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Final Report - Draft, 10/28/75 (3)
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The original documents are located in Box 5, folder "Final Report - Draft, 10/28/75 (4)" 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States of America his copyrights in all of his unpublished writings in National Archives collections.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
TODAY'S DATE 10/29/75
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Chapter 6
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FORD & GERALD LIBRARY
A. Overview
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 time and effort. To
prepare 15,000 cases properly took a large and dedicated
staff, a great deal of management effort, and a full year of
hard work.
Notwithstanding the size and intensity of this effort,
we believe that our applicants should receive an accounting
of why they may have had to wait as long as 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 applicants were not
present during the Clemency Board process, we demanded high
standards of fairness to protect their rights and interests.
Many efforts were made, nonetheless, to compensate for the
time-consuming nature of the process.
Partly because of these demands Clemency Board provided
an example of crisis or "adaptive" management. 1 The account
of our experiences in this chapter may be useful to managers
of comparable organizations. Heretofore, few Federal
enterprises have had as tangible a mission and as clear a
deadline as our own. Most Federal agencies operate on a
much less goal and production-oriented basis. This crisis
management may become more commonplace as government
recognizes that it may be useful formula for providing
solutions to temporary problems. Reasonable solutions to
temporary problems can perhaps best be accomplished in a
brief spurt of energy -- without the need to create
expensive, undying federal bureaucracies.
Management experts frequently claim that government
would perform 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:
GERALD 1083 CIRBARY
(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. The Clemency Board was
fortunate to have some of these abilities in abundance, and
others to a lesser degree. Not all may have been used to
full advantage, but the President's deadline could not have
been met without them.
In this chapter, we describe our management experiences
during the twelve months of our operation. During that
year, the Board generated 21,500 applications, made 14,514
case recommendations to the President, determined that
almost 6000 applicants were not eligible for the program and
referred 1,000 cases with incomplete files to the Justice
Department for further action. Extending from September 16,
1974 to September 15, 1975, the year was split into five
distinct phases:
1. September through December: policy formulation
phase, during which very few applications were received,
with the Board concentrating on the development of
policies and procedures.
2. January through March: public information phase,
with the Board and staff concentrating on informing the
American public about our eligibility criteria.
3. April and May: expansion phase, as the staff grew
by a factor of ten to accommodate mid-summer case
production requirements.
4. June and July: peak (Case) production phase, with
our staff producing cases and the Board making decisions
at a rate of over one thousand cases per week.
5. August and September: contraction phase, with the
completion of "clean-up" production tasks while the
staff was reduced and eventually disbanded.
B. Management Experiences
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 the
nine-member Board had to first concentrate on resolving key
policy issues: setting the baseline formula, determining
aggravating and mitigating factors, and identifying
categories of case recommendations to the President.
We began with a staff of thirty, half of whom were
attorneys "detailed" from permanent Executive Agencies3.
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
GERALD
quality. Nevertheless, it was rather informal, well-suited
to a small staff with a moderate workload.
During this first period, the Board spent the most time
developing rules and testing our ability to apply them. We
found, among other things, that using our aggravating and
mitigating factors simply as informal guides was not enough;
a basic regression analysis carried out by the staff showed
that some clearly inconsistent case dispositions resulted
from that practice. We then decided to apply the baseline
formula and aggravating/mitigating factors very explicitly.
After every case, we determined not only the actual
disposition, but also the factors which were applicable in
each decision. Based on these new rules, the Board
reconsidered the first few cases, with significantly
different results. Partly because of the use of these
rules, the Board was usually able to reach a consensus,
despite the diversity of viewpoints.
The management structure was likewise 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 in Board sessions as panel counsels.
Each case received individual attention from the senior
staff. Aside from its review of casework quality, the
senior staff concentrated less on management than on
substantive policy issues at this time. Regulations had to
be drafted, and the Board required regular briefings on
major questions of policy and procedures.
During those early months, we developed the basic
elements of the case production process which the staff
followed, with surprisingly few modifications, throughout
the year. The administrative staff developed a procedure
for processing applications. The case summary evolved into
a format which we found useful and kept unchanged. A
quality control function was introduced into the system in
December, 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 received
about 15 minutes of Board time, however -- something which
would prove impossible during the mid-summer peak production
phase.
We were able to achieve something of a balance in our
operations: the eight to ten case attorneys could each
produce roughly one case per day, and the Board was able to
decide about 30 cases per day. With the Board meeting two
or three days every two weeks, cases were processed 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, there
was no need to set comprehensive goals, implement
information systems, or monitor case inventories at
different stages of the process. In many ways, Clemency
Board operations resembled those of a moderate-sized law
firm.
FORD
The primary management goal in the early months was to
have the staff present enough cases to the Board SO that a
reasonable number of case recommendations to the President
by late November. The purpose 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 to help them decide
whether to apply. Around Thanksgiving, the President signed
warrants for the Clemency Board's first 45 civilian cases.
In late December, he approved the Board's first military
recommendations.
We expected that the Presidential announcement of case
dispositions would stimulate more applications, but it did
not. We also expected that around Christmas many eligible
persons would sense the approaching deadline and apply.
That, too, did not happen. By the end of the calendar year,
applications had been received from only 850 persons, less
than one percent of those estimated to be eligible. The
Board had already decided over one-fourth of those cases,
and we expected to be finished by April.
B. January Through March: Public Information Phase
As we 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.
For a period of nearly three months, beginning the second
week in January, both the Board and the staff concentrated
on means of spreading the word about our eligibility
criteria.
The Clemency Board was not particularly well-equipped to
run a public information campaign: the public information
staff numbered only three, and funds for travel and
information materials were quite limited. Lacking staff and
dollar resources, we relied on others to mail letters to our
applicants and to send tapes to radio and television
stations. The Board was fortunate to receive many services,
and much "air" time, for free. At the same time, we were
faced with the difficulty of combating misinformation about
the program, put out by the ACLU and other pro-amnesty
groups. The ACLU, for example, both aired ads which
encouraged people not to apply to the program and later
refused to provide legal aid to applicants. This was a
particularly trying and discouraging problem.
We were also handicapped by not having a clemency
"hotline" enabling the staff to accept anonymous, toll-free
telephone inquiries; instead, our limited budget required
the staff to refuse collect calls. Efforts to return
collect calls were often hampered by the reluctance of
callers--or telephone operators--to give call-back numbers.
Almost everyone on the Board and staff participated in
FORDO i LIBRARY GERALD
the public information campaign. The Board cancelled half
of all scheduled meetings through January, February, and
March to allow Board members to spend time spreading the
eligibility message in major cities across the country. The
staff, by this time numbering nearly fifty, planned future
public information activities while stuffing endless stacks
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 case attorneys set
aside their casework to handle the phones and respond to
letters.
Because of this, and despite the 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 nonlegal volunteers had to be relied upon to read mail
from applicants and determine their eligibility.
It immediately became evident that the late April target
date for completing our work had become unrealistic.
However, during January and February, accurate estimates
could not be made of the Board's final workload, because of
the increasing volume of applications. There were always
boxes of uncounted mail and drawers full of telephone
inquiries from applicants whose eligibility could not be
determined. We never were sure when, or whether, the
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, workload
estimates were never more than a few thousand cases more
than the applications we had in hand at the time. Many
applications postmarked by March 31 could not be counted or
logged until late April.
TABLE 27 - Workload Projections Over Time
APPLICATIONS
WORKLOAD
DATE
COUNTED
ESTIMATE
January 1
850
1,000 - 1,500
February 1
4,000
5,000 - 6,000
March 1
10,000
12,000 - 14,000
April 1
15,000
16,000 - 18,000
April 15
18,000
18,000 - 20,000
It was not until February that we acknowledged that we
either had to grow in size or streamline the process to make
all case recommendations to the President our work done in a
reasonable time. In hindsight, it was only in late March
that we came to realize the full dimensions of the task.
Even then, there was little sense of crisis about looming
production problems. When the senior 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
administrative staff. Long-range planning was a lesser
priority.
By late March, the staff had grown to almost 100, but
only 500 cases had been processed through the Board. Based
GERALD FORD LIBRARY
upon existing staff and procedures, projections showed that
the Board would finish the caseload no sooner than 1978.
The President had set a deadline of September 15, 1975,
however, giving the Clemency Board a total life-span of
exactly one year. We agreed to the necessity of this
deadline because of our concern that applicants not have to
wait more than a few months to have their cases decided. To
meet this goal without jeopardizing his policy of careful,
individual attention to each case, we were authorized to
double the Board to eighteen and expand the staff size
dramatically. The President expressly rejected the option
of adopting more summary procedures which would have
required a smaller 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. The expanded staff had
to be working at full speed by mid-May to finish on time.
