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Charles E. Goodell Papers
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The original documents are located in Box 1, folder "American Bar Association" 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States of America his copyrights in all of his unpublished writings in National Archives collections.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.
THE WHITE HOUSE
WASHINGTON
Friday, Dec 20, 1974
to Ray mitchell,
This is really directed
more to your family, than to
you: Because you have stayed
and worked with extraordinary
competence when others haven t,
you obsiously underst and the
significance of what you are
doing for the President and the
country.
l don't apologize to
your wife for what you ne_
CRALD
done, I congratulate her. She,
too, - perhaps even more than you-
has suffered and sacrificed.
Please tell her how
grateful d am.
may Christmas yet be one
you can share "semi-fully"
with your family.
you have done much to
make the holiday season better
for others.
Thank you.
Charlie Goodell
FORD
BNA
The United States LAW WEEK
R
A NATIONAL SURVEY OF CURRENT LAW
August 27, 1974
THE BUREAU OF NATIONAL AFFAIRS, INC., WASHINGTON, D.C.
Volume 43, No. S
SUMMARY AND ANALYSIS
"Shoot To Kill" Order Renders Mayor
veterans and war resisters. Smith, however, ad-
Liable For Illegal Shooting By Police
vocated a position much beyond the earned im-
A city mayor, whose hard law and order stand
munity concept. Earned immunity, he reasoned,
was symbolized by the "machine gun" lapel pin
is at best only a limited solution to a small part
he used in his political campaigns, may have to
of the problem. At worst, "it is a moral abdica-
pay for the political popularity he derived from
tion of the right to full repatriation of those who
reacted to the draft out of conscience."
ordering city policemen to "shoot to kill" those
"engaged in lawlessness and anarchy." The
When the Association's assembly failed to
mayor is liable, according to the U.S. Dis-
gather a quorum necessary to consider recom-
trict Court for middle Georgia, for damages
mendations from the entire membership, the
sustained by a 12-year-old boy who was unlaw-
House Standing Committee on Resolutions took
fully shot while fleeing a policeman investigat-
the "unusual" step of reporting such resolutions
ing a suspected misdemeanor. (Palmer V. Hall,
directly to the House. One recommendation,
7/29/74)
which was passed without debate, resolves that
Under Georgia law, a policeman has the au-
the Association "continues its dedication to the
thority to shoot only in self defense or in situa-
principle of fair, just and impartial application
tions where one who is about to be arrested for
and enforcement of the law regardless of the
a felony flees. The mayor, by ordering his offi-
position or status of any individual alleged to
cers to shoot "whoever is involved" in any "an-
have violated the law." A second, also passed
archy or civil disobedience," ordered his officers
without debate, notes that all applicable dis-
to exceed their lawful authority.
ciplinary rules apply to lawyers at all times,
Admittedly, the mayor did not pull the trigger
whether or not acting in their professional ca-
or directly order the policeman involved to shoot
pacity. All attorneys engaged in political ac-
the boy. But, "his 'shoot to kill' order and re-
tivity or policy-making positions in Government
lated statements * created the feeling of
are called upon "to recognize and adhere to their
authority # * * that caused [the policeman] to
professional ethical responsibilities."
do what he did to the plaintiff." (Page 2082)
The House also endorsed a proposed National
Institute of Justice that would provide services
"which existing groups simply cannot provide."
Earned Immunity Act
According to the Commission on the National
Gets ABA's Approval
Institute of Justice, no existing body possesses the
After considerable debate and a close floor
broad jurisdiction of subject matter, inter-disci-
vote, the American Bar Association's House of
plinary approach, independent status, significant
Delegates decided to support the concept em-
resources, and public attention and prestige that
bodied in the Earned Immunity Act of 1974, S.
the Institute would hopefully possess. Opposition
2832. The same body, which met during the
to the proposal termed the concept another ex-
ABA's 97th Annual Meeting in Honolulu last
ample of the "marvelously American characteris-
week, approved, by a substantial margin, a reso-
tic" of over-organization.
lution that sub silentio calls for the prosecution
Another potentially controversial recommenda-
of former President Nixon.
tion, from the Section of Individual Rights and
The House vote on earned immunity was
Responsibilities, urged the repeal of all laws classi-
presaged by the Association's President in his
fying as criminal prostitution or solicitation by a
opening remarks. The legal profession, Chester-
prostitute. Opposition was substantial and the
field Smith urged, is called upon for leadership
resolution was defeated by voice vote. (Page
to resolve the "present plight" of the Vietnam
2083)
Section 1
Contents Copyright © 1974 by The Bureau of National Affairs, Inc.
