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Final Report - Draft, 10/2-7/75 (3)
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Final Report - Draft, 10/2-7/75 (3)
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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
Amnesty
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The original documents are located in Box 5, folder "Final Report - Draft, 10/2-7/75 (3)" 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States of America his copyrights in all of his unpublished writings in National Archives collections.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 5 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library
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IV-D
IV-D Conclusion
An estimated 113,000 persons could have applied for
clemency. Only 22,300 did apply. Who were the 90,000 who
did not? Why did they fail to apply? What happens to them
now?
Who Were They?
The following table identifies nonapplicants in a very
general sense:
IV-D-2
Percentage
Total Number
Clemency
of
of
Program
Type of Applicants
Nonapplicants
Nonapplicants
PCB
Military-UD
87%
56,600
PCB
Military-BCD/DD
78%
19,400
PCB
Convicted Civilians
77%
6,700
DOD
Military absentees
47%
3,800
DOJ
Fugutive civilians
84%
3,800
Total
80%
90,400
We know little more about their characteristics than what
this table shows. Discharged servicement with Undesirable
Discharges were the least likely to apply, in terms of
percentage and total numbers. This is probably attributable
to the fact that we mailed application materials to eligible
persons with punitive (BCD/DD) discharges, but were unable
to do SO for those with Undesirable Discharges.
IV-D-3
The Department of Defense had access to the military records
of its eligible nonapplicants. Using these records, it
could make comparisons between its applicants and
nonapplicants. In most ways, they were alike -- family
background, AFQT score education, type of offense,
circumstances of offense, and so forth. Only a few clear
differences could be found. Nonapplicants committed their
offenses earlier in the War, they were older, and they were
more likely to be married. This implies that many may not
have applied because their lives are settled, with their
discharges more a matter of past than present concern.
If the Department of Defense findings are correct -- in
other words, if nonapplicants are not very different from
applicants -- we can make some estimate as to how many draft
resisters of deserters ever were Canadian exiles. In our
program, 2% of our military applicants and 6% of our
civilian applicants had at one time been Canadian exiles.
In the Defense program, 2% had been Canadian exiles. Most
of the Department of Justice applicants had been Canadian
exiles, but no real data exists. Even assuming that all of
the Justice applicants had been exiled, this indicates that
only about 7,000 persons eligible for clemency had ever been
Canadian exiles. This amounts to only 5% of all eligible
individuals. However, there may have been thousands more
IV-D-4
who fled to avoid the draft, but for whom no indictments
were ever issued.
At present, we estimate that about 4,000 persons are still
Canadian exiles; most are those who declined to apply to the
Department of Justice program. It is unlikely that many of
them misunderstood their eligibility for clemency.
Throughout the Vietnam Era, there never had been any tally
-- even a partial tally -- of the number of war-induced
exiles. Some estimates were made, but they were based upon
very imperfect counting methods. For example, figures of up
to 100,000 were derived from the numbers of files on
American emigrants at aid centers. Many emigrants were not
draft resisters or deserters, and many had files at more
than one center.
Why did they Fail to Apply?
We can identify five reasons why eligible persons did not
apply for clemency. We have listed them below in order of
the significance we attribute to each of them.
IV-D-5
Misunderstanding about eligibility criteria. Despite our
public information campaign, many eligible persons may never
have realized that they could apply for clemency.
Misunderstanding about the offerings of the program. Many
prospective applicants may have been concerned about the
usefulness of a Clemency Discharge. Others may not have
known about the Presidential pardons given to all applicants
to our Board -- or they may not have realized that our
applicants were asked to perform an average of only three
months of alternative service.
Settled status. Others may not have cared about the kind of
discharge they had, or they may have been concerned that
their application would have made their discharge public
knowledge.
Inability or unwillingness to perform alternative service.
Some individuals might have feared that if they quit their
jobs to perform alternative service, they would not get them
back later. Many fugitives in Canada had jobs and homes
there, with children in school, so they might have seen two
years of alternative service as more of a disruption than
they were willing to bear.
IV-D-6
General distrust of government. Unfortunately, some may not
have applied because they were afraid that, somehow, they
would only get in trouble by surfacing and applying for
clemency. Some might have been unsuccessful in pursuing
other appeals, despairing of any hope that a new appeal
would be of any help.
Opposition to the program. Some might have felt, for
reasons of conscience, that only unconditional amnesty would
be an acceptable basis for them to make peace with the
government.
What Happens to Them Now?
Civilians convicted of draft offenses and former servicemen
discharged for AWOL offenses will have to live with the
stigma of a bad record. They still have the same
opportunities for appeal that existed before the President's
program -- principally through the United States Pardon
Attorney and the military Discharge Review Boards -- but
their prospects for relief are, realistically, remote.
Military absentees still in fugitive status can surrender
themselves to civilian or military authorities. They still
face the possibility of court-martial, but it is possible
IV-D-7
that many will quickly receive Undesirable Discharges and be
sent home.
Fugitive draft offenders can first inquire to learn whether
they are on the Department of Justice's list of 4522
indictments. If they are not, they are free from any
further threat of prosecution. If their names are on that
list, they can surrender to the United States Attorney in
the district where they committed their draft offense. They
will then stand trial for their offenses. Although there
have been exceptions, convicted draft offenders have been
recently sentenced to 24 months of alternative service and
no imprisonment. But they still have a felony conviction,
involving a stigma and a loss of civil rights.
END OF DOCUMENT IV-D
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I
Chapter V: Managing the Clemency Board
In following a case-by-case approach, we elected to give
each applicant's case substantial staff and Board attention.
To prepare a single case properly took some time and effort.
To prepare 15,000 cases properly took a large and dedicated
staff, a great deal of management effort, and a year of
work.
Notwithstanding the size and intensity of this effort we
believe that our applicants should receive an accounting of
why they usually had to wait six months for their clemency
offers to be announced by the President. Were it not for
the many thousands of cases, and the time-consuming
procedures we chose to follow, the waiting time would have
been much less. Because our applicants were not present
during our process, we demanded high standards of fairness,
accuracy, and consistency in order to protect their rights
and interests. We did our best, nonetheless, to compensate
for the time-consuming nature of our process.
What we and our staff gained from this process was
experience in crisis or "adaptive"1/ management--experience
which we think may be useful to managers of comparable
organizations. Heretofore, few Federal enterprises have had
I-2_
as tangible a mission and as clear a deadline as our own.
Most Federal agencies operate on a much different, less goal
and production oriented, basis. This "crisis" management
may become more commonplace as it becomes more widely
recognized that unending government involvement may not
always be the right formula for providing solutions to
temporary problems. Through this "adaptive," crisis
management, reasonable solutions to temporary problems can
be accomplished in a brief spurt of energy -- without the
need to create expensive, undying bureaucracies.
Management experts frequently claim that government could
work its management approaches better if it would pattern
its management techniques more after those of private
enterprise.2 To do this, a government agency must ideally
have the ability to: (1) Set clear goals whose achievement
can be monitored as a measure of performance; (2) Identify
staff and other resources needs quickly and accurately,
obtain them promptly, and apply them flexibly; and (3)
Reduce in size as soon as staff is no longer needed. We
were fortunate to have some of these abilities in abundance,
and others to a lesser degree. We expect that other crisis
enterprises would also. We are not sure that we used them
to full advantage, but we could not have met the President's
deadline without them.
I-3_
In this chapter, we describe our management experiences
during the twelve months of our operation. During that
year, we generated 21,000 applications,3, recommended
15,500 case dispositions to the President, and referred
1,000 cases with incomplete files to the Justice Department
for further action. Extending from September 16, 1974 to
September 15, 1975, this year was split (with the advantage
of hindsight) into five distinct phases:
1. September through December: Policy formulation
phase, during which very few applications were received,
with the Board concentraing on the development of policies
and procedures.
2. January through March: Public Information Phase,
with the Board and staff concentrating on informing the
American people about PCB eligibility criteria.
3. April and May: Expansion Phase, as the staff grew
by a factor of ten to accomodate mid-summer case production
requirements.
4. June and July: Peak (Case) Production Phase, with
our staff producing cases and the Board deciding them at a
rate of over one thousand cases per week.
I-4_
5. August and September: Contraction Phase, as we
finished our "clean-up" production tasks while reducing (and
eventually disbanding) our staff.
September through December: Policy Formulation Phase
In our first weeks, we had little idea of the magnitude of
the task that lay ahead. It was clear, however, that our
nine-member Board had to first concentrate on resolving key
policy issues: Setting the baseline formula, determining
aggravating and mitigating factors, and recommending
categories of case dispositions to the President.