In less than six weeks, the senior staff had to develop a
management planning capability, implement a new management
structure, and assimilate hundreds of new personnel. In the
midst of all this, everyone had to move to larger quarters
across town.
A small management analysis staff was quickly formed. A
need was recognized to set both short-term and long-term
goals and to have information for measuring goal
achievement. Allowing a one-month margin of error (and
basing projections on a high estimate of 20,000 cases),
weekly production goals were set for the key aspects of the
case-writing process. These goals started at about 1200
cases per week and peaked at 1600 cases.
A management information system, focusing on those same
aspects for which goals had been set, was implemented to
replace 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 different production stages to produce a
flow-type picture of operations. The information system was
implemented, monitored, and revised by the management
analysis staff responsible for interpreting the findings.
Senior staff and team leaders alike were able to use this
information to gauge organizational and individual goal
accomplishment. (See Appendix F.)
The management analysis staff also identified ways to
improve the efficiency of the 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. (See Appendix F.) The process was very
flexible, and the line staff was responsive to suggestions.
&
FORD
This was the one chance to make fundamental process
revisions; once the staff stopped expanding, it would become
more resistant to change.
BERALD
The staff effort to review and modify our case
production process was boosted by an Inter-Agency Task Force
sent by the White House to review our resource needs. The
senior staff, including most analysts, were lawyers, and the
Task Force members were skilled, high-level managers. The
two weeks of their visit gave our operations a greater
management orientation. Indeed, those two weeks were the
ones in which the staff really mobilized and started
achieving our once hypothetical goals. We were able to do
this without applying any short-cuts which would have
adversely affected the fair process our applicants deserved.
Our interaction with the Task Force gave us the much needed
confidence that our planning and organizational decisions
were valid.
It was into this new management situation that our new
case attorneys arrived, unprepared. Through a Cabinet-level
request by the President, and with assistance from the
Office of Management and Budget, two "taps" for professional
and clerical personnel were made of permanent executive
agencies. Since the Clemency Board had no personnel slots
through which to hire preferred people, employees had to be
borrowed from other agencies. In addition, over 100 summer
legal interns were referred or detailed to us by other
agencies. Agencies were requested to detail employees for a
minimum of 90 days, making the promise that these employees
would not be hindered in seeking promotions or other career
opportunities because of their temporary assignments to the
Presidential Clemency Board.
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 the
early-May tap for clerical personnel was filled. At the
time, there was concern about the slowness with which the
staff could be expanded. In hindsight, greater management
and morale problems might well have arisen if new staff had
arrived in bigger bunches.
The quality of the new staff was good. Indeed, it was
better than anyone expected, given the lack of any chance to
screen them initially. We had feared that many agencies
would send their unproductive people. This seldom occurred,
in fact, and then primarily on an individual basis. What we
got instead were adaptable "shock troops," ready for new
responsibilities and new experiences. Many would not have
come unless they were of a mood to enjoy a crisis
atmosphere. More experienced, perhaps 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 without a staff able to tolerate
working conditions quite unlike those of their detailing
agencies. On the other hand, a disproportionate percentage
our lower grade detailed clerical and administrative
personnel were poorly trained and unenthusiastic.
Absenteeism among this group was high, and average
production low. There were exceptions, of course, and those
who served as executive secretaries and in other specialized
GERALD FORD LIBRARY
capacities proved to be at least as diligent and as
professional in their work as the best case attorneys.
Team assignments were made after day-long training
sessions. A training manual was prepared which provided
information on the Clemency program in general, and on 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. 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 integrate
new personnel. This was successfully accomplished in some
cases and scarcely attempted in others, reflecting different
managerial styles.
To absorb this new staff, the line management structure
had to expand dramatically. In early April, the decision
had been made to keep the basic elements of the 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. Line managers had to be experienced in these
procedures.
The only persons with sufficient experience to be line
managers were the original eight case attorneys. The first
new attorneys detailed to the Board were randomly assigned
to them. As more lawyers reported, the teams were 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 teams
of six to eight other new staff with only slightly less
tenure. 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 by this time jointly responsible for a
mini-agency of almost 500 people. Our organizational
structure had become more formally pyramidal.
Almost all of our team leaders were young and in
supervisory positions for the first time in their careers.
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.
Skill was recognized as being more important than tenure or
previous position.
With this 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 and quality control teams, 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 sub-team leaders. The
optimal span of control -- the number of persons that any
GERALD
one supervisor was able to manage -- was found to be
approximately six, with one sub-team leader 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.
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
target 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 the target 2-4-6-8
learning curve, (and the 2-5-7-10 learning curve which the
Inter-Agency Task Force thought possible), the actual
learning curve was 2-3-5-6. Summer legal interns 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 case attorney team, with surprising
differences in the results. The two 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. (See Appendix F.) The most productive teams
also did work better of quality than the least productive
teams. Staff assignments were made randomly, and working
conditions were identical. Therefore, differences in
productivity were attributed to the management styles of the
team leaders.
Our best managers turned out to be the more aggressive
individuals. Those who were better case attorneys tended
also to be better managers, but, as with the staff in
general, prior experience and civil service status did not
seem to related directly to management success. The more
productive managers had set a heavy pace for themselves in
their earlier work on the staff, and that same pace was
apparently picked up by their own 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 other teams, a laissez-faire
attitude contributed directly to low production. Most of
the better managers quickly appointed enough deputies to
maintain the six to eight person span cf control, and they
selected one of their clerical personnel to supervise the
operations of the support personnel. They also delegated
responsibilities liberally. The less productive managers
delegated much less and had an insufficient number of
deputies to maintain the optimum six to eight person span of
control. 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
the demands of the top staff. As a result, they became
uniformly overworked during peak periods.
In retrospect, the senior staff should have intervened
with some team leaders to ensure that all were adopting the
successful techniques that others had employed. At the time
GERALD
however, a conscious decision was made to set goals and hold
team leaders responsible for meeting them, offering them
help but not dictating their management decisions.
Likewise, at first, we relied too much on the initiative of
the Team Leaders and did not take adequate steps to ensure
that all attorneys were informed of Board policy. This was
a problem because policy and procedural changes were
implemented rapidly, often without prior notice. Thus, they
were frequently met with reluctance on the part of the
staff, which had once been informal and collegial. Because
of this prior informality, many early procedures and rules
were maintained and amended orally. Initially, we did not
have any formal directive system.
Table 28 below compares each team on the basis of a
number of performance factors. Good results in one area
were clearly related to good results in others.
Notwithstanding the shortcomings imposed upon them by their
lack of experience as "crisis" managers, these team leaders
generally performed adequately. About half of their number
performed very well, adapting to the physical and emotional
pressures of our operation with alacrity. Indeed, all of
the team leaders met, in time, the minimum production goals
that were set as a condition of remaining in positions of
authority. Likewise, all met the standards of quality
necessary to maintain a fair legal process.
Many of the new case attorneys were startled by the
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. The senior 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 kept the
good teams good and made the poorer teams better, but the
middle teams' production levels remained unchanged.
Production finally rose to the 1,200 per week levels
necessary to meet the President's deadline.
The Board was expanded to eighteen members in late
April. Like the staff, we had to accustom ourselves to a
much faster pace of work. If anything, the pressure on the
Board was greater: The number of case attorneys expanded
from ten to 300, while we only doubled in size. In March,
the nine-member Board had begun to make case dispositions
sitting in panels of three or four. 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 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 a decision or for policy guidance. We were
satisfied with the quality of the dispositions, but no panel
had by that time decided more than 50 cases in a single day.
We had to double that rate. By the end of May, our new
members had familiarized themselves with the full range of
our cases, and most panels were exceeding 100 cases per day.
With three panels meeting four days each week, our Board
FORD is 078430 LIBRARY
output began matching, and sometimes surpassing, staff
output of 1,200 per week.
As Board panels increased their decision-making pace,
more emphasis was placed on Board preparation, and less on
actual staff presentation. Board panel members carefully
read all cases prior to panel sessions. Case attorneys'
oral presentations were limited to presentation of new
evidence and elaboration of confusing passages in the case
summaries. At first, newly-arrived sub-team leaders sat as
panel counsels. They were not initially well-versed in
Board policy, so they were unable to play the panel
counsel's intended role of assuring that our rules were
scrupulously followed. As a result of these factors,
different panels began applying variations of the rules, and
our dispositions gradually became more disputed. Many Board
members began referring cases to the full Board because of
policy disagreements. Full Board referrals averaged about
three percent of all cases for the life of the Board.