GERALD
43 LW 1033
Rights of redistribution or reproduction belong to copyright owner.
101C
AMERICAN BAR ASSOCIATION
REPORT TO THE
HOUSE OF DELEGATES
SECTION OF INDIVIDUAL RIGHTS AND RESPONSIBILITIES
RECOMMENDATION
The Section of Individual Rights and Responsibilities
recommends adoption of the following:
BE IT RESOLVED, that the American Bar Association
supports in principle the passage of Senate Bill 2832,
the Earned Immunity Act of 1974 and H.R. 13001, an iden-
tical bill introduced in the House of Representatives.
This proposed legislation provides persons who unlawfully
avoided military service, with an opportunity to earn im-
munity from prosecution and punishment.
BE IT FURTHER RESOLVED, that the President or his
designee is authorized to present the substance of the fore-
going resolution to appropriate committees of Congress.
REPORT
I. The Purpose of Earned Immunity Legislation Merits
the ABA's Support.
Earned Immunity from prosecution for draft resistance,
commonly referred to as earned or conditional amnesty,
is a critical national problem. It concerns the lives of
GERALD
ANNUED
101C
nearly 30,000 1/ young men who have evaded the draft and
who are now living in Canada or other countries, or are
"living underground" in the United States. Many of these
young men continue to lead tragic lives as a result of their
separation from their families and their homeland. Some
have not returned to their homes and families for fear of
prosecution for the crime of draft resistance.
Now is the time for the American Bar Association to
support legislation directed at alleviating this problem.
This legislation is directed toward those who have resisted
the draft. Many of these draft resisters have been victims
of bad judgment and poor advice. Others, however, have
acted out of deep personal objection to the cause which our
country followed as the United States became involved in
the Viet Nam War. Now is the appropriate time to question
whether we will offer these young men an opportunity to
become productive citizens in their country or force them
to remain abroad or underground. We must question whether
it is more in the interest of justice to have them spend
up to three years in jail or an indeterminate period in
exile rather than to have them earn immunity through some
type of alternative service to their country. Now that
American involvement in the shooting war in Viet Nam has
ended, it is appropriate for the ABA to support legislation
offering these draft resisters an opportunity to rejoin
their fellow citizens in a manner that allows them to
earn immunity from prosecution for draft resistance by
providing some type of alternative service to their country.
In regard to those young men who resisted the draft
as a result of their convictions, it is worth noting that
because of the change in the law regarding conscientious
objectors it is possible that two brothers from the same
family with the same conscientious objections to the war
in Viet Nam may have been classified differently for
1 The exact number of such persons is in dispute.
Staff analysis by aides to Senator Robert Taft,
lead to the estimate that at least 18,500 individuals
were abroad because of resistance to the draft. As
of July 23, 1973, the Department of Justice reported
that another 1,351 persons were indicted and awaiting
trial and 300 men were imprisoned. No one knows how
many are living "underground" in the United States.
But the most conservative estimate is about 10,000.
In sum about 30,000 men are affected by this proposed
legislation.
- 2 -
101C
purposes of the Selective Service Law. Under a peculiar-
ity of the law the elder of the two may be subject to
prosecution, but the younger of the two may have been re-
lieved of his obligation to serve in the military because
of his conscienticusly held beliefs. The Supreme Court,
during the Viet Nam War period, gradually broadened its
definition of conscientious objection, justifying exemption
from service in the Armed Forces. See Welsh V. The United
States, 398 U.S. 333 decided on June 15, 1970. Before that
decision, individuals seeking conscientious objector status
had to raise their objection in relation to their belief
in a Supreme Being. The Supreme Court, in Welsh, ruled
that belief in a Supreme Being was no longer required, and
that other deep-felt views could suffice to justify receipt
I of the conscientious objector status. Obvious inequities
have become evident, such as the example cited above where
the elder of two brothers may be subject to prosecution for
resisting the draft to abide by his conscience while the
younger obtained conscientious objector status.