We began with a staff of thirty, half of whom were attorneys
"detailed"4/ from permanent Executive Agencies. The staff
quickly developed procedures for implementing Board policy
in the handling of applications and the presentation of
cases to the Board. That process was time-consuming,
because of the emphasis on high standards of quality.
Nevertheless, it was rather informal, well-suited to a small
staff with a moderate workload.
During this first period, we spent a good deal of time
developing rules and testing our ability to apply them. We
learned, among other things, that using our aggravating and
I-5_
mitigating factors just as informal guides was not enough; a
simple regression analysis carried out by the staff showed
that some clearly inconsistent case dispositions resulted
from that practice. We then decided to apply our formula
and aggravating/mitigating factors were explicitly. After
every case, we determined not only the actual disposition,
but also the factors which were applicable in each decision.
Based on our new rules, we reconsidered our first few cases,
with significantly different results. The Board was usually
able to reach a consensus, despite the diversity of our
respective backgrounds.
Our management structure likewise was very informal, as one
might expect from a very small, very new organization.
Almost everyone on the staff had some case production
responsibility -- either processing applicants, writing case
summaries, or sitting with the Board as Panel Counsels.
Each case received individual attention from our senior
staff. Aside from its review of casework quality, the
senior staff concentrated less on management than on
substantive policy issues. Regulations had to be drafted,
and we asked for staff briefings on major questions of
policy and procedures.
I-6_
During those early months, we developed the basic elements
of the case production process which the staff followed
throughout the year with surprisingly few modifications.
Our administrative staff developed a procedure for
processing applications. The case summary evolved into a
format which we found useful and which did not change
throughout the year. A Quality Control function was
introduced into the system in December as our preparation
staff began to grow to review case summaries and assure the
accuracy and impartiality of the case attorney's work. The
presentation of cases before the Board was done in much the
same manner as it would later occur; each case, however,
received about 15 minutes of Board time -- something which
would prove impossible during our peak production phase.
We were able to achieve something of a balance in our
operations: Our 8 to 10 case attorneys could each produce
roughly one case per day, and we were able to decide about
30 cases per day. With the Board meeting two or three days
every two weeks, we processed cases at a steady rate of
about 150 per month. With an estimated final workload of
not much over 1,000 cases, we expected to be finished by
Spring. In such an informal organization, we saw no need to
set goals, implement information systems, or monitor case
inventories at different stages of our process. In many
I-7_
ways, our operation and staff resembled that of moderate-
sized law firm.
The primary management goal in those early months was to
have the staff present enough cases when we met so we could
submit a reasonable number of case recommendations to the
President by late November. Our purpose in this was to give
the President the opportunity to announce case dispositions
quickly, in order to alert prospective applicants about what
they were likely to receive from the President's program
before the January 31 deadline. Around Thanksgiving, the
President signed warrants for the first 45 civilian cases.
In late December, he approved our first
militayr
recommendations.
We expected that the Presidential announcement of case
dispositions would stimulate more applications, but it did
not. We also expected that around Christmas time, many
eligible persons would sense the approaching deadline and
apply. That, too, did not happen. By year's end, we had
received applications from only 850 persons, less than 1% of
those that we had estimated to be eligible. We had already
decided over one-fourth of those cases, and we expected to
be finished by April.
I-8_
January through March: Public Information Phase
As the Board heard the first few hundred cases, we each
began to realize the limited educational background of many
of our applicants. Through informal surveys and contacts
with potential applicants, we developed strong doubts about
the extent to which the American public--and especially our
prospective applicants -- understood the President's
program. By mid-December, the need to counter widespread
confusion about the program was apparent. Plans were laid
and instructional booklets and other materials were readied.
Beginning the second week in January, both the Board and the
staff concentrated on means of spreading the word about our
eligibility criteria over the next three months.5/
We were not particularly well-equipped to run a public
information campaign; our public information staff numbered
only three, and our funds for travel and information
materials were quite limited. Lacking staff and dollar
resources, we relied on others to mail letters to our
applicants, send tapes to radio and television stations, and
so forth. We were fortunate to receive many services, and
often, "air" time, free as a public service. At the same
time, we were faced with the difficulty of combating
misinformation about the program, put out by the ACLU and
I-9_
other groups. The ACLU went so far as to air ads which
encouraged people not to apply to our program. This was a
particularly trying and discouraging problem.
Almost everyone on the Board and staff participated in the
public information campaign. The Board cancelled half of
its scheduled meetings throughout January, February, and
March to allow some of us to spend time spreading our
eligibility message in major cities across the country. Our
staff, by this time numbering nearly fifty, planned future
public information activities while stuffing endless piles
of envelopes. By late January, we began to see the effect
of our campaign, receiving thousands of letters and phone
calls from applicants who had just learned of their
eligibility. For weeks at a time, our staff attorneys set
aside their casework to man the phones and respond to
letters.
Because of this, and despite our slowly enlarging staff,
case production fell to less than 100 per month. Our
administrative staff fell days behind in its efforts to
count and log new applications. Much of the administrative
work had to be done by volunteers. In fact, these
dedicated, but nonprofessional volunteers had to be relied
I-10_
upon to read mail from applicants and determine their
eligibility.
It shortly became evident that the late April target date
for completing our work had become unrealisitc. However,
during January and February we were unable, because of
increasing volume, to make accurate estimates of what our
final workload would be. There were always boxes of
uncounted mail and drawers full of telephone inquiries from
persons whose eligibility we could nct determine. We never
were sure when -- or whether -- our application rate would
peak. Until early March, we could only speculate as to how
long the President would allow us to accept applications.
As shown in Table 1 below, our workload estimates were never
more than a few thousand cases more than the applications we
had in hand at the time. 1/
TABLE I - Workload Projections Over Time
APPLICATIONS
WORKLOAD
DATE
COUNTED
ESTIMATED
January 1
850
1,000 - 1,500
February 1
4,000
5,000 - 6,000
March 1
10,000
12,000 - 14,000
I-11_
April
15,000
16,000 - 18,000
April 15
18,000
18,000 - 10,000
It was not until February that we acknowledged that we
either had to grow in size or streamline our process to get
our work done in a reasonable time. In hindsight, it was
not until mid-March that we came to realize the full
dimensions of our task. Even then, there was little sense
of crisis about our looming production problems. When our
top staff was not busy directing the last weeks of the
public information campaign, it had to focus on the day-to-
day needs of our severely-strained administrative staff.
There seemed to be little time for long-range planning.
By late March, our staff had grown to almost 100, but only
500 cases had been processed through the Board. Based upon
current staff and procedures, our projections showed that we
would finish the workload no sooner than 1978. However, the
President had already set a deadline of September 15, 1974
(giving us a total life-span of exactly one year). To meet
this goal, without jeopardizing his policy of careful,
individual attention to each case, he authorized the
doubling of the Board and the expansion of our staff to
approximately 600. The President expressly refuted any
I-12_
suggestions that we adopt more summary procedures and
thereby use less staff.
April and May: Expansion Phase
By early April, we had a reasonably accurate workload
projection, the promise of a six-fold increase in staff
size, and a September 15 deadline. We had to be working at
full speed by mid-May to finish on time. In less than six
weeks, we had to develop a management planning capability,
implement a new management structure, and assimiliate
hundreds of new personnel. In the midst of all this, we had
to move to larger quarters across town.
A small management analysis staff was quickly formed. We
recognized our need to set both short-term and long-term
goals and to have information to enable us to measure goal
achievement and timely completion of our effort. Giving
ourselves a one-month margin of error (and basing our
projections on a high estimate of 20,000 cases), weekly
production goals were set, starting at about 1,200 cases --
peaking at 1,600 cases -for the key aspects of our case-
writing process.
I-13_
A new management information system, focusing on those same
key aspects for which we had set goals, was implemented to
replace our by then very overloaded reporting systems. In
this system, information on individual case production was
funneled from the lowest level of the staff to the highest,
becoming increasingly aggregated. This data was assembled
with information from differnet production stages to produce
a flow-type picture of our operations. The information
system was implemented, monitored, and revised by the
analytical staff responsible for interpreting the findings.
Senior staff and team leaders alike were able to use this
information to gauge both organizational and individual
accomplishment of goals.
The management analysis staff also identified ways to
improve the efficiency of our production process.
Individual staff analysts were assigned to monitor each
segment of the process. They developed intraphase
information systems, productivity aids, and inventory
control mechanisms.8/ Our process was very flexible, and
our line staff was responsible to suggestions. This was our
one chance to make fundamental process revisions; once our
staff stopped expanding, it would become more resistant to
change.