We could not slow down the pace, nor could we meet the
President's 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, and a "no clemency" rule to clarify as Board
policy what a number of panels were inclined to do with or
without any rules; (3) we created an internal Clemency Law
Reporter as a means of issuing Board policy directives,
enabling explicit definitions of Board rules and precedents
to be distributed to the Board and staff; (4) our senior
staff held workshops to instruct panel counsels in Board
policy, in which they gradually became more proficient; and,
(5) at the instruction of the Chairman, our staff
implemented a computer-aided consistency audit of Board-
panel dispositions. 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 case
hearing speed, both by panel and by day, sometimes because
cases differed and sometimes because policy problems arose
in one panel but not in another. Usually, panels heard
between 75 and 125 cases. The overall hearing rate is
shown, in conjunction with the pardon rate, in Figure D.
June and July: Peak Production Phase
By early June, the estimated total caseload was still
over 18,000. Case attorneys had prepared only 4,000 case
summaries, and the Board had heard fewer than 3,000 cases.
That pace had to be maintained from the last week of May
through to the end of the summer.
Based upon production levels that the staff was not
confident could be met at each stage of the process, weekly
and monthly goals were continually revised. However, each
week still involved too many uncertainties to permit
significant long-range planning.
The senior staff's need to respond quickly to production
FORDO & LIBRARY 074830
problems led to a revision of the management information
system. Line staff were asked to concentrate 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, attention was now
focused on other key production points and on maintaining a
smooth and stable process flow.
One point, for example, which had been ignored
previously was the file room. By June, it was running out
of new cases to give our case attorneys. Without enough
work to do, production goals became meaningless. Case
attorneys were concerned that they 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 the whole management
emphasis changed as a result.
This irregular file availability resulted in uneven
lumps of cases in different parts of our process. The
attention of the senior staff shifted from its focus on case
production goals to a focus on guiding these lumpy
inventories through the process. The management analysis
staff developed a "pipeline" inventory count to identify
production log jams on a weekly basis. (See Appendix F.)
This pipeline analysis replaced productivity analysis as the
basis for production meetings for the remainder of the
program.
Case flows from point to point were closely monitored,
and an expanded number of aides to the senior staff began to
trouble-shoot in problem areas. Each pipeline "snapshot"
required at least one and sometimes 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 the perception of an inventory problem did not occur
quickly enough to allow a response before another problem
arose to take its place.
The most serious inventory control problem of the summer
related to the docketing of cases for the Board. During
June, case attorneys continued to produce 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 too close to
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, a manager was
assigned to the new responsibility of coordinating the Board
hearing, or production "output," segment of our process.
New docketing procedures were developed, with cases
batched in "docket blocks" according to fixed Board panel
schedules. To solve the immediate problem, the Board heard
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very few cases during the Fourth of July holiday week.
Thereafter, the docketing inventory was more carefully
controlled, but 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
inescapable. To save some attorney time, for example, Board
members read all panel cases -- as many as 125 per day --
before sitting in panels. Consequently, case production had
to precede case docketing by enough time to allow the
building of entire weekly dockets. As a result, Board
members could receive case summaries far enough in advance
of the panel sessions to enable them to be read.
To solve this and other pipeline problems, the senior
staff had to be flexible in its assignment 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 a sub-team leader
and the six to eight case attorneys under his/her
supervision) began to be assigned to either special
production or administrative problems.
This slack in casework once again became a problem --
one which this time could not be resolved. 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 the emphasis on inventory
control rather than on simple production levels. Still
others resisted reassignment to administrative tasks. The
100-plus summer legal interns, in particular, resisted 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 senior staff could do to
provide case attorneys and other staff with incentives and
rewards for 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
satisfactory but less comfortable than most staff were used
to at their agencies. Staff contact with the Board was
usually limited to very brief case presentations. The one
major source of motivation was the understanding, common to
all staff, that the President's Clemency Program was helping
its applicants.
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 special upgrade panel was created to make
unnecessary the referral to the full Board of cases
involving recommendations for veterans benefits. This
upgrade referral rate came to be roughly three percent of
the total.
Other than fatigue, the major problem confronting our
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Board members during this phase was the fallout from the
July dip in staff morale over the slack in casework. A few
case attorneys broke from the standing rule of impartiality
and began to advocate an 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 the applicants exhibited by
these case attorneys. First, case attorneys were given the
opportunity to "flag" cases which they believed were decided
inconsistently with previous decisions. These cases were
then audited for consistency by the legal analysis staff,
just as they reviewed cases flagged by the computer, and
finally referred to the Chairman for potential referral to
the Full Board at his own discretion. Second, the Clemency
Law Reporter became an in-house professional journal,
providing a forum through which case attorneys could bring
policy questions to the attention of the top staff and
Board.
F. August and September: Contraction Phase
As we entered August, the September 15th deadline began
to appear reachable. There were two reasons for this:
first, the case production level had been high throughout
June, lagging in July only because of the lack of new
assignable cases.
Total case summary production exceeded 12,000 by the
first of August. Second, the final caseload estimate fell
below 16,000. In May, our estimate had been 20,000 cases.
What had happened, a bit at a time, was this: first, of the
20,000 cases logged in by the volunteer letter-openers
during the hectic days of March and April, 2,300 were found
to have been ineligible. In addition, almost 2,000 would-be
applicants had given us little more than their name and
address on their application forms, despite our repeated
efforts to get more information, so files could not be
ordered to enable their cases to be prepared. Third, about
500 military cases files had been lost by other agencies or
were otherwise unavailable, making it impossible for the
Clemency Board to review those cases.
In some ways, the work was almost finished: in other
ways, it had hardly begun. Many of the remaining 3,000-plus
cases were the hardest ones, many requiring time-consuming
inquiries to obtain needed information. We also roughly 500
cases remained "lost" in the system, never showing up in the
weekly pipeline count until late in August. By the first of
August, we had still sent fewer than 1,000 case
recommendations to the President. The Board and staff had
to solve these problems, write a report to the President,
close down operations, and plan a carry-over operation in
the Department of Justice. June vacations, once postponed
until August, now were set for October.
Not all of the remaining cases were "hard;" Two weeks of
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normal case attorney production were still necessary. 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, most attorneys completed their case summaries on
time. A special team responsible to top-level staff
separated "hard" cases into two categories--those which
might be written, and those which were clearly impossible
because of the lack of information. Later, case attorney
production teams were assigned to write summaries on all
cases based upon the information available at the time.
These cases were set aside from all others and heard by a
special Board panel. of the 750 cases on this special
docket, 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 counts either because they were in transit, held
by an absent employee, or misplaced. In late July, a month-
long search for "lost" cases was begun. Because of the
speed with which case files and other materials had to be
circulated for production deadlines to be met, the regular
case-logging system was inadequate: a system-wide logging
procedure was needed to allow every case file to be traced
to one source. To implement it, the entire attorney staff
had to engage in a one-day physical search of both Clemency
Board buildings at the first deadline for the completion of
cases. The staff had to account for every one of our
18, 000-plus logged cases, despite the fact that case files
were changing hands all the while. Eventually, the 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 the last major
management problem. This was an aspect of operations to
which little attention had previously been given, but which
loomed as an almost impossible job. Contributing to the
delays in forwarding cases to the President had been the
"30-day rule" and the two to three week turnaround time for
the computer-aided consistancy audit of case dispositions.
By late August, master warrants had to be prepared for over
3,000 cases per week -- a very staff-intensive job. All
case attorneys not responsible for "hard" cases or working
on other special task forces were assigned to this task.
Some procedures were simplified, but this problem was solved
more by phalanx than finesse. With this awkwardly large
staff of almost 100 reassigned case attorneys, the
administrative staff was able to forward about 6,500 case
recommendations to the President by September 15. Eight
thousand remained to be forwarded by the carry-over staff.
The 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. The 100-
plus summer interns went back to school, a few at a time,
through Labor Day. Others had their details expire, and
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were not replaced. As the deadline neared, final-stage
production problems could be solved better by large doses of
staff than by careful management planning. Therefore, the
senior staff was reluctant to phase down our staff any more
quickly than was done.
August and September also witnessed the preparation of
plans for the carry-over unit in the Department of Justice.
That carry-over unit was planned to start at about 150
persons, and to work in decreasing numbers until the first
of November. Records had to be archived, final paperwork
had to be completed, and applicants had to be allowed 30
days to appeal their case dispositions once announced by the
President. Research and writing for the Board's report to
the President was still in process. Otherwise, the work of
the staff was done.
September 15 was not just the mission deadline, but also
the last day of the Clemency Board's existence. 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
temporary 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 many employees
filling temporary positions who had been detailed from other
agencies faced the threat of immediate unemployment until
the last working day before the deadline. The level of
staff anxiety was understandably high.