Also there are many individuals who were motivated
solely by conscience in resisting the draft during the
Viet Nam War period although their beliefs did not legally
qualify them for conscientious objector status. Under
Gillette V. United States, 401 U.S. 431 (1971), the Supreme
Court held that selective opposition to the Viet Nam War
did not justify the conferral of conscientious objector
status on a young man who was otherwise subject to the
draft. Nevertheless, it is clear that many young men
who resisted the draft because of selective objection
to the Viet Nam War did so because of their conscientiously
held beliefs.
Enforcement of the Selective Service Laws has created
its own set of problems. For example, many draft resisters
have not been prosecuted in the past if they agreed to
enlist in the Armed Services. This approach had been the
policy of the Justice and Defense Departments before the
expiration of the draft. In this regard, let us review
a July 23, 1973 letter of Assistant Attorney General
Henry Peterson, Head of the Criminal Division, Department
of Justice, to Senator Robert Taft. Mr. Peterson says as
follows:
"It was our policy to allow such a man, in the
absence of aggravating circumstances, to remove his
delinquency under the Military Selective Service
Act by submitting to induction processing and
to authorize the dismissal of his indictment upon
- 3 -
101C
successful completion of induction. That policy
was terminated on July 1, 1973, because of the
expiration of the induction authority on that
date. In our view, that policy was beneficial
to all concerned for the reason that the inductee
would rather render valuable service to our country
for a period of 24 months and he would have the
satisfaction of having fulfilled his service ob-
ligations. On the other hand, men convicted and
sentenced for violation of the Act perform no
worthwhile service of any kind, and in most
instances were permitted to return to their normal
way of life in considerably shorter period of time.
For example, in fiscal year 1972, the average
term of imprisonment imposed for draft law violations
was 36.2 months; however, the average actual time
served in custody was 9.1 months. Moreover, 1,178
of the 1,643 defendants convicted were placed on
probation by the courts, with the result that less
than 1/3 of the men convicted received a prison
sentence. "
Mr. Peterson continued by explaining that this
policy had to be dropped at the insistence of the Defense
Department. Thus, all draft resisters are now subject to
prosecution:
"Subsequent to July 1, 1973, it was our policy to
inform a draft delinquent prior to indictment that he
was in violation of the law and prosecutive action
against him was contemplated unless he were willing
to correct his delinquency by enlisting in the
United States Army. In that event, consideration
would then be given to permitting him to purge
his violation without being subjected to criminal
charges. That policy has been abandoned, however,
because the Department of Defense advised us that
it would not accept for enlistment men who are in
violation of the draft law, whether under indictment
or not. We were recently informed that the enlist-
ment policy was reconsidered, at our request, within
the Department of Defense and by the Secretary of
Defense, but it was concluded that it should continue
in effect. Since that decision could place substantial
procesutive burden on United States attorneys through-
out the country, as they no longer have a viable alter-
native to offer the defendants other than prosecution,
we are again asking the Department of Defense to
reconsider this matter. II
4
101C
This situation raises the problem of unequal prosecu-
tion in different districts and a heavy burden on United
States attorneys. Senator Taft reports 2/ that statistics
from the 1973 semi-annual report of the Director of the
Administrative Office of the United States Courts would
indicate that this burden on the Justice Department has
been translated into a very uneven approach to prosecution
so that the disposition of an accused often depends on
the geographical region of the country in which he is
prosecuted. For example, during Fiscal Year 1972 only
one of Ohio's 218 defendants in Selective Service cases
served a prison sentence compared to Minnesota's record
of 47 prison sentences out of a total of 141 defendants
with 94 convictions. Finally, many prominent Americans,
including former Secretary of Defense Melvin Laird who
bore the responsibility of the entire Defense establish-
ment during a critical period of the Viet Nam conflict,
have supported earned immunity. In a letter to Commander
Ray R. Soden, Veteran of Foreign Wars of the United States,
Secretary Laird said:
"Throughout my career of public service, I have
learned to avoid absolute, dogmatic positions.
