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The original documents are located in Box 2, folder "Controlling Discretion in Sentencing
(Article in the "Notre Dame Lawyer")" of the Charles E. Goodell Papers at the Gerald R.
Ford Presidential Library.
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Digitized from Box 2 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library
VIETNAM OFFENDER STUDY
CENTER FOR CIVIL RIGHTS
UNIVERSITY OF NOTRE DAME
LAWRENCE M. BASKIR
1826 JEFFERSON PLACE, N.W.
PROJECT DIRECTOR
WASHINGTON, D. C. 20036
WILLIAM A. STRAUSS
(202) 296-1767
DEPUTY DIRECTOR
PADDY TALBOYS SHAKIN
March 10, 1976
ADMINISTRATIVE SECRETARY
Honorable Charles Goodell
Hydeman, Mason and Goodell
1225 19th Street, N.W.
Washington, D.C. 20036
Dear Senator Goodell:
Amidst my work with Larry on the book about Vietnam-era
offenders, I am preparing an article about the Clemency Board's
legal procedures for the June issue of the Notre Dame Lawyer.
The title of the article is "Controlling Discretion in
Sentencing -- the Presidential Clemency Board as a Working
Model." In it, I (and co-author Mike Remington) will be pre-
senting the Board's legal procedures as a model which sentenc-
ing judges may wish to follow. The emphasis will be on how
the creation of rules (especially the aggravating and mitigat-
ing factors) and the application of those rules contributed
to the consistency and fairness of Board decisions.
I would be very pleased if the article could include
some statements attributed to you. I would appreciate your
comments on any or all of the following:
1. The Board's difficulties with its first 16 cases
in October;
2. The Board's desire to create rules as a means of
channeling its discretion;
3. How hard (or easy) it was to apply those rules;
4. Your general impression of the fairness and consis-
tency of Board decisions; and
5. Your general views about the applicability of
Clemency Board techniques to sentencing judges.
Honorable Charles Goodell
March 10, 1976
Page 2
In order to include your comments in the article, I must
have them by March 24. You could either send me a letter or
give me a statement over the phone (202/296-1767). I appre-
ciate any help you can give, and I hope this article will
attract some favorable attention to the Board.
With best wishes,
Sincerely,
Bue
William A. Strauss
CONTROLLING DISCRETION IN SENTENCING:
THE CLEMENCY BOARD AS A WORKING MODEL
by
William A. Strauss*
and
Lawrence M. Baskir**
*
Faculty Fellow, University of Notre Dame; formerly
Director of Planning, Management, and Evaluation at the
Presidential Clemency Board. J.D., M.P.P., Harvard, 1973.
** Faculty Fellow, University of Notre Dame; formerly
General Counsel (staff director) at the Presidential Clemency
Board. L.L.B., Harvard, 1962. The authors wish to thank
Michael A. Remington for his research and editorial assistance
in preparing this article.
CONTROLLING DISCRETION IN SENTENCING:
THE CLEMENCY BOARD AS A WORKING MODEL
I. INTRODUCTION
The exercise of discretionary judgment is fundamental
to any system of justice -- but equally fundamental is the
consistent treatment of all individuals. To achieve the
latter, a reasonable balance is necessary between flexibility
and strict accountability to rules. Conscious efforts to
achieve this balance are made throughout almost all of the
American legal system. However, in at least one area --- the
sentencing of convicted criminals --- the system is wanting.
Attorney General Edward Levi has accused the sentencing
process of having "an accidental quality" in which imprisoned
1/
offenders consider themselves "losers in a game of chance.
=
This, he concludes, can only harm efforts at rehabilitation:
"Not only may it appear to an offender that his
imprisonment was just bad luck rather than the
inevitable consequence of wrongdoing, the unfair-
ness bred of inefficiency and unwillingness to
impose uniform punishment may make the society
outside the prison wall seem mean and hostile, a
society that itself does not follow the rules of
conduct it expects the ex-offender to follow. 2/
Typically, judges are free to make sentencing decisions
3/
according to their own personal standards.
As an inevitable
result, "the sentence a particular defendant gets is often
dependent in considerable measure on the trial judge he got -- or
2
4/
who got him.
"
What is ironic is that this unstructured sen-
tencing decision follows a very highly disciplined legal process
for establishing guilt. Yet in most criminal cases, the sentence
/
-- and not the question of guilt -- is the key issue.
Recog-
nizing this problem, critics of sentencing practices have
6/
called for more structure in the process:
"The power of judges to sentence criminal defendants
is one of the best examples of unstructured discre-
tionary power that can and should be structured. The
degree of disparity from one judge to another is
widely regarded as a disgrace to the legal system.
All the elements of structuring are needed -- open
plans, policy statements and rules, findings and
reasons, and open precedents.
One manifestation of the reaction to the undisciplined
discretion of sentencing judges is the effort to impose man-
/
datory minimum sentences --- and even mandatory sentences.
This achieves structure, but at the price of all discretion.
It equates consistency with severity. Better solutions must
be found. Unfortunately, working models have been slow to
emerge from American courts and legislatures.
The Presidential Clemency Board recently developed such
a working model, inspired in part by the Board's reaction to
the uneven treatment of convicted draft offenders by Federal
10/
judges.
In its final report, the Clemency Board noted that
sentences for draft offenses were "inconsistent and widely
varying, dependent to a great extent upon year of conviction,
11/
geography, race, and religion. " From 1968 to 1974, the
3
percentage of draft offenders sentenced to prison declined from
12/
74% to 22%.
Some judges never sent a draft offender to
prison, while others always imposed the five-year statutory
13/
maximum.
Blacks, Jehovah's Witnesses, and others outside
the middle-class mainstream were treated more harshly for
crimes that were no worse than those of other draft offenders.
Having seen the consequences of uncontrolled discretion,
the Clemency Board decided that it had to impose a measure
of discipline upon itself. According to Father Theodore M.
Hesburgh, a member of the Clemency Board, "The Board was
willing to do anything it could to get away from the vast
swing of the draft sentences." As a result, rules were developed
--- and made binding. Board members often became restless under
these rules. They were torn between the competing demands
of consistency and flexibility, sometimes complaining that
strict adherence to rules interfered with the reaching of
fair judgments in individual cases. What emerged was a
balance between the mechanical application of rules and the
subjective exercise of discretion.
As it disciplined its exercise of discretion, the Clemency
Board implemented a number of techniques which should be
14/
applicable to sentencing judges.
First, the Board developed
and published a clear set of substantive rules to serve as
criteria for case judgments, and it followed procedures which
4
ensured that these rules were explicitly applied in each case.
Second, it identified past precedents and employed them as a
basis for deciding subsequent cases. Third, it implemented
a system of internal appellate review through which inconsis-
tent judgments could be identified and reconsidered. Fourth,
it created a record which enables its decision-making performance
to be evaluated.
Taken together, these efforts resulted in a startling ---
and measurable -- degree of consistency and fairness in case
judgments. Statistics show that the Board did in fact follow
15/
its designated rules.
As a consequence, the Board achieved
one of its major goals -- that of treating persons with
16/
disadvantaged backgrounds in an evenhanded manner.
What
may be even more significant is that once the Board began
controlling its discretion, case judgments became less severe,
17/
not more so.
5
II. THE CLEMENCY BOARD EXPERIENCE
A. A Bad Experience with Uncontrolled Discretion
The Presidential Clemency Board was charged with the
responsibility of making clemency recommendations for some
19/
15,000 applicants to President Ford's program for Vietnam-
20/
era draft and military offenders.
The Board had to decide
whether each individual should be granted a Presidential
21/
pardon
-- and, if so, how much alternative service he had
22/
to perform to earn it.
Although the Board was bestowing
benefits rather than imposing punishment, it had a decision-
23/
making function comparable to that of a sentencing judge.
A judge's decisions range from minimal probation to the maxi-
mum period of imprisonment allowed by law. The Clemency Board's
judgments ranged from immediate pardons to the maximum 24-month
24/
period of alternative service set by the President
--- with
the most severe judgment being the denial of clemency in any
25/
form.
President Ford directed the Board to review every
application on a case-by-case basis to achieve equity among
applicants and to build public confidence in the clemency
26/
program.
Aside from the limited and unpersuasive precedent
27/
of the Truman Amnesty Board, the Clemency Board had no prior
experience to guide it in recommending executive clemency
on a case-by-case basis. However, the Board had to determine
6
the substantive standards and procedures to be followed in
28/
acting upon these cases.
The Board very quickly recognized
the importance of making fair and consistent decisions which
would be accepted as such by the clemency applicants and the
29/
general public.
With little guidance from the President, no help from
30
/
any precedents, and a predominantly lay membership, the
Clemency Board was faced with the problem of determining how
to proceed. At its very first meeting, the Board agreed that
it would identify and publish a list of factors to help it
review cases.
The Board's original intent was to have these factors
serve as informal guidelines for case judgments, reserving
the right to identify and apply other criteria freely. The
Board honed this tentative list into what it called "mitigat-
ing" and "aggravating" factors, using them to review its first
sixteen cases. As nothing more than guidelines, the factors con-
tributed little to the Board's decisionmaking process. Sharp
disagreements arose among Board members about the purpose of
31/
the clemency program, resulting in some near-resignations.
"Everybody was going in different directions in these cases, "
notes Father Hesburgh. "Some Board members wanted to give
everyone the maximum, and some always wanted to give the
minimum."
7
In these first sixteen cases, virtually identical cases
were decided differently. For example, two draft offenders
had each committed the same crime under almost identical
circumstances; the one who was white, religious and from a
well-to-do family was recommended for an immediate pardon --
but the black immigrant from the West Indies was denied
clemency apparently because of an off-hand comment in his
record that he was "clever." In these and the other fourteen
cases, analysis later proved that Board decisions were based
on aspects of the case which had no relationship to any of its
mitigating and aggravating factors. A juvenile arrest record
for possession of beer, involvement in an alternative-lifestyle
commune, participation in a "rock" band, and even jaywalking
convictions were the apparent but unspoken bases for judgments
32/
by the Board.
These inconsistent case judgments and the application of
irrelevant standards were a result of the ad hoc process the
Board used in reaching decisions. Each member focused on
aspects of the case he or she thought most important. Often,
members did not articulate the real basis for their decisions.
No attempt was made to reach a collective agreement in each
case on the presence or absence of the criteria the Board had
previously designated as relevant. Consequently, there was
no way to prevent any member from applying his or her personal,
and often unconscious standards -- or even to know what those
standards might be.
8
Board members seemed reasonably satisfied with their
decisions in each case, but the overall results were disturbing.
If there was any pattern at all in this first collection of
decisions, the Board seemed to be favoring applicants with
middle-class backgrounds, with a demonstrated respect for
authority, and with a conventional lifestyle. In fact, a
statistical analysis of those sixteen cases showed that
"conventionality of lifestyle" was a more significant pre-
dictor of Board judgments than any of the officially designated
aggravating and mitigating factors. In effect, the Board had
discarded its agreed-upon list of substantive rules, and was
proceeding on the more comfortable basis of "gut-level"
justice.
The bad experience with these sixteen cases proved a
blessing. Once the Board was alert to what it was
doing, it imposed much tougher standards of consistency on
itself and on the staff attorneys who prepared cases. In
doing so, the Board reluctantly acknowledged the need to
control its exercise of discretion through adherence to
more rigorous procedures.
9
B. Developing Rules
Right after the Board's assessment of its first sixteen
case decisions, it met in executive session to transform its
tentative guidelines into binding rules. The Board clarified
the alternative service "baseline" formula and the mitigating
and aggravating factors which would be used as the explicit
33/
bases for all case judgments. Only when mitigating factors
outweighed aggravating factors could the alternative service
assignment be reduced below the baseline. Conversely, the
alternative service assignment could be increased above the
baseline -- or clemency might be denied altogether -- only
when aggravating factors outweighed mitigating factors.
The Board went up or down from its baseline in three- or six-
month increments according to subjective measures of the
relative strength of the factors. With minor modifications,
this became the structure for the exercise of Board discretion
and the making of consistent case judgments.
The alternative service "baseline" was a fixed formula
used as a starting point for determining the amount of alter-
34/
34/
native service
It was a jerry-built mathematical
calculation which took account of an applicant's initial
35/
sentence, his time in jail, and other factors. One theory
behind the formula was that the Board should, without discretion,
give credit for court-imposed penalties paid by each applicant.
10
Equally fundamental to the formula was the Board's belief
that only nominal amounts of alternative service should be
assigned to most applicants. The formula resulted in initial
baselines of 3-6 months for 99% of the applicants -- well
36/
below the 24-month maximum set by the President.
With applicants having virtually identical baselines, the
mitigating and aggravating factors accounted for almost all
of the differences in Board judgments. The sixteen mitigating
factors and twelve aggravating factors represented a composite
of the concerns of Board members with different philosophies.
Some argued strongly for mitigating factors which would take
account of conscientious opposition to the Vietnam War and
disadvantaged socio-economic backgrounds. Others were pri-
marily concerned about applicants' criminal records and
experience as soldiers. Although majority approval was required,
the Board usually designated as a factor anything which any
Board member felt strongly about. Only once did the Board
37/
ever vote against a proposal to establish a new factor.
Board members had three standards in mind as they
38/
developed the list of mitigating and aggravating factors:
(1) Had an applicant demonstrated that he had already
earned a grant of clemency?
11
(2) Was his background such as to qualify him for
clemency?
(3) Could the Clemency program help him in any par-
ticular way?
The notion of "earning" clemency was central to the
philosophy behind the President's program -- earned re-entry
39
into the mainstream of American society. This was based on
the view that some measure of justice had to be struck between
clemency applicants and those who had satisfactorily discharged
their obligation of national service. Also underlying this
notion of "earning" clemency was a theory of general deterrence.
The clemency program had to demonstrate to future generations
of soldiers and draft-eligible persons that those who unlaw-
fully evaded service would not receive clemency unless they
earned it. This was consistent with the President's -- and
the Board majority's -- view that most clemency applicants
still owed a debt of service to their country.
/
For some, this debt had already been partially or com-
pletely satisfied. A surprising percentage (27%) of Clemency
Board military applicants were Vietnam veterans, many with
40/
combat wounds or decorations.
Even those who never went to
Vietnam often had performed long periods of meritorious military
12
service before committing their offenses. Many convicted
draft offenders had performed substantial periods of court-
ordered alternative service. These and other related cir-
cumstances were designated as "mitigating." Considered
"aggravating" were indications of an applicant's failure to
serve when called upon -- for example, by deserting in a
war zone, failing to report to Vietnam when ordered, or fail-
ing to complete court-ordered alternative service.
The worthiness of an individual's application for
clemency was far more subjective. The majority view, by
no means unanimous, was that the conscientious war resister was
the clemency applicant for whom the program was especially intended.
As the Board began to hear military cases, it discovered that
military applicants seldon went AWOL because of expressed oppo-
sition to the war. The more common reasons were personal or
family problems, procedural unfairness on the part of the
military, or a lack of sufficient intelligence or language
skills to cope well with military life. The Board believed
that all of these reasons could be sympathetic enough to make
an individual worthy of clemency. Conversely, individuals whom
the Board thought the President did not have in mind were
distinguished on the basis of certain aggravating factors --
long or repeated AWOL offenses, the use of force in committing
the qualifying offense, and a record of non-draft-related
41/
felony convications.
13
The final notion ---- that of helping or rehabilitating a
person through a grant of clemency -- had more limited appli-
cation. Some applicants had service-incurred disabilities,
others had serious mental or physical problems, and many
more had unresolved personal problems. For some, alternative
service was seen as a means of self-help; for others, with
serious personal or family problems, it would have been
a heavy and meaningless burden. Certain categories
of military applicants were recommended by the Board for
veteran's benefits, especially medical benefits, which
would help them readjust to civilian life after difficult
42/
tours in Vietnam.
Some mitigating factors were created to
account for these rehabilitative needs, and others were
marked "strong" in true hardship cases. The only way an
applicant's lack of rehabilitative potential was translated
into an aggravating factor was if he had a criminal record
for a very serious felony offense -- especially if he was
currently facing a long period of incarceration. For these
individuals, the clemency program could be of little help.
The full list of mitigating and aggravating factors is
4 3/
presented in Figure 1, with notation of how frequently
each was applied in civilian and military cases.
14
Figure 1: FREQUENCY OF AGGRAVATING AND MITIGATING FACTORS (Percent)
Civilian
Military
Agg 1
Other adult convictions
49
53%
Agg 2
False statement to the Board
0
0
Agg 3
Use of physical force in offense
0
0
Agg 4
AWOL in Vietnam
0
2
Agg 5
Selfish motivation for offense
15
31
Agg 6
Failure to do alternative service
4
0
Agg 7
Violation of probation or parole
5
7
Agg 8
Multiple AWOL offenses
1*
36
Agg 9
Extended AWOL offenses
0
72
Agg 10
Missed overseas movement
0
7
Agg 11
Unfitness discharge with other offenses
0
5
Agg 12
Apprehension by authorities
8
37
No Aggravating Factors
72
1
Mit 1
Inability to understand
3
32
Mit 2
Personal or family problems
9
45
Mental or physical condition
9
Mit 3
19
Public service employment
57
Mit 4
2
Mit 5
Service-connected disability
0
2
Extended military service
2
35
Mit 6
Vietnam service
1*
26
Mit 7
Mit 8
Procedural unfairness
6
14
Mit 9
Questionable denial of CO status
8
0
72
Mit 10
Conscientious motivation for offense
3
Voluntary submission to authorities
59
Mit 11
37
Mit 12
Mental stress from combat
0
5
0
Mit 13
Combat volunteer
9
1*
Above average military performance
39
Mit 14
Mit 15
Decorations for valor
0
2
0
4
Mit 16
Wounds in combat
5
2
No Mitigating Factors
* A small number of civilian applicants entered military service after
their draft offenses.
15
To structure the application of these rules, the Board
implemented standard procedures by which all cases were pro-
44/
cessed.
Based upon official records, a completed application
form, and communication with the applicant, a staff attorney
45/
prepared a summary for each case. After an internal review,
the case summary was submitted to Board members for study.
During Board meetings, staff attorneys and their immediate
supervisors were present to answer Board member questions or
read statements submitted by applicants.
The Clemency Board's baseline formula, mitigating and
aggravating factors, and general case procedures were published
in the Federal Register on November 27, 1974, approximately
one month after the Board had reassessed its first sixteen
46/
cases.
The primary purpose of publication was to make the
rulesbinding on the Board. Another purpose was to enable
potential applicants to understand the basis by which the
Board would make judgments in their cases. Board regulations
and application materials encouraged applicants to submit
information establishing the presence of mitigating factors
or the absence of aggravating factors. Unfortunately, appli-
47/
cants were not well counseled.
Few had lawyers, and not
many of the rest understood the importance of submitting
16
information bearing on the factors. Thus, the Clemency
Board's rules were much more effective as a means of con-
trolling its own discretion than as a means of helping
applicants to improve their chancès, before the Board.
C. The Use of Precedents
The establishment of clearly defined rules produced a
marked and immediate improvement in decisions. All of the
first sixteen cases were reconsidered, with the results much
more consistent and justifiable than before. The black immi-
grant from the West Indies received an immediate pardon, like
his white counterpart. By the time the Board published its
regulations in late November, it had made 45 case recommenda-
tions to the President. The pattern of judgments in the Board's
subsequent 14,500 cases generally matched the pattern of these
47/
first cases.
When the first 45 decisions were announced by the President,
each was accompanied by a condensed case description, which
attempted to summarize the elements of the case upon which the
result was based. This was an effort to establish open written
precedents for the guidance of the Board and future applicants.
Unfortunately, this experiment failed. First, it proved too
difficult to reconstruct accurately the reasons for each collec-
tive Board decision. Second, the Board refused to recognize
the public case descriptions as open and binding precedents.