Board panels heard almost all their cases by the end of
August, with one panel day in mid-September for 650
previously tabled cases. The full Board agenda had
accumulated throughout the summer. The Board had to work
without rest through the latter part of August and September
to complete the docket. In late August, the full Board
began to hear cases referred by the Chairman after having
been flagged by the staff through computer-aided and
attorney-initiated consistency audits. In most cases, the
rehearing resulted in case recommendations more in line with
perceived Board precedent. The computer "flagged" almost
nine percent 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 the degree to which an aggravating/mitigating factor
was relevant, the computer flagging was purposely over
inclusive. Staff review of flagged cases reduced the total
to four percent. After his own review, the Chairman
referred less than one percent of all case dispositions back
to the full Board.
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 reporting to the Department of
Justice. The Pardon Attorney then assumed full
responsibility for these tasks, and the carry-over "Clemency
Office" was managed directly by his aides. Approximately
8000 cases remained to be forwarded to the White House for
Presidential signature; 900 remained as "hard," virtually
unwriteable cases; and cases subsequently appealed by
applicants were to be reviewed by the Pardon Attorney. Not
a single case remained that had not received least some
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initial Board recommendation.
C. Analysis
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
14,514 cases, and referred the remaining 900 "hard" 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
detailed staff and overhead, the cost of Clemency Board
operations was roughly $5,625,000. This amounts to some
$264 per applicant, or $385 per case recommendation. (See
Appendix H.)
We were able to accomplish the mission both because of
our emphasis on production and because of the crisis
management characteristics of our operations. The impact of
both factors is much clearer after-the-fact than it was
during the process.
Emphasis on Production
The 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 case dispositions were fair
and consistent.
Workload estimates barely preceded actual application
data because of our inability to project either how
successful our public information campaign would be or how
long the clemency program would last. Even more
significantly, our weekly production requirements lagged
three to seven months behind workload estimates. Figure 2
notes the key lags in the production process. The lags
resulted partly from reaction time, partly from
understaffing, partly from regulatory "notice" standards we
set for ourselves, and partly from inventory backlogs. It
is clear from Figure 2 that we mobilized for our mission
just in time, and that the September 15 deadline probably
would not have been met had the original 20,000 caseload
projection proven accurate.
Our weekly production requirements were set on the basis
of available staff. As shown in Figure 3, the staff grew by
a factor of six between mid-March and late May, enabling new
professional and clerical employees to be focused on case
summary preparation tasks. By mid-August, case summary
GRAND FORD CIBRARY
preparation tasks had ended, SO staff began to be applied
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 staff morale, hindering the
ability to perform administrative functions necessary before
recommendations could be forwarded to the President.
Likewise, weekly production requirements hinged upon
case inventories at the key points in the production
process. Many tasks had sharp phasing-up or phasing-down
periods which contributed to the lumpiness of the production
pipeline. Figure 4 shows monthly production levels for five
key production points. In every case, the sharp rise or
fall of one point's production figures sent reverberations
through the 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 staff operations changed. The process would have
been much easier to manage had there been time to smooth
every production function shown in Figure 4.
Throughout the spring and summer, there was concern
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 5, the Board's case disposition patterns
differed 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. The pardon rate for
civilian and military cases fluctuated. Starting in late
January, the civilian pardon rate began a steady increase,
and the military pardon rate a steady decrease. Once we
began deciding cases in panels at the rate of 100 cases per
panel-day, case dispositions remained quite consistent. The
consistency of case dispositions from May through September,
during which period 95% of our cases were decided, was
especially pleasing. We were aided in achieving this
consistency partly by our procedures, partly by the
publication of policy precedents, and partly by the
professional quality of the case summaries prepared by the
staff.
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Crisis Management Characteristics
Both at the time and now, it has been clear that the
Clemency Board was a "crisis" operation. 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 highly acceptable. In March, we had been very
skeptical of our ability to do this without a staff
consdierably larger than the one with which we were
eventually provided. What made the Clemency Board a
"crisis" organization -- and how did those attributes affect
operations?
Ten factors, 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, with only two or three, the
Clemency Board would have been much more like a typical
government agency.
First, an external catalyst precipitated the crisis
situation. The 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 an application had
been received, the Board was obliged to consider it. This
resulted in a lack of direct control over workload,
inability to estimate it with a high degree of accuracy, and
hindrance of efforts to make long-range management plans.
Second, by February, a perception of a crisis situation,
accompanied by a need to estimate workload and resource
requirements. The character of the Clemency Board process
hisfted from one with legal orientation to one with a
management orientation. Immediately, bolder strategies were
applied to cope with this new challenge, often by
questioning earlier legal procedures and management
approaches. Planning efforts were limited, however, by the
realization that the time lags between the catalyzing event
and the perception of crisis, and between that perception
and the first serious production efforts, could never be
recovered. Despite this new sense of urgency, it was four
months before the first surge in applications (the
catalyzing event) resulted in the first surge in case
summary production.
Third, a mission deadline of September 15 was 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 upon Board operations. Regardless of our
other accomplishments, the Board would have failed the
President had we not met the deadline. The deadline
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immediately crystallized long-term plans to the extent that
we total workload could be estimated, clarifying our
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, short-term planning could not have been
easily justified to our line staff. They might then have
taken it less seriously, making it less effective.
Fourth, the deadline resulted in a compressed time
period for our operations. Through March, the staff had
prepared and our Board had decided only 500 cases. This
rate had to be increased by a factor of thirty. On one
hand, this made management and production processes
immediately adaptable. Staff-level management was needed,
implemented, and given "clout" within a few short weeks. A
new management information system was 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 the process particularly vulnerable to
administrative error, internally and externally created,
uncontrollable perturbations, and management mistakes. The
inescapable speed-up of routine administrative processes
resulted in lost files and other errors, the correction of
which required much staff time and management attention from
July through September. File delivery delays by other
agencies, or Board rule changes based upon policy
considerations, sent immediate shock waves through the
system. As shown above in Figure 4, production functions
were very steep; a charting of 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 right
before the deadline.
Fifth, we had specific, measurable goals. The basic
goal was to process almost 15,000 cases by September 15.
Board policies and procedures had already been set, with a
production quality control unit in place, so management
attention could be focused 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 to tailor a management information system around
specific goal achievement. This goal accountability also
enabled production problems to be spotted quickly.
Sixth, the Clemency Board began with a lack of a staff
resource base. The staff had to grow quickly from 100 to
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 from other agencies. However,
even if we had enjoyed discretion over every staffing
decision, the time problem was so severe that we probably
could not have been any more selective. Therefore, this
lack of staff-input quality control with a process for
staff-output quality control. This lack of a staff resource
base also required a reliance on line managers without
supervisory experience. Most performed very well, others
less well -- and the senior staff was not inclined to make
more than a very small number of changes in management
personnel. This crisis-trained cadre of line managers did
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have one important advantage: they were very flexible as 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 a rapid phase-up of production levels.
However, the speed with which new staff was acquired had
clear disadvantages. Task assignments had to be made
correctly at the start. Although individuals or teams could
be moved to new functions later, extra training time and
morale considerations proved costly. The highest production
levels almost always came from those who styaed 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 mid-level
managers, they had no prior contact with the senior staff.
As a result, communication between the top staff and low-
level line managers was somewhat of a problem for the life
of the program. Finally, the rapid staff bulge put
immediate pressure on the rest of the system, especially on
the file retrieval and docketing process. No advance
preparations had been made to deal with these pressures.
Eighth, the clemency mission had programmatic priority
within the government. This was a visible program, with an
ability to quickly draw attention to heeds and problems. In
return, the Board's weekly progress was carefully monitored
by the Office of Management and Budget and the White House.
The fact that this was a White House operation contributed
to staff morale and performance at all levels.
Ninth, the Clemency Board had an institutional deadline
of September 15, the same date as the mission deadline. The
fact that our Board operations had to dissolve
simultaneously with the completion of our mission posed a
number of serious problems. The lack of permanent staff
with long-term relationships contributed to production
problems. While detailed staff generally enjoyed their
experience with the program, they understandably felt less
of a career commitment with the Clemency Board than with
their agencies. Often, there was little that could be done
to make them responsive to Board policies or management
needs. The arsenal of rewards and penalties was very
limited. The senior staff could not offer promotions, nor
could it threaten personnel actions. The last month of
Board operations were hindered by this upcoming termination
date. Once lost, institutional momentum could not be
recovered. Some of our most difficult administrative work
during a period of staff shrinkage and anxiety. People who
faced a serious risk of unemployment after September 15 were
asked to work at a faster pace so that the deadline could be
met. Were the Clemency Board to have enjoyed greater
institutional continuity after that mission deadline, this
phase-down period might have been more productive.