Neither the political system nor the judicial
system of the United States works on 'blanket'
and arbitrary approaches. Both recognize the
vital roles of (1) circumstances and (2) motiva-
tion in determining political or judicial solutions
to our problems. As I have stated, we pride
ourselves on administering justice with mercy
and understanding
It is my view that cir-
cumstance and motivation on a case-by-case
basis, under our concept of justice, must be
taken into account todav when dealing with
violators of our selective service laws.
It is noteworthy that only a small percentage
of these men have thus far been prosecuted by
the Department of Justice, and in these cases
widely differing penalties have been assigned
to individuals varying by jurisdiction.'
(Emphasis added.)
2/ Testimony of Senator Robert Taft is support
of S. 2832 before House Judiciary Committee,
Subcommittee on Courts, Civil Liberties and
the Administration of Justice, March 11, 1974.
- 5 -
101C
II. Congress Has Authority to Legislate Immunity
From Prosecution for Draft Resistance
Congress has authority to legislate immunity from
prosecution for draft resistance. Congress has done so
in the past and can do so again. For example, in 1865,
Congress directed the President to issue a proclamation
announcing a pardon for all deserters who returned to
their posts within 60 days. (Act, of March 3, 1865, 13
Stat. 190-191. For a similar use of the legislative
pardon power see Act of June 17, 1862, 12 Stat. 592.)
This legislative power of immunity has also been exercised
numerous times when it has been considered necessary to
obtain testimony in connection with criminal investigations.
The constitutionality of this legislative exercise was
upheld by the Supreme Court in Brown V. Walker, 161 U.S.
591 (1896). See also The Laura, 114 U.S. 411 (1884).
The responsibility to determine which person should
be granted this immunity has been placed by legislation
in Federal agencies, prosecutors, and Congressional
committees. See, for example, the "Use" Immunity Provi-
sions of the Organized Crime Control Act of 1970, 18
U.S.C. SS 6001 - 6005. Kasticar V. United States, 406
U.S. 441 (1972) upheld these provisions.
Congress also has the undisputed power to modify
the terms and conditions of judicial sanctions imposed
on those convicted of crimes. This authority has been
delegated to the Federal Board of Parole, granting that
Board broad discretion in determining whether it should
mitigate or alter the form of punishment imposed. See
18 U.S.C. SS 4201 and following. The authority exercised
by the Board of Parole is probably the most common use
of Congress' power to legislate immunity.
While the question has been raised whether Congress
has the constitutional authority to enact "amnesty" legis-
lation or whether granting "amnesty" is an exclusively
Presidential power, nearly every legal scholar who has
addressed this question has concluded that Congress has
the constitutional authority to enact such legislation.
These scholars are led by Professor Louis Lusky of the
Columbia University Law School, who authored "Congressional
Amnesty for Resisters: Policy Considerations and Consti-
tutional Problems" 25 Vanderbilt Law Review 525 (1972).
Only one statement questions the constitutionality of
Congressionally enacted amnesty legislation. It was made
GERALD
ANNURIT
- 6 -
101C
by Leon Ulman, 3/ a Deputy Assistant Attorney General
in the Office of Legal Counsel, who appeared as the
Administration spokesman at a Congressional hearing,
apparently expressing an Administration policy as well
as its legal position. On the basis of the foregoing,
we believe that it is clear that Congress has the authority
to enact amnesty legislation.
III. S. 2832 AND H.R. 13001 WOULD ESTABLISH AN IMMUNITY
REVIEW BOARD WITH POWER TO GRANT INTUNITY IN
CONSIDERATION FOR THE PERFORMANCE OF NATIONAL SERVICE
This legislation would be directed at providing relief
for persons who are. currently subject to criminal prosecu-
tion for evading the draft. It would not affect deserters
from the Armed Services or persons subject to criminal
prosecution for violation of other law. It is concluded
that deserters should be treated separately because they
are subject to prosecution under a totally separate body
of law, the Uniform Code of Military Justice, which is
based on unique legal and policy considerations. Further,
statistics available to Senator Taft indicate that as few
as 5% of all deserters during the years 1966-1971 deserted
on idealogical grounds. 4/ Some young men deserted because
of trouble with an officer or because they committed a
crime on a military base, or because of difficulty with
civilian authorities near the base. A blanket amnesty
that would include deserters would thus appear to be unfair
and to pose the danger of disruption to military discipline.