17
One applicants' attorney requested a recommendation of an imme-
diate pardon by citing analogous case descriptions and results,
but the predominantly lay Board felt that a process of deciding
cases by arguing from precedents was-,too "legalistic" and
would infringe upon its legitimate exercise of discretion.
Specifically bound only by its published regulations in
this early period, the Board in effect developed its own
unwritten "common law" of policy precedents --- even though most
Board members, not being lawyers, failed to recognize this.
These precedents were applied informally but effectively by the
Board. At the time, simply having binding mitigating and
aggravating factors was enough to achieve consistency. Later,
this would not be so.
Not only were cases decided more consistently as a result
of having rules -- they ware also decided more leniently. The
Board's original judgments on the first 16 cases included only
two immediate pardons, four denials of clemency, and an average
of 16 months alternative service for the rest. After reconsidera-
tion, these very same cases included eight immediate pardons,
no denials of clemency, and an average of only six months alter-
native service for the rest. In part, this greater leniency
resulted from an emerging Board consensus that the Clemency
Board should be clement in deed as well as in name. Also ---
and more significantly -- this leniency was attributable to
18
the Board's greater confidence in the accuracy with which it
48/
could distinguish among applicants.
In the end, the Board
49/
denied clemency to seven percent of its applicants, but
by selecting out those cases according to clear rules and
precedents, it became more generous with all other applicants.
50/
Over time, four out of five received immediate pardons or
alternative service assignments of six months or less.
During its first few months, the nine-member Board took
about 20 minutes on each case to calculate a baseline, identify
mitigating and aggravating factors, and reach a judgment. At
the time, the Board's projected caseload was about 1,000 cases,
a disappointing but manageable size. Soon, the caseload drama-
51/
tically increased to 15,000, cases, and the President set a
six-month deadline for completing all Board operations. These
new developments forced radical changes in Board operations,
requiring new techniques to guide and monitor Board decisions.
It was no longer sufficient merely to apply the substantive
rules carefully and methodically.
Because of the expanded caseload, the Board was doubled
in size to eighteen members, and the staff expanded ten-fold.
This had two important consequences for the way in which cases
were decided. First, the Board began hearing cases in three-
member panels rather than en banc, thus creating new possibilities
for inconsistency of results. Second, the presence of 400
staff attorneys transformed the Clemency Board into a large and
complex organization in which procedures could no longer be
52/
informal.
19
By having three-member panels, it was thought that Board
rules could be applied just as consistently as the nine-member
Board had been doing. The idea of having single-member
judgments was rejected as too vulnerable to misapplication
of rules and wayward judgments. The Chairman tried to
balance the composition of each panel, wherever possible
assigning one conservative, one moderate, and one liberal to
53/
each.
Likewise, panels were reconstituted weekly to
prevent any particular panel from drifting away from estab-
lished rules.
Because of the very large caseload, panels could only
spend an average of four minutes on every case. Each
member reviewed the cases before panel meetings, and reached
tentative personal conclusions about what the judgments
should be. During the meetings, a consensus was reached
within a few minutes on all but the most difficult cases.
This process put a heavy burden not only on Board members
but also on the staff attorneys preparing cases. In addition
to preparing a factual summary for each case, attorneys were
then asked to calculate the baseline and recommend which
mitigating and aggravating factors might be applied by the
Board. Staff attorneys spent, on average, four to six hours
preparing each case and obviously had more occasion than the
20
hard-pressed Board members to understand all aspects of a
case. Even so, the Board unanimously rejected a proposal
to have staff attorneys recommend final case judgments
based upon Board precedent; this was considered too much of
an infringement upon Board discretion.
These shifts in Board and staff procedures were fine in
theory, but very difficult to implement in practice. Two
handicaps had to be overcome. First, half of the Board
and nine-tenths of the attorneys were new to the process and
could not be expected to understand immediately the unwritten
nuances of the mitigating and aggravating factors. Second,
with panels spending only four minutes per case, there was a
clear danger of hasty decisions and the arbitrary exercise of
discretion.
These handicaps were partly overcome through the codifi-
54/
cation of Board precedents in the Clemency Law Reporter.
The Reporter's five issues comprised an updated "hornbook"
of Clemency Board practice policies. Each factor was defined
in explicit terms -- often after Board debate -- and each
definition was accompanied by factual condensations or "squibs"
55/
of cases in which that factor had been applied by the Board.
The "squibs" were reviewed by the Chairman before publication,
and he deleted those which he felt were improper or misleading
applications of Board policy. In this way, the Reporter became
21
a means by which the Chairman sought to control the exercise
of discretion by Board panels. He intended it to be a
normative set of precedents to which Board panels were bound,
at least in theory.
Staff attorneys were instructed to follow the Reporter
in making preliminary designations of mitigating and aggra-
vating factors in each case as a guide for Board members.
Their designations were carefully monitored, again with the
Reporter as a guide. Finally, staff supervisors were present
at all Board panel sessions and were instructed to use the
Reporter to advise Board members of an incorrect application
of factors.
These staff procedures worked reasonably well, but the
Board members were unable or unwilling to use the Reporter
themselves. Board members still based their final designations
of mitigating and aggravating factors on their own personal
recollections of Board rules. A few rejected the advice
of staff supervisors about how factors should be applied,
insisting that Board members could properly exercise their
discretion without being bound by precedents. Despite this
resistance to formal precedents, panels rarely wandered far
from what precedent dictated. When they did, this became a
basis for the staff-attorney initiated appellate review pro-
cedures discussed below.
22
D. Internal Appellate Review
Standing alone, the Clemency Law Reporter was not enough
to ensure the consistency of case judgments. At best, it
only indicated whether factors were being applied correctly.
It did not offer any guidance to the Board in translating
those factors into a final judgment.
Consequently, some purely procedural steps were used to
structure the exercise of this discretion. As a standard
practice, Board panels waited to discuss a final judgment
until after all applicable factors had been agreed upon and
designated for the record. This tended to focus Board members
on the designated factors and away from extraneous issues.
Still, cases with identical baselines and factors were
often decided differently -- sometimes by accident and sometimes
by design. To check Board panels' exercise of discretion in
making final judgments, an internal system of appellate review was
implemented. The basic rule of this appellate system was that
any Board member could refer any panel judgment to the full
Board for reconsideration. Dissenting panel members referred
about three percent of all cases for reconsideration, usually
56/
to no effect. More significantly, this rule permitted the
Chairman to refer divergent cases identified by other review
procedures which the Board employed.
23
Staff attorneys were directed to flag cases they believed
to be decided inconsistently with Board precedents. These
cases then went through a carefully monitored system of
internal review, in which they were reviewed first by a
specially-trained team and then by the Chairman. Through
400
this procedure, approximately 100 cases were flagged by staff
200
attorneys and about 25 were ultimately reconsidered by the
full Board.
However, the most important and unusual aspect of this
57/
appellate system was STAREDEC, a computer review.
A gift
58/
from the National Aeronautics and Space Administration,
STAREDEC was programmed to analyze the Clemency Board's
precedents and identify patterns in the rendering of final
judgments. STAREDEC evolved from early manual efforts to trace
the impact of mitigating and aggravating factors on case judg-
ments. Through these ad hoc procedures, errant cases were
identified for possible reconsideration by the full Board
before final recommendations were sent to the President. Once
the Board's caseload expanded, however, this could only be
done by computer. With only about one month of planning and
preparation, STAREDEC became the foundation of a systematic
review of all case judgments before their submission to the
President.
24
STAREDEC became operational through the recording of
every case judgment on a computer-input sheet, along with
the Board's designation of mitigating and aggravating factors.
Not only did this create accurate and retrievable case records,
but it also provided a means by which case judgments could be
comparatively analyzed. After separating civilian and military
cases, STAREDEC sorted them according to their respective com-
binations of mitigating and aggravating factors. For each
factor combination, STAREDEC identified all prior case judgments
by the Board. Again for each combination, STAREDEC
identified the median case judgment and the cases with the
most extreme ("harsh" or "lenient") judgments. In flagging
these extreme cases, STAREDEC had two criteria: (1) the judg-
ment had to be among the ten percent most deviant cases for
that factor combination, and (2) the judgment had to be at
least six months away from the median for that factor combina-
59/
tion.
Once STAREDEC flagged a case, the staff appellate review
team studied the case summary to determine whether there
appeared to be a reasonable justification for the Board's
judgment. Obviously, the facts supporting a factor could
make that factor apply more strongly in one case than in
another. In effect, what the legal analysis staff did was
to ascertain whether each case judgment was within a fair
exercise of Board discretion. In most of the reviewed cases,
there was such a justification.
25
Through STAREDEC, approximately 200 cases were referred
to the Chairman for possible reconsideration. The Chairman
then referred some 75 cases to the full Board for reconsidera-
tion. The Board reconsidered the STAREDEC-flagged cases en banc
(as it did the attorney-flagged cases) with full knowledge of
the Board panels' earlier judgments. In almost every instance,
the full Board overruled the earlier panel decisions.
Some of the cases flagged by STAREDEC and staff attorneys
represented flagrant errors. Two cases had been denied clemency
despite the absence of any aggravating factors. Other cases
had been treated harshly because staff attorneys had improperly
presented irrelevant and prejudicial facts, such as arrest
records. Still other cases had simply landed on the docket
of a Board panel in an unusually harsh mood. Without the
appellate review, these cases would have been routinely sent
to the President as originally decided by the panels.
Another stage of appellate review took place after the
President approved the Board's case recommendations. To inform
each applicant about the decision in his case, the Board sent
him a worksheet identifying the specific mitigating and aggra-
vating factors which the Board identified in his case. The
purpose was to give him an understanding of the reasons under-
lying the Board's judgment. An accompanying letter informed
60
him of his right to appeal that judgment.
26
Roughly 275 applicants did appeal, and their cases were
then reviewed by the carry-over Clemency Office at the Department
of Justice. The Clemency Board had disbanded by the time the
appeals were reviewed, so there was no direct Board input
into those latter decisions. In general, the Clemency Office
applied Board precedents in acting uppn these appeals. An
estimated 15% of these appeals were successful, resulting
in more favorable case recommendations being sent to the
61,
President.
E. Evaluating Performance
Throughout the Clemency Board's year of operations, there
was a constant staff effort to provide the Board -- and
especially its Chairman -- with feedback about decision-making
patterns. For most of the year, the feedback was mostly sub-
jective, bolstered only by administrative tallies which told
little about the quality of case judgments. Once work was
underway on the Board's final report, however, some provoca-
tive, objective data was developed -- principally through
62/
a survey of some 1,500 cases and the final output of
STAREDEC. Although this information was collected too late to
be useful as feedback, it did help the Board fulfill its strong
commitment to be accountable to the public for the consistency
and fairness of case judgments.
27
What the data show is significant, but so too is the
fact that it exists at all. Had it not been for two circumstances
-- the Chairman's eagerness for feedback and the Board's applica-
tion of clear, measurable factors in' its decisions -- an evalua-
tion of the Board's performance would have been subjective and
impressionistic only. As it is, the data tell a story of a
decision-making process which, despite some weaknesses,
63/
accomplished much.
1. Process Accomplishments
Considering the Clemency Board's tumultous and erratic
beginnings, the record shows a surprising pattern of consistent
decision-making. This consistency took a number of forms:
(1) applying mitigating and aggravating factors decisively
in case judgments; (2) judging similar cases similarly, and
different cases differently; (3) treating applicants from
disadvantaged backgrounds evenhandedly; and (4) making con-
sistent case judgments over time.
The actual application of mitigating and aggravating factors
in Board decisionmaking was always a matter of concern. The
Board clearly did not apply its factor "guidelines" in its
first sixteen tentative judgments; once those factors became
"rules," the picture changed. STAREDEC confirmed the Board
members' subjective sense that a number of mitigating and
aggravating factors were very important -- indeed, decisive
-- in judging cases. STAREDEC analysis showed that twelve
of the sixteen mitigating factors and seven of the twelve
28
aggravating factors had either a "very strong" or "strong"
64/
relationship to case decisions.
The factors most closely
related to Board decisions were too whose importance was
often reaffirmed by Board members: mitigating factor #10
(conscientious reasons for the offense) and aggravating
factor #1 (other adult convictions).
Cases with similar factors can be considered similar
cases, albeit imperfectly. If the Board were applying its
rules correctly, one would generally expect to see cases with
identical mitigating and aggravating factors getting comparable
judgments --- and cases with different factors getting different
judgments. Figures 2, 3, and 4 illustrate the Board's
65/
application of its factors in making case judgments.
These tables show what happened to cases with selected factor
combinations. Although they encompass only a fraction of all
66/
Clemency Board cases, they illustrate the general pattern
of Board decision-making. Fully 97% of the civilian cases and
84% of the military cases received judgments within three
months of the median for their factor combinations. Moreover,
Board decisions became progressively more severe as mitigating
factors were subtracted or aggravating factors added. These
tables show an occasional stray case, but all of these were
flagged by STAREDEC and reviewed for possible resubmission to
the Board.
n
29
Figure 2:
IMPACT OF SELECTED AGGRAVATING AND MITIGATING
FACTORS ON CIVILIAN CASE DISPOSITIONS
# of
Agg #
Mit #
Cases
Pardons
3 AS
4-6 AS
7+ AS
NC
-
4,9,10
14
14
-
-
-
I
-
4,10
144
139
4
1
-
-
-
10
74
69
3
2
-
-
-
-
25
16
5
1
3
-
4
-
20
1
9
8
1
1
1,5
-
4
1
-
-
1
2
1,5,7
2
-
-
-
-
-
2
Figure 3:
IMPACT OF SELECTED AGGRAVATING FACTORS
ON MILITARY CASE DISPOSITIONS
# of
Agg #
Mit #
Cases
Pardons
3 AS
4-6 AS
7+ AS
NC
-
6
2
-
1
1
-
-
8
6
11
-
5
5
1
-
5,8
6
17
1
2
7
7
-
1,5,8
6
34
2
2
14
6
10
1,5,8,9
6
38
-
2
9
16
11
1,5,8,9,11
6
3
-
-
-
1
2
Figure 4:
IMPACT OF SELECTED MITIGATING FACTORS
ON MILITARY CASE DISPOSITIONS
# of
Agg #
Mit #
Cases
Pardons
3 AS
4-6 AS
7+ AS
NC
1,8,9,12
1,2,6,7,14
11
11
-
-
-
-
1,8,9,12
2,6,7,14
28
23
3
1
-
1
1,8,9,12
2,6,14
79
34
21
18
3
3
1,8,9,12
2,6
114
20
29
47
13
5
1,8,9,12
2
50
2
3
13
26
6
1,8,9,12
-
7
-
-
1
1
5
The Clemency Board was very conscious of the need to
apply its rules fairly to persons with disadvantaged backgrounds.
In fact, the first two mitigating factors were intended to give
4
30
credit to those whose offense had resulted from severe educa-
67,
tional handicaps or personal problems.
Disadvantaged persons
did not fare better than others in Board judgments, but they
68/
did receive equal treatment.
Figure 5 shows that the Board
judgments neither favored nor disfavored blacks, whites, low
IQs, high IQs, high school dropouts, college graduates, low
69
incomes, or high incomes.
Figure 5: CLEMENCY BOARD TREATMENT OF DIFFERENT CATEGORIES
OF APPLICANTS
Civilian Cases
Military Cases
% Pardon
%No Clemency
% Pardon
%No Clemency
Black
75
5
47
14
White
76
1
39
7
Low IQ (or AFQT)
59
6
46
9
Medium IQ (or
AFQT)
63
3
37
10
High IQ (or AFQT)
68
2
33
5
High school
dropout
59
3
39
9
High School
graduate
77
1
41
8
College graduate
82
0
25
0
Disadvantaged eco-
nomic background
72
0
41
5
Not disadvantaged
74
0
36
3
31
Another measure of the fairness of a process is its
consistency over time. For all but the first 5% of its cases,
Clemency Board judgments were comparable from month to month.
Figure 6 shows how Board case judgments varied throughout the
year, as reflected by the "pardon rate" for military and
70/
civilian cases.
The civilian pardon rate hovered around
90%, and the military pardon rate around 45%. Likewise (but
not shown in Figure 61, the "no clemency" rates were also
unsteady at first, then steady in the second half of the Board's
year. Note that the rapid pace of post-April Board operations
did not impair the consistency of case judgments. In fact,
the more cases per panel-day, the more consistently they were
decided.
PHASE I
PHASE II
First Publi-
cation of
32
Policy
Precedents
Baseline,
Fall of Expansion
Agg/Mit Factors Put
South
of
Into Regulations
Vietnam
Board
(1500)
100%
100
KEY:
(500)
Civilian pardon rate
Military pardon rate
(1000)
Panel hearing rate (cases/panel/day)
80%
80
60%
60
(500)
(200)
(200)
(100)
(1000)
(2000)
(5000)
40%
(100)
40
(10000)
NUMBER OF CASES HEARD PER PANEL PER DAY
PARDON RATE (AS
20%
20
0
0
SEPT
OCT
NOV
DEC
JAN
FEB
MAR
APR
MAY
JUN
JUL
AUG
SEPT
15th
15th
Figure 6 - BOARD PARDON RATES (CIVILIAN AND MILITARY CASES)
NOTE: Numbers in parentheses show cumulative cases heard by given date.
33
2. Process Disappointments
The generally good performance of the Clemency Board in
achieving consistency and fairness in its case judgments
should not be misinterpreted as an indication that everything
went well. It did not. None of the techniques described above
was implemented easily, and the Board's decision-making process
was far from ideal.
Some of the mitigating and aggravating factors were based
on questionable logic. For example, the fact that an
applicant was previously convicted by court-martial for AWOL
made aggravating factor #1 (other adult convictions) applic-
able, even though that court-martial, had it led to a discharge,
would itself have made him eligible for the clemency program.
Secondly, the Board decided to presume that the reason for
an applicant's offense was "selfish and manipulative"
(aggravating factor #5) in the absence of any evidence
about his reasons, shifting the burden to the applicant
to show that he was not selfish. Thirdly, the fact that an
applicant was AWOL for a long time was held against him (aggra-
vating factor #9) even though the difference between a short
and long AWOL was usually attributable only to the vigilance
of the police in an applicant's home town. Finally, a heroin
habit was considered mitigating (#3), not aggravating -- to
the strong displeasure of some Board members.
Certain key mitigating factors -- such as educational
handicaps (#1), family problems (#2), and mental or physical
34
71/
problems (#3) -- were not decisive in very many cases,
even though Figure 5 shows that they did contribute to the
evenhandedness of Board decisions. Conversely, one of the
Board's most controversial aggravating factors -- selfish
motivation for the offense (#5) -- did have a decisive impact.
The panels hearings were plainly a flawed process.
Applicants or applicants' counsel were almost never present,
and thousands of cases were decided at a rate of speed which
was unfortunate, however necessary. While aggregate data show
that four minutes per case did not adversely affect the overall
consistency of judgments, this fast pace sometimes interfered
with the fair treatment of individual cases. Board members,
being human, occasionally sped through cases which should have
72/
been given more time and discussion. Some Board members were
resentful when staff attorneys tried to compensate for this by
presenting an applicant's case in an especially favorable light.
The Clemency Law Reporter was not used to anything approach-
ing its true potential as a "hornbook" of Board policies. This
was partly due to the press of time, but primarily it was
because some lay members of the Board clearly felt uncomfortable
with a staff-prepared instrument which monitored their exercise
of discretion.
The computer-aided appellate review system was just being
perfected when the Board went out of business. At least twice
as many cases would have been reconsidered by the Board en banc
had there been time. Also, like any experimental computer
35
program, STAREDEC had its flaws. It was based on a narrower
concept of precedent than it might have been; this too could
73/
have been corrected in time.