Tenth, the Board was attempting to solve a bounded
problem which did not require a permanent institution to
cope with it. Aside from the need to set monthly production
goals through September 15, we did not have to conduct long-
term planning. Because of the pressures of time, a narrow
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focus had to be applied to our problem. Despite some
evidence that our lack of personal contact with applicants
was undermining the effectiveness of the Clemency Board
program, we had neither the time nor the staff resources to
direct sufficient staff attention to the problem. Likewise,
we are unable to follow through on our desire to monitor our
applicants' performance of alternative service. Combined
with the institutional deadline, the boundedness of our
problem prevented the Board from performing 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 the most tangible measure
of accountability, there were some problems that were not
overcome and opportunities that were never fully exercised
-- such as the problem of communications between top staff,
line managers, and case attorneys, the level of
administrative error in internal and external paper flow,
and the inability to complete the last administrative tasks
by September 15, requiring a six-week carry-over in the
Department of Justice. These difficulties are, nonetheless,
small in comparison to the magnitude of the task
accomplished.
On balance, the crisis management process of the
Clemency Board worked very well. High levels of production
were maintained for four crucial months. The necessary
management control was implemented to minimize inventories
and move cases through the system. As requested by the
President, the Board finished the its decision-making task
on time. Above all, we take special pride in the quality
and uniqueness of the legal process by which our case
recommendations were made. We attribute these
accomplishments to the unusual energy, creativity, and sense
of responsibility which a crisis atmosphere gave to Clemency
Board operations.
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A. Executive Clemency in American History
To place the issue of executive clemency in its proper
perspective, one must take note of the manner in which
Presidents 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. In Appendix G, we trace the history
of executive clemency from English history through the post-
Vietnam era. Lessons can be learned from studying past
clemency actions, but a not of caution is in order. Each
post-war clemency has been a unique response fashioned to
the circumstances of each historical period. The war
resisters of the Vietnam Era are not in the same category as
Southerners who were defeated on the battlefield or
Jehovah's Witnesses who failed to serve during World War II.
The adoption of a Lincoln program or a Truman program to
resolve a present-day problem would have been no more
appropriate than fashioning a program with total disregard
for these precedents. President Ford's clemency program is
not unmindful of programs initiated by his predecessors, yet
it is distinctly tailored to the Vietnam era.
Much of the interest and concern over executive clemency
stems from a fear that leniency toward draft AWOL Offenders
and might undermine America's future ability to mobilize and
maintain a strong military force. The moral dilemma
surrounding personal participation in war will always be
with us, but it seems unlikely that the prospect of a
clemency program modeled after president Ford's would lead
anyone to evade the draft desert the military during a
future war whose military and political context might be
very different from that of the Vietnam era. 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 of a universal and unconditional
amnesty remain unknown inasmuch as no President has ever
proclaimed a truly universal and unconditional amnesty.
Australia proclaimed such an amnesty after ending its
involvement in the Vietnam War, but its long-term impact is
still uncertain. (See Appendix G, part 5.)
War and conscription have caused dissension among
Americans throughout our history. From our earliest days as
a nation, Presidents have acted strongly to protect national
interests through military action. But they also have
exercised their clemency powers to forge reconciliation by
offering political outcasts and offenders an opportunity to
regain the full benefits of citizenship.
President Washington acted decisively to put down the
Whiskey Rebellion. Urged on by Hamilton and others, he was
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determined to establish the power and authority of the newly
constituted Federal government. Many poverty-stricken
farmers in Western Pennsylvania refused to pay a new Federal
tax imposed on whiskey, rebelling when 75 of them received
summonses to appear in Federal court. Several hundred
rioters burned a Revenue Inspector's home. With the courts
unable to enforce the laws, and with the insurrectionists
ignoring a Presidential proclamation demanding adherence to
the laws, Washington called on the military to quash the
rebellion. The troops faced no armed opposition, and very
few insurrectionists were taken into custody. Washington
subsequently pardoned all offenders except two leaders who
were under indictment for treason. These two were later
pardoned by Washington after they had been convicted. (See
Appendix G, Part 2.)
The Civil War clemency actions of Presidents Lincolln
and Johnson arose in response to a new situation in American
history -- the first use of significant numbers of
conscripts by the U.S. Army. Draft evasion and desertion
were commonplace throughout the war. The exodus to Canada
by draft-liable men grew to such proportions that the
borders had to be closed to them. About 88,000 deserted
from the Union Army in 1864 alone. Lincoln frequently
intervened to commute death sentences for desertion, partly
because of his inclination for mercy, but also to further
his military and political aims. Amnesty for Union
deserters 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 (see Appendix G, Part 3).
Johnson's post-war clemency was designed to dispense the
grace and favor of the government to secessionist followers,
but Confederate leaders were not to be treated lightly.
Johnson's actions were highly political. In addition to his
struggle against impeachment, he continually wrestled with
Congress over his program of Reconstruction. Congress
unsuccessfully attempted to deprive President Johnson of his
power to proclaim a general amnesty, apparently desiring to
reserve such powers for itself. Nevertheless, the President
issued four amnesty proclamations for rebels before the
close of his administration. President Johnson's last two
proclamations were very generous, offering clemency even for
the offense of treason. Civil War clemency was gradually
extended to more and more individuals, but it was not until
1898 that the political disability imposed by the Fourteenth
Amendment was removed for all surviving Confederates. (See
Appendix G, Part 3.)
President Truman took great pride in his military
service, and he had little sympathy for those who refused to
wear the uniform. His high regard for the serviceman was
2
FORD
demonstrated by his Christmas 1945 pardon of several
thousand ex-convicts who served in the military during World
War II. Truman's Amnesty Board was restricted to reviewing
approximately 15,000 Selective Service violations. Only
three prisoners secured release from confinement as a result
of Amnesty Board recommendations. The other 1,520 receiving
Presidential pardons had already completed their prison
sentences. During the 1952 Christmas season, Truman
restored citizenship rights to approximately 9,000 peace-
time 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.
(See Appendix G, Part 4).
To put President Ford's program in perspective, we
summarize below the ways in which Washington, Lincoln,
Johnson, and Truman adhered to or departed from the six
principles of President Ford's clemency program.
B. Historical Comparisons
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.
Although the Jeffersonians condemned the Federalists for
using military forces instead of juries to uphold the laws,
Congress praised Washington for his firm action.
The acts of clemency associated with the Civil War were
proclaimed both during the war and following the war. Some
were primarily a means of reuniting the nation, while others
served more military and political aims. As the war ended,
Lincoln and Johnson both recognized the need for a program
3
FORD is LIBRARY
that would not treat the South as a conquered nation, but as
a part of a reunited America. Clemency 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. There was no apparent need for
a program of reconciliation in the sense that such programs
were needed following the Civil War and the Vietnam War.
President Ford's program was comparable to, but not
quite the equivalent of Johnson's clemencies in terms of
responsiveness to a clearly felt need. While the Vietnam
conflict did not separate States from the Union, it did
foster comparable a divisiveness among the public.
President Ford's program was proclaimed sooner after the
war's end than Truman's, but less swiftly than Washington's
or Johnson's. However, like Johnson, President Ford
announced his clemency program exactly six weeks after
assuming his office.
A Limited, Not Universal, Program
President Washington limited his 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 nor Johnson ever issued a universal
amnesty; there were many persons excluded from their
programs. Johnson's first proclamation declared fourteen
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
only for political reasons. Johnson's amnesty of Christmas
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.
4
? FORD LIBRARY
Each of Truman's proclamations was limited in scope.
These exclusions were made not by Truman, but by his Amnesty
Board. In rejecting a universal program, Truman's Amnesty
Board reported that "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."
President Ford's program was more universal than either
Johnson's or Truman's in that it did not specifically,
consciously exclude major categories of offenders. However,
it did not affect as many people as Johnson's program. The
113,300 eligible persons and 21,725 applicants to President
Ford's program made it the second largest in American
history.
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 of 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 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 deserters were not acts of oblivion; they were acts of
leniency, and they were intended to entice soldiers to
return to their regiments. The early offers to
Secessionists were in reality appeals to abandon the
Confederate cause. The cloak of amnesty was thus used to
weaken the Confederacy. For confederates, there was no
blotting out of the crime, with the required oath implying
repentance.
President Truman's Amnesty Board, despite its name, gave
no grants of amnesty. The Board was charged with making
5
FORD
recommendations for Executive Clemency and it did so by
recommending individual pardons.
President Ford specifically rejected amnesty, calling
instead for a clemency program offering official forgiveness
and a partial restoration of status. Like Washington and
Truman, his principal offering was a Presidential pardon.
Like Washington and Johnson, he offered to drop pending
prosecutions. Unlike Lincoln, he did not required AWOL
soldiers to return to military duty.
Conditional, Not Unconditional, Clemency
President Washington conditioned his offer of pardon by
requiring that the Pennsylvanians involved in the Whiskey
Rebellion subscribe to "assurances of submission to the
laws. Refusal or neglect to subscribe such an assurance
rescinded the benefits of a 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 the
qualifications for coverage under the Truman clemencies were
so carefully prescribed, no future conditions were seen as
necessary.