I-14_
Our efforts to review and modify our case production process
was boosted by an Inter-Agency Task Force sent by OMB to
review our resource needs. Our top staff (including most of
our staff analysts) were lawyers, and the Task Force members
were skilled, high-level managers. Our two weeks together
gave us a greater management orientation; indeed, those two
weeks were the ones in which we mobilized our staff and
started achieving our once hypothetical goals. However, we
were reluctant to apply short-cuts which would affect the
fair process our applicants deserved. The Task Force gave
us the much needed confidence that our planning and
organizational decisions were valid.
Our new planning capability arose at the same time that we
were expanding our line management structure. In early
April, we decided that we would keep the basic elements of
our case dispositions procedures: Narrative case summaries,
quality control, case attorney presentations to the Board,
and the presence of experienced panel counsels during Board
deliberations. However, the only persons experienced enough
to be line managers were our original eight case attorneys.
Most had never managed a legal operation before, yet each
would soon be responsible for a staff of sixty. They also
had to designate a number of newly-hired deputies who would
I-15_
have immediate responsibility for teams of 6-8 case
attorneys.
We introduced our new organizational set-up this way: Our
eight original action attorneys, now team leaders, were
allocated the first new attorneys detailed to the Board. As
more lawyers reported, the teams expanded, and then
subdivided with the more capable earlier attorneys becoming
supervisors of sub-teams. When the process was completed,
new staff attorneys were asked to supervise small teams of
other new staff with only slightly less tenure. Our
experienced attorneys, who before had largely just prepared
cases, were now each the supervisors of 40 professional and
20 clerical staff. The two formerly middle-level managers
who had supervised the original 8 to 10 attorneys were not
jointly responsible for a mini-agency of almost 500 people.
The General Counsel,9/ his Deputy, the Executive Secretary,
and their aides -- all lawyers -- had to assume the roles of
executive - level managers.
All of our senior staff were in their twenties and thirties,
and because of differing abilities to adapt to new
situations and because of the "detailing" method of staff
recruitment, GS-13's sometimes found themselves reporting to
GS-11's.
I-16_
It was into this new management swirl that our new case
attorneys were tossed, unprepared. At the request of the
President, and with help from OMB, two "taps" for
professional and clerical personnel were made of permanent
executive agencies. Since we had no "slots" through which
to hire our own preferred people, we had to borrow
("detail") employees from other agencies. In addition, we
put to work over 100 summer legal interns hired and referred
or detailed by other agencies. The first tap was made in
early April, and the second in early May -- but, in each
case, most personnel came three to four weeks later. It was
not until late June that our early-May tap for clerical
personnel was filled. At the time, we were concerned about
the slowness with which we were able to expand; in
hindsight, we might well have faced greater management and
morale problems if we had gotten new staff in bigger
bunches.
The quality of our new staff was good-indeed, better than we
expected, given that we had no chance to screen them
initially. We had feared that many agencies would send us
their unproductive people. Very few did. What we got
instead were adaptable "shock troops," ready for new
responsibilities and new experiences. Indeed, most would
not have come unless they were of a mood to enjoy a crisis
I-17_
atmosphere. More experienced, more professionally capable,
but less flexible detailees would not have performed as
well. We could not have met our deadline without a staff
willing to cooperate with young, relatively untested
managers -- and able to tolerate some exceptionally trying
working conditions.
A training manual was prepared which provide information
concerning the Clemency Program in general, and the
procedures for writing cases in particular. Certain
operational memoranda were included in the manual, but they
rapidly became obsolete as experience forced the evolution
of the process.
Our earliest mistake in the communications area occurred at
this stage: Both policy and procedural changes, were
implemented rapidly, often without prior notice. Thus, they
were frequently met with reluctance on the part of our
staff, which had once been informal and collegial. Because
of this previous informality, many of our early procedures
and rules were maintained and amended orally. Had we to do
it again, we would probably implement some sort of formal
directive system.
I-18_
Training sessions, lasting a day, were instituted upon
arrival of personnel. Team assignments were made after
these sessions. The training process was meant to be
primarily an overview both of the legal process and of our
general mission. We anticipated that the team leaders, and
their slowly emerging internal team structures, would
provide the continuing training necessary to fully integrage
new personnel. This was successfully accomplished in some
cases and scarcely attempted in others, reflecting different
managerial styles. We later found that we had relied too
much on the Team Leaders and did not take adequate steps to
ensure that all attorneys were informed of Board Policy
until much later.
When the process of building and training attorney teams had
been completed, our organizational structure had become more
formally pyramidal. With our increase in size came an
increase in the diversity and complexity of tasks and roles.
The senior staff, including the two primary line managers,
eight team leaders in charge of case writing teams, one team
leader in charge of all Quality Control attorneys and other
planning, management, and administrative managers numbered,
at the peak, some twenty-five people. In addition, each of
the eight teams divided into sub-teams, under the direction
of emerging assistant team leaders. The optimal span of
I-19_
control -- the number of persons that any one supervisor was
able to manage -- was found to be approximately six, one
serving as a principal deputy. The more successful teams
also selected one of their clerical personnel to generally
supervise the operations of the support personnel. Here
again, we found in retrospect that we should have intervened
with some Team Leaders to ensure that all were adopting the
successful techniques that others had employed. At the time
however, we made a conscious decision to set goals and hold
our team leaders responsible for meeting them, offering them
help but not dictating their management decisions.
A careful review was made of every step taken by a case
attorney as he prepared each case summary. Based upon these
findings and an application of "learning curve" theory, a
targer case attorney "learning curve" was set: Two cases
the first week, four the second week, six the third, and
eight every week thereafter. Instead of our target 2-4-6-8,
(and the 2-5-7-10 which the Inter-Agency Task Force thought
possible), our actual learning curve was 2-3-5-6. Summer
legal interes were found to have a better learning curve and
higher production peak than "detailed" government attorneys,
perhaps because of different job motivation. Learning curve
calculations were made for each forty-person case attorney
"team," with surprising differences in the results. The two
I-20_
most productive teams had learning curves of 3-3-7-10 and 2-
3-8-8, while the three least productive teams were all
unable to produce more than three cases per week per
attorney. The worst learning curve was 1-3-3-3. We also
found that the most productive teams also did work better
quality than the least productive teams. Staff assignments
were made randomly, and working conditions were identical.
Therefore, we attributed the differences in productivity to
the management styles of the team leaders.
Our best managers turned out to be the more aggressive
individuals. They had set a heavy pace for themselves in
their earlier work on our staff, and that same pace was
apparently picked up by their new staffs. They had set high
goals for new case attorneys -- usually ten or twelve cases
per week -- and spent most of their time with those who were
new or having trouble. On some teams a laissez-faire
attitude contributed directly to low production. Most of
the better managers quickly appointed enough deputies to
keep the span of control at 6-8 persons per supervisor,
delegating responsibilities liberally. The less productive
managers delegated much less and had an insufficient number
of deputies; as a consequence, they often found themselves
unable to command or control all facets of their operations
adequately; nor were they always able to respond fully to
I-21_
the demands of the senior staff. As a result, they became
uniformly overworked during peak periods. Those who were
better case attorneys tended also to be better managers, but
prior experience and civil service status did not seem to
matter. Table 2 below compares each team on the basis of a
number of performance factors. As one can see, good results
in one area were related to good results in others.
Notwithstanding the shortcomings imposed upon them by their
lack of experience as "crisis" managers, these managers
generally performed adequately. About half of their number
performed very well, adapting to the physical and emotional
pressures of our operation with alacrity. All of the team
leaders met, in time, the minimum production goals that we
set as a condition of remaining in positions of authority.
Many of our new case attorneys were startled by our emphasis
on production. Despite some grumbling from government
attorneys not comfortable with casework quotas, the entire
staff responded well to the notion of team and individual
goals. Our top staff held weekly production meetings with
the eight team leaders, reviewing productivity changes and
identifying team production problems. The team leaders were
told how their teams ranked, and management principles were
shared. The production meetings kep the good teams good and
made the poorer teams better, but the middle teams'
I-22_
production levels remained unchanged. By plan or by
coincidence, production rose to the 1,200 per week levels we
knew we had to maintain to meet the President's deadline.
On the other hand, we found that many of our lower grade
detailed clerical and administrative personnel were poorly
trained and unenthusiastic. Absenteeism among this group
was high, and production low. However, those who served as
executive secretaries and in other specialized capacities
proved to be as diligent and as professional in their work
as our best attorneys. While we could and did reorganize
professionals to make up for weaknesses in our production,
we had no alternative but to do the best with the inadequate
numbers and low production of our support staff.