The process of reviewing applicants' appeals was inappro-
priate per se. The appeals were heard not by the Board --
which no longer existed by then -- but by a carry-over staff
of attorneys who had middle-management positions at the Clemency
Board. From all indications, it appears that they administered
the appeals process fairly, but they were the wrong individuals
to be making appellate decisions.
In general, these inadequacies resulted from (1) an awkward
compromises among Board members with different philosophies,
(2) the lay character of the Board, and (3) the press of time.
*
*
*
From looking at the accomplishments -- and notwithstanding
the disappointments -- it appears that the Clemency Board did
achieve a rather good record for consistency and fairness of
judgments. Much of the credit for this must go to the fair-
mindedness and hard work of the eighteen men and women who made
them -- and, one should add, to the quality of the preparatory
work of the 400 staff attorneys. But high-mindedness and
hard work are not by themselves guarantees of good results.
What is more significant is that the Clemency Board developed
rules, followed those rules, and evaluated its performance in
applying them. The mitigating and aggravating factors, the
36
Clemency Law Reporter, the internal appellate system, and the
computer analysis together provided the mechanism by which
this was accomplished.
III. APPLICABILITY OF THE CLEMENCY BOARD MODEL TO
JUDICIAL SENTENCING
The experience of the Clemency Board in controlling adjudi-
cative discretion suggests that sentencing judges might improve
the consistency of their decisions if they implemented some
of the techniques tested by the Board. Indeed, the Clemency
Board model may have an even wider application --- to decisions
74/
by parole boards, military discharge review boards, and other
adjudicative bodies.
What makes the Board's experience particularly transferrable
to sentencing judges is the comparability of the alternative
service decision to the sentencing deçision. When a judge
chooses between probation and incarceration -- and, whichever
his choice, when he fixes the length of sentence --- he is
doing essentially the same thing the Clemency Board did. Cer-
tainly, the task of the sentencing judge is more difficult.
75/
The Clemency Board reviewed only two categories of offenses and
76/
had fairly homogeneous defendants; sentencing judges must act
upon a much wider range of offenses and offenders. The
Clemency Board had problems enough interpreting its vague
77/
mandate of "bind[ing] the nation's wounds; sentencing
judges must base their decisions upon the much more problematic
37
and conflicting notions of deterrence, rehabilitation, and
the protection of society.
The more complicated task facing sentencing judges should
not excuse them from having to apply&clear decision-making
rules. On the contrary, the complexity of judges' sentencing
decisions makes the use of such rules all the more important.
Of course, this greater complexity does mean that the rules
applicable to the sentencing process would have to be more
sophisticated than the rules applied by the Clemency Board.
The Board offers only a first-stage experiment
with baseline formulas, mitigating and aggravating factors, the
use of case precedents, appellate review, and computer-aided
analysis of consistency. Each of these techniques needs test-
ing in the actual sentencing process before any conclusions can
be drawn about their usefulness to a judge. However, there
is every reason to believe that such a sentencing experiment
would be as successful as the Clemency Board model.
The components of a sentencing experiment could be much
like that described below, tailored to the needs of a particular
jurisdiction. It should encompass as many sentencing judges
and offense categories as possible to provide the most meaning-
ful test of consistency.
38
1. A "baseline" would be stablished for each type of
offense, giving the sentencing judge a starting point for
his exercise of discretion. The baseline would be the presump-
tive sentence for all cases involving that offense. Also,
a minimum and maximum sentence "range" would be set for each
offense, indicating the outer limits of a judge's exercise of
discretion. For example, the "baseline" for armed
robbery might be five years, with a "range" of one-to-
twenty years.
2. A list of mitigating and aggravating factors would
be developed as the basis for the judge's sentencing decision.
The factors would take into account the diverse purposes of
sentencing. For example, the mitigating factors might include
such notions as mental duress, restitution to victims, and
evidence of current rehabilitation. The aggravating factors
might encompass the use of firearms, prior convictions, and
substantial evidence of bad character. Of course, these
lists would be much longer and would have to be prepared with
78/
great care.
3. With the factors articulated in advance, judges
would only consider these factors in rendering sentences. If
experience were to demonstrate the need for the creation of
additional factors, these would also be articulated and estab-
lished by rule, and not simply applied in an ad hoc fashion.
39
4. The information upon which the sentence is based
would be restricted to that which bears upon the designated
mitigating and aggravating factors.
5. Sentences would be group decisions, perhaps by
three-judge panels. This would ensure that the true basis
for each judgment would be the articulated rules --- not one
judge's personal standards.
6. Sentencing judges would be required to note for the
record which factors applied to a particular defendant before
pronouncing sentence.
7. If the mitigating and aggravating factors balance
each other out, the "baseline" sentence would be imposed.
If the mitigating factors outweigh the aggravating factors,
the sentence would be reduced below the baseline. Conversely,
if the aggravating factors outweigh the mitigating factors,
the sentence would be increased above the baseline. Obviously,
in no case would the sentence fall outside the legislated outer
limits of the judge's discretion.
8. Sentencing judges' identification of mitigating and
aggravating factors would have to be consistent with case
precedents showing prior use of those factors.
9. Each sentencing decision would be analyzed by a
STAREDEC-type computer before appeal to provide an immediate,
40
objective measure of consistency. Eventually, each sentencing
judge might be given feedback about how comparable cases were
being decided.
10. Sentences would be made subject to appeal, with
appeals based on either (1) a wrong identification of factors,
or (2) an inappropriate sentence, given the applicable factors.
Appellate courts would, through their decisions, try to main-
tain consistent patterns in sentences.
11. All sentencing judges would meet periodically to
maintain conformity in their interpretation of the rules
and their implementation of experimental procedures.
12. A comprehensive survey of cases would be conducted
as a means of evaluating the experiment. An identical survey
of a non-experimental "control group" would be useful for
comparison.
Not all of these techniques need be applied in any one
experiment. The three-judge concept, the STAREDEC-like computer
review, and the appellate review of sentencing decisions are
separable items. However, all aspects of the model reinforce
one another and should enhance the prospects for a successful
experiment.
Reduced to its simplest features, this Clemency Board
model consists of establishing clear rules, following those
rules, and measuring performance. The exercise of discretion is
a
41
controlled -- and the quality of decision-making improves
as a result.
Even with its discretion disciplined, the Clemency Board
had its wayward moments and applicants were sometimes asked
to do too much or too little alternative service. Sentencing
judges, with almost limitless discretion, can be expected to
be wayward much more often. When they are, the price is
paid by an underprotected public or by an overpunished offender.
Either way, the price is too high.
a
FOOTNOTES
1/ Address by Attorney General Edward H. Levi before the
Governor of Wisconsin's Conference on Employment and the
Prevention of Crime, February 2, 1976.
2/ Id.
3/ Judge Lombard gave the following example at the 1965
Philadelphia Judicial Sentencing Institute: "You may have
heard of the visitor to a Texas court who was amazed to
hear the judge impose a suspended sentence where a man had
pleaded gulty to manslaughter. A few minutes later the
same judge sentenced a man who pleaded guilty to stealing a
horse and gave him life imprisonment. At recess he was
introduced to the judge, and he expressed surprise at these
sentences. The judge thought a moment and replied, "Well,
down here there is some men that need killin', but there ain't
no horses that need stealin. Lombard, SENTENCING AND
LAW ENFORCEMENT, 40 F.R.D. 399, 409 (1965).
4/ M. Frankel, Comments on an Independent, Variable Sentencer,
42 U. Cinn. L. Rev. 667 (1973) See, e.g., American Bar
Association Project on Minimum Standards for Criminal Justice,
STANDARDS RELATING TO APPELLATE REVIEW OF SENTENCES, 27-28
(Approved Draft 1968) ; R. Dawson, SENTENCING, ch. 8 (1969) ;
S. Rubin, et al., THE LAW OF CRIMINAL CORRECTION, 116-119
(1963)
5/ See the report of the American Bar Association, STANDARDS
RELATING TO APPELLATE REVIEW OF SENTENCES, as quoted in
W. Gaylin, IN SERVICE OF THEIR COUNTRY, 323-324 (1970).
Many of these critics are judges themselves. See, e.g.,
M. Frankel, CRIMINAL SENTENCES (1973) ; Devitt, How Can We
Effectively Minimize Unjustified Disparity in Federal Criminal
Sentences? in INSTITUTE OF SENTENCING, 42 F.R.D. 175, 218
(1967) ; Levin, Toward a More Enlightened Sentencing Procedure,
45 Neb. L. Rev. 499 (1966) ; Rubin, DISPARITY AND EQUALITY OF
SENTENCE, 40 F.R.D. 55 (1967) ; Wyzanzki, A Trial Judge's
Freedom and Responsibility, 65 Harv. L. Rev. 1281 (1952)
1/ Kenneth Culp Davis, DISCRETIONARY JUSTICE, 133 (1971)
See especially S. 2698 and S. 2699, introduced in the
current session of Congress by Senator Edward M. Kennedy
of Massachusetts. At the time of this writing, these bills
are still pending.
2
9/ Sentencing councils and appellate review of sentencing
have been implemented by a number of jurisdictions.
See generally the ABA STANDARDS (approved drafts) relating
to sentencing alternatives and procedures. See also the
A.L.I. Model Penal Code (1962).
10/ See also Sentencing Selective Service Violators: A
Judicial Wheel of Fortune, Col. J. of Law and Soc. Prob.,
Vol. 5:2, 164 (1969).
11/ Presidential Clemency Board, REPORT TO THE PRESIDENT
(hereinafter referred to as REPORT), 49 (1975).
12/ Id., cited from the ANNUAL REPORT OF THE DIRECTOR OF THE
ADMINISTRATIVE OFFICE OF UNITED STATES COURTS for 1968 and
1974.
13/ The most extreme sentence was given
to a black civil rights worker in Louisiana --- five concurrent
five-year sentences for separate draft violation charges.
By contrast, a Wisconsin defendant recently received a sen-
tence of probation for one day under the FEDERAL YOUTH
CORRECTIONS ACT (under which his conviction record was then
expunged).
14/ These techniques are described infra in the order pre-
sented here.
15/ See infra. See also the Clemency Board REPORT,
ch. 5.
16/ See infra.
17/ See infra.
18/ The Presidential Clemency Board was created on September
16, 1974, by President Gerald R. Ford in Proclamation 4313
and the accompanying Executive Order 11803 of the same date
(reproduced in the Clemency Board REPORT, App. B). The
Clemency Board was originally to have been in existence until
December 31, 1976 (see §9 of the Executive Order), but it was
instead terminated on September 15, 1975. The Board submitted
its REPORT TO THE PRESIDENT on December 15, 1975. Carry-over
administrative tasks were delegated to a newly designated
Clemency Office in the Office of the Pardon Attorney, Department
of Justice. Upon completion of these functions, scheduled for
March 31, 1976, any residual matters are the responsibility of
the Pardon Attorney himself.
3
footnote 18/ continued:
The Chairman of the Clemency Board was Charles E. Goodell,
former United States Senator from New York. The Board had
a total of nine members: Dr. Ralph Adams, James P. Dougovito,
Robert H. Finch, Father Theordore M. Hesburgh, Vernon E. Jordan,
James A. Maye, Aida Casanas O'Connor, and General Lewis W. Walt.
In April, 1975, the Board was expanded by Executive Order to
eighteen members because of the expanded workload. The new
members were Timothy Lee Craig, John A. Everhard, W. Antoinette
Ford, John Roy Kauffmann, Rev. Msgr. Francis J. Lally,
E. Frederick Morrow, Lewis B. Puller, Jr., Harry Riggs, and
Joan Vinson. Robert H. Finch resigned from the Board in June
and was replaced by Robert S. Carter. For biographies of the
Board members, see Id., App. A.
19/ The Clemency Board received approximately 21,500 applica-
tions, of which some 6,000 were found to be ineligible. From
among the 15,468 eligible applications, the Clemency Board made
14,514 case recommendations to the President before it ter-
minated operations on September 15, 1975. The Board took no
action on the remaining 954 cases because of insufficient
information; the carry-over Clemency Office in the Department
of Justice later made case recommendations for those cases
in which the necessary information could be obtained. Id.,
163-165. Clemency Board case recommendations were not final.
Only the President can exercise the constitutional power to
grant pardons, and no Clemency Board case recommendation was
final until approved by him. See Art. II, §2, cl. 1 of the
Federal CONSTITUTION and the discussion in the Clemency Board
REPORT, 11-12. As of March 1, 1976, the President had acted
upon all but about 750 case recommendations -- and, without
exception, he accepted the judgment of the Board.
20/ The Clemency Board had jurisdiction over draft offenders
who had been convicted for one of the following violations of
§12 of the SELECTIVE SERVICE ACT: (1) failure to register for
the draft, or failure to register on time; (2) failure to keep
the local draft board informed of his current address; (3) failure
to report for or submit to preinduction or induction examination;
(4) failure to report for or submit to induction; or (5) failure
to complete alternative service to satisfy the requirements of
a conscientious objector exemption. Draft offenders who were
fugitives still charged with such violations were the jurisdic-
tion of the Department of Justice, which implemented a separate
4
footnote 20/ continued:
part of the President's clemency program. To be eligible,
an applicant must have committed his offense between August
4, 1964, and April 28, 1973, and he must not have been an
alien excluded by law from entering the United States under
U.S.C. 1182 (a) (22).
The Clemency Board also had jurisdiction over military
offenders who received Undesirable, Bad Conduct, or
Dishonorable Discharges as a result of violations of Articles
85 (desertion), (86) AWOL, or 87 (missing movement) of the
Uniform Code of Military Justice (10 U.S.C. 885, 886, and
887). Military offenders who were fugitives still charged
with such violations were the jurisdiction of the Department of
Defense, which implemented a separate part of the President's
clemency program.
Of the 8,700 convicted draft offenders eligible to apply
to the Clemency Board, 1,879 (22%) applied. Of the approxi-
mately 90,000 discharged military offenders eligible to apply
to the Board, 13,589 (15%) applied. Of the 4,522 fugitive
draft offenders eligible for the Department of Justice
clemency program, 706 (16%) applied. Of the 10,115 fugitive
military offenders eligible for the Department of Defense
clemency program, 5,555 (55%) applied. Altogether, 21,729
of the approximately 113,000 eligible persons applied -- for
an overall participation of 19%.
For a further description of eligibility criteria and
application statistics, see Id., 7-9 and 21-22.
21/ The Presidential pardon was the remedy offered convicted
draft offenders who applied to the Clemency Board. For
discharged military offenders, the remedy was a Presidential
pardon and a recharacterization of discharge as a "Clemency
Discharge," a new type of discharge created for the purposes
of this program. For a discussion of the implications of
these remedies (and a description of the remedies offered by
the Department of Justice and Department of Defense clemency
programs), see Id., 15-21.
22/ This alternative service was to be performed in a position
which served the "national health, safety, or interest" and
which did not take a job away from any other qualified individual.
Applicants to the Clemency Board who were assigned to six months
or less of alternative service could fill part-time, volunteer
positions which would not require an interruption of their
regular jobs. The Selective Service System was given the
responsibility of supervising the performance of assigned
periods of alternative service. See Executive Order 11804,
5
footnote 22/ continued:
September 16, 1974, and the Clemency Board REPORT, 17-21. The
performance of alternative service has been uneven so far,
and it appears that perhaps as many as 4,000 of the Clemency
Board applicants will fail to complete alternative service.
23/ Curiously, one point of disagreement between the
Clemency Board and the pro-amnesty community has been over
whether the Board was in fact engaged in "sentencing" of
applicants. The latter always maintained that alternative
service was punitive and that the Clemency Board was meting
out alternative service "sentences." See the Statement made
by Henry Schwarzschild of the ACLU Amnesty Project in the
CLEMENCY PROGRAM PRACTICES AND PROCEDURES, Hearings of the
Subcommittee on Administrative Practice and Procedure,
U.S. Senate Committee on the Judiciary (1975). However, the
Board's position was that it was offering a benefit which could
be accepted or rejected by every applicant. Indeed, every
Clemency Board applicant could refuse to perform alternative
service without legal jeopardy, and no Presidential pardon
could be effective unless accepted by its recipient. This
was not as much a debate over whether the Board was following
or should follow procedures comparable to those of a sentenc-
ing judge, but rather over the merits of the alternative
service aspect of the President's clemency program.
24/ Presidential Proclamation 4313.
25/ Executive Order #11803, $3.
26/ See generally Proclamation 4313 and accompanying
Presidential statement, both dated September 16, 1974.
27/ The 1946-47 Truman Amnesty Board decided cases according
to broad categories, not on a case-by-case basis. Also, it
denied clemency to 90% of its 15,805 applicants. Its Report
is reproduced in full in SELECTIVE SERVICE AND AMNESTY,
Hearings before the Subcommittee on Administrative Practice
and Procedure of the Committee on the Judiciary, United States
Senate, 185-189 (1972).
28/ Clemency Board REPORT, 83ff.
6
29/ Clemency Board case judgments were as follows:
Civilian Cases
Military Cases
#
olo
#
of
Immediate pardon
1432
82%
4620
36%
Alternative service:
3 months
140
8%
2555
20%
4-6 months
91
5%
2941
23%
7+ months
68
4%
1756
14%
No clemency
26
1%
885
7%
(Source: Id., xxiii).
30/ The eighteen-member Board consisted of five lawyers and
thirteen non-lawyers.
31/ The Board included a number of individuals who had
earlier taken strong public positions on these issues. For
example, Father Theodore M. Hesburgh (President of the
University of Notre Dame) had been a long-standing opponent
of the Vietnam war and an advocate of unconditional amnesty;
General Lewis W. Walt (Commandant of Marine forces in Vietnam
during the war) had the opposite point of view. The Board's
Chairman, Charles E. Goodell, had opposed the war as a United
States Senator but was not in favor of unconditional amnesty.
Understandably, the development of consensus Board positions
required substantial time and compromise.
32/ At the time, staff attorney procedures were just as
unstructured as Board procedures. Vague, unsubstantiated, or
irrelevant facts were sometimes included in case summaries.
After the first sixteen cases, the work of staff attorneys
was monitored by a special quality control unit.
33/ first, the Board established eleven mitigating factors
and seven aggravating factors, later expanded to sixteen and
twelve, respectively. See Figure 1, infra, for the final
list of factors.
34/ It should be noted that this "baseline" was neither a
minimum nor a maximum. It was more of a target median, with
the expectation that equal numbers of cases would be decided
on either side of it. As a general rule, an applicant's
baseline calculation was found to be the most important deter-
minant of his case judgment. See Id., 126.
7
35/ The "other factors" were the time spent on probation or
parole, time spent performing alternative service, and the
judge's initial sentence. The baseline formula worked as
follows:
(1) Starting with the maximum baseline of 24 months,
three months were reduced for every month of confinement.
The baseline was further reduced by one month for every
month of court-ordered alternative service, probation, or
parole previously served, provided that the applicant had
not been prematurely terminated because of lack of coopera-
tion.
(2) If this baseline calculation was greater than the
applicant's sentence from a Federal judge or court-martial,
that original sentence became the baseline.
(3) The minimum baseline was three months, without
exception.
(4) Applicants who had been sentenced to probation or
discharged administratively from the Armed Forces were con-
sidered to have sentences of zero months imprisonment. Their
baseline was the three-month minimum. Id., 95-96.
36/ The Clemency Board assigned much less alternative service
than either the Department of Justice or the Department of
Defense clemency programs. Each of the latter had a fixed
baseline of 24 months which was reduced in some cases because
of mitigating circumstances. Most applicants to the Justice
and Defense programs were assigned to 18-24 months of alternative
service. Id., 145-147. The Clemency Board justified its
more lenient decisions as a reflection of "the basic difference
between Clemency Board applicants and those eligible for the
Justice and Defense programs. Clemency Board applicants had
already paid a legal penalty for their offenses; they had
received civilian or military convictions, or less-than-
honorable administrative discharges. Also, a pardon could
never be as beneficial a remedy as complete relief from prose-
cution or administrative punishment." Id., 95.
