public stigma
3. possible impact on self-perception of those denied
clemency
-21-
4. Impacts upon those who served or sacrificed
a. tangible (jobs)
b. intangible
5. Precedential impact
D.
What Were its Costs?
1. Direct costs
a. budget items
b. non-budget items
1. personnel
2. overhead items
2. Indirect costs
a. costs imposed on other agencies
b. costs of dispersing benefits to applicants
VIII. Conclusions and Recommendations
A. Summary of program accomplishments and costs
B. Comparison of this program to other post-war exercises
of Executive Clemency in American History
C. Recommendations
IX.
Appendices
A. Regulations
B. Policy Precedents
C. Tables and Miscellaneous Corroborative materials
D. Notes