Our Board was expanded to eighteen members in late April. 10/
Like the staff, we had to accuston ourselves to a much
faster pace of work. If anything, the pressure on us was
greater: Our number of case attorneys expanded from 10 to
300, while we only doubled in size. In March, the nine-
member Board had begun to make case dispositions in panels
of three. We had to shift to Panels in order to maintain
our approach. To preserve the balance of the decision-
making process, we tried to make each panel representative
of the range of backgrounds and perspectives of the Full
Board. We were also concerned that our decisions and
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collective policy-making procedures remain consistent.
Thus, we instituted the rule that any Board member could
refer any case, for any reason, to the Full Board for
decision or policy guidance. We were satisfied with the
quality of the disposistions, but no panel had by that time
decided more than 50 cases in a single day. We had to
double that rate. This was impossible during the first
several weeks, while our new members familiarized themselves
with the full range of our cases. Nonetheless, most panels
exceeded 100 cases per day by the end of May. With three
panels meeting four days each week, 11/ our Board output
began matching -- and sometimes exceeding -- staff output of
1,200 per week.
As our Board panels increased their decision-making pace, we
put more emphasis on Board preparation, and relied less on
actual staff presentation. We therefore reduced our
attorneys oral presentations. Usually, those presentations
focused on new evidence, and elaboration of confusing
passages in the summaries. At first, we had relatively
inexperienced deputy team leaders sitting as panel cousel
during many of our sessions. They were not initially, well-
versed in Board policy, so they were unable to play the
panel counsel's intended role of assuring that we followed
our rules scrupulously. As a result of these factors,
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different panels began applying different rules -- and our
dispositions gradually became more disputed. Many Board
members began referring cases to the Full Board because of
disagreements over our policies. (Full Board referrals
averaged about 3% of all cases for the life of the Board.)
We could not slow down our pace, nor could we meet our
deadline by having so many cases heard by the Full Board.
Instead, we took the following steps: (1) we held more
frequent Full Board meetings to discuss and define our
policies; (2) we created two new aggravating factors, a
"pardon" rule. 12/ and a "no clemency" rule 13/ to clarify as
Board policy what a number of panels were inclined to do
with or without any rules; (3) copies of the newly created
Clemency Law Reporter were distributed to the Board and
Staff, with explicit definitions of Board rules and
precedents; (4) our top staff held workshops to instruct
Panel Counsels in Board policy; and they gradually became
more proficient and (5) at the instruction of the chairman,
our staff implemented a computer-aided review of Board panel
dispositions. 14/ Thereafter, our case disposition
procedures worked much more smoothly. Each panel staff
heard over 100 cases per day, without referring as many to
the Full Board. (There were, of course, variations in
hearing speed, both by panel, and by day, sometimes because
I-25_
cases were particularly "hard" or "easy," and sometimes
because contentious policy problems arose in one panel but
not in another. Usually, panels heard between 75 and 125
cases. The overall hearing rate is shown, with case
disposition, in Figure D).
June and July: Peak Production Phase
By early June, our estimated total caseload was still over
18,000. Our case attorneys had prepared only 4,000 case
summaries, and the Board had heard fewer than 3,000 cases.
We had to maintain our pace from the last week of May
through to the end of the summer.
Based upon production levels that our staff was not
confident that we could meet at each stage of our process,
we revised our weekly and monthly goals. Our top staff
considered but rejected the idea of preparing an explicit
work plan for the remainder of the program. Had a work plan
been prepared for June during May, it would already have
been outdated. Each week involved too many uncertainities
to permit significant long-range planning.
Our need to respond quickly to production problems led to a
revision on our management information system. Our staff
I-26_
began concentraing on accurate reporting of production
tallies and inventory counts at a few key stages of the
process. Time-consuming attorney productivity analysis was
no longer done. Rather than look just at the case attorney
production point, attention was now focused on other key
production points and on maintaining a smooth and stable
work flow.
One point which had been ignored previously was our file
room. By June, it was running out of new cases to give our
case attorneys. Without enough work to do, production goals
were meaningless. Staff morale started tc flag as it became
possible that case attorneys would not have enough work to
keep busy for the rest of the summer. The summer legal
interns were so productive that it was never again to be
pssible to give case attorneys more work than they could
finish. Through greater management attention, the immediate
file problems was solved -- but our whole management
emphasis changed as a result.
Instead of focusing on case production goals our top staff
concentrated on steering the clumps -- which had developed
because of irregular file availability -of existing cases
through the process. The management analysis staff
developed a "pipeline" inventory count to identify
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production log jams on a weekly basis15/. Pipeline analysis
replaced productivity analysis as the basis for production
meetings throughout the remainder of this phase.
Case flows from point to point were closely monitored, and
an expanded number of aides to our top staff began to
trouble-shoot in problem areas. Unfortunately, each
pipeline "snapshot" required at least one and usually two
days of staff time to collect and analyze data making the
information somewhat old before it could be applied.
Occasionally, daily updates had to be made before any
corrective actions could be taken. Often our perception of
a problem did not occur quickly enough for us to respond
before another problem arose to take its place. This was
because we never developed an adequate inventory to stay
ahead of the Board hearing rate.
The most serious inventory control problem of the summer
related to the docketing of cases for the Board, and the
dynamic production/hearing tension mentioned earlier.
During June, case attorneys continued to product case
summaries at the rate of 1,200 per week, but the Board
panels were deciding cases at the rate of 1,400 per week.
Eventually, the docketing staff was left with no case
inventory, and Board members were receiving case summaries
I-28_
too soon before scheduled panel meetings to allow them to be
read first.
What had created this problem was a previously-unmanaged
interface among all parts of our production process at the
docketing stage. To solve this problem, one manager was
assigned to a newly-created Board Interface Unit.
New docketing procedures were developed, with cases batched
in "docket blocks" according to fixed Board panel
schedules. 16/ To solve the immediate problem, the Board
heard very few cases during the Fourth of July holiday week.
Thereafter, our docketing inventory was carefully
controlled, but the staff never did get ahead of the Board.
Squeezing the production system in order to get enough cases
to fill the docket almost became a regular weekly event.
Some trade offs in the process were inexcapable. In order
to save some attorney time, for example, we read all of our
cases -- as many as 125 per day -- before sitting in panels.
Consequently, case production had to lead case hearing by
enough time to allow the building of entire weekly dockets
so that we could receive the cases enough in advance of our
hearing them that they could be read.
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To solve this and other pipeline problems, we had to be
flexible in our use of personnel. In particular, our
clerical and administrative staffs had to be ready to
undertake new tasks at short notice. By July, individual
production teams (consisting of an assistant team leader and
the 6 to 8 case attorneys supervised by the ATL) began to be
assigned to special production of administrative problems.
Staff morale once again became a problem -- one which never
could be resolved completely. The pressure on case
attorneys to write case summaries began to ease. Our
earlier policy of discouraging staff vacations until August
(to insure that the workload would be finished on time)
began to backfire. Some case attorneys were idle. Others
resented the "pressure-on, pressure-off" style of management
which was the unavoidable consequence of our emphasis on
inventory control rather than on simple production levels.
Still others resisted reassignment to administrative tasks.
Our 100+ summer legal interns, in particular, resited the
notion of doing non-legal work. Absenteeism became a
problem, but it was one which we failed to recognize
adequately until late in July.
There was little that the top staff could do to provide case
attorneys and other staff with incentives and rewards for
I-30_
good work. Only the detailing agencies could grant
promotions and quality step increases. Performance bonuses,
although possible, were hard to arrange. No funds were
available to improve working conditions, which were for the
most part tolerable but less comfortable than most staff had
enjoyed at their agencies. Staff contract with our Board
was usually limited to very brief case presentations. The
one major source of motivation was the understanding common
to all of our staff, that the President's Clemency Program
was helping people.
Throughout June and July, the Board panels heard cases as
quickly as they were docketed. Clear policies had been set,
and all rules were followed. Case dispositions became
relatively steady from panel to panel and from week to week.
Case referrals to the Full Board continued, but at a slower
rate. A five-member special upgrade panel was created to
make unnecessary the referral to the Full Board of cases
involving recommendations for veterans benefits. (The
"Upgrade" referral rate was roughly 3% of the total."
Other than fatigue, the major problem confronting our Board
Members during this phase was the fall-out from the July dip
in staff morale. Some case attcrneys broke from the
standing rule of impartiality and began to advocate an
I-31_
applicant's case in the manner of an adversary attorney
representing a client. This could not be allowed, but we
took steps to address the problem in recognition of the
concern for our applicants that was thus clearly exhibited
by our attorney staff. First, case attorneys were given the
opportunity to "flag" cases which they believed were decided
seemingly inconsistent with previous decisions; these cases
were then reviewed by the legal analysis staff (just as they
reviewed cases flagged by the computer) and referred to our
Chairman (in his capacity as a Board Member) for potential
referral to the Full Board. Second, the Clemency Law
Reporter became an in-house professional journal, providing
a forum for case attorneys to being policy questions to the
attention of the top staff and Board.