37/ The only factor ever rejected was a proposal to make
habitual drug use an aggravating factor. At the time, the
Board was applying mitigating factor #3 (mental or physical
problems) to persons with serious drug habits, and it voted
continue that practice.
8
38/ For a list of these factors, see Figure 1, infra.
The standards noted here were not specifically articulated by
the Board, but they were implicit in Board discussions. The
Clemency Board REPORT notes that the factors can also be
categorized as follows: the reason for the offense, the cir-
cumstances surrounding the offense, the individual's overall
record in the military, his overall record in the civilian
community, and circumstances surrounding his application for
clemency. Id., 97ff.
39/ See generally Proclamation 4313 and the accompanying
Presidential statement, both dated September 16, 1974.
40/ See the Clemency Board REPORT, ch. 3-4 for a description
of the applicants and the exact manner in which the Board
applied each mitigating and aggravating factor. The Vietnam
veteran discussion appears at 60-65.
41/ The Clemency Board's experience with this last aggravat-
ing factor reflects the compromise and fragile consensus which
went into the establishment of these rules. Some Board
members considered these offenses to be unrelated to the
clemency mission, urging that they be disregarded altogether.
Other insisted that applicants convicted of felony offenses
be denied clemency automatically, much as the Truman Amnesty
Board had excluded persons with criminal records. Instead,
the Board adopted the middle view, considering felony convic-
tions to be a "highly aggravating factor." Id., xxi.
42/ Proclamation 4313 specifically notes that Clemency
Discharges "shall not bestow entitlement to benefits
=
Despite this, the Clemency Board recommended that the President
personally exercise his authority as Commander-in-Chief of the
Armed Forces by (a) personally directing the discharge upgrades
of the most meritorious applicants, (b) referring other cases
with slightly less merit to the military discharge review
boards for special consideration, and (c) referring
cases involving service-incurred physical disabilities to the
Veterans' Administration for medical benefits only. The
President never specifically acted on these recommendations --
and, given the passage of time, it appears that they have been
"pocket-vetoed."
43/ Clemency Board REPORT, 127
9
44/ Id., 24-26 and 85-94.
45/ Each applicant had a 30-day opportunity to comment on
his case summary. Because of the press of time, cases were
decided before the end of the 30-day comment period. Comments
were rarely received about case summaries; when this happened,
a case was submitted to another Board panel de novo if the
comments or corrections were possibly significant.
46/ 39 FR 41351.
47/ See note
.
48/ Father Hesburgh attributes the Board's leniency directly
to the fact that Board members had to follow a clear set of
rules. "If we had to fight all cases one-by-one, we would
not have been as successful in making clement dispositions."
49/ For a discussion of what kinds of cases were denied
clemency, see Id., 136-138 and 141-143.
50/ For a discussion of what kinds of cases received immediate
pardons, see Id., 134-135 and 139-141.
51/ This increase resulted from the Board's concerted efforts
to educate the public about who was eligible for the clemency
program. Before this public information campaign, most people
thought that the program only included exiles and fugitives --
and not punished offenders. Immediately after this information
campaign was begun, Clemency Board applications showed a sharp
increase. For this reason, the President extended the applica-
tion deadline for two months (from January 31, 1975 to March
31, 1975). The Clemency Board's application rate was still
increasing when the deadline was reached. See Id., 20-23.
52/ The total staff of the Clemency Board grew from 100 to
600 in a period of just a few weeks. For a description of
the "crisis management" aspect of Board operations, see Id.,
ch. 6.
53/ Among the Board members, there was unanimous approval for
the concept of balancing these panels. Very rarely did a
panel result in a sharp two-against-one voting pattern.
According to Father Hesburgh, "there was shared input from
all sides, as we all recognized that we had to compromise
occasionally." Had the panels not been balanced philosophically,
the judgments would have been very uneven.
10
54/ The CLEMENCY LAW REPORTER began as a staff paper illus-
trating how the Board was applying its mitigating and aggra-
vating factors. Later, it served as a guide to Board precedents
and as an internal forum for staff-prepared articles on issues
of professional concern. An index to the REPORTER issues, with
article highlights, is included in the Clemency Board REPORT,
App. D. Appendix D to the REPORT also contains the entire
fifth issue of the CLEMENCY LAW REPORTER, the final statement
of the Board's case precedents. All five issues are available
to the public at the National Archives, Washington, D.C.
55/ As illustrations, the definitions and case examples for
mitigating factor #7 (Vietnam service) and aggravating factor
#4 (AWOL in Vietnam) are shown below. They are extracted
from the fifth issue of the REPORTER, reproduced in the Clemency
Board REPORT, 310-311 and 292.
MITIGATING FACTOR #7: Tours of Service in the War Zone
This factor is applicable in cases where the applicant
has served a minimum of three months in Vietnam or on a Navy
ship that had a sea patrol off the coast of Vietnam. It can
be applied where the applicant had not completed a tour, but
while on authorized leave from Vietnam assumed an unauthorized
absence status. Shorter periods of Vietnam service are not
covered, unless the applicant was injured in Vietnam or trans-
ferred out of the war zone by the military service for reasons
other than serious military or nonmilitary offenses (including
AWOL offenses)
(1) During his initial enlistment, applicant served
as a military policeman and spent 13 months in that
capacity in Korea. He then served two tours of duty
in Vietnam, as an assistant squad leader during the
first tour, and as a squad leader and chief of an
armored car section during the second.
(2) Applicant served in Vietnam for eleven months.
(3) Applicant served in Vietnam with the 101st Airborne
as a light weapons infantryman. His tour lasted four
months and 22 days. He returned to the United States
on emergency leave for five months. Applicant stated
that he went AWOL because he could not face going back
to Vietnam, due to the incompetence of his officers
and the killing of civilians.
11
footnote 55/ continued:
(4) The applicant served for three months in Vietnam
in a combat status. While in Vietnam, he was given
emergency leave back to the United States because of
the death of his mother. Applicant overstayed his
leave and became AWOL. He was apprehended shortly
thereafter.
(5) Applicant saw service in Vietnam for a period of
two months, 13 days. He served as a combat medic.
While in Vietnam, he broke his ankle. He was operated
on and was evacuated for rehabilitation.
(6) Applicant served in Vietnam for nine months as a
mortar specialist and participated in two combat cam-
paigns. He received fragment wounds necessitating
evacuation to Japan and then to the United States.
(7) Applicant was wounded after 3 months in Vietnam,
requiring two operations and prolonged convalesence.
(8) Applicant served aboard the USS Buchanan for seven
months off the coast of Vietnam.
AGGRAVATING FACTOR #4: Desertion During Combat or Leaving
Combat Zone
This factor indicates that an applicant went AWOL from
his unit either during actual enemy attack or before any
reasonably anticipated enemy attack. Going AWOL directly
from Vietnam gives automatic rise to this factor. However,
departing AWOL from R&R outside of Vietnam or home leave
from Vietnam does not constitute this factor though it does
constitute Aggravating Factor #10. An applicant's reasons
for his qualifying offense do not affect the applicability
of this factor.
(1) Applicant was an infantryman in Vietnam when he
went AWOL. He was picked up in a rear area by Military
Police and ordered back to the field by two lieutenants.
He refused to fly out to join his company.
(2) Applicant commenced the first of three AWOLs while
in Vietnam. He flew back to California. His subsequent
AWOLs occurred after his apprehension in the U.S.
12
footnote 55/ continued:
(3) Applicant stated at his trial that he became
extremely frightened in combat. He went AWOL after
he was sent to a rear area for chills and fever.
(4) Applicant bought orders to-return to the U.S.
from Vietnam.
(5) Applicant received an Undesirable Discharge for
unfitness; two of four AWOL offenses occurred while
applicant was in Vietnam.
56/ Usually, these Board-member referrals reflected basic
philosophical differences with the policies of the Board
majority. Half of these cases were referred by one particular
Board member. See Id, 124-125.
57/ STAREDEC, named after the legal concept of stare decisis
cost approximately $75,000 to implement,
staff time included -- or roughly $5.00 per case. For a more
detailed description of STAREDEC, see Id., App. E. The
complete STAREDEC tape is available to the public at the
National Archives, Washington, D.C.
58/ The idea of having a computer review of panel judgments
arose from a recommendation of the Inter-Agency Team to
Survey the Presidential Clemency Board, a team of management
specialists sent by the White House to help plan the expansion
of Board operations. Because the Board was making decisions
so quickly, the Inter-Agency Team suggested that a "post-audit
review" be conducted before case judgments were submitted to
the President. The computer program was based upon prior staff
statistical analyses of Board precedents. With the help of
NASA (which absorbed most of the cost), STAREDEC took only
one month to become fully operational. Id., App. E.
59/ The following example shows how STAREDEC worked. There
were 114 military cases which had the factor combination of
2 and 6 mitigating and 1, 8, 9, and 12 aggravating. Those
cases were decided as follows:
Immediate
3 months
4-6 months
7-9 months
10-24 months
no
Pardon
alt. serv.
alt. serv.
alt. serv.
alt. serv.
clemency
20
24
47
11
2
5
The median Clemency Board judgment was a four-to-six
month alternative service recommendation. The two judgments
of 10-24 months of alternative service and the five "no
clemency" judgments were flagged by STAREDEC as "harsh" cases.
n
13
60/ The worksheet and letter sent to clemency recipients
are included in Id., App. D.
61/ Because of the Selective Service rule that applicants
with six months or less of alternative service could complete
this obligation through part-time work (see note 22, supra),
the Clemency Office frequently reduced appellants' assignments
to six months. Appeal decisions were made with the CLEMENCY
LAW REPORTER as a guide.
62/ The primary purpose of this survey was to learn about
the background characteristics of clemency applicants. It
was based upon a representative sample of 1,009 military
cases and 472 civilian cases. See the Clemency Board REPORT,
App. C. Survey findings are presented in Id., ch. 3 and 5.
63/ These "process" accomplishments do not necessarily trans-
late into substantive achievements. The overall clemency pro-
gram is in fact subject to much criticism on the ground that it
offers little if any tangible benefit to applicants. While
the Presidential pardon has great symbolic value and restores
civil rights lost by reason of the underlying criminal convic-
tion, it does not translate directly into improved economic
circumstances. The Clemency Discharge by definition does not
confer rights to veterans' benefits, and it is uncertain how
it will affect the decisions of military discharge boards and
the Veteran's Administration when they review subsequent
applications for benefits by clemency applicants. Successful
participation in the program requires a sustained interest on
the part of applicants, most of whom are socially, economically,
and educationally disadvantaged. As a consequence, there has
been a high drop-out rate due to undeliverable notices, failure
to report for alternative service, and failure to complete
alternative service.
64/ Id., 126-132.
65/ Id., 133.
66/ The case judgments shown in Figures 2, 3, and 4 represent
only 13% of the Board's civilian cases and 3% of the military
cases. Comparable tables can be made of other factor combina-
tions, based upon STAREDEC's final print-out.
67/ Mitigating factor #1 (inability to understand obligations)
and mitigating factor #2 (personal or family problems). Id.,
290-291.
14
68/ The Board consciously tried to be clement towards appli-
cants with disadvantaged backgrounds, with a number of mitigating
factors (#1, 2, 3, 5, and 8) made directly applicable to them.
Curiously, this resulted in evenhanded treatment -- and not
more favorable treatment, which the Board intended. This
indicates that applicants with disadvantaged backgrounds
probably would have been treated much worse than others had
the Board's intent not been so strong, and had these mitigating
factors not existed.
69/ These statistics are drawn from the comprehensive survey
of Clemency Board applicants. See note
.
For further
data about who received pardons and who was denied clemency,
see Id., 134-145. Only one category of applicants fared badly
because of circumstances which did not reflect upon their
behavior: those for whom the military or Federal court system
had not compiled complete records. These partial records tended
to focus on an applicant's offense and not his background, pro-
viding more evidence about aggravating factors than about miti-
gating factors. This unfortunate inequity marred an otherwise
quite even-handed pattern of judgments.
70/ Id., 173.
71/ Id., 126-132. Board member Timothy Craig "strongly
disagrees" with this observation, but it is demonstrated
clearly by statistics. See Figure 5 and note 68, supra.
72/ Father Hesburgh believes that Board judgments were, 'if
anything, more fair when cases were decided in panels. He
considers full Board judgments to have involved "posture
and charade, with the panels having given more serious
attention to the circumstances of each applicant's case.
73/ The principal flaw in the STAREDEC program was its
inability to develop a precedent pattern for cases which
had unique combinations of mitigating and aggravating factors.
Since they were the only cases with those combinations, they
were also the median cases -- and thus were not flagged. To
compensate for this, the legal analysis staff automatically
reviewed judgments of "no clemency" or more than twelve months
of alternative service. This shortcoming of STAREDEC could
be overcome by applying a regression formula to cases with
unique factor combinations -- or, indeed to all cases.
15
74/ Congressman Thomas Downey of New York recently introduced
H.R. 11097, a bill to alter the Armed Forces discharge review
procedures. This bill would require military discharge review
boards to apply sixteen "mitigating" and fifteen "extenuating"
circumstances when reviewing applications for discharge. The
bill has no provisions for aggravating circumstances, under
the apparent assumption that those boards will consider them
without being required to do so by an Act of Congress. The
experience of the Clemency Board indicates that the inclusion
of aggravating factors is even more important than mitigating
factors for the protection of the individual. Aggravating
factors require the structuring and recording of negative
feelings, preventing irrelevant facts from being applied to
anyone's detriment. Likewise, the Clemency Board's legal
analysis staff found their review of aggravating factors to
be more determinative than the review of mitigating factors.
75/ Draft offenses and military absence offenses can each be
considered single categories, although each encompasses a
range of specific offenses. See note 20, supra.
76/ Clemency Board applicants proved to be much more diverse
than the Board had expected, but they still were far more homo-
geneous than defendants in criminal trials. The applicants
were virtually all between the ages of 21-35, all military
applicants had military backgrounds per se, and virtually no
one had committed a violent act as part of his draft or military
absence offense. See the Clemency Board REPORT, ch. 3.
77/ ,Proclamation 4313.
78/ See generally the A.L.I. MODEL PENAL CODE (1962)
VIETNAM OFFENDER STUDY
CENTER FOR CIVIL RIGHTS
UNIVERSITY OF NOTRE DAME
LAWRENCE M. BASKIR
1826 JEFFERSON PLACE. N.W.
PROJECT DIRECTOR
WASHINGTON, D. C. 20036
WILLIAM A. STRAUSS
(202) 296-1767
DEPUTY DIRECTOR
PADDY TALBOYS SHAKIN
October 18, 1976
ADMINISTRATIVE SECRETARY
RECEIVED OCT 19 1976
Senator Charles E. Goodell
Hydeman, Mason and Goodell
1220 19th Street, N.W.
Washington, D.C. 20036
Dear Senator:
We have enclosed a reprint of our article about the
Clemency Board in the Notre Dame Lawyer.
Our "white paper" will be printed soon, and we'll get
a copy of that to you as soon as it is ready. Thank you
for your comments and maybe this time we'll spell your name
right.
Sincerely,
Laz
Lawrence M. Baskir
Blu
William A. Strauss
encl.
notre
lawyer
volume 51 no. 5
july 1976
REPRINT -
ARTICLES
Controlling Discretion in Sentencing: The
Clemency Board as a Working Model
William A. Strauss
Lawrence M. Baskir
PAGE 919
Published by the Notre Dame Law School
© 1976 by the University of Notre Dame
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materials. Please contact the Gerald R. Ford Presidential Library for access to
these materials.