The Immunity Review Board, to be established by this
legislation, would be authorized only to review violations
of the Selective Service Act and would be empowered to
grant immunity upon the completion of alternative service
of up to two years in the Armed Services or in public or
private service contributing to the national health, safety,
or welfare. Individuals serving prison sentences for crimes
3 Statement of Leon Ulman to the Subcommittee on
Courts, Civil Liberties, and the Administration
of Justice of Committee for the Judiciary, House
of Representatives, March 8, 1974.
4 See Senator Taft's comments on this subject in 119
Cong. Rec. No. 200 (Dec. 19, 1973).
- 7 -
101C
unrelated to Selective Service violations would not be
eligible for such immunity, nor would individuals under
indictment for any offense unrelated to the Act. Examples
of contemplated public service would be two years in the
Peace Corps or VISTA, with compensation at a level which
provided a standard of living comparable to service in the
Armed Services at the lowest pay grade. Other public service
permissible could include the various types of duties that
were formerly assigned to conscientious objectors.
The Board would not be permitted to deny immunity to
any qualified individual, but it would be given discretion
regarding the length of alternative service with an upper
limit of two years. Each individual case would be reviewed
on its own merits, with the Board specifically authorized
to consider mitigating circumstances with regard to the
service requirements.
For example, S. 2832 sets forth the following six
circumstances as mitigating the length of service required:
(1) An inaccurate interpretation of the
Selective Service Act by an individual contributing
to his having committed the violation.
(2) The applicant could have qualified
for classification as a conscientious objector
under Welsh V. United States, supra, but was
denied conscientious objector status because he
applied for conscientious objector status before
Welsh was decided.
(3) The applicant's family is in immediate
and desperate need of his personal presence.
(4) The applicant lacked mental capacity
to have committed the violation of the Selective
Service Act.
(5) The applicant has in the past or is
currently subject to imprisonment or parole for.
committing offenses for which he seeks immunity.
The Board could give credit for time already
served.
(6) Such other circumstances as would be
consistent with those above.
8
101C
While S. 2832 makes no provision for judicial review
of the type or length of service required by the Board,
it is concluded that its judgment should be subject to
judicial review within the limitations of the Administrative
Procedure Act. Such a provision would thus eliminate even
the appearance of arbitrary administrative action.
It should be noted that none of the above listed
reasons provides for a reduction of the maximum term of
service solely on the basis of the applicant's opposition
to the Viet Nam War. Such individuals, while not dis-
qualified from securing immunity, could not use that factor
as the sole basis for any reduction in term because it has
never been the basis for a similar action by any of the
1
draft legislation or regulations. Further, the Supreme
Court specifically determined that this was not the basis
for refusing induction in Gillette V. United States, supra.
Accordingly, on the basis of the above report, it is
hereby recommended that the American Bar Association support
legislation providing for earned immunity from prosecution
for those persons who evaded the draft during the period
beginning August 4, 1964 and ending January 27, 1973, at
which time the United States agreed to withdraw its military
forces from the Viet Nam Conflict. It is important that the
American Bar Association support this resolution because
currently, while several bills are pending before Congress
providing for such earned immunity to draft resisters,
cognizant Congressional committees have chosen to avoid
the issue for fear that many Americans reject the concept
of any type of amnesty.
In conformance with Association policy, copies of this
report and recommendation have been sent to the following
Association entities for their review and comment:
Administrative Law Section, Criminal Justice Section,
General Practice Section, Young Lawyers Section, the Law
Student Division; Standing Committee on Lawyers in the
Armed Forces; Standing Committee on Legislation, Standing
Committee on Military Law and the Special Committee on
the Administration of Criminal Justice.
The above report and recommendation were approved by
a majority of the Council of the Section of Individual
Rights and Responsibilities in a telephone poll conducted
in June, 1974.
Respectfully submitted
Albert E. Jenner, Jr.
Chairman
August 1974
- 9 -