August and September: Contraction Phase
As we entered August, our September 15th deadline began to
appear reachable. There were two reasons for this: Our
production level had been high throughout June, and had
eased in July only because of the lack of new assignable
cases.
Total case summary production exceeded 12,000 by the first
of August. At the same time, our final caseload estimate
I-32_
fell below 1,600. In May, our estimated had been 20,000
cases. What had happened, a bit at a time, was this:
First, we discovered that of the 20,000 cases logged in by
our volunteer letter-openers during the hectic days of March
and April, 2,300 were clearly ineligible. Second, almost
2,000 would-be applicants had given us little more than
their name and address and on their application forms,
despite our repeated efforts to get more information, so we
could not order files to have their cases prepared. Third,
some 500 military cases files had been lost, destroyed by
fire, or were otherwise unavailable making it impossible for
our Board to review those cases.
In some ways, we were almost finished, in other ways, we had
hardly begun. Many of the 3,000+ cases we had left were our
hardest ones, many of them requiring time-consuming
inquiries to obtain needed information. We also had rougly
500 cases which were "lost" from our audit process, never
showing up in our weekly pipeline count until the last week
of panel hearings. By the first of August, we had still
sent fewer than 1,000 case recommendations to the President.
We had to solve these problems, write our final report,
close up our mini-agency, and plan a carry-over operation in
the Department of Justice. June vactions, once postponed
until August, now were set for October.
I-33_
Not all of our remaining cases were "hard," we still needed
two weeks of normal case attorney production. To spur last-
minute production, case attorneys were advised that cases
not submitted to quality control by mid-August would be
referred to the Department of Justice carry-over-unit. At
the risk of losing the chance to present their cases,
attorneys were asked to complete their case summaries on
time. To complete the "hard" cases, a special team
responsible to top-level staff separated them into two
categories--those which might possibly be written, and thos
which were clearly impossible because of the lack of
information. Later, case attorney production teams were
assigned to write summaries on all cases (including
"impossible" ones) based upon the information available at
the time. These became "purple docket" cases, set aside
from all others and heard by a special Board panel. of the
750 "Purple Docket" cases decided, 250 were found to be
ineligible, and another several hundred had to be referred
to the carry-over unit for further action.
The "lost" cases had not been included in pipeline inventory
courts either because they were in transit, held by an
absent employee, or just plain lost. In late July, a month-
long search for "lost" cases were begun. Because of the
speed with which case files and other materials had to be
I-34_
circulated for production deadlines to be met, a system-wide
logging procedure was needed to allow every case file to be
traced to one source. Without it, the entire attorney staff
had to engage in a one-day physical search of our two
buildings at our first deadline for the completion of cases.
The staff had to account for every one of our 18,000+ logged
cases, with case files changing hands all the while.
Eventually, our 500 "lost" cases were reduced to around 50,
which were assigned with the "hard" cases to the Department
of Justice carry-over unit.
Forwarding cases to the President was our last major
management problem. This was an aspect of our operations to
which we had previously given little attention, but which
loomed as an almost impossible job. Contributing to the
delays in forwarding cases to the President had been the
"30-day rule"17/ and the two to three week turnaround time
for the computer aided review of case dispositions. By late
August, we had to prepare master warrants involving over
3,000 cases per week -- a very staff-intensive job. To do
this, we assigned all case attorneys not responsible for
"hard" cases or working on other special task forces. Some
procedures were simplified -- but we really attempted to
solve this problem more by phalanx than finesse. With this
awkwardly large and often unwilling staff of almost 100
I-35_
reassigned case attorneys, our administrative staff was able
to forward the bulk of the case recommendations - (10,500)
to the President on September 15. Another 5,000 remained
for the post-September 15 organization.
Our staff size, over 600 through most of June and July,
gradually shrank to 350 during August. Approximately 50
detailed attorneys were returned to their agencies around
the first of August as our caseload diminished. Our 100+
summer interns went back to school, a few at a time, through
Labor Day. A few others had their details expire, and were
not replaced. As our deadline neared, final-stage
production problems could be solved better by large does of
staff than by careful management planning. Therefore, we
were reluctant to phase down in staff size any more quickly
than we did.
August and September also witnessed the preparation of our
Final Report -- and of plans for the carry-over unit in the
Department of Justice. That carry-over unit was planned to
start at about 150 persons, to work in decreasing numbers
until November 1. Records had to be sent to the Archives,
final paperwork had to be completed, and applicants had to
be allowed 30 days to appeal their case dispositions.
Otherwise, the work of the staff was done.
I-36_
Our staff efforts of the last several weeks were complicated
by the fact tht September 15 was not just our mission
deadline, but also our last day as an agency. Intense work
was expected of individuals who faced serious uncertainty
about their personal career directions after that date.
Many detailed employees did not want to return to their
agencies, and about 40 persons were filling "temproary"
positions which would not exist after September 15. The
carry-over staff in the Department of Justice was able to
absorb some of these people, but most faced the threat of
immediate unemployment until the last working day before our
deadline. The level of staff anxiety was understandably
high. This seriously affected staff performance during our
last two weeks -- and, unfortunately, it was beyond our
control.
Our Board panels heard almost all their cases by the end of
August, with one panel day in mid-September for 650 loose-
end and tabled cases. The Full Board agenda had accumulated
throughout the summer -- the one case inventory which was
not controlled and the Board had to work without rest
through the latter part of August and September to complete
it docket. In late August, the Full Board began to hear
cases refereed by the Chairman as having been flagged by the
staff as statistically inconsistent through both
I-37_
computerized and personal reviews. The Board also began to
review requests for reharing from action attorneys at this
time, but the two types of review overlapped by almost 80%.
In most cases, the rehearing resulted in a case disposition
more in line with perceived Board precedent. The computer
"flagged" almost 9% of all cases as being statistically
inconsistent. Since the range of factors that the computer
could consider was limited, and because it was unable to
discern th degree to which an aggravating/mitigating factor
was relevant, the computer flagging was purposely set to be
inclusive of many very consistent decisions. Thus, the
staff review of each case so flagged was able to reduce the
total to 4%. The Chairman referred almost half (or 1-2% of
the total) back to the full Board.
The Full Board workload also consisted of 650 cases referred
by Board members: A special Board Upgrade Panel reviewed 360
cases referred for potential upgrades and VA benefits. of
these,
were unanimously recommended to the President.
of the total of cases heard by the Full Board,
% or
were "flagged," and % were recommended to the President
for upgrade.
cases were judged unwrittable in their
current state and referred to the carry-over unit. All
15,800 cases received some kind of Board recommendation.
I-38_
On September 15, the Clemency Board was terminated by
Executive Order and, all remaining tasks were turned over to
a carry-over staff of persons set up in the Department of
Jutice. cases remained to be forwarded to the White
House for Presidential signature; remained as "hard,"
virtually unwrittable cases; a projected 3% or 475 cases
were to be reviewed by the Attorney General under appeal;
some awaited the end of the 30-day reconsideration
deadline, of which an estimated
might required
rehearing; not a single case remained cut of 15,800 that had
not received least some initial disposition by the Board.
Conclusion
On September 15, 1975, the Board disbanded with its mission
complete. We met the deadline -- to the day -- which the
President had set back in March. During our twelve months,
we sifted through 21,500 aplications, sorted out 6,000 which
were incomplete or ineligible, disposed of 14,600 cases, and
referred the remaining 900 cases (with late-arriving or
partial files) to the carry-over program in the Department
of Justice. We did this at a total direct cost of $270,000;
including the cost of our detailed staff and our overhead
brings this figure up to $5,625,000. This amounts to
roughly $264 per applicant, or $385 per case disposition.
I-39_
We were able to acomplish our mission both because of our
emphasis on production and because of our crisis management
characteristics. The impact of both factors is much clearer
after-the-fact that it was during our process.
1. Emphasis on Production
Our production emphasis had four major points of
focus: (1) updating estimates of total workload and weekly
production requirements; (2) applying staff resources
flexibly according to current production priorities; (3)
monitoring "pipeline" inventories at key production points;
and (4) maintaining the quality of our production output --
in other words, making sure that our case dispositions were
fair and consistent.