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"ocrText": "The original documents are located in Box 2, folder \"Controlling Discretion in Sentencing\n(Article in the \"Notre Dame Lawyer\")\" of the Charles E. Goodell Papers at the Gerald R.\nFord Presidential Library.\nCopyright Notice\nThe copyright law of the United States (Title 17, United States Code) governs the making of\nphotocopies or other reproductions of copyrighted material. Charles Goodell donated to the United\nStates of America his copyrights in all of his unpublished writings in National Archives collections.\nWorks prepared by U.S. Government employees as part of their official duties are in the public\ndomain. The copyrights to materials written by other individuals or organizations are presumed to\nremain with them. If you think any of the information displayed in the PDF is subject to a valid\ncopyright claim, please contact the Gerald R. Ford Presidential Library.\nDigitized from Box 2 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library\nVIETNAM OFFENDER STUDY\nCENTER FOR CIVIL RIGHTS\nUNIVERSITY OF NOTRE DAME\nLAWRENCE M. BASKIR\n1826 JEFFERSON PLACE, N.W.\nPROJECT DIRECTOR\nWASHINGTON, D. C. 20036\nWILLIAM A. STRAUSS\n(202) 296-1767\nDEPUTY DIRECTOR\nPADDY TALBOYS SHAKIN\nMarch 10, 1976\nADMINISTRATIVE SECRETARY\nHonorable Charles Goodell\nHydeman, Mason and Goodell\n1225 19th Street, N.W.\nWashington, D.C. 20036\nDear Senator Goodell:\nAmidst my work with Larry on the book about Vietnam-era\noffenders, I am preparing an article about the Clemency Board's\nlegal procedures for the June issue of the Notre Dame Lawyer.\nThe title of the article is \"Controlling Discretion in\nSentencing -- the Presidential Clemency Board as a Working\nModel.\" In it, I (and co-author Mike Remington) will be pre-\nsenting the Board's legal procedures as a model which sentenc-\ning judges may wish to follow. The emphasis will be on how\nthe creation of rules (especially the aggravating and mitigat-\ning factors) and the application of those rules contributed\nto the consistency and fairness of Board decisions.\nI would be very pleased if the article could include\nsome statements attributed to you. I would appreciate your\ncomments on any or all of the following:\n1. The Board's difficulties with its first 16 cases\nin October;\n2. The Board's desire to create rules as a means of\nchanneling its discretion;\n3. How hard (or easy) it was to apply those rules;\n4. Your general impression of the fairness and consis-\ntency of Board decisions; and\n5. Your general views about the applicability of\nClemency Board techniques to sentencing judges.\nHonorable Charles Goodell\nMarch 10, 1976\nPage 2\nIn order to include your comments in the article, I must\nhave them by March 24. You could either send me a letter or\ngive me a statement over the phone (202/296-1767). I appre-\nciate any help you can give, and I hope this article will\nattract some favorable attention to the Board.\nWith best wishes,\nSincerely,\nBue\nWilliam A. Strauss\nCONTROLLING DISCRETION IN SENTENCING:\nTHE CLEMENCY BOARD AS A WORKING MODEL\nby\nWilliam A. Strauss*\nand\nLawrence M. Baskir**\n*\nFaculty Fellow, University of Notre Dame; formerly\nDirector of Planning, Management, and Evaluation at the\nPresidential Clemency Board. J.D., M.P.P., Harvard, 1973.\n** Faculty Fellow, University of Notre Dame; formerly\nGeneral Counsel (staff director) at the Presidential Clemency\nBoard. L.L.B., Harvard, 1962. The authors wish to thank\nMichael A. Remington for his research and editorial assistance\nin preparing this article.\nCONTROLLING DISCRETION IN SENTENCING:\nTHE CLEMENCY BOARD AS A WORKING MODEL\nI. INTRODUCTION\nThe exercise of discretionary judgment is fundamental\nto any system of justice -- but equally fundamental is the\nconsistent treatment of all individuals. To achieve the\nlatter, a reasonable balance is necessary between flexibility\nand strict accountability to rules. Conscious efforts to\nachieve this balance are made throughout almost all of the\nAmerican legal system. However, in at least one area --- the\nsentencing of convicted criminals --- the system is wanting.\nAttorney General Edward Levi has accused the sentencing\nprocess of having \"an accidental quality\" in which imprisoned\n1/\noffenders consider themselves \"losers in a game of chance.\n=\nThis, he concludes, can only harm efforts at rehabilitation:\n\"Not only may it appear to an offender that his\nimprisonment was just bad luck rather than the\ninevitable consequence of wrongdoing, the unfair-\nness bred of inefficiency and unwillingness to\nimpose uniform punishment may make the society\noutside the prison wall seem mean and hostile, a\nsociety that itself does not follow the rules of\nconduct it expects the ex-offender to follow. 2/\nTypically, judges are free to make sentencing decisions\n3/\naccording to their own personal standards.\nAs an inevitable\nresult, \"the sentence a particular defendant gets is often\ndependent in considerable measure on the trial judge he got -- or\n2\n4/\nwho got him.\n\"\nWhat is ironic is that this unstructured sen-\ntencing decision follows a very highly disciplined legal process\nfor establishing guilt. Yet in most criminal cases, the sentence\n/\n-- and not the question of guilt -- is the key issue.\nRecog-\nnizing this problem, critics of sentencing practices have\n6/\ncalled for more structure in the process:\n\"The power of judges to sentence criminal defendants\nis one of the best examples of unstructured discre-\ntionary power that can and should be structured. The\ndegree of disparity from one judge to another is\nwidely regarded as a disgrace to the legal system.\nAll the elements of structuring are needed -- open\nplans, policy statements and rules, findings and\nreasons, and open precedents.\nOne manifestation of the reaction to the undisciplined\ndiscretion of sentencing judges is the effort to impose man-\n/\ndatory minimum sentences --- and even mandatory sentences.\nThis achieves structure, but at the price of all discretion.\nIt equates consistency with severity. Better solutions must\nbe found. Unfortunately, working models have been slow to\nemerge from American courts and legislatures.\nThe Presidential Clemency Board recently developed such\na working model, inspired in part by the Board's reaction to\nthe uneven treatment of convicted draft offenders by Federal\n10/\njudges.\nIn its final report, the Clemency Board noted that\nsentences for draft offenses were \"inconsistent and widely\nvarying, dependent to a great extent upon year of conviction,\n11/\ngeography, race, and religion. \" From 1968 to 1974, the\n3\npercentage of draft offenders sentenced to prison declined from\n12/\n74% to 22%.\nSome judges never sent a draft offender to\nprison, while others always imposed the five-year statutory\n13/\nmaximum.\nBlacks, Jehovah's Witnesses, and others outside\nthe middle-class mainstream were treated more harshly for\ncrimes that were no worse than those of other draft offenders.\nHaving seen the consequences of uncontrolled discretion,\nthe Clemency Board decided that it had to impose a measure\nof discipline upon itself. According to Father Theodore M.\nHesburgh, a member of the Clemency Board, \"The Board was\nwilling to do anything it could to get away from the vast\nswing of the draft sentences.\" As a result, rules were developed\n--- and made binding. Board members often became restless under\nthese rules. They were torn between the competing demands\nof consistency and flexibility, sometimes complaining that\nstrict adherence to rules interfered with the reaching of\nfair judgments in individual cases. What emerged was a\nbalance between the mechanical application of rules and the\nsubjective exercise of discretion.\nAs it disciplined its exercise of discretion, the Clemency\nBoard implemented a number of techniques which should be\n14/\napplicable to sentencing judges.\nFirst, the Board developed\nand published a clear set of substantive rules to serve as\ncriteria for case judgments, and it followed procedures which\n4\nensured that these rules were explicitly applied in each case.\nSecond, it identified past precedents and employed them as a\nbasis for deciding subsequent cases. Third, it implemented\na system of internal appellate review through which inconsis-\ntent judgments could be identified and reconsidered. Fourth,\nit created a record which enables its decision-making performance\nto be evaluated.\nTaken together, these efforts resulted in a startling ---\nand measurable -- degree of consistency and fairness in case\njudgments. Statistics show that the Board did in fact follow\n15/\nits designated rules.\nAs a consequence, the Board achieved\none of its major goals -- that of treating persons with\n16/\ndisadvantaged backgrounds in an evenhanded manner.\nWhat\nmay be even more significant is that once the Board began\ncontrolling its discretion, case judgments became less severe,\n17/\nnot more so.\n5\nII. THE CLEMENCY BOARD EXPERIENCE\nA. A Bad Experience with Uncontrolled Discretion\nThe Presidential Clemency Board was charged with the\nresponsibility of making clemency recommendations for some\n19/\n15,000 applicants to President Ford's program for Vietnam-\n20/\nera draft and military offenders.\nThe Board had to decide\nwhether each individual should be granted a Presidential\n21/\npardon\n-- and, if so, how much alternative service he had\n22/\nto perform to earn it.\nAlthough the Board was bestowing\nbenefits rather than imposing punishment, it had a decision-\n23/\nmaking function comparable to that of a sentencing judge.\nA judge's decisions range from minimal probation to the maxi-\nmum period of imprisonment allowed by law. The Clemency Board's\njudgments ranged from immediate pardons to the maximum 24-month\n24/\nperiod of alternative service set by the President\n--- with\nthe most severe judgment being the denial of clemency in any\n25/\nform.\nPresident Ford directed the Board to review every\napplication on a case-by-case basis to achieve equity among\napplicants and to build public confidence in the clemency\n26/\nprogram.\nAside from the limited and unpersuasive precedent\n27/\nof the Truman Amnesty Board, the Clemency Board had no prior\nexperience to guide it in recommending executive clemency\non a case-by-case basis. However, the Board had to determine\n6\nthe substantive standards and procedures to be followed in\n28/\nacting upon these cases.\nThe Board very quickly recognized\nthe importance of making fair and consistent decisions which\nwould be accepted as such by the clemency applicants and the\n29/\ngeneral public.\nWith little guidance from the President, no help from\n30\n/\nany precedents, and a predominantly lay membership, the\nClemency Board was faced with the problem of determining how\nto proceed. At its very first meeting, the Board agreed that\nit would identify and publish a list of factors to help it\nreview cases.\nThe Board's original intent was to have these factors\nserve as informal guidelines for case judgments, reserving\nthe right to identify and apply other criteria freely. The\nBoard honed this tentative list into what it called \"mitigat-\ning\" and \"aggravating\" factors, using them to review its first\nsixteen cases. As nothing more than guidelines, the factors con-\ntributed little to the Board's decisionmaking process. Sharp\ndisagreements arose among Board members about the purpose of\n31/\nthe clemency program, resulting in some near-resignations.\n\"Everybody was going in different directions in these cases, \"\nnotes Father Hesburgh. \"Some Board members wanted to give\neveryone the maximum, and some always wanted to give the\nminimum.\"\n7\nIn these first sixteen cases, virtually identical cases\nwere decided differently. For example, two draft offenders\nhad each committed the same crime under almost identical\ncircumstances; the one who was white, religious and from a\nwell-to-do family was recommended for an immediate pardon --\nbut the black immigrant from the West Indies was denied\nclemency apparently because of an off-hand comment in his\nrecord that he was \"clever.\" In these and the other fourteen\ncases, analysis later proved that Board decisions were based\non aspects of the case which had no relationship to any of its\nmitigating and aggravating factors. A juvenile arrest record\nfor possession of beer, involvement in an alternative-lifestyle\ncommune, participation in a \"rock\" band, and even jaywalking\nconvictions were the apparent but unspoken bases for judgments\n32/\nby the Board.\nThese inconsistent case judgments and the application of\nirrelevant standards were a result of the ad hoc process the\nBoard used in reaching decisions. Each member focused on\naspects of the case he or she thought most important. Often,\nmembers did not articulate the real basis for their decisions.\nNo attempt was made to reach a collective agreement in each\ncase on the presence or absence of the criteria the Board had\npreviously designated as relevant. Consequently, there was\nno way to prevent any member from applying his or her personal,\nand often unconscious standards -- or even to know what those\nstandards might be.\n8\nBoard members seemed reasonably satisfied with their\ndecisions in each case, but the overall results were disturbing.\nIf there was any pattern at all in this first collection of\ndecisions, the Board seemed to be favoring applicants with\nmiddle-class backgrounds, with a demonstrated respect for\nauthority, and with a conventional lifestyle. In fact, a\nstatistical analysis of those sixteen cases showed that\n\"conventionality of lifestyle\" was a more significant pre-\ndictor of Board judgments than any of the officially designated\naggravating and mitigating factors. In effect, the Board had\ndiscarded its agreed-upon list of substantive rules, and was\nproceeding on the more comfortable basis of \"gut-level\"\njustice.\nThe bad experience with these sixteen cases proved a\nblessing. Once the Board was alert to what it was\ndoing, it imposed much tougher standards of consistency on\nitself and on the staff attorneys who prepared cases. In\ndoing so, the Board reluctantly acknowledged the need to\ncontrol its exercise of discretion through adherence to\nmore rigorous procedures.\n9\nB. Developing Rules\nRight after the Board's assessment of its first sixteen\ncase decisions, it met in executive session to transform its\ntentative guidelines into binding rules. The Board clarified\nthe alternative service \"baseline\" formula and the mitigating\nand aggravating factors which would be used as the explicit\n33/\nbases for all case judgments. Only when mitigating factors\noutweighed aggravating factors could the alternative service\nassignment be reduced below the baseline. Conversely, the\nalternative service assignment could be increased above the\nbaseline -- or clemency might be denied altogether -- only\nwhen aggravating factors outweighed mitigating factors.\nThe Board went up or down from its baseline in three- or six-\nmonth increments according to subjective measures of the\nrelative strength of the factors. With minor modifications,\nthis became the structure for the exercise of Board discretion\nand the making of consistent case judgments.\nThe alternative service \"baseline\" was a fixed formula\nused as a starting point for determining the amount of alter-\n34/\n34/\nnative service\nIt was a jerry-built mathematical\ncalculation which took account of an applicant's initial\n35/\nsentence, his time in jail, and other factors. One theory\nbehind the formula was that the Board should, without discretion,\ngive credit for court-imposed penalties paid by each applicant.\n10\nEqually fundamental to the formula was the Board's belief\nthat only nominal amounts of alternative service should be\nassigned to most applicants. The formula resulted in initial\nbaselines of 3-6 months for 99% of the applicants -- well\n36/\nbelow the 24-month maximum set by the President.\nWith applicants having virtually identical baselines, the\nmitigating and aggravating factors accounted for almost all\nof the differences in Board judgments. The sixteen mitigating\nfactors and twelve aggravating factors represented a composite\nof the concerns of Board members with different philosophies.\nSome argued strongly for mitigating factors which would take\naccount of conscientious opposition to the Vietnam War and\ndisadvantaged socio-economic backgrounds. Others were pri-\nmarily concerned about applicants' criminal records and\nexperience as soldiers. Although majority approval was required,\nthe Board usually designated as a factor anything which any\nBoard member felt strongly about. Only once did the Board\n37/\never vote against a proposal to establish a new factor.\nBoard members had three standards in mind as they\n38/\ndeveloped the list of mitigating and aggravating factors:\n(1) Had an applicant demonstrated that he had already\nearned a grant of clemency?\n11\n(2) Was his background such as to qualify him for\nclemency?\n(3) Could the Clemency program help him in any par-\nticular way?\nThe notion of \"earning\" clemency was central to the\nphilosophy behind the President's program -- earned re-entry\n39\ninto the mainstream of American society. This was based on\nthe view that some measure of justice had to be struck between\nclemency applicants and those who had satisfactorily discharged\ntheir obligation of national service. Also underlying this\nnotion of \"earning\" clemency was a theory of general deterrence.\nThe clemency program had to demonstrate to future generations\nof soldiers and draft-eligible persons that those who unlaw-\nfully evaded service would not receive clemency unless they\nearned it. This was consistent with the President's -- and\nthe Board majority's -- view that most clemency applicants\nstill owed a debt of service to their country.\n/\nFor some, this debt had already been partially or com-\npletely satisfied. A surprising percentage (27%) of Clemency\nBoard military applicants were Vietnam veterans, many with\n40/\ncombat wounds or decorations.\nEven those who never went to\nVietnam often had performed long periods of meritorious military\n12\nservice before committing their offenses. Many convicted\ndraft offenders had performed substantial periods of court-\nordered alternative service. These and other related cir-\ncumstances were designated as \"mitigating.\" Considered\n\"aggravating\" were indications of an applicant's failure to\nserve when called upon -- for example, by deserting in a\nwar zone, failing to report to Vietnam when ordered, or fail-\ning to complete court-ordered alternative service.\nThe worthiness of an individual's application for\nclemency was far more subjective. The majority view, by\nno means unanimous, was that the conscientious war resister was\nthe clemency applicant for whom the program was especially intended.\nAs the Board began to hear military cases, it discovered that\nmilitary applicants seldon went AWOL because of expressed oppo-\nsition to the war. The more common reasons were personal or\nfamily problems, procedural unfairness on the part of the\nmilitary, or a lack of sufficient intelligence or language\nskills to cope well with military life. The Board believed\nthat all of these reasons could be sympathetic enough to make\nan individual worthy of clemency. Conversely, individuals whom\nthe Board thought the President did not have in mind were\ndistinguished on the basis of certain aggravating factors --\nlong or repeated AWOL offenses, the use of force in committing\nthe qualifying offense, and a record of non-draft-related\n41/\nfelony convications.\n13\nThe final notion ---- that of helping or rehabilitating a\nperson through a grant of clemency -- had more limited appli-\ncation. Some applicants had service-incurred disabilities,\nothers had serious mental or physical problems, and many\nmore had unresolved personal problems. For some, alternative\nservice was seen as a means of self-help; for others, with\nserious personal or family problems, it would have been\na heavy and meaningless burden. Certain categories\nof military applicants were recommended by the Board for\nveteran's benefits, especially medical benefits, which\nwould help them readjust to civilian life after difficult\n42/\ntours in Vietnam.\nSome mitigating factors were created to\naccount for these rehabilitative needs, and others were\nmarked \"strong\" in true hardship cases. The only way an\napplicant's lack of rehabilitative potential was translated\ninto an aggravating factor was if he had a criminal record\nfor a very serious felony offense -- especially if he was\ncurrently facing a long period of incarceration. For these\nindividuals, the clemency program could be of little help.\nThe full list of mitigating and aggravating factors is\n4 3/\npresented in Figure 1, with notation of how frequently\neach was applied in civilian and military cases.\n14\nFigure 1: FREQUENCY OF AGGRAVATING AND MITIGATING FACTORS (Percent)\nCivilian\nMilitary\nAgg 1\nOther adult convictions\n49\n53%\nAgg 2\nFalse statement to the Board\n0\n0\nAgg 3\nUse of physical force in offense\n0\n0\nAgg 4\nAWOL in Vietnam\n0\n2\nAgg 5\nSelfish motivation for offense\n15\n31\nAgg 6\nFailure to do alternative service\n4\n0\nAgg 7\nViolation of probation or parole\n5\n7\nAgg 8\nMultiple AWOL offenses\n1*\n36\nAgg 9\nExtended AWOL offenses\n0\n72\nAgg 10\nMissed overseas movement\n0\n7\nAgg 11\nUnfitness discharge with other offenses\n0\n5\nAgg 12\nApprehension by authorities\n8\n37\nNo Aggravating Factors\n72\n1\nMit 1\nInability to understand\n3\n32\nMit 2\nPersonal or family problems\n9\n45\nMental or physical condition\n9\nMit 3\n19\nPublic service employment\n57\nMit 4\n2\nMit 5\nService-connected disability\n0\n2\nExtended military service\n2\n35\nMit 6\nVietnam service\n1*\n26\nMit 7\nMit 8\nProcedural unfairness\n6\n14\nMit 9\nQuestionable denial of CO status\n8\n0\n72\nMit 10\nConscientious motivation for offense\n3\nVoluntary submission to authorities\n59\nMit 11\n37\nMit 12\nMental stress from combat\n0\n5\n0\nMit 13\nCombat volunteer\n9\n1*\nAbove average military performance\n39\nMit 14\nMit 15\nDecorations for valor\n0\n2\n0\n4\nMit 16\nWounds in combat\n5\n2\nNo Mitigating Factors\n* A small number of civilian applicants entered military service after\ntheir draft offenses.