Unlike Washington and Lincoln, President Ford did not
attach 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 an oath reaffirming their
allegance.
6
STATE FORD
A Program of Definite, Not Indefinite, Length
The Whiskey Excise Law was amended in June 1795. Soon
thereafter, Federal tax collectors were challenged by the
Pennsylvania farmers. Although Washington issued three
proclamations concerning the Whiskey Rebellion, only the
last carried his offer of pardon. This third proclamation
was published in July 1795, so the issue was settled about a
year from its inception.
Civil War amnesties were a series of individual actions,
rather than a carefully constructed program of executive
clemency. They began with Lincoln's War Department
Executive Order of 1862 and extended through 1898, when the
political disability imposed by the Fourteenth Amendment was
removed. In 1864, Lincoln seemed to predict that his offer
of clemency would not go on indefinitely: "
the door has
been, for a full year open to all But the time may
come--probably will come-- when public duty shall demand
that it be closed
=
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, Lincoln, and Johnson implemented their clemency
programs gradually, through a series of proclamations.
A Case-by-Case, Not Blanket, Approach
Only about twenty persons were apprehended as Whiskey
Rebellionists, so Washington followed a blanket approach in
granting them pardons. Lincoln stated to Congress that "no
voluntary application has been denied." 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." Lincoln's February
7
FORD
1864 decree provided "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. " However, this was administered
on a case-by-case basis, with general officers having court
martial authority given the power to release imprisoned
deserters and return them to duty.
Johnson's clemency offers were made and applied quite
generally. When repentant Confederates came forward to take
the oath of amnesty, individual records were kept. There is
no clear record as to the number of former Confederates
obliged under the Fourteenth Amendment to request full
restoration of citizenship, but the Forty-first Congress
passed on approximately twenty thousand names.
President Truman's 1945 pardon of ex-convicts who served
honorably 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.
Like Lincoln, President Ford gave the military a major
role in the resolution of cases involving deserters. Like
Truman, he appointed a Clemency Board to hear all cases of
punished offenders. However, this Board denied clemency in
only six percent of its cases, contrasting sharply with the
Truman Board's denial of clemency to ninety percent of its
cases.
C. Precedential Impact of the President's Program
An analysis of the history of executive clemency shows
that different wars have produced different post-war grants
of clemency. To a large extent, the Presidential policies
have reflected the need for national reconciliation during
the post-war periods. When there was little such need,
there was little or no clemency offered. When the need was
8
GERALD FORD CIBRARY
considerable --such as when Lincoln was making plans to
reunite the section 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 the Civil War Amnesty programs
have been.
We believe that this clemency program is the most
generous ever offered, when 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 all
had their full rights restored. The Truman amnesty of draft
evaders imposed no conditions, but it denied clemency to
ninety percent of its cases.
President Ford established only two new precedents: the
condition of alternative service and the issuance of a
neutral Clemency Discharge. Had he announced a universal
and unconditional amnesty, his program would have been much
more of a break from precedent. While historians might
still have viewed it as a tailored response to a unique war,
its impact upon a future generation of draftees and combat
troops would have been much harder to predict. These were
risks well worth avoiding.
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FORD LIBRERY
Inescapably, we must ask whether the Presidential
Clemency Board did in fact carry out the President's mandate
of achieving a national reconciliation. We have described
what we and other agencies have done to implement the six
principles of the President's program. (See Chapters 1 and
2.) On the whole, we are confident that the program
reflected the spirit of the Presidential Proclamation which
created it.
A. The Need for a Program
As requested by the President, a program was implemented
dealing directly with the issue of reconciliation for draft
resisters and military deserters. The public need for a
Presidential response to this issue, very clearly felt just
one year ago, now no longer exists. The President's
clemency program is not the answer that many would have
chosen, but it has been widely accepted as a legitimate
solution to a difficult problem. A recent survey of public
opinion conducted by the Gallup organization in August 1975
discovered that 47% of the American people approve of a
program of conditional clemency. The others who offered
opinions were divided almost equally between the 24% who
thought he was too generous and the 18% who thought he was
not generous enough. Contrast this with a Gallup poll in
September 1974, which found that only 19% favored a program
of conditional clemency, with 37% favoring unconditional
amnesty and 36% no program at all. (See Appendix H.)
We are confident that the President's program has helped
enable Americans to put their war-engendered differences
aside and live as friends and neighbors once again. The
August 1975 Gallup poll found that the overwhelming majority
of Americans -- 87% -- are now willing to accept clemency
FORD
recipients as at least equal members of their communities.
We are strongly convinced that an unconditional amnesty
would have achieved much less of a reconciliation among
LIBRARY
persons who had strong differences of opinion during the
Vietnam War. In fact, such a policy might well have
exacerbated those differences.
The discussion of clemency or amnesty in the public
forum has abated with surprising swiftness since the
announcement of the program. It once was the constant
subject of Congressional debate, newspaper editorials, and
opinion polls. After the program started, discussion
focused more on the details of the program than on the
broader question of clemency versus amnesty. Today, the
issue is virtually dormant. Whether this reflects positive
acceptance, quiet acquiescence, or disinterest on the part
of the public is a question which we cannot answer.
Part of the reasons for the diminished public interest
in clemency may have been the low profile maintained by the
other agencies and ourselves. We do wonder whether more
public exposure might have led to an even greater acceptance
of the program. We believed, at first, that the same public
which had shown such keen interest in the amnesty issue
beforehand would be reasonably well informed about what was
in the President's offer of clemency. From January through
March, we tried to focus more public interest on the
program. As we traveled throughout the country to speak
with local media and counseling organizations, we were
amazed by the misconceptions we found. It was indeed the
rare person who already knew of the eligibility of former
servicemen with bad discharges because of desertion offenses
-- who constituted 90,000 of the 113,300 persons covered by
the President's program. We also found that many people who
originally had been critics of the program came away from
our meetings with their views greatly modified, once their
misconceptions had been corrected. Everyone was astonished
to learn that there were three times as many applicants who
were Vietnam veterans as there were Candian-exile applicants
in the overall clemency program. Unfortunately, we suspect
that a majority of Americans still misunderstand what the
program offered, who was eligible, and what the typical
clemency applicant was like.
On balance, we consider the Clemency Board program's
very low profile from September through January to have been
a mistake. We believe that the program could have been very
popular with the American public. It also could have
reached more eligible persons. Despite this, the need for a
generous program has been satisfied, and the American people
seem reasonably content with the program which evolved.
Along the way, some of the wounds of the Vietnam era may
well have been healed.
Finally, the President's clemency program was by no
means a denigration of the sacrifices of those who served
honorably or lost loved ones in the Vietnam conflict. We
are particularly concerned about the employment
opportunities of the 2,500,000 veterans who served in
Vietnam and the feelings of the estimated 250,000 parents,
wives, brothers, sisters, and children of soldiers who lost
their lives in Vietnam. These are individuals deserving of
our utmost respect. We trust that the President's clemency
program did them no harm; we are equally confident that a
program of unconditional amnesty would have led many of
these people to believe, in good conscience, that their
sacrifices had been downgraded.
2
B. A Limited, Not Universal, Program
On balance, we consider the scope of the President's
program to have been generous. Rather than require a test
of sincere opposition to the Vietnam War, which would have
been unfair to people less able to articulate their views,
the program was primarily designed to include those whose
offenses which may have involved opposition to the war or
the military. Only five percent of the military applicants
to the Clemency Board program went AWOL out of opposition to
the war, demonstrating the significance of not conditioning
eligibility on a test of conscience. However, some
categories of individuals remained ineligible despite the
obvious relationship between their offenses and their
opposition to the war. The clearest example of this was the
serviceman who refused to obey an order to go to Vietnam.
In his case, the military could have discharged him either
for missing movement, qualifying him for clemency, or for
disobeying orders, not qualifying him for clemency.
C. Clemency, Not Amnesty
While it was never intended that the President's
clemency program offer reparations or even a total
restoration of status for all its applicants, it was
intended that the program be "clement" and offer something
of value to its applicants. At the same time, persons who
did not apply for or receive clemency were not to be
penalized or left in even more disadvantaged circumstances.
1. Impact on Persons Receiving Clemency
Beyond question, applicants to the Department of Justice
program received something of value. They are the only
clemency recipients to emerge with a clean record; once they
complete their alternative service, their prosecutions will
be dropped. Thus, their draft offenses should not affect
their future opportunities to find jobs, housing, and
credit. However, their clean records come at some risk. If
fugitive draft resisters returned from Canada and enrolled
in the Justice program, they must complete their alternative
service. If they do not, they could be subject to immediate
prosecution for their draft offense and would not be allowed
to return to Canada if they so chose.