Our workload estimates barely preceded our actual
application data because of our inability to project either
how successful our public information campaign would be or
how long the program would last. Even more significantly,
our weekly production requirements lagged three to seven
months behind our workload estimates. Figure A notes the
key lags in our production process. The lags resulted
partly from reaction time, partly from understaffing, partly
from regulatory "notice" standards we set for ourselves, and
I-40_
partly from inventory backlogs. It is clear from Figure A
that we mobilized for our mission just in time, and that we
would not have met our deadline had our original 21,000 case
workload projection proven accurate.
We set our weekly production requirements on the basis of
available staff. As shown in Figure B, our staff grew by a
factor of six between mid-March and late May, enabling us to
focus new professional and clerical employees on case
summary preparation tasks. By mid-August, our case summary
preparation tasks had ended, so we began applying our staff
flexibly to new production requirements. Attorney and
clerical "teams" were reassigned to other professional or
administrative functions. This flexibility came at some
cost, however, it affected our staff morale, hindering our
ability to perform administrative functions necessary before
recommendations could be forwarded to the President.
Likewise, our weekly production requirements hinged upon
case inventories at the key points in our production
process. Many tasks had sharp phasing-up or phasing-down
periods which contributed to the "lumpiness" of our
production pipeline. Figure C shows monthly production
levels for five key production points. In every case, the
sharp rise or fall of one point's production figures sent
I-41_
reverberations through our system. This was particularly
true in the case of production dips. Indeed, after the
availability of new files began to slack in early June, the
characteristics -- and spirit -- of our operations changed.
Our process would have been much easier to manage had we had
the time to smooth every production function shown in Figure
C.
Throughout the spring and summer, we had been concerned
about the quality of case summaries presented to the Board.
Similarly, Board Members were concerned about the fairness
and consistency of case dispositions made at a much faster
rate than before by panels of shifting compositions. As
shown in Figure D, the Board's case disposition patterns
were different from phase to phase. In the early phases, we
were developing policies and procedures, so our approach to
cases often changed from meeting to meeting. Our "pardon
rate" for civilian and military cases fluctuated. Starting
in late January, our civilian pardon rate began a steady
increase -- and our military pardon rate a steady decrease.
Once we began deciding cases in panels at the rate of 100
cases per panel-day, our case dispositions remained quite
consistent. We were quite pleased with the consistency of
our case dispositions from May through September -- during
which period 95% of our cases were decided. We were aided
I-42_
in achieving this consistency partly by our procedures,
partly by our publication of policy precedents, and partly
by the professional quality of the case summaries prepared
by the staff. We are confident that our emphasis of
production did not interfere with the quality of our case
dispositions.
Crisis Management Characteristics
Both at the time and now, it has been clear to us that we
were managing a "crisis" program. This posed special
problems, but created unique opportunities. From a public
administration standpoint, we were able to accomplish a
large mission on time with a standard of quality which we
found more than acceptable. Back in March, we had been very
skeptical of our ability to do this without a staff
considerably larger than the one with which we were
eventually provided. What made us a "crisis" organization
-- and how did those attributes affect our operations?
We preceive ten factors which, taken in combination,
presented the need and opportunity for crisis management.
None of the ten was essential to create such a situation.
Had we possessed six or seven, our operations probably still
would have had a crisis character. However, had we
I-43_
possessed only two or three, we would have been much more
like a typical government agency.
First, an external catalyst precipitated the crisis
situation. Our applications were the catalyzing event.
Although we did have some influence over the rate of
applications (through our public information campaign), we
had no direct control over them. Once we received an
application, we were obligated to consider it. This meant
that we did not have direct control over our workload, were
unable to estimate it accurately, and were thereby hindered
in our efforts to make long-range management plans.
Second, by February, we had a perception of a crisis
situation. We suddenly recognized our need to estimate
workload and resource requirements. The character of our
process shifted from a legal orientation to a management
orientation. Immediately, we began to apply bolder
strategies to cope with our new challenge, often by
questioning our earlier legal procedures and management
approaches. Our planning efforts were limited, however, by
the realization that the time lags between the catalyzing
event and our perception of crisis -- and between that
perception and our first serious production efforts -could
never be recovered. Despite our new sense of urgency, it
I-44_
was four months before our first surge in applications (the
catalyzing event) resulted in our first surge in case
summary production.
Third, we had a mission deadline of September 15, set by the
President in March as soon as he learned of the dimensions
of our task. This deadline imposed upon us a direct measure
of accountability. Regardless of our other accomplishments,
we would have failed the President had we not met the
deadline. The deadline immediately crystallized our long-
term plans (to the extent that we could estimate total
workload), clarifying our month production and staff
resource requirements. We could then begin short-term
management planning, fixing weekly goals and implementing
performance monitoring systems. Without a clear deadline,
we would have had difficulty justifying short-term planning
to our line staff. They then might have taken it less
seriously, making it less effective.
Fourth, our deadline resulted in a compressed time period
for our operations. Through March, our staff had prepared
and our Board had decided only 500 cases. We had to
increase that rate by a factor of thirty. On one hand, this
made our management and production processes immediately
adaptable. Staff-level management was needed, implemented,
I-45_
and given "clout" within a few short weeks. A new
management information system could be fully implemented in
a period of a few days. Line managers, suddenly accountable
for production goals that many believed impossible, were
responsive to staff management input and accepted the need
for rapid system adjustments. On the other hand, this
compression made our process very vulnerable to
administrative error, uncontrollable perturbations, and
management mistakes. The inescapable speed-up of routine
administrative processes resulted in lost files and other
administrative errors, whose correction required much staff
time and management attention from July through September
and into the carry-over program. File delivery delays by
other agencies -- or Board rule changes based upon policy
(rather than management) considerations -- sent immediate
shock waves through our system. As shown in Figure C
earlier, our production functions were very steep, both up
and down; a charting of our perturbations and management
problems would likewise show that they quickly came and
quickly vanished. Even short-term management errors were
significant. Lost production could not be recouped at the
end of our year. Indeed, our inability to complete
administrative action on all Board case dispositions by
September 15, resulted from management mistakes committed
two months earlier.
I-46_
Fifth, we had specific, measurable goals. Our clear goal
was to process almost 15,000 cases by September 15. Board
policies and procedures had already been set, and we had a
production quality control unit in place, SO we could focus
our management attention on the accomplishment of numerical
goals. These goals were easily suboptimized, with line
managers and case attorneys all specifically accountable for
meeting their own goals. Therefore, it was easy for us to
tailor a management information system around specific goal
achievement. This goal accountability also enabled us to
spot production problems quickly.
Sixth, we began with a lack of a staff resource base. We
had to grow quickly from a staff of 100 to a staff of 600,
two-thirds of whom were professionals. We had little
control over the quality of our new staff, in large part
because they were detailed by other agencies. However, even
if we had enjoyed discretion over every staffing decision,
our time problem was so severe that we probably could not
have been any more selective. Therefore, we had to
compensate for our lack of staff input quality control with
a process for staff output quality control. Our lack of a
staff resource base also required us to rely on line
managers without directly comparable experience. Most
performed very well, but others less well -- and we were not
I-47_
inclined to make more than a very small number of changes in
management personnel. Our crisis-trained cadre of line
managers did have one important advantage: They were very
flexible at a group, much more willing to try creative
approaches than more experienced managers might have been.
Seventh, we enjoyed a short-term access to resources, making
possible our rapid phase-up of production levels. However,
the speed with which we acquired new staff had clear
disadvantages. Task assignments had to be made correctly at
the start. Although we could move individuals (or teams) to
new functions later, the additional training time and morale
problems proved costly. Our highest production levels
almost always came from those who stayed in the same
function. Likewise, the sudden arrival of hundreds of new
staff required the immediate appointment of new
professionals as low-level line managers. Unlike our mid-
level managers, they had no prior contact with the senior
staff. As a result, communication between the senior staff
and low-level line managers was a problem for the life of
our program. Finally, the rapid staff bulge put immediate
pressure on the rest of our system, especially on our file
retrieval and docketing process. We had equipped ourselves
in advance to deal with these pressures.
I-48_
Eighth, we recognized that our clemency mission had
programmatic priority within the government. Ours was a
visible program, and we enjoyed the ability to draw
attention to our needs and problems quickly. In return, our
weekly progress was carefully monitored by OMB and the White
House. The fact that we were a White House operation
contributed to staff morale and performance at all levels.
Ninth, we were faced with an institutional deadline of
September 15, the date of our mission deadline. The fact
that our Board and agency had to dissolve on the same day
that our mission had to be complete posed a number of
serious problems. Our lack of permanent staff with long-
term relationships contributed to morale and production
problems. While our detailed staff generally enjoyed their
experience with the program, they understandbly felt less of
a career commitment with us than with their agencies.