\n15\nTo structure the application of these rules, the Board\nimplemented standard procedures by which all cases were pro-\n44/\ncessed.\nBased upon official records, a completed application\nform, and communication with the applicant, a staff attorney\n45/\nprepared a summary for each case. After an internal review,\nthe case summary was submitted to Board members for study.\nDuring Board meetings, staff attorneys and their immediate\nsupervisors were present to answer Board member questions or\nread statements submitted by applicants.\nThe Clemency Board's baseline formula, mitigating and\naggravating factors, and general case procedures were published\nin the Federal Register on November 27, 1974, approximately\none month after the Board had reassessed its first sixteen\n46/\ncases.\nThe primary purpose of publication was to make the\nrulesbinding on the Board. Another purpose was to enable\npotential applicants to understand the basis by which the\nBoard would make judgments in their cases. Board regulations\nand application materials encouraged applicants to submit\ninformation establishing the presence of mitigating factors\nor the absence of aggravating factors. Unfortunately, appli-\n47/\ncants were not well counseled.\nFew had lawyers, and not\nmany of the rest understood the importance of submitting\n16\ninformation bearing on the factors. Thus, the Clemency\nBoard's rules were much more effective as a means of con-\ntrolling its own discretion than as a means of helping\napplicants to improve their chancès, before the Board.\nC. The Use of Precedents\nThe establishment of clearly defined rules produced a\nmarked and immediate improvement in decisions. All of the\nfirst sixteen cases were reconsidered, with the results much\nmore consistent and justifiable than before. The black immi-\ngrant from the West Indies received an immediate pardon, like\nhis white counterpart. By the time the Board published its\nregulations in late November, it had made 45 case recommenda-\ntions to the President. The pattern of judgments in the Board's\nsubsequent 14,500 cases generally matched the pattern of these\n47/\nfirst cases.\nWhen the first 45 decisions were announced by the President,\neach was accompanied by a condensed case description, which\nattempted to summarize the elements of the case upon which the\nresult was based. This was an effort to establish open written\nprecedents for the guidance of the Board and future applicants.\nUnfortunately, this experiment failed. First, it proved too\ndifficult to reconstruct accurately the reasons for each collec-\ntive Board decision. Second, the Board refused to recognize\nthe public case descriptions as open and binding precedents.\n17\nOne applicants' attorney requested a recommendation of an imme-\ndiate pardon by citing analogous case descriptions and results,\nbut the predominantly lay Board felt that a process of deciding\ncases by arguing from precedents was-,too \"legalistic\" and\nwould infringe upon its legitimate exercise of discretion.\nSpecifically bound only by its published regulations in\nthis early period, the Board in effect developed its own\nunwritten \"common law\" of policy precedents --- even though most\nBoard members, not being lawyers, failed to recognize this.\nThese precedents were applied informally but effectively by the\nBoard. At the time, simply having binding mitigating and\naggravating factors was enough to achieve consistency. Later,\nthis would not be so.\nNot only were cases decided more consistently as a result\nof having rules -- they ware also decided more leniently. The\nBoard's original judgments on the first 16 cases included only\ntwo immediate pardons, four denials of clemency, and an average\nof 16 months alternative service for the rest. After reconsidera-\ntion, these very same cases included eight immediate pardons,\nno denials of clemency, and an average of only six months alter-\nnative service for the rest. In part, this greater leniency\nresulted from an emerging Board consensus that the Clemency\nBoard should be clement in deed as well as in name. Also ---\nand more significantly -- this leniency was attributable to\n18\nthe Board's greater confidence in the accuracy with which it\n48/\ncould distinguish among applicants.\nIn the end, the Board\n49/\ndenied clemency to seven percent of its applicants, but\nby selecting out those cases according to clear rules and\nprecedents, it became more generous with all other applicants.\n50/\nOver time, four out of five received immediate pardons or\nalternative service assignments of six months or less.\nDuring its first few months, the nine-member Board took\nabout 20 minutes on each case to calculate a baseline, identify\nmitigating and aggravating factors, and reach a judgment. At\nthe time, the Board's projected caseload was about 1,000 cases,\na disappointing but manageable size. Soon, the caseload drama-\n51/\ntically increased to 15,000, cases, and the President set a\nsix-month deadline for completing all Board operations. These\nnew developments forced radical changes in Board operations,\nrequiring new techniques to guide and monitor Board decisions.\nIt was no longer sufficient merely to apply the substantive\nrules carefully and methodically.\nBecause of the expanded caseload, the Board was doubled\nin size to eighteen members, and the staff expanded ten-fold.\nThis had two important consequences for the way in which cases\nwere decided. First, the Board began hearing cases in three-\nmember panels rather than en banc, thus creating new possibilities\nfor inconsistency of results. Second, the presence of 400\nstaff attorneys transformed the Clemency Board into a large and\ncomplex organization in which procedures could no longer be\n52/\ninformal.\n19\nBy having three-member panels, it was thought that Board\nrules could be applied just as consistently as the nine-member\nBoard had been doing. The idea of having single-member\njudgments was rejected as too vulnerable to misapplication\nof rules and wayward judgments. The Chairman tried to\nbalance the composition of each panel, wherever possible\nassigning one conservative, one moderate, and one liberal to\n53/\neach.\nLikewise, panels were reconstituted weekly to\nprevent any particular panel from drifting away from estab-\nlished rules.\nBecause of the very large caseload, panels could only\nspend an average of four minutes on every case. Each\nmember reviewed the cases before panel meetings, and reached\ntentative personal conclusions about what the judgments\nshould be. During the meetings, a consensus was reached\nwithin a few minutes on all but the most difficult cases.\nThis process put a heavy burden not only on Board members\nbut also on the staff attorneys preparing cases. In addition\nto preparing a factual summary for each case, attorneys were\nthen asked to calculate the baseline and recommend which\nmitigating and aggravating factors might be applied by the\nBoard. Staff attorneys spent, on average, four to six hours\npreparing each case and obviously had more occasion than the\n20\nhard-pressed Board members to understand all aspects of a\ncase. Even so, the Board unanimously rejected a proposal\nto have staff attorneys recommend final case judgments\nbased upon Board precedent; this was considered too much of\nan infringement upon Board discretion.\nThese shifts in Board and staff procedures were fine in\ntheory, but very difficult to implement in practice. Two\nhandicaps had to be overcome. First, half of the Board\nand nine-tenths of the attorneys were new to the process and\ncould not be expected to understand immediately the unwritten\nnuances of the mitigating and aggravating factors. Second,\nwith panels spending only four minutes per case, there was a\nclear danger of hasty decisions and the arbitrary exercise of\ndiscretion.\nThese handicaps were partly overcome through the codifi-\n54/\ncation of Board precedents in the Clemency Law Reporter.\nThe Reporter's five issues comprised an updated \"hornbook\"\nof Clemency Board practice policies. Each factor was defined\nin explicit terms -- often after Board debate -- and each\ndefinition was accompanied by factual condensations or \"squibs\"\n55/\nof cases in which that factor had been applied by the Board.\nThe \"squibs\" were reviewed by the Chairman before publication,\nand he deleted those which he felt were improper or misleading\napplications of Board policy. In this way, the Reporter became\n21\na means by which the Chairman sought to control the exercise\nof discretion by Board panels. He intended it to be a\nnormative set of precedents to which Board panels were bound,\nat least in theory.\nStaff attorneys were instructed to follow the Reporter\nin making preliminary designations of mitigating and aggra-\nvating factors in each case as a guide for Board members.\nTheir designations were carefully monitored, again with the\nReporter as a guide. Finally, staff supervisors were present\nat all Board panel sessions and were instructed to use the\nReporter to advise Board members of an incorrect application\nof factors.\nThese staff procedures worked reasonably well, but the\nBoard members were unable or unwilling to use the Reporter\nthemselves. Board members still based their final designations\nof mitigating and aggravating factors on their own personal\nrecollections of Board rules. A few rejected the advice\nof staff supervisors about how factors should be applied,\ninsisting that Board members could properly exercise their\ndiscretion without being bound by precedents. Despite this\nresistance to formal precedents, panels rarely wandered far\nfrom what precedent dictated. When they did, this became a\nbasis for the staff-attorney initiated appellate review pro-\ncedures discussed below.\n22\nD. Internal Appellate Review\nStanding alone, the Clemency Law Reporter was not enough\nto ensure the consistency of case judgments. At best, it\nonly indicated whether factors were being applied correctly.\nIt did not offer any guidance to the Board in translating\nthose factors into a final judgment.\nConsequently, some purely procedural steps were used to\nstructure the exercise of this discretion. As a standard\npractice, Board panels waited to discuss a final judgment\nuntil after all applicable factors had been agreed upon and\ndesignated for the record. This tended to focus Board members\non the designated factors and away from extraneous issues.\nStill, cases with identical baselines and factors were\noften decided differently -- sometimes by accident and sometimes\nby design. To check Board panels' exercise of discretion in\nmaking final judgments, an internal system of appellate review was\nimplemented. The basic rule of this appellate system was that\nany Board member could refer any panel judgment to the full\nBoard for reconsideration. Dissenting panel members referred\nabout three percent of all cases for reconsideration, usually\n56/\nto no effect. More significantly, this rule permitted the\nChairman to refer divergent cases identified by other review\nprocedures which the Board employed.\n23\nStaff attorneys were directed to flag cases they believed\nto be decided inconsistently with Board precedents. These\ncases then went through a carefully monitored system of\ninternal review, in which they were reviewed first by a\nspecially-trained team and then by the Chairman. Through\n400\nthis procedure, approximately 100 cases were flagged by staff\n200\nattorneys and about 25 were ultimately reconsidered by the\nfull Board.\nHowever, the most important and unusual aspect of this\n57/\nappellate system was STAREDEC, a computer review.\nA gift\n58/\nfrom the National Aeronautics and Space Administration,\nSTAREDEC was programmed to analyze the Clemency Board's\nprecedents and identify patterns in the rendering of final\njudgments. STAREDEC evolved from early manual efforts to trace\nthe impact of mitigating and aggravating factors on case judg-\nments. Through these ad hoc procedures, errant cases were\nidentified for possible reconsideration by the full Board\nbefore final recommendations were sent to the President. Once\nthe Board's caseload expanded, however, this could only be\ndone by computer. With only about one month of planning and\npreparation, STAREDEC became the foundation of a systematic\nreview of all case judgments before their submission to the\nPresident.\n24\nSTAREDEC became operational through the recording of\nevery case judgment on a computer-input sheet, along with\nthe Board's designation of mitigating and aggravating factors.\nNot only did this create accurate and retrievable case records,\nbut it also provided a means by which case judgments could be\ncomparatively analyzed. After separating civilian and military\ncases, STAREDEC sorted them according to their respective com-\nbinations of mitigating and aggravating factors. For each\nfactor combination, STAREDEC identified all prior case judgments\nby the Board. Again for each combination, STAREDEC\nidentified the median case judgment and the cases with the\nmost extreme (\"harsh\" or \"lenient\") judgments. In flagging\nthese extreme cases, STAREDEC had two criteria: (1) the judg-\nment had to be among the ten percent most deviant cases for\nthat factor combination, and (2) the judgment had to be at\nleast six months away from the median for that factor combina-\n59/\ntion.\nOnce STAREDEC flagged a case, the staff appellate review\nteam studied the case summary to determine whether there\nappeared to be a reasonable justification for the Board's\njudgment. Obviously, the facts supporting a factor could\nmake that factor apply more strongly in one case than in\nanother. In effect, what the legal analysis staff did was\nto ascertain whether each case judgment was within a fair\nexercise of Board discretion. In most of the reviewed cases,\nthere was such a justification.\n25\nThrough STAREDEC, approximately 200 cases were referred\nto the Chairman for possible reconsideration. The Chairman\nthen referred some 75 cases to the full Board for reconsidera-\ntion. The Board reconsidered the STAREDEC-flagged cases en banc\n(as it did the attorney-flagged cases) with full knowledge of\nthe Board panels' earlier judgments. In almost every instance,\nthe full Board overruled the earlier panel decisions.\nSome of the cases flagged by STAREDEC and staff attorneys\nrepresented flagrant errors. Two cases had been denied clemency\ndespite the absence of any aggravating factors. Other cases\nhad been treated harshly because staff attorneys had improperly\npresented irrelevant and prejudicial facts, such as arrest\nrecords. Still other cases had simply landed on the docket\nof a Board panel in an unusually harsh mood. Without the\nappellate review, these cases would have been routinely sent\nto the President as originally decided by the panels.\nAnother stage of appellate review took place after the\nPresident approved the Board's case recommendations. To inform\neach applicant about the decision in his case, the Board sent\nhim a worksheet identifying the specific mitigating and aggra-\nvating factors which the Board identified in his case. The\npurpose was to give him an understanding of the reasons under-\nlying the Board's judgment. An accompanying letter informed\n60\nhim of his right to appeal that judgment.\n26\nRoughly 275 applicants did appeal, and their cases were\nthen reviewed by the carry-over Clemency Office at the Department\nof Justice. The Clemency Board had disbanded by the time the\nappeals were reviewed, so there was no direct Board input\ninto those latter decisions. In general, the Clemency Office\napplied Board precedents in acting uppn these appeals. An\nestimated 15% of these appeals were successful, resulting\nin more favorable case recommendations being sent to the\n61,\nPresident.\nE. Evaluating Performance\nThroughout the Clemency Board's year of operations, there\nwas a constant staff effort to provide the Board -- and\nespecially its Chairman -- with feedback about decision-making\npatterns. For most of the year, the feedback was mostly sub-\njective, bolstered only by administrative tallies which told\nlittle about the quality of case judgments. Once work was\nunderway on the Board's final report, however, some provoca-\ntive, objective data was developed -- principally through\n62/\na survey of some 1,500 cases and the final output of\nSTAREDEC. Although this information was collected too late to\nbe useful as feedback, it did help the Board fulfill its strong\ncommitment to be accountable to the public for the consistency\nand fairness of case judgments.\n27\nWhat the data show is significant, but so too is the\nfact that it exists at all. Had it not been for two circumstances\n-- the Chairman's eagerness for feedback and the Board's applica-\ntion of clear, measurable factors in' its decisions -- an evalua-\ntion of the Board's performance would have been subjective and\nimpressionistic only. As it is, the data tell a story of a\ndecision-making process which, despite some weaknesses,\n63/\naccomplished much.\n1. Process Accomplishments\nConsidering the Clemency Board's tumultous and erratic\nbeginnings, the record shows a surprising pattern of consistent\ndecision-making. This consistency took a number of forms:\n(1) applying mitigating and aggravating factors decisively\nin case judgments; (2) judging similar cases similarly, and\ndifferent cases differently; (3) treating applicants from\ndisadvantaged backgrounds evenhandedly; and (4) making con-\nsistent case judgments over time.\nThe actual application of mitigating and aggravating factors\nin Board decisionmaking was always a matter of concern. The\nBoard clearly did not apply its factor \"guidelines\" in its\nfirst sixteen tentative judgments; once those factors became\n\"rules,\" the picture changed. STAREDEC confirmed the Board\nmembers' subjective sense that a number of mitigating and\naggravating factors were very important -- indeed, decisive\n-- in judging cases. STAREDEC analysis showed that twelve\nof the sixteen mitigating factors and seven of the twelve\n28\naggravating factors had either a \"very strong\" or \"strong\"\n64/\nrelationship to case decisions.\nThe factors most closely\nrelated to Board decisions were too whose importance was\noften reaffirmed by Board members: mitigating factor #10\n(conscientious reasons for the offense) and aggravating\nfactor #1 (other adult convictions).\nCases with similar factors can be considered similar\ncases, albeit imperfectly. If the Board were applying its\nrules correctly, one would generally expect to see cases with\nidentical mitigating and aggravating factors getting comparable\njudgments --- and cases with different factors getting different\njudgments. Figures 2, 3, and 4 illustrate the Board's\n65/\napplication of its factors in making case judgments.\nThese tables show what happened to cases with selected factor\ncombinations. Although they encompass only a fraction of all\n66/\nClemency Board cases, they illustrate the general pattern\nof Board decision-making. Fully 97% of the civilian cases and\n84% of the military cases received judgments within three\nmonths of the median for their factor combinations. Moreover,\nBoard decisions became progressively more severe as mitigating\nfactors were subtracted or aggravating factors added. These\ntables show an occasional stray case, but all of these were\nflagged by STAREDEC and reviewed for possible resubmission to\nthe Board.\nn\n29\nFigure 2:\nIMPACT OF SELECTED AGGRAVATING AND MITIGATING\nFACTORS ON CIVILIAN CASE DISPOSITIONS\n# of\nAgg #\nMit #\nCases\nPardons\n3 AS\n4-6 AS\n7+ AS\nNC\n-\n4,9,10\n14\n14\n-\n-\n-\nI\n-\n4,10\n144\n139\n4\n1\n-\n-\n-\n10\n74\n69\n3\n2\n-\n-\n-\n-\n25\n16\n5\n1\n3\n-\n4\n-\n20\n1\n9\n8\n1\n1\n1,5\n-\n4\n1\n-\n-\n1\n2\n1,5,7\n2\n-\n-\n-\n-\n-\n2\nFigure 3:\nIMPACT OF SELECTED AGGRAVATING FACTORS\nON MILITARY CASE DISPOSITIONS\n# of\nAgg #\nMit #\nCases\nPardons\n3 AS\n4-6 AS\n7+ AS\nNC\n-\n6\n2\n-\n1\n1\n-\n-\n8\n6\n11\n-\n5\n5\n1\n-\n5,8\n6\n17\n1\n2\n7\n7\n-\n1,5,8\n6\n34\n2\n2\n14\n6\n10\n1,5,8,9\n6\n38\n-\n2\n9\n16\n11\n1,5,8,9,11\n6\n3\n-\n-\n-\n1\n2\nFigure 4:\nIMPACT OF SELECTED MITIGATING FACTORS\nON MILITARY CASE DISPOSITIONS\n# of\nAgg #\nMit #\nCases\nPardons\n3 AS\n4-6 AS\n7+ AS\nNC\n1,8,9,12\n1,2,6,7,14\n11\n11\n-\n-\n-\n-\n1,8,9,12\n2,6,7,14\n28\n23\n3\n1\n-\n1\n1,8,9,12\n2,6,14\n79\n34\n21\n18\n3\n3\n1,8,9,12\n2,6\n114\n20\n29\n47\n13\n5\n1,8,9,12\n2\n50\n2\n3\n13\n26\n6\n1,8,9,12\n-\n7\n-\n-\n1\n1\n5\nThe Clemency Board was very conscious of the need to\napply its rules fairly to persons with disadvantaged backgrounds.\nIn fact, the first two mitigating factors were intended to give\n4\n30\ncredit to those whose offense had resulted from severe educa-\n67,\ntional handicaps or personal problems.\nDisadvantaged persons\ndid not fare better than others in Board judgments, but they\n68/\ndid receive equal treatment.\nFigure 5 shows that the Board\njudgments neither favored nor disfavored blacks, whites, low\nIQs, high IQs, high school dropouts, college graduates, low\n69\nincomes, or high incomes.\nFigure 5: CLEMENCY BOARD TREATMENT OF DIFFERENT CATEGORIES\nOF APPLICANTS\nCivilian Cases\nMilitary Cases\n% Pardon\n%No Clemency\n% Pardon\n%No Clemency\nBlack\n75\n5\n47\n14\nWhite\n76\n1\n39\n7\nLow IQ (or AFQT)\n59\n6\n46\n9\nMedium IQ (or\nAFQT)\n63\n3\n37\n10\nHigh IQ (or AFQT)\n68\n2\n33\n5\nHigh school\ndropout\n59\n3\n39\n9\nHigh School\ngraduate\n77\n1\n41\n8\nCollege graduate\n82\n0\n25\n0\nDisadvantaged eco-\nnomic background\n72\n0\n41\n5\nNot disadvantaged\n74\n0\n36\n3\n31\nAnother measure of the fairness of a process is its\nconsistency over time. For all but the first 5% of its cases,\nClemency Board judgments were comparable from month to month.\nFigure 6 shows how Board case judgments varied throughout the\nyear, as reflected by the \"pardon rate\" for military and\n70/\ncivilian cases.\nThe civilian pardon rate hovered around\n90%, and the military pardon rate around 45%. Likewise (but\nnot shown in Figure 61, the \"no clemency\" rates were also\nunsteady at first, then steady in the second half of the Board's\nyear. Note that the rapid pace of post-April Board operations\ndid not impair the consistency of case judgments. In fact,\nthe more cases per panel-day, the more consistently they were\ndecided.