Applicants to the Defense program were benefitted
primarily insofar as they immediately ended their fugitive
status and avoided the risk of facing a court-martial and
possible imprisonment. Forty-six particularly meritorious
applicants received immediate upgrades with full entitlement
to veteran's benefits, and two were restored to military
service. The others immediately received Undesirable
3
Discharges. If they complete alternative service, they
receive Clemency Discharges to replace the Undesirable
Discharges given them when they enrolled. program.
Although they can be held accountable for failure to
complete alternative service, they are unlikely to be
prosecuted for such a failure. For such prosecutions to
succeed, it must be shown that they did not intend to do
alternative service at the time they enrolled in the program
-- an element which is difficult to prove.
Very few of the applicants to the Presidential Clemency
Board were fugitives, the rare exception being the civilian
who fled to avoid punishment after his conviction. As a
result, the major benefit of the other two programs, putting
an end to fugitive status, is of no consequence to our
applicants. They had all been punished by civilian or
military authorities. They owed no further obligations, but
still suffered from the consequences of their draft
convictions, Court-Martial convictions, or bad discharges.
The major offering of the Presidential Clemency Board
was a Presidential pardon, the highest constitutional act
which the President could have performed on behalf of
applicants to the Board. Still, a pardon results in no more
than a partial restoration of an applicant's records and
rights, blotting out neither the fact nor the record of his
conviction. No records are sealed. The benefits of a
pardon lie in its restoration of the right to vote, hold
office, hold trade licenses, and enjoy other rights lost or
impaired by a felony conviction. Employment opportunities
are apparently enhanced by a pardon, according to a recent
survey of employer attitudes. This survey found that 41% of
national and local employers would discriminate against a
convicted draft offender who performed alternative service
and a received a pardon, versus 75% who would discriminate
against him if he did not receive clemency. Local employers
would discriminate against him much more than national
employers. (See Appendix H.)
A military applicant to the Clemency Board received a
pardon as well as a Clemency Discharge. If he had any
felony court-martial conviction, the pardon restores the
same rights to him as to a civilian applicant with a Federal
draft offense conviction. If he never had a felony court-
martial conviction -- for example, if he received an
Undesirable Discharge -- he never lost any civil rights.
The pardon neither restored rights nor immunized him from
further prosecution, since he already enjoyed such an
immunity by reason of his discharge. However, a pardon
indicates official forgiveness of the AWOL offenses which
led to a bad discharge. It could have an impact on military
discharge review boards, courts, and other agencies which
overwise must take note of a bad military record. A
Presidential pardon is a well-established act of official
forgiveness which has wide acceptance by Government agencies
FORD LIBRARY
and the general public.
By contrast, a Clemency Discharge is a new type of
status. It is unclear how it will be regarded by potential
employers and the public. Critics of the President's
program contend that a Clemency Discharge is at best worth
4
nothing, since it is not a discharge under honorable
conditions and confers no veterans benefits. They further
contend that it may be harmful, since it stigmatizes
individuals as having committed military absence offenses.
However, it appears that a Clemency Discharge will have a
significantly favorable impact on employment opportunities.
A recent survey found that employers view Clemency
Discharges as almost the equivalent of General Discharges.
If a job applicant earned a Clemency Discharge through
alternative service, the percentage of employers who would
discriminate against him (40%) is about the same as if he
had a General Discharge (39%) and much less than if he had
a Undesirable Discharge (75%). The percentage of employers
who would refuse to consider hiring him (6%) is not much
larger than if he had a General Discharge (5%) and much less
than if he had an Undesirable Discharge (34%). National
employers would discriminate against Clemency Discharges
less often than local employers. (See Appendix H.)
According to the same survey, the reasons why some
employers discriminated against clemency recipients were the
unfairness of giving them jobs when so many veterans with
Honorable Discharges are unemployed, and the likelihood of
their untrustworthiness and undependability. The reasons
given for not discriminating against them are their
satisfaction of national service obligations through
alternative service, and the lack of any relationship
between absence offenses and potential performance on the
job.
This study cannot be considered conclusive evidence of
the worth of a Clemency Discharge, but it does indicate that
there may be a reservoir of generosity and good will towards
those who sought and earned clemency.
We realize that most of our applicants were interested
in more tangible benefits--especially veterans benefits.
While we do not suggest that most of our applicants should
have received these benefits, some of them were combat
veterans. Others had injuries or disabilities resulting
from their military service. We hope that all other
clemency recipients will be dealt with clemently by agencies
which review their subsequent appeals for discharge upgrades
or veterans benefits.
Beyond this, we are concerned that many of our
applicants will not understand what they have received from
the Clemency program. Staff conversations with applicants
indicate that there are many applicants who do not
understand our telegrams and letters describing their grants
of clemency. Without face-to-face counseling, it is
possible that many of them will never know what to write on
employment application forms about their discharges. Many
others may not realize that they can still apply to
LIBRARY
discharge review boards or boards for the correction of
military records for discharge upgrades, or to the Veterans
Administration for veterans' benefits.
5
Impact on Persons Not Receiving Clemency
It was a consistent principle of the President's
Clemency Program that no one be coerced into applying for
clemency or made worse off as a result of not having
applied. To do otherwise would be neither clement nor fair.
For this reason, we are concerned about the impact of the
clemency program on those who did not apply, did not
complete alternative service, or were denied clemency.
The clemency program may have stimulated a greater
public tolerance for everyone who committed draft or AWOL
offenses during the Vietnam era. If so, those who did not
receive clemency could benefit from the goodwill extended to
those who did. We expect that this will be the case. of
course, the reverse may be true: individuals who could have
applied for clemency but failed to do so out of choice or
ignorance might face greater public disrespect than ever
before. If an individual were eligible for but did not
receive clemency, it is an unfortunate possibility that
adjudicative or administrative bodies will take adverse
notice of that fact. For example, a military discharge
review board might look with particular skepticism at
upgrade appeals from those who might have applied for
clemency, but did not. The Veterans Administration may do
the same for former servicemen appealing for veterans
benefits despite bad discharges. Sentencing judges, law
enforcement officials, licensing bodies, credit agencies,
and others may likewise look askance at an eligible person's
failure to receive clemency. Such actions would be directly
contrary to the spirit of the President's program. With
about 90,000 of the estimated 113,000 eligible persons not
having applied for clemency, these possibly adverse impacts
are of great significance.
We were the only one of the three clemency programs
which recommended that the President deny clemency to some
of its applicants. In making those recommendations, we did
not intend to leave those individuals in a worse position
than before they applied. We did not announce the names of
those denied clemency, and we are concerned that the
confidentiality of those individuals not be infringed upon
by anyone else. We are equally concerned about the
confidentiality of those who fail to complete their
alternative service.
D. Conditional, Not Unconditional, Clemency
The qualities of mercy and forgiveness inherent in the
President's program should not be interpreted as an
admission that those who broke the law were correct. By
creating the program, the President never intended to imply
that the laws were wrong or that the clemency applicants
were right. We believe that rights and responsibilities of
citizenship are central to the theme of any meaningful
clemency or amnesty program. Any such program must be
6
evaluated in terms of its reinforcement of those rights and
responsibilities.
We realize that there is not now and may never be a
national consensus on what a citizen's responsibilities are
during time of war--especially if that citizen cannot
support a war on religious or ethical grounds. We can only
take a position on the subject in the same manner as any
group of citizens might.
We believe that when a citizen breaks a law he considers
unjust, it is his responsibilities to accept the designated
punishment for his offense. Likewise, it is the
responsibility of his government either to punish him or to
change its laws. With respect to draft or military
offenses, after an unpopular war has ended it is the
government's further responsibility to temper its punishment
with compassion and mercy. However, official forgiveness
for an individual's failure to serve his country in time of
war does not discharge him from his outstanding obligation
of national service. Only in circumstances where an
individual's punishment could be construed as a fulfillment
of his obligations of national service do we believe that
anyone can be officially forgiven without performing
alternative service in the national interest.
Likewise, we consider it fair for the President to have
conditioned his grants of clemency upon good faith
applications from eligible persons. Executive clemency
means more when it is an offer, not just a peremptory gift.
The President, speaking for the American people, offered
reconciliation. That reconciliation must be mutual.
However, we believe that the conditions must have been
reasonable for the program to have been fair. This means
two things: first, applicants must have had a reasonable
opportunity to fulfill the condition of application. They
must have recognized their opportunity and obligation to
apply. As described later in this chapter, we have some
doubts about whether many of our non-applicants did
recognize such an opportunity.
Second, applicants must have had a reasonable
opportunity to fulfill the condition of alternative service.
Understandably, the fulfillment of one's obligation of
service should involve some personal sacrifices, but it need
not entail hardship. The cause of national reconciliation
is hardly served if an individual quits his job to do
alternative service for three months, cannot regain his job
afterwards, and has to go on welfare as a result.