Often, there was little that we could do to make them
responsive to Board policies or management needs. Our
arsenal of rewards and penalties was very limited. We could
not offer promotions, nor could we threaten personnel
actions. The last month of our operations were seriously
hindered by our upcoming termination date. Once lost,
institutional momentum could not be recovered. We had to do
some of our most difficult administrative work during a
I-49_
period of staff shrinkage, low morale, and anxiety. People
who faced a serious risk of unemployment after our deadline
were asked to work at a faster pasce so that our deadline
could be met. Were we to have enjoyed greater institutional
continuity after that mission deadline, our phase-down
period would have been more productive.
Tenth, we were attempting to solve a bounded problem which
did not require a permanent institution to cope with it.
Aside from our early need to set monthly production goals
through September 15, we did not have to conduct long-term
planning. Because of the pressures of time, we had to apply
a narrow focus to our problem. Despite scme evidence that
our lack of personal contact with applicants was undermining
the effectivenss of our program, we were unable to direct
sufficient staff attention to the problem. Likewise, we are
unable to follow through on our desire to monitor our
applicant's performance of alternative service. Combined
with our institutional deadline, the boundedness of our
problem prevented us from performing or supervising any but
the most cursory impact evaluation of the clemency program.
These ten attributes posed a special mix of management
problems and opportunities. Although we met our September
15 deadline and were successful by our most tangible measure
I-50_
of accountability, we recognize that there were some
problems that we could not overcome and opportunities of
which we could not take full advantage. We regret not
having solved better the problem of communication among
senior management staff, line managers, and case attorneys.
We regret the high level of administrative error in our
internal and external paper flow. We particularly regret
our not having completed all administrative tasks by
September 15, requiring a six-week carry-over unit in the
Department of Justice.
However, much went well. We maintained high levels of
production for four crucial months. We exercised the
necessary management control to minimize inventories and
move cases through our system. As requested by the
President, our Board finished its task on time. Above all,
we take pride in the quality of the legal process by which
our case dispositions were made. Just as our
disappointments can be explained by our special problems of
crisis management, so too must we attribute our
accomplishments to the unusual energy, creativity, and sense
of responsibility which a crisis atmosphere gave to our
agency.
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VI
Charter VI: An Historical Perspective
A Survey of American History provides a fuller appreciation
of the destiny and responsibility of the American people.
To place the issue of Executive Clemency in its proper
perspective, one must leaf through the pages of history and
take note of the manner in which Washington, Lincoln,
Truman, and Ford applied their powers of Executive Clemency
in dealing with persons charged with, or convicted of, war-
related offenses.
Past acts of Executive Clemency have become a part of our
political heritage. Close scrutiny of previous Chief
Executives' uses of clemency powers in dealing with war-
related offenses will disclose particulars that have often
been ignored by both opponents an proponents of clemency.
Advocates at either end of the spectrum--those espousing "no
clemency" and those urging "universal and unconditional
amnesty" might temper their pleas if they would study all
previous Presidential actions rather than merely citing the
one instance that is supportive of their own position.
Lessons can be learned from studying past individual
actions, but the uniqueness of historical moments must be
remembered. This uniqueness precluded adoption of a Lincoln
program or a Truman program to resolve a present-day
dilemna. The resisters of the Vietnam Era are not in the
same category as Southerners who were defeated on the
VI-2
battlefield nor are they in the same category as those who
failed to serve during World War II.
Past Presidential grants of Executive Clemency have each
been tailored to fit a particular situation. They differ
from one another in significant way. President Ford's
clemency program is not unmindful cf programs initiated by
his predecessors, yet is is distinctly tailored to the
Vietnam Era.
Much of the interest and concern over Executive Clemency
stems from a fear that leniency towards draft-evaders and
military deserts might undermine the Nation's future ability
to mobilize and maintain a strong military force. The moral
dilemma surrounding war and participation in war will always
be with us, but it seems unlikely that the prospect of a
limited and conditional amnesty at scme uncertain future
date would lead anyone to break the law by evading the draft
or deserting the military. No one can point out any great
harm ever suffered by the military as a result of past acts
of Executive clemency. However, the negative consequences--
if any--of a universal and unconditional amnesty remain
unknown inasmuch as no President has ever proclaimed a truly
universal and unconditional amnesty.
VI-3
A review of Americab history demonstrates that war and
conscription have often caused dissension among our people.
It also reveals the many instances in which Presidents have
used their Constitutional powers to forge reconciliation by
offering certain outcasts and offenders an opportunity to
regain the full benefits of citizenship.
Washington acted decisively to put down the Whiskey
Rebellion. Urged on by Hamilton and others, he was
determined to establish the power and authority of the newly
constituted Federal government. After finding the courts
unable to enforce the laws, and after issuing a Presidential
proclamation demanding that the insurrectionists obey the
laws, Washington then called on the military to quell the
rebellion. Subsequently, he pardoned all offenders except
two leaders who were under indictment. They were later
pardoned after conviction.
The clemency actions of Lincoln and Johnson during and after
the Civil War are important because the Civil War involved
the first use of significant numbers of conscripts by the
U.S. Army. Draft evasion and desertion were commonplace
throughout the war. Lincoln's many personal interventions
to commute death sentences that had been meted cut for
desertion displayed his personal eagerness to temper justice
VI-4
with mercy. Nevertheless, his acts of clemency were
primarily a method of carrying out military and political
aims. Amnesty for Union deserts was predicated on their
rejoining their regiments and thus being available to fight
the rebels. Lincoln's early amnesty offers to supporters of
the Confederacy were surely intended to undermine Jefferson
Davis' army and suppress the rebellion. Johnson's post-war
clemency was designed to dispense the grace and favor of the
government to sucessionist followers, but Confederate
leaders were not to be treated lightly. Johnson's actions
were highly political, in addition to his struggle against
impeachment, he was continually wrestling with Congress over
his program of Reconstruction.
Truman took great pride in his military service, and he held
little sympathy for those who refused to wear the uniform.
His high regard for the serviceman was demonstrated by his
Christman 1945 pardon of several thousand ex-convicts who
served the military. Truman's Amnesty Board was restricted
to reviewing only Selective Service viclations. Only three
prisoners secured release from confinement as a result of
Amnesty Board recommendations. The other 1,520 receiving
Presidential pardon has already completed their prison
sentences. At Christmas-time in 1952, Truman restored
citizenship rights to approximately 9,000 peace-time
VI-5
deserters but no pardon, remission, or mitigation of
sentence was involved. At the same time, Truman restored
civil rights for Korean War veterans who had received civil
court convictions prior to their service in the Korean War.
To put President Ford's program in perspective, it the rest
of this chapter we summarize the ways in which Washington,
Lincoln, Johnson, and Truman adhered to or departed from the
six principles of President Ford's Clemency Program. These
principles, described elsewhere in this report, are the
following: (1) the Need for a Program; (2) Clemency, Not
Amensty; (3) A Limited, Not Universal, Program; (4) A
Program of Definite, Not Indefinite, Length: (5) A Case-by-
Case, not Blanket, Approach; and (6) Conditional, not
Unconditional, Clemency.
The Need for a Program
President Washington's use of the Presidential pardoning
power is attributed to his personal inclination to act with
"moderation and tenderness." The Whiskey Rebellion
consisted primarily of fiery speeches against unjust
taxation; there had been little gunfire. Consequently, the
Whiskey Rebellion was not of such magnitude as to require a
Presidential program of reconcilation in its aftermath.
VI-6
Although the Jeffersonians condemned the Federalists for
using military forces instead of juries to uphold the laws,
Congress praised Washington for his firm action.
Some of the clemency acts associated with the Civil War were
proclaimed both during the war and throughout President
Johnson's term following the war. They were primarily a
means of reuniting the nationa; others served more narrow
military and political aims. As the war ended, Lincoln and
Johnson both recognized the need for a program that would
not treat the South as a conquered nation, but as a part of
a reunited America. Amnesty was to be a basis for
reconstruction, individual rights had to be restored before
States could again become a part of that Union.
Between 1945 and 1952, President Truman issued four
Proclamations of Executive clemency; each covered a
different class of individuals. His program for civilian
draft offenders was announced over two years after the end
of World War II. Although there was a certain amount of
pro-amnesty agitation during this period the issue did not
spark a major public debate and there was no need for a
program of reconciliation in the sense that such programs
were needed following the Civil war and the Vietnam war.
VI-7
President Ford's program was comparable to, but not quite
the equivalent of Johnson's Civil War elemencies in terms of
responsiveness to a clearly felt need. While the Vietnam
conflict did not sparate States from the Union, it did
foster a divisiveness of such magnitude smong the population
that the Chief Executive was obliged to initiate a clemency
program to heal America's wounds. His program was
proclaimed sooner after the war's end than Truman's, but
less swiftly than Washington's or Jchnson's. However, like
Johnson, President Ford announced his clemency program
exactly six weeks after assuming his office.