\nPHASE I\nPHASE II\nFirst Publi-\ncation of\n32\nPolicy\nPrecedents\nBaseline,\nFall of Expansion\nAgg/Mit Factors Put\nSouth\nof\nInto Regulations\nVietnam\nBoard\n(1500)\n100%\n100\nKEY:\n(500)\nCivilian pardon rate\nMilitary pardon rate\n(1000)\nPanel hearing rate (cases/panel/day)\n80%\n80\n60%\n60\n(500)\n(200)\n(200)\n(100)\n(1000)\n(2000)\n(5000)\n40%\n(100)\n40\n(10000)\nNUMBER OF CASES HEARD PER PANEL PER DAY\nPARDON RATE (AS\n20%\n20\n0\n0\nSEPT\nOCT\nNOV\nDEC\nJAN\nFEB\nMAR\nAPR\nMAY\nJUN\nJUL\nAUG\nSEPT\n15th\n15th\nFigure 6 - BOARD PARDON RATES (CIVILIAN AND MILITARY CASES)\nNOTE: Numbers in parentheses show cumulative cases heard by given date.\n33\n2. Process Disappointments\nThe generally good performance of the Clemency Board in\nachieving consistency and fairness in its case judgments\nshould not be misinterpreted as an indication that everything\nwent well. It did not. None of the techniques described above\nwas implemented easily, and the Board's decision-making process\nwas far from ideal.\nSome of the mitigating and aggravating factors were based\non questionable logic. For example, the fact that an\napplicant was previously convicted by court-martial for AWOL\nmade aggravating factor #1 (other adult convictions) applic-\nable, even though that court-martial, had it led to a discharge,\nwould itself have made him eligible for the clemency program.\nSecondly, the Board decided to presume that the reason for\nan applicant's offense was \"selfish and manipulative\"\n(aggravating factor #5) in the absence of any evidence\nabout his reasons, shifting the burden to the applicant\nto show that he was not selfish. Thirdly, the fact that an\napplicant was AWOL for a long time was held against him (aggra-\nvating factor #9) even though the difference between a short\nand long AWOL was usually attributable only to the vigilance\nof the police in an applicant's home town. Finally, a heroin\nhabit was considered mitigating (#3), not aggravating -- to\nthe strong displeasure of some Board members.\nCertain key mitigating factors -- such as educational\nhandicaps (#1), family problems (#2), and mental or physical\n34\n71/\nproblems (#3) -- were not decisive in very many cases,\neven though Figure 5 shows that they did contribute to the\nevenhandedness of Board decisions. Conversely, one of the\nBoard's most controversial aggravating factors -- selfish\nmotivation for the offense (#5) -- did have a decisive impact.\nThe panels hearings were plainly a flawed process.\nApplicants or applicants' counsel were almost never present,\nand thousands of cases were decided at a rate of speed which\nwas unfortunate, however necessary. While aggregate data show\nthat four minutes per case did not adversely affect the overall\nconsistency of judgments, this fast pace sometimes interfered\nwith the fair treatment of individual cases. Board members,\nbeing human, occasionally sped through cases which should have\n72/\nbeen given more time and discussion. Some Board members were\nresentful when staff attorneys tried to compensate for this by\npresenting an applicant's case in an especially favorable light.\nThe Clemency Law Reporter was not used to anything approach-\ning its true potential as a \"hornbook\" of Board policies. This\nwas partly due to the press of time, but primarily it was\nbecause some lay members of the Board clearly felt uncomfortable\nwith a staff-prepared instrument which monitored their exercise\nof discretion.\nThe computer-aided appellate review system was just being\nperfected when the Board went out of business. At least twice\nas many cases would have been reconsidered by the Board en banc\nhad there been time. Also, like any experimental computer\n35\nprogram, STAREDEC had its flaws. It was based on a narrower\nconcept of precedent than it might have been; this too could\n73/\nhave been corrected in time.\nThe process of reviewing applicants' appeals was inappro-\npriate per se. The appeals were heard not by the Board --\nwhich no longer existed by then -- but by a carry-over staff\nof attorneys who had middle-management positions at the Clemency\nBoard. From all indications, it appears that they administered\nthe appeals process fairly, but they were the wrong individuals\nto be making appellate decisions.\nIn general, these inadequacies resulted from (1) an awkward\ncompromises among Board members with different philosophies,\n(2) the lay character of the Board, and (3) the press of time.\n*\n*\n*\nFrom looking at the accomplishments -- and notwithstanding\nthe disappointments -- it appears that the Clemency Board did\nachieve a rather good record for consistency and fairness of\njudgments. Much of the credit for this must go to the fair-\nmindedness and hard work of the eighteen men and women who made\nthem -- and, one should add, to the quality of the preparatory\nwork of the 400 staff attorneys. But high-mindedness and\nhard work are not by themselves guarantees of good results.\nWhat is more significant is that the Clemency Board developed\nrules, followed those rules, and evaluated its performance in\napplying them. The mitigating and aggravating factors, the\n36\nClemency Law Reporter, the internal appellate system, and the\ncomputer analysis together provided the mechanism by which\nthis was accomplished.\nIII. APPLICABILITY OF THE CLEMENCY BOARD MODEL TO\nJUDICIAL SENTENCING\nThe experience of the Clemency Board in controlling adjudi-\ncative discretion suggests that sentencing judges might improve\nthe consistency of their decisions if they implemented some\nof the techniques tested by the Board. Indeed, the Clemency\nBoard model may have an even wider application --- to decisions\n74/\nby parole boards, military discharge review boards, and other\nadjudicative bodies.\nWhat makes the Board's experience particularly transferrable\nto sentencing judges is the comparability of the alternative\nservice decision to the sentencing deçision. When a judge\nchooses between probation and incarceration -- and, whichever\nhis choice, when he fixes the length of sentence --- he is\ndoing essentially the same thing the Clemency Board did. Cer-\ntainly, the task of the sentencing judge is more difficult.\n75/\nThe Clemency Board reviewed only two categories of offenses and\n76/\nhad fairly homogeneous defendants; sentencing judges must act\nupon a much wider range of offenses and offenders. The\nClemency Board had problems enough interpreting its vague\n77/\nmandate of \"bind[ing] the nation's wounds; sentencing\njudges must base their decisions upon the much more problematic\n37\nand conflicting notions of deterrence, rehabilitation, and\nthe protection of society.\nThe more complicated task facing sentencing judges should\nnot excuse them from having to apply&clear decision-making\nrules. On the contrary, the complexity of judges' sentencing\ndecisions makes the use of such rules all the more important.\nOf course, this greater complexity does mean that the rules\napplicable to the sentencing process would have to be more\nsophisticated than the rules applied by the Clemency Board.\nThe Board offers only a first-stage experiment\nwith baseline formulas, mitigating and aggravating factors, the\nuse of case precedents, appellate review, and computer-aided\nanalysis of consistency. Each of these techniques needs test-\ning in the actual sentencing process before any conclusions can\nbe drawn about their usefulness to a judge. However, there\nis every reason to believe that such a sentencing experiment\nwould be as successful as the Clemency Board model.\nThe components of a sentencing experiment could be much\nlike that described below, tailored to the needs of a particular\njurisdiction. It should encompass as many sentencing judges\nand offense categories as possible to provide the most meaning-\nful test of consistency.\n38\n1. A \"baseline\" would be stablished for each type of\noffense, giving the sentencing judge a starting point for\nhis exercise of discretion. The baseline would be the presump-\ntive sentence for all cases involving that offense. Also,\na minimum and maximum sentence \"range\" would be set for each\noffense, indicating the outer limits of a judge's exercise of\ndiscretion. For example, the \"baseline\" for armed\nrobbery might be five years, with a \"range\" of one-to-\ntwenty years.\n2. A list of mitigating and aggravating factors would\nbe developed as the basis for the judge's sentencing decision.\nThe factors would take into account the diverse purposes of\nsentencing. For example, the mitigating factors might include\nsuch notions as mental duress, restitution to victims, and\nevidence of current rehabilitation. The aggravating factors\nmight encompass the use of firearms, prior convictions, and\nsubstantial evidence of bad character. Of course, these\nlists would be much longer and would have to be prepared with\n78/\ngreat care.\n3. With the factors articulated in advance, judges\nwould only consider these factors in rendering sentences. If\nexperience were to demonstrate the need for the creation of\nadditional factors, these would also be articulated and estab-\nlished by rule, and not simply applied in an ad hoc fashion.\n39\n4. The information upon which the sentence is based\nwould be restricted to that which bears upon the designated\nmitigating and aggravating factors.\n5. Sentences would be group decisions, perhaps by\nthree-judge panels. This would ensure that the true basis\nfor each judgment would be the articulated rules --- not one\njudge's personal standards.\n6. Sentencing judges would be required to note for the\nrecord which factors applied to a particular defendant before\npronouncing sentence.\n7. If the mitigating and aggravating factors balance\neach other out, the \"baseline\" sentence would be imposed.\nIf the mitigating factors outweigh the aggravating factors,\nthe sentence would be reduced below the baseline. Conversely,\nif the aggravating factors outweigh the mitigating factors,\nthe sentence would be increased above the baseline. Obviously,\nin no case would the sentence fall outside the legislated outer\nlimits of the judge's discretion.\n8. Sentencing judges' identification of mitigating and\naggravating factors would have to be consistent with case\nprecedents showing prior use of those factors.\n9. Each sentencing decision would be analyzed by a\nSTAREDEC-type computer before appeal to provide an immediate,\n40\nobjective measure of consistency. Eventually, each sentencing\njudge might be given feedback about how comparable cases were\nbeing decided.\n10. Sentences would be made subject to appeal, with\nappeals based on either (1) a wrong identification of factors,\nor (2) an inappropriate sentence, given the applicable factors.\nAppellate courts would, through their decisions, try to main-\ntain consistent patterns in sentences.\n11. All sentencing judges would meet periodically to\nmaintain conformity in their interpretation of the rules\nand their implementation of experimental procedures.\n12. A comprehensive survey of cases would be conducted\nas a means of evaluating the experiment. An identical survey\nof a non-experimental \"control group\" would be useful for\ncomparison.\nNot all of these techniques need be applied in any one\nexperiment. The three-judge concept, the STAREDEC-like computer\nreview, and the appellate review of sentencing decisions are\nseparable items. However, all aspects of the model reinforce\none another and should enhance the prospects for a successful\nexperiment.\nReduced to its simplest features, this Clemency Board\nmodel consists of establishing clear rules, following those\nrules, and measuring performance. The exercise of discretion is\na\n41\ncontrolled -- and the quality of decision-making improves\nas a result.\nEven with its discretion disciplined, the Clemency Board\nhad its wayward moments and applicants were sometimes asked\nto do too much or too little alternative service. Sentencing\njudges, with almost limitless discretion, can be expected to\nbe wayward much more often. When they are, the price is\npaid by an underprotected public or by an overpunished offender.\nEither way, the price is too high.\na\nFOOTNOTES\n1/ Address by Attorney General Edward H. Levi before the\nGovernor of Wisconsin's Conference on Employment and the\nPrevention of Crime, February 2, 1976.\n2/ Id.\n3/ Judge Lombard gave the following example at the 1965\nPhiladelphia Judicial Sentencing Institute: \"You may have\nheard of the visitor to a Texas court who was amazed to\nhear the judge impose a suspended sentence where a man had\npleaded gulty to manslaughter. A few minutes later the\nsame judge sentenced a man who pleaded guilty to stealing a\nhorse and gave him life imprisonment. At recess he was\nintroduced to the judge, and he expressed surprise at these\nsentences. The judge thought a moment and replied, \"Well,\ndown here there is some men that need killin', but there ain't\nno horses that need stealin. Lombard, SENTENCING AND\nLAW ENFORCEMENT, 40 F.R.D. 399, 409 (1965).\n4/ M. Frankel, Comments on an Independent, Variable Sentencer,\n42 U. Cinn. L. Rev. 667 (1973) See, e.g., American Bar\nAssociation Project on Minimum Standards for Criminal Justice,\nSTANDARDS RELATING TO APPELLATE REVIEW OF SENTENCES, 27-28\n(Approved Draft 1968) ; R. Dawson, SENTENCING, ch. 8 (1969) ;\nS. Rubin, et al., THE LAW OF CRIMINAL CORRECTION, 116-119\n(1963)\n5/ See the report of the American Bar Association, STANDARDS\nRELATING TO APPELLATE REVIEW OF SENTENCES, as quoted in\nW. Gaylin, IN SERVICE OF THEIR COUNTRY, 323-324 (1970).\nMany of these critics are judges themselves. See, e.g.,\nM. Frankel, CRIMINAL SENTENCES (1973) ; Devitt, How Can We\nEffectively Minimize Unjustified Disparity in Federal Criminal\nSentences? in INSTITUTE OF SENTENCING, 42 F.R.D. 175, 218\n(1967) ; Levin, Toward a More Enlightened Sentencing Procedure,\n45 Neb. L. Rev. 499 (1966) ; Rubin, DISPARITY AND EQUALITY OF\nSENTENCE, 40 F.R.D. 55 (1967) ; Wyzanzki, A Trial Judge's\nFreedom and Responsibility, 65 Harv. L. Rev. 1281 (1952)\n1/ Kenneth Culp Davis, DISCRETIONARY JUSTICE, 133 (1971)\nSee especially S. 2698 and S. 2699, introduced in the\ncurrent session of Congress by Senator Edward M. Kennedy\nof Massachusetts. At the time of this writing, these bills\nare still pending.\n2\n9/ Sentencing councils and appellate review of sentencing\nhave been implemented by a number of jurisdictions.\nSee generally the ABA STANDARDS (approved drafts) relating\nto sentencing alternatives and procedures. See also the\nA.L.I. Model Penal Code (1962).\n10/ See also Sentencing Selective Service Violators: A\nJudicial Wheel of Fortune, Col. J. of Law and Soc. Prob.,\nVol. 5:2, 164 (1969).\n11/ Presidential Clemency Board, REPORT TO THE PRESIDENT\n(hereinafter referred to as REPORT), 49 (1975).\n12/ Id., cited from the ANNUAL REPORT OF THE DIRECTOR OF THE\nADMINISTRATIVE OFFICE OF UNITED STATES COURTS for 1968 and\n1974.\n13/ The most extreme sentence was given\nto a black civil rights worker in Louisiana --- five concurrent\nfive-year sentences for separate draft violation charges.\nBy contrast, a Wisconsin defendant recently received a sen-\ntence of probation for one day under the FEDERAL YOUTH\nCORRECTIONS ACT (under which his conviction record was then\nexpunged).\n14/ These techniques are described infra in the order pre-\nsented here.\n15/ See infra. See also the Clemency Board REPORT,\nch. 5.\n16/ See infra.\n17/ See infra.\n18/ The Presidential Clemency Board was created on September\n16, 1974, by President Gerald R. Ford in Proclamation 4313\nand the accompanying Executive Order 11803 of the same date\n(reproduced in the Clemency Board REPORT, App. B). The\nClemency Board was originally to have been in existence until\nDecember 31, 1976 (see §9 of the Executive Order), but it was\ninstead terminated on September 15, 1975. The Board submitted\nits REPORT TO THE PRESIDENT on December 15, 1975. Carry-over\nadministrative tasks were delegated to a newly designated\nClemency Office in the Office of the Pardon Attorney, Department\nof Justice. Upon completion of these functions, scheduled for\nMarch 31, 1976, any residual matters are the responsibility of\nthe Pardon Attorney himself.\n3\nfootnote 18/ continued:\nThe Chairman of the Clemency Board was Charles E. Goodell,\nformer United States Senator from New York. The Board had\na total of nine members: Dr. Ralph Adams, James P. Dougovito,\nRobert H. Finch, Father Theordore M. Hesburgh, Vernon E. Jordan,\nJames A. Maye, Aida Casanas O'Connor, and General Lewis W. Walt.\nIn April, 1975, the Board was expanded by Executive Order to\neighteen members because of the expanded workload. The new\nmembers were Timothy Lee Craig, John A. Everhard, W. Antoinette\nFord, John Roy Kauffmann, Rev. Msgr. Francis J. Lally,\nE. Frederick Morrow, Lewis B. Puller, Jr., Harry Riggs, and\nJoan Vinson. Robert H. Finch resigned from the Board in June\nand was replaced by Robert S. Carter. For biographies of the\nBoard members, see Id., App. A.\n19/ The Clemency Board received approximately 21,500 applica-\ntions, of which some 6,000 were found to be ineligible. From\namong the 15,468 eligible applications, the Clemency Board made\n14,514 case recommendations to the President before it ter-\nminated operations on September 15, 1975. The Board took no\naction on the remaining 954 cases because of insufficient\ninformation; the carry-over Clemency Office in the Department\nof Justice later made case recommendations for those cases\nin which the necessary information could be obtained. Id.,\n163-165. Clemency Board case recommendations were not final.\nOnly the President can exercise the constitutional power to\ngrant pardons, and no Clemency Board case recommendation was\nfinal until approved by him. See Art. II, §2, cl. 1 of the\nFederal CONSTITUTION and the discussion in the Clemency Board\nREPORT, 11-12. As of March 1, 1976, the President had acted\nupon all but about 750 case recommendations -- and, without\nexception, he accepted the judgment of the Board.\n20/ The Clemency Board had jurisdiction over draft offenders\nwho had been convicted for one of the following violations of\n§12 of the SELECTIVE SERVICE ACT: (1) failure to register for\nthe draft, or failure to register on time; (2) failure to keep\nthe local draft board informed of his current address; (3) failure\nto report for or submit to preinduction or induction examination;\n(4) failure to report for or submit to induction; or (5) failure\nto complete alternative service to satisfy the requirements of\na conscientious objector exemption. Draft offenders who were\nfugitives still charged with such violations were the jurisdic-\ntion of the Department of Justice, which implemented a separate\n4\nfootnote 20/ continued:\npart of the President's clemency program. To be eligible,\nan applicant must have committed his offense between August\n4, 1964, and April 28, 1973, and he must not have been an\nalien excluded by law from entering the United States under\nU.S.C. 1182 (a) (22).\nThe Clemency Board also had jurisdiction over military\noffenders who received Undesirable, Bad Conduct, or\nDishonorable Discharges as a result of violations of Articles\n85 (desertion), (86) AWOL, or 87 (missing movement) of the\nUniform Code of Military Justice (10 U.S.C. 885, 886, and\n887). Military offenders who were fugitives still charged\nwith such violations were the jurisdiction of the Department of\nDefense, which implemented a separate part of the President's\nclemency program.\nOf the 8,700 convicted draft offenders eligible to apply\nto the Clemency Board, 1,879 (22%) applied. Of the approxi-\nmately 90,000 discharged military offenders eligible to apply\nto the Board, 13,589 (15%) applied. Of the 4,522 fugitive\ndraft offenders eligible for the Department of Justice\nclemency program, 706 (16%) applied. Of the 10,115 fugitive\nmilitary offenders eligible for the Department of Defense\nclemency program, 5,555 (55%) applied. Altogether, 21,729\nof the approximately 113,000 eligible persons applied -- for\nan overall participation of 19%.\nFor a further description of eligibility criteria and\napplication statistics, see Id., 7-9 and 21-22.\n21/ The Presidential pardon was the remedy offered convicted\ndraft offenders who applied to the Clemency Board. For\ndischarged military offenders, the remedy was a Presidential\npardon and a recharacterization of discharge as a \"Clemency\nDischarge,\" a new type of discharge created for the purposes\nof this program. For a discussion of the implications of\nthese remedies (and a description of the remedies offered by\nthe Department of Justice and Department of Defense clemency\nprograms), see Id., 15-21.\n22/ This alternative service was to be performed in a position\nwhich served the \"national health, safety, or interest\" and\nwhich did not take a job away from any other qualified individual.\nApplicants to the Clemency Board who were assigned to six months\nor less of alternative service could fill part-time, volunteer\npositions which would not require an interruption of their\nregular jobs. The Selective Service System was given the\nresponsibility of supervising the performance of assigned\nperiods of alternative service. See Executive Order 11804,\n5\nfootnote 22/ continued:\nSeptember 16, 1974, and the Clemency Board REPORT, 17-21. The\nperformance of alternative service has been uneven so far,\nand it appears that perhaps as many as 4,000 of the Clemency\nBoard applicants will fail to complete alternative service.\n23/ Curiously, one point of disagreement between the\nClemency Board and the pro-amnesty community has been over\nwhether the Board was in fact engaged in \"sentencing\" of\napplicants. The latter always maintained that alternative\nservice was punitive and that the Clemency Board was meting\nout alternative service \"sentences.\" See the Statement made\nby Henry Schwarzschild of the ACLU Amnesty Project in the\nCLEMENCY PROGRAM PRACTICES AND PROCEDURES, Hearings of the\nSubcommittee on Administrative Practice and Procedure,\nU.S. Senate Committee on the Judiciary (1975). However, the\nBoard's position was that it was offering a benefit which could\nbe accepted or rejected by every applicant. Indeed, every\nClemency Board applicant could refuse to perform alternative\nservice without legal jeopardy, and no Presidential pardon\ncould be effective unless accepted by its recipient. This\nwas not as much a debate over whether the Board was following\nor should follow procedures comparable to those of a sentenc-\ning judge, but rather over the merits of the alternative\nservice aspect of the President's clemency program.\n24/ Presidential Proclamation 4313.