Our applicants were typically assigned to three to six
months of alternative service. We assigned such short
periods in recognition that our applicants' of national
service obligations had already been partially fulfilled,
and we were asking only for a nominal period of service.
According to Selective Service, full-time alternative
service jobs of such short duration are hard to find. Also,
some of our applicants are relucant to risk losing their
current jobs through such a brief interruption. Over half
of our applicants have wives, children, or others dependent
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upon them for financial support. In performing alternative
service, many may complete their alternative service periods
without doing any work because of their inability and
Selective Service's inability to find appropriate work.
Similarly, we are concerned that many others may be
terminated from the program because of economic necessities,
despite their interest in performing alternative service.
We never intended that three or six months of
alternative service should impose serious hardships on our
applicants. For this reason, we have recommended to
Selective Service that those who have been assigned to short
periods of alternative service be able to complete their
obligation through 16 hours per week of volunteer work. As
far as the Clemency Board is concerned, three to six months
of volunteer weekend work at a Boy's Club, Church, or Museum
is a satisfactory fulfillment of alternative service. By
recommending short periods of alternative service, it was
not our intent to deny pardons to those individuals. If a
sizeable proportion fail to complete alternative service, an
important part of the Clemency mission will have failed.
E. A Program of Definite, Not Indefinite, Length
The Clemency program was at first scheduled to accept
applications for 4-1/2 months. Because of a surge in our
applications, two one month extensions were granted by the
President. The advantage of ending the program was to put
the issue of clemency behind us as quickly as possible, so
that we might also put the war behind us as quickly as
possible. Also, there was a one-year limit on funds which
could be spent on the program.
Out of an estimated 113,300 persons eligible for
clemency, 21,729 actually applied to the three separate
programs. This 19% application rate seems disappointing at
first glance; however, for a program which accepted
applications for only six months, that percentage is
unusually large. To our knowledge, there has been no other
federal program which has drawn such a rapid response during
its first six months. For example, The Department of
Health, Education, and Welfare's Supplemental Income
Security (SIS) program offering cash grants for low-income
ederly persons, received applications from only nine percent
of its eligible target group during its first six months,
and it took a full year for the program to match the
clemency program's figure of 18%. This was true despite
FORD
SIS's well-financed promotional campaign. Given the short
time span and limited resources of our outreach efforts, we
consider our application rate to be rather high.
Unfortunately, we can take little solace from that fact.
The SIS program is still accepting applications, but the
Clemency program is not.
We believed, at first, that those eligible for clemency
would be well-educated, well-informed, and alert to a
communications "pipeline" among themselves which would carry
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the news about the program. We also believed that veterans'
counselors would correctly advise former servicemen with bad
discharges about their eligibility for the program. Both of
these assumptions were wrong. A late December survey of
twelve persons eligible for clemency showed that all twelve
knew about the program but not one of them knew he could
apply.
Our public information campaign did not begin until mid-
January, yet it stimulated a five-fold increase in
applications before the month ended -- and over a twenty-
fold increase before the second deadline extension expired
at the end of March.
The application period was surely sufficient for those
who knew from the start what the program offered them. They
had ample time to make up their minds about applying. It is
our firm belief that the small percentage of applications to
the Presidential Clemency Board was attributable to the lack
of public awareness of our eligibility criteria. The rising
monthly tallies of new Board applications -- roughly 800
through December, 4,000 in January, 6,000 in February,
10,000 in March -- indicates that even more applications
would have been received had our program continued.
Informal telephone polls conducted by our staff found that
even as late as March, 90% of our applicants had only
learned of their eligibility within the past few days.
Usually, their application had been prompted their reading a
news article or seeing a television announcement.
The degree to which the American public still
misunderstands the President's program was illustrated by
the August 1975 Gallup poll. A substantial 72% of the
American public had heard of the clemency program, and 43%
thought that it was for fugitive draft evaders and deserters
in Canada and other countries. However, very few (15%)
understood that convicted draft offenders and discharged
AWOL offenders could apply to the Clemency Board. Only 14%
thought that a Vietnam veteran discharged for a later AWOL
could apply for clemency. (See Appendix H.) The percentage
of the public which understood our eligibility criteria
corresponded almost exactly with the percentage of our
eligible persons who applied by the March 31 deadline.
We are convinced that many eligible persons did not
apply because, even by the end of March, they still did not
know they could apply. As the Gallup poll indicated, many
may still not know that the program was for them.
F. A Case-By-Case, Not Blanket, Approach
Despite the wholly discretionary character of any grants
of executive clemency, the President's program must be
judged in terms of the fairness of our rules and the
consistency with which they were followed. To be worthy of
the respect and confidence of all citizens, the program must
have observed the basic principles of a fair legal process.
Questions of process arise primarily in any
clemency/amnesty program which follows a case-by-case
approach. Any blanket amnesty program would raise
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relatively few, if any, due process issues. The proper
context for any discussion, therefore, is whether the
President's program satisfactorily dealt with this extra
burden. Absolute -- not comparative -- standards apply.
Administrative requirements cannot be used as a
justification for any short-cuts of due process.
At the Presidential Clemency Board, we have made every
effort to apply fair rules and follow them with consistency.
We occasionally had to modify our rules in mid-course,
sometimes before corresponding changes could be made in our
regulations. However, this was only done when it appeared
that the applicants' rights and interests would not be
affected. The procedures which we imposed upon ourselves--
quality control of casework, codification of policy
precedents, the 30-day period for applicants to comment on
their case summaries, and consistency audit of case
dispositions--often added time and administrative difficulty
to our process, but they were essential to maintain the
quality of our work. Our Board and staff of over 300
attorneys maintained a continuous dialogue about the
fairness of our procedures. When changes were felt
necessary, they were made. Ours was not a perfect process--
it certainly was too time-consuming to suit us -- but it was
a reasonable one, carried out in good faith.
We consider our baseline formula, mitigating factors,
and aggravating factors to have been fairly developed and
fairly applied. Uniformly, they were developed through a
clear process of Board consensus about what was relevant
about the backgrounds of our applicants. Through the
publication of in the Clemency Law Reporter, we internally
codified policy precedents. We applied them as consistently
as could be expected, given the fact that all but a few
hundred of our cases were decided in three- or four-person
Board panels.
On balance, the case-by-case approach offered us a means
for making the right kind of clemency recommendation for
each of our applicants. Without it, we might have been less
generous with Vietnam veterans and persons who committed
their offenses because of conscientious opposition to war.
Likewise, we might have been more generous with those whose
offenses resulted from irresponsibility, selfishness, or
cowardice. This would have had the effect of demeaning the
President's constitutional pardoning powers.
Blanket amnesty would have treated all cases alike.
This would have been fundamentally unfair to our applicants,
and unfair to the American people. Consider the following
two cases:
FORD
(Case 8-1)
Applicant did not go AWOL until after
returning from two tours of duty in
Vietnam, when his beliefs concerning the
war changed. He came to believe that the
U.S. was wrong in getting involved in the
war and that he "was wrong in killing
people in Vietnam." He had over three
years' creditable service, with 14
excellent conduct and efficiency ratings.
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He re-enlisted to serve his second tour
within three months of ending his first.
He served as an infantryman in Vietnam,
was wounded, and received the Bronze Star
for Valor.
(Case 8-2)
Applicant met his wife, a Danish citizen,
shortly after arriving in Germany on a
military assignment. She became pregnant,
and he he attempted to obtain permission
to marry her. When he was unsuccesful, he
went AWOL. After turning himself in, he
was returned to Germany and placed in
pretrial confinement. Shortly thereafter,
he escaped and went to Sweden, where he
applied for asylum. While in Sweden, he
had numerous arrests for theft and
narcotics charges, received a sentence of
10 months imprisonment, and was deported
to the U.S.
Were the President to have granted a pardon to the
second applicant, he would have cheapened the pardon granted
to the first -- whose friends and employers would have been
more reluctant to acknowledge that he had earned his pardon.
Likewise, the American people might have assumed that, since
all applicants would have been treated alike, all applicants
would have been alike. Many of the hard feelings generated
during the Vietnam War resulted from such blanket judgments.
By fostering such an attitude, blanket amnesty might have
perpetuated -- and not healed --- the wounds of an era.
Hoy
Charles E. Goodell, Chairman
John Hay Kauffmann
Robert S. Carter
Francis J Lauy
Lally
Timothy Lee Craig
James A. Maye
John A. Everhard
E. Frederick Morrow
W. Antoinette Ford
Aida Casanas O'Connor
Theodore M. Hesburgh
Lewis B. Puller
Vernon E. Jordan
Joan Vinson
LIBRARY
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