Clemency, Not Amnesty
The Whiskey Rebellionists were recipients of clemency, not
amnesty. Amnesty for acts of treason would have been
unthinkable for a new nation still in the process of
establishing the authority cf the Federal government.
Clemency for former insurrectionists who now expressed a
readiness to obey the laws seemed the proper course. In his
December 1795 address to Congress, Washington commented on
his leniency towards the insurrectionists: "The misled have
abandoned their errors." "These circumstances have induced
me to pardon generally the offenders here referred to, and
VI-8
to extend forgiveness to those who had been adjudged to
capital punishment."
The numerous Civil War "amnesties" did not conform to the
dictionary meaning of the word. the entreaties to Union
Army deserts were not acts of oblivion: they were acts of
leniency, and they were intended to entice soliders to
return to their regiments. The early offers to
Secessionists were in reality appeals to abandon the
Confederate cause; thus was the cloak of amnesty used to
weaken the Confederacy. For Confederates there was no
blotting out of the cime, the oath that was required implied
repentance.
Truman's Amnesty Board, despite its name, gave no grants of
amnesty. The Board was charged with making recommendations
for Executive Clemency and it did so by recommending
individual pardons.
President Ford specifically rejected amnesty, calling
instead for a clemency program with the objective of "making
future penalties fit the seriousness of each individual's
offense and of mitigating punishment already meted out in a
spirit of equity."
VI-9
A Limited, Not Universal, Program
Washington limited this clemency program by placing
exclusions in his Proclamations. Few persons actually
benefited from his action, since only a handful had been
indicted and only two were adjudged guilty of treason.
Neither Lincoln ncr Johnson ever issued a universal amnesty;
there were many persons excluded from their programs.
Johnson's first proclamation declared 14 classes of persons
ineligible for amnesty. Johnson is known to have seriously
considered proclaiming a universal amnesty just prior to the
1868 Democratic National Convention, but onl for political
reasons. Jchnson's "Universal" amnesty of Christman 1868
was universal in the sense that it applied to all rebels;
inasmuch as it did not remove disabilities from those who
had been convicted of draft evasion or desertion from the
Union forces, it was not universal in application.
Each of Truman's Proclamations was limited, not universal,
in scope. In rejecting a universal program Truman's Amnesty
Board reported "to grant a general amnesty would have
restored full civil status to a large number of men who
neither were, nor claimed to be, religious objectors."
VI-10
President Ford's program was more universal than either
Johnson's or Truman's in that it did not specifically,
consciously exclude major categgories cf offenders. (This
exclusion was made not by Truman, but by his Amnesty Board.)
However, it did not affect as many people as Johnson's
program. The 125,000 eligible persons and 22,5000
applicants to President Ford's program made it the second
largest in our nation's history.
A Program of Definite, Not Indefinite Length
The Whiskey Excise Law was amended in June 1795 and soon
thereafrer the Federal tax collectors were being challenged
by the Pennsylvania Farmers. Although Washington issued
three Proclamations concerning the Whiskey Rebellion, only
the last of them carried his offer of pardon. This third
Proclamation was published in July 1795, SO the issue was
settled within about a year from its inception.
Civil War amnesty did not amount to a "program." Rather,
Civil War amnesty began with Linccln's War Department
Executive Order of 1862, extended through 1898, when the
political disability imposed by the Fourteenth Amendment was
removed.
VI-11
Truman's Amnesty Board completed its work within one year.
Truman's other Proclamations were one-time actions and did
not entail establishment of "programs."
Like Truman's program for draft evaders, President Ford's
clemency program lasted for only one year. Unlike Truman's,
however, he combined all of his initiatives in a single
proclamation and a single program. By contrast, Washington
and Johnson implemented their clemency programs gradually,
through a series of proclamations.
A Case-by-Case, Not Blanket Apprcach
Only about twenty persons were apprehended as Whiskey
Rebellionists, so Washington followed a blanket approach in
granting them pardons. Lincoln, in a 1864 Message to
Congress acknowledged his willingness to grant clemency,
stating that "nc voluntary application has been denied."
Despite his lenient pclicy, his actions would seem best
classified as case-by-case. Lincoln's 1862 Executive Order
called for case-by-case review in that the Secretary of War
was given discretionary power to keep in custody persons
"whose release at the present moment may be incompatible
with the public safety." There is no clear record as to the
number of former Confederates obligated under the Fourteenth
VI-12
Amendment to request full restoration of citizenship, but
the Forty-first Congress passed on approximately twenty
thousand names.
When rependant Confederates came fcrward to take the oath of
amnesty, a record was to be made and the original forwarded
to the Secretary of State. A blanket approach to the
deserter problem would be Lincoln's February 1864 decree
"that the sentences of all deserters who have been condemned
by Court Martial to death, and that have not been otherwise
acted upon by me, be mitigated to imprisonment during the
war." This blanket commutation of sentence also offered
case-by-case clemency in that general officers with court
martial authority were given the power to release imprisoned
deserters and return them to duty. By contrast, Johnson's
clemency offers were made and applied more generally.
The 1945 pardon of ex-convicts who subsequently served
honorable in the Armed Forces was a blanket clemency in that
it extended to all persons in a carefully defined category.
The same may be said of Truman's 1952 Proclamations.
Truman's Amnesty Board, however, determined that a blanket
approach would not be a proper way of handling clemency for
Selective Service violators. The Board recommendations were
based on a case-by-case review.
VI-13
Like Truman, President Ford appointed a Clemency Board to
hear all cases of punished offenders. However, this Board
denied clemency in only 5% of its cases--contrasting sharply
with the Truman Board's denial of clemency to 80% of its
cases. Like Lincoln, he gave the military a major role in
the resolution of cases involving deserts.
Conditional, Not Unconditional, Clemency
Washington conditioned his offer of pardon by requiring that
the Pennsylvanians involved in the Whiskey Rebellion
subscribe tc "assurances of submission to the laws. "
Refusal or neglect to subscribe such assurance apparently
barred one from the benefits cf pardon.
Civil War amnesties were conditional in nature. Union Army
deserters were required to return to their regiments:
Confederates were required to take an oath that amounted to
public repentance. Political prisoners released by War
Department Executive Order #1 of 1862 were required to
subscribe to "a parole engaging them to render no aid or
comfort to the enemies. "
There were no conditions attached to any of Truman's four
Proclamations of Executive clemency. Because of the
VI-14
qualifications for coverage under the Truamn clemencies were
so carefully prescribed, no future conditions were seen as
necessary.
President Ford's program was the only one to apply for a
condition of Alternative Service to most of his grants of
clemency. Unlike Washington and Iincoln, he did not
attached any condition restraining clemency recipients'
future conduct. Instead, he attached a condition of
Alternative Service as a means of demonstrating one's
commitment to national service. Like Washington and
Lincoln, he required some clemency recipients to sign a
loyalty oath.
Conclusion: The Precedential Impact of the President's
Program
An analysis of the history of executive clemency shows that
different wars have produced differnt post-war grants of
clemency. To a large extent, the Presidential policies have
reflected the need for national reconciliation during the
post-war period. When there was little such need, there was
little or no clemency offered. When the need was
considerable --such as when Washington was trying to build a
nation at the time of the Whiskey Rebellion, or when Lincoln
VI-15
was making plans to reunite it during the late stages of the
Civil War--the grants of executive clemency were
considerable. We expect that President Ford's clemency
program will be viewed in much the same manner as
Washington's and Lincoln's programs have been.
We believe that this clemency program is the most generous
ever offered, qhen equal consideration is given to the
nature of benefits offered, the conditions attached, the
number of individuals benefited, and the speed with which
the program followed the war. If each factor is taken
separately, the Presidents' program does not break precedent
in any fundamental way. Washington's pardon of Whiskey
Rebellionists was a speedier action, but it affected only a
very small number of people. LIncoln's Civil War amnesties
for deserters were more clement, but he set more stringent
conditions. Johnson's amnesties for Southern Secessionists
benefited more individuals, but 30 years passed before their
full rights were restored. The Truman amnesty of draft
evaders imposed no conditions, but it denied clemency to 80%
of its cases.
President Ford only established one new precedent: the
condition of laternative service. Had he announced
universal, unconditional amnesty, his program would have
VI- 16
been much more of a break from precedent. While historians
might still have viewed it as a tailored response to a
distinguishable war, its impact upon a future general of
draftees and combat troops would be much harder to predict.
These were risks well worth avoiding.
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