\n25/ Executive Order #11803, $3.\n26/ See generally Proclamation 4313 and accompanying\nPresidential statement, both dated September 16, 1974.\n27/ The 1946-47 Truman Amnesty Board decided cases according\nto broad categories, not on a case-by-case basis. Also, it\ndenied clemency to 90% of its 15,805 applicants. Its Report\nis reproduced in full in SELECTIVE SERVICE AND AMNESTY,\nHearings before the Subcommittee on Administrative Practice\nand Procedure of the Committee on the Judiciary, United States\nSenate, 185-189 (1972).\n28/ Clemency Board REPORT, 83ff.\n6\n29/ Clemency Board case judgments were as follows:\nCivilian Cases\nMilitary Cases\n#\nolo\n#\nof\nImmediate pardon\n1432\n82%\n4620\n36%\nAlternative service:\n3 months\n140\n8%\n2555\n20%\n4-6 months\n91\n5%\n2941\n23%\n7+ months\n68\n4%\n1756\n14%\nNo clemency\n26\n1%\n885\n7%\n(Source: Id., xxiii).\n30/ The eighteen-member Board consisted of five lawyers and\nthirteen non-lawyers.\n31/ The Board included a number of individuals who had\nearlier taken strong public positions on these issues. For\nexample, Father Theodore M. Hesburgh (President of the\nUniversity of Notre Dame) had been a long-standing opponent\nof the Vietnam war and an advocate of unconditional amnesty;\nGeneral Lewis W. Walt (Commandant of Marine forces in Vietnam\nduring the war) had the opposite point of view. The Board's\nChairman, Charles E. Goodell, had opposed the war as a United\nStates Senator but was not in favor of unconditional amnesty.\nUnderstandably, the development of consensus Board positions\nrequired substantial time and compromise.\n32/ At the time, staff attorney procedures were just as\nunstructured as Board procedures. Vague, unsubstantiated, or\nirrelevant facts were sometimes included in case summaries.\nAfter the first sixteen cases, the work of staff attorneys\nwas monitored by a special quality control unit.\n33/ first, the Board established eleven mitigating factors\nand seven aggravating factors, later expanded to sixteen and\ntwelve, respectively. See Figure 1, infra, for the final\nlist of factors.\n34/ It should be noted that this \"baseline\" was neither a\nminimum nor a maximum. It was more of a target median, with\nthe expectation that equal numbers of cases would be decided\non either side of it. As a general rule, an applicant's\nbaseline calculation was found to be the most important deter-\nminant of his case judgment. See Id., 126.\n7\n35/ The \"other factors\" were the time spent on probation or\nparole, time spent performing alternative service, and the\njudge's initial sentence. The baseline formula worked as\nfollows:\n(1) Starting with the maximum baseline of 24 months,\nthree months were reduced for every month of confinement.\nThe baseline was further reduced by one month for every\nmonth of court-ordered alternative service, probation, or\nparole previously served, provided that the applicant had\nnot been prematurely terminated because of lack of coopera-\ntion.\n(2) If this baseline calculation was greater than the\napplicant's sentence from a Federal judge or court-martial,\nthat original sentence became the baseline.\n(3) The minimum baseline was three months, without\nexception.\n(4) Applicants who had been sentenced to probation or\ndischarged administratively from the Armed Forces were con-\nsidered to have sentences of zero months imprisonment. Their\nbaseline was the three-month minimum. Id., 95-96.\n36/ The Clemency Board assigned much less alternative service\nthan either the Department of Justice or the Department of\nDefense clemency programs. Each of the latter had a fixed\nbaseline of 24 months which was reduced in some cases because\nof mitigating circumstances. Most applicants to the Justice\nand Defense programs were assigned to 18-24 months of alternative\nservice. Id., 145-147. The Clemency Board justified its\nmore lenient decisions as a reflection of \"the basic difference\nbetween Clemency Board applicants and those eligible for the\nJustice and Defense programs. Clemency Board applicants had\nalready paid a legal penalty for their offenses; they had\nreceived civilian or military convictions, or less-than-\nhonorable administrative discharges. Also, a pardon could\nnever be as beneficial a remedy as complete relief from prose-\ncution or administrative punishment.\" Id., 95.\n37/ The only factor ever rejected was a proposal to make\nhabitual drug use an aggravating factor. At the time, the\nBoard was applying mitigating factor #3 (mental or physical\nproblems) to persons with serious drug habits, and it voted\ncontinue that practice.\n8\n38/ For a list of these factors, see Figure 1, infra.\nThe standards noted here were not specifically articulated by\nthe Board, but they were implicit in Board discussions. The\nClemency Board REPORT notes that the factors can also be\ncategorized as follows: the reason for the offense, the cir-\ncumstances surrounding the offense, the individual's overall\nrecord in the military, his overall record in the civilian\ncommunity, and circumstances surrounding his application for\nclemency. Id., 97ff.\n39/ See generally Proclamation 4313 and the accompanying\nPresidential statement, both dated September 16, 1974.\n40/ See the Clemency Board REPORT, ch. 3-4 for a description\nof the applicants and the exact manner in which the Board\napplied each mitigating and aggravating factor. The Vietnam\nveteran discussion appears at 60-65.\n41/ The Clemency Board's experience with this last aggravat-\ning factor reflects the compromise and fragile consensus which\nwent into the establishment of these rules. Some Board\nmembers considered these offenses to be unrelated to the\nclemency mission, urging that they be disregarded altogether.\nOther insisted that applicants convicted of felony offenses\nbe denied clemency automatically, much as the Truman Amnesty\nBoard had excluded persons with criminal records. Instead,\nthe Board adopted the middle view, considering felony convic-\ntions to be a \"highly aggravating factor.\" Id., xxi.\n42/ Proclamation 4313 specifically notes that Clemency\nDischarges \"shall not bestow entitlement to benefits\n=\nDespite this, the Clemency Board recommended that the President\npersonally exercise his authority as Commander-in-Chief of the\nArmed Forces by (a) personally directing the discharge upgrades\nof the most meritorious applicants, (b) referring other cases\nwith slightly less merit to the military discharge review\nboards for special consideration, and (c) referring\ncases involving service-incurred physical disabilities to the\nVeterans' Administration for medical benefits only. The\nPresident never specifically acted on these recommendations --\nand, given the passage of time, it appears that they have been\n\"pocket-vetoed.\"\n43/ Clemency Board REPORT, 127\n9\n44/ Id., 24-26 and 85-94.\n45/ Each applicant had a 30-day opportunity to comment on\nhis case summary. Because of the press of time, cases were\ndecided before the end of the 30-day comment period. Comments\nwere rarely received about case summaries; when this happened,\na case was submitted to another Board panel de novo if the\ncomments or corrections were possibly significant.\n46/ 39 FR 41351.\n47/ See note\n.\n48/ Father Hesburgh attributes the Board's leniency directly\nto the fact that Board members had to follow a clear set of\nrules. \"If we had to fight all cases one-by-one, we would\nnot have been as successful in making clement dispositions.\"\n49/ For a discussion of what kinds of cases were denied\nclemency, see Id., 136-138 and 141-143.\n50/ For a discussion of what kinds of cases received immediate\npardons, see Id., 134-135 and 139-141.\n51/ This increase resulted from the Board's concerted efforts\nto educate the public about who was eligible for the clemency\nprogram. Before this public information campaign, most people\nthought that the program only included exiles and fugitives --\nand not punished offenders. Immediately after this information\ncampaign was begun, Clemency Board applications showed a sharp\nincrease. For this reason, the President extended the applica-\ntion deadline for two months (from January 31, 1975 to March\n31, 1975). The Clemency Board's application rate was still\nincreasing when the deadline was reached. See Id., 20-23.\n52/ The total staff of the Clemency Board grew from 100 to\n600 in a period of just a few weeks. For a description of\nthe \"crisis management\" aspect of Board operations, see Id.,\nch. 6.\n53/ Among the Board members, there was unanimous approval for\nthe concept of balancing these panels. Very rarely did a\npanel result in a sharp two-against-one voting pattern.\nAccording to Father Hesburgh, \"there was shared input from\nall sides, as we all recognized that we had to compromise\noccasionally.\" Had the panels not been balanced philosophically,\nthe judgments would have been very uneven.\n10\n54/ The CLEMENCY LAW REPORTER began as a staff paper illus-\ntrating how the Board was applying its mitigating and aggra-\nvating factors. Later, it served as a guide to Board precedents\nand as an internal forum for staff-prepared articles on issues\nof professional concern. An index to the REPORTER issues, with\narticle highlights, is included in the Clemency Board REPORT,\nApp. D. Appendix D to the REPORT also contains the entire\nfifth issue of the CLEMENCY LAW REPORTER, the final statement\nof the Board's case precedents. All five issues are available\nto the public at the National Archives, Washington, D.C.\n55/ As illustrations, the definitions and case examples for\nmitigating factor #7 (Vietnam service) and aggravating factor\n#4 (AWOL in Vietnam) are shown below. They are extracted\nfrom the fifth issue of the REPORTER, reproduced in the Clemency\nBoard REPORT, 310-311 and 292.\nMITIGATING FACTOR #7: Tours of Service in the War Zone\nThis factor is applicable in cases where the applicant\nhas served a minimum of three months in Vietnam or on a Navy\nship that had a sea patrol off the coast of Vietnam. It can\nbe applied where the applicant had not completed a tour, but\nwhile on authorized leave from Vietnam assumed an unauthorized\nabsence status. Shorter periods of Vietnam service are not\ncovered, unless the applicant was injured in Vietnam or trans-\nferred out of the war zone by the military service for reasons\nother than serious military or nonmilitary offenses (including\nAWOL offenses)\n(1) During his initial enlistment, applicant served\nas a military policeman and spent 13 months in that\ncapacity in Korea. He then served two tours of duty\nin Vietnam, as an assistant squad leader during the\nfirst tour, and as a squad leader and chief of an\narmored car section during the second.\n(2) Applicant served in Vietnam for eleven months.\n(3) Applicant served in Vietnam with the 101st Airborne\nas a light weapons infantryman. His tour lasted four\nmonths and 22 days. He returned to the United States\non emergency leave for five months. Applicant stated\nthat he went AWOL because he could not face going back\nto Vietnam, due to the incompetence of his officers\nand the killing of civilians.\n11\nfootnote 55/ continued:\n(4) The applicant served for three months in Vietnam\nin a combat status. While in Vietnam, he was given\nemergency leave back to the United States because of\nthe death of his mother. Applicant overstayed his\nleave and became AWOL. He was apprehended shortly\nthereafter.\n(5) Applicant saw service in Vietnam for a period of\ntwo months, 13 days. He served as a combat medic.\nWhile in Vietnam, he broke his ankle. He was operated\non and was evacuated for rehabilitation.\n(6) Applicant served in Vietnam for nine months as a\nmortar specialist and participated in two combat cam-\npaigns. He received fragment wounds necessitating\nevacuation to Japan and then to the United States.\n(7) Applicant was wounded after 3 months in Vietnam,\nrequiring two operations and prolonged convalesence.\n(8) Applicant served aboard the USS Buchanan for seven\nmonths off the coast of Vietnam.\nAGGRAVATING FACTOR #4: Desertion During Combat or Leaving\nCombat Zone\nThis factor indicates that an applicant went AWOL from\nhis unit either during actual enemy attack or before any\nreasonably anticipated enemy attack. Going AWOL directly\nfrom Vietnam gives automatic rise to this factor. However,\ndeparting AWOL from R&R outside of Vietnam or home leave\nfrom Vietnam does not constitute this factor though it does\nconstitute Aggravating Factor #10. An applicant's reasons\nfor his qualifying offense do not affect the applicability\nof this factor.\n(1) Applicant was an infantryman in Vietnam when he\nwent AWOL. He was picked up in a rear area by Military\nPolice and ordered back to the field by two lieutenants.\nHe refused to fly out to join his company.\n(2) Applicant commenced the first of three AWOLs while\nin Vietnam. He flew back to California. His subsequent\nAWOLs occurred after his apprehension in the U.S.\n12\nfootnote 55/ continued:\n(3) Applicant stated at his trial that he became\nextremely frightened in combat. He went AWOL after\nhe was sent to a rear area for chills and fever.\n(4) Applicant bought orders to-return to the U.S.\nfrom Vietnam.\n(5) Applicant received an Undesirable Discharge for\nunfitness; two of four AWOL offenses occurred while\napplicant was in Vietnam.\n56/ Usually, these Board-member referrals reflected basic\nphilosophical differences with the policies of the Board\nmajority. Half of these cases were referred by one particular\nBoard member. See Id, 124-125.\n57/ STAREDEC, named after the legal concept of stare decisis\ncost approximately $75,000 to implement,\nstaff time included -- or roughly $5.00 per case. For a more\ndetailed description of STAREDEC, see Id., App. E. The\ncomplete STAREDEC tape is available to the public at the\nNational Archives, Washington, D.C.\n58/ The idea of having a computer review of panel judgments\narose from a recommendation of the Inter-Agency Team to\nSurvey the Presidential Clemency Board, a team of management\nspecialists sent by the White House to help plan the expansion\nof Board operations. Because the Board was making decisions\nso quickly, the Inter-Agency Team suggested that a \"post-audit\nreview\" be conducted before case judgments were submitted to\nthe President. The computer program was based upon prior staff\nstatistical analyses of Board precedents. With the help of\nNASA (which absorbed most of the cost), STAREDEC took only\none month to become fully operational. Id., App. E.\n59/ The following example shows how STAREDEC worked. There\nwere 114 military cases which had the factor combination of\n2 and 6 mitigating and 1, 8, 9, and 12 aggravating. Those\ncases were decided as follows:\nImmediate\n3 months\n4-6 months\n7-9 months\n10-24 months\nno\nPardon\nalt. serv.\nalt. serv.\nalt. serv.\nalt. serv.\nclemency\n20\n24\n47\n11\n2\n5\nThe median Clemency Board judgment was a four-to-six\nmonth alternative service recommendation. The two judgments\nof 10-24 months of alternative service and the five \"no\nclemency\" judgments were flagged by STAREDEC as \"harsh\" cases.\nn\n13\n60/ The worksheet and letter sent to clemency recipients\nare included in Id., App. D.\n61/ Because of the Selective Service rule that applicants\nwith six months or less of alternative service could complete\nthis obligation through part-time work (see note 22, supra),\nthe Clemency Office frequently reduced appellants' assignments\nto six months. Appeal decisions were made with the CLEMENCY\nLAW REPORTER as a guide.\n62/ The primary purpose of this survey was to learn about\nthe background characteristics of clemency applicants. It\nwas based upon a representative sample of 1,009 military\ncases and 472 civilian cases. See the Clemency Board REPORT,\nApp. C. Survey findings are presented in Id., ch. 3 and 5.\n63/ These \"process\" accomplishments do not necessarily trans-\nlate into substantive achievements. The overall clemency pro-\ngram is in fact subject to much criticism on the ground that it\noffers little if any tangible benefit to applicants. While\nthe Presidential pardon has great symbolic value and restores\ncivil rights lost by reason of the underlying criminal convic-\ntion, it does not translate directly into improved economic\ncircumstances. The Clemency Discharge by definition does not\nconfer rights to veterans' benefits, and it is uncertain how\nit will affect the decisions of military discharge boards and\nthe Veteran's Administration when they review subsequent\napplications for benefits by clemency applicants. Successful\nparticipation in the program requires a sustained interest on\nthe part of applicants, most of whom are socially, economically,\nand educationally disadvantaged. As a consequence, there has\nbeen a high drop-out rate due to undeliverable notices, failure\nto report for alternative service, and failure to complete\nalternative service.\n64/ Id., 126-132.\n65/ Id., 133.\n66/ The case judgments shown in Figures 2, 3, and 4 represent\nonly 13% of the Board's civilian cases and 3% of the military\ncases. Comparable tables can be made of other factor combina-\ntions, based upon STAREDEC's final print-out.\n67/ Mitigating factor #1 (inability to understand obligations)\nand mitigating factor #2 (personal or family problems). Id.,\n290-291.\n14\n68/ The Board consciously tried to be clement towards appli-\ncants with disadvantaged backgrounds, with a number of mitigating\nfactors (#1, 2, 3, 5, and 8) made directly applicable to them.\nCuriously, this resulted in evenhanded treatment -- and not\nmore favorable treatment, which the Board intended. This\nindicates that applicants with disadvantaged backgrounds\nprobably would have been treated much worse than others had\nthe Board's intent not been so strong, and had these mitigating\nfactors not existed.\n69/ These statistics are drawn from the comprehensive survey\nof Clemency Board applicants. See note\n.\nFor further\ndata about who received pardons and who was denied clemency,\nsee Id., 134-145. Only one category of applicants fared badly\nbecause of circumstances which did not reflect upon their\nbehavior: those for whom the military or Federal court system\nhad not compiled complete records. These partial records tended\nto focus on an applicant's offense and not his background, pro-\nviding more evidence about aggravating factors than about miti-\ngating factors. This unfortunate inequity marred an otherwise\nquite even-handed pattern of judgments.\n70/ Id., 173.\n71/ Id., 126-132. Board member Timothy Craig \"strongly\ndisagrees\" with this observation, but it is demonstrated\nclearly by statistics. See Figure 5 and note 68, supra.\n72/ Father Hesburgh believes that Board judgments were, 'if\nanything, more fair when cases were decided in panels. He\nconsiders full Board judgments to have involved \"posture\nand charade, with the panels having given more serious\nattention to the circumstances of each applicant's case.\n73/ The principal flaw in the STAREDEC program was its\ninability to develop a precedent pattern for cases which\nhad unique combinations of mitigating and aggravating factors.\nSince they were the only cases with those combinations, they\nwere also the median cases -- and thus were not flagged. To\ncompensate for this, the legal analysis staff automatically\nreviewed judgments of \"no clemency\" or more than twelve months\nof alternative service. This shortcoming of STAREDEC could\nbe overcome by applying a regression formula to cases with\nunique factor combinations -- or, indeed to all cases.\n15\n74/ Congressman Thomas Downey of New York recently introduced\nH.R. 11097, a bill to alter the Armed Forces discharge review\nprocedures. This bill would require military discharge review\nboards to apply sixteen \"mitigating\" and fifteen \"extenuating\"\ncircumstances when reviewing applications for discharge. The\nbill has no provisions for aggravating circumstances, under\nthe apparent assumption that those boards will consider them\nwithout being required to do so by an Act of Congress. The\nexperience of the Clemency Board indicates that the inclusion\nof aggravating factors is even more important than mitigating\nfactors for the protection of the individual. Aggravating\nfactors require the structuring and recording of negative\nfeelings, preventing irrelevant facts from being applied to\nanyone's detriment. Likewise, the Clemency Board's legal\nanalysis staff found their review of aggravating factors to\nbe more determinative than the review of mitigating factors.\n75/ Draft offenses and military absence offenses can each be\nconsidered single categories, although each encompasses a\nrange of specific offenses. See note 20, supra.\n76/ Clemency Board applicants proved to be much more diverse\nthan the Board had expected, but they still were far more homo-\ngeneous than defendants in criminal trials. The applicants\nwere virtually all between the ages of 21-35, all military\napplicants had military backgrounds per se, and virtually no\none had committed a violent act as part of his draft or military\nabsence offense. See the Clemency Board REPORT, ch. 3.\n77/ ,Proclamation 4313.\n78/ See generally the A.L.I. MODEL PENAL CODE (1962)\nVIETNAM OFFENDER STUDY\nCENTER FOR CIVIL RIGHTS\nUNIVERSITY OF NOTRE DAME\nLAWRENCE M. BASKIR\n1826 JEFFERSON PLACE. N.W.\nPROJECT DIRECTOR\nWASHINGTON, D. C. 20036\nWILLIAM A. STRAUSS\n(202) 296-1767\nDEPUTY DIRECTOR\nPADDY TALBOYS SHAKIN\nOctober 18, 1976\nADMINISTRATIVE SECRETARY\nRECEIVED OCT 19 1976\nSenator Charles E. Goodell\nHydeman, Mason and Goodell\n1220 19th Street, N.W.\nWashington, D.C. 20036\nDear Senator:\nWe have enclosed a reprint of our article about the\nClemency Board in the Notre Dame Lawyer.\nOur \"white paper\" will be printed soon, and we'll get\na copy of that to you as soon as it is ready. Thank you\nfor your comments and maybe this time we'll spell your name\nright.\nSincerely,\nLaz\nLawrence M. Baskir\nBlu\nWilliam A. Strauss\nencl.\nnotre\nlawyer\nvolume 51 no. 5\njuly 1976\nREPRINT -\nARTICLES\nControlling Discretion in Sentencing: The\nClemency Board as a Working Model\nWilliam A. Strauss\nLawrence M. Baskir\nPAGE 919\nPublished by the Notre Dame Law School\n© 1976 by the University of Notre Dame\nSome items in this folder were not digitized because it contains copyrighted\nmaterials. Please contact the Gerald R. Ford Presidential Library for access to\nthese materials."
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