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Final Report - Draft, 10/2-7/75 (1)
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Final Report - Draft, 10/2-7/75 (1)
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Charles E. Goodell Papers
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President (1974-1977 : Ford). Presidential Clemency Board. 9/16/1974-9/15/1975
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The original documents are located in Box 5, folder "Final Report - Draft, 10/2-7/75 (1)" of
the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Charles Goodell donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 5 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library
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CHAPTER I
INTRODUCTION
Current problems often have parallels in history, and modern
solutions may reflect decisions of earlier leaders. In
studying President Ford's Clemency Program, one need only
look back a hundred years to observe a similar situation
confronting another President of the United States. Just
days after the Civil War ended, President Andrew Johnson
began weighing whether an amnesty should be declared to heal
the wounds which still divided our newly reunited nation.
The President sought advice from Attorney General James
Speed who counseled moderation.
"The excellence of mercy and charity in a national
trouble like ours ought not to be undervalued.
Such feelings should be fondly cherished and
studiously cultivated. When brought into action
they should be generously but wisely indulged.
Like all the great, necessary, and useful powers in
nature or government, harm may come of their
improvident use, and perils which seem past may be
renewed, and other and new dangers be
precipitated. "1/
Just six weeks after he become President, Johnson followed
Attorney General Speed's advice. He declared a limited and
I-2
conditional amnesty. To many it was inadequate, while to
others it was too generous. To the President, it was a
reasonable approach which citizens of all persuasions could
find acceptable. Had the President's program not approached
the middle ground, the perils and dangers identified by
Attorney General Speed might well have come to pass.
Over a century later, President Gerald Ford was concerned
about the need to heal America's wounds following another
divisive war. Like President Andrew Johnson, he announced a
clemency program six weeks after succeeding to office. Like
Johnson, he pursued a course of moderation. No program at
all would have left old wounds festering. Unconditional
amnesty would have created more ill feeling than it would
have eased. Reconciliation was what was needed, and
reconciliation could only come from a reasoned middle
ground.
To the members of the Presidential Clemency Board, the
President's program assumed a greater meaning. We came to
the Board as men and women whose views reflected the full
spectrum of the public opinion on the war and on the
question of amnesty. As we discussed the issues, a
consensus began to emerge. We all came to see the
I-3
President's program as more than compromise. It was an
appropriate and fair solution to a very difficult problem.
As we examined the President's program, it appeared to us
that it was anchored by six guiding principles. Taken
together, they provide an excellent means of understanding
the spirit behind his clemency proclamation. They also
provide the guidelines we used to implement our
responsibilities under his program.
The first principle was one about which there can be no
disagreement: The need for a program. After almost nine
years of war and nineteen months of an acrimonious debate
about amnesty, President Ford decided it was time to act.
America needed a Presidential response to the issue of
amnesty for Vietnam era draft resisters and deserters. As
he created the program, the President authorized three
agencies -- the Department of Justice, the Department of
Defense, and the Presidential Clemency Board -- to review
cases of different categories of draft and AWOL offenders.
He designated a fourth entity, the Selective Service System,
to implement the alternative service aspect of the program.
The second principle was that the program should offer
clemency, not amnesty. Too much happened during the war to
I-4
permit Americans to forget. The President often stated that
he did not want to demean the sacrifice of those who served
-- or the conscientious feelings of thosed who chose not to
serve. But the inability to forget does not preclude the
capacity to forgive. President Ford declared that he was
placing "the weight of the Presidency in the scales of
justice on the side of mercy." By ordering that draft
prosecutions be dropped, that military absentees be
discharged, and that persons punished fcr draft or desertion
offenses be eligible for Presidential pardons, he tried to
make America whole again. He offered to restore the rights
and opportunities of American citizenship to people who had
been made outcasts because of conscientious beliefs of their
inability to deal effectively with their legal obligations.
His third principle was that he would offer most applicants
conditional, not unconditional, clemency. Clemency would
have to be earned through performance of several months of
alternative service in the national interest. Regardless of
the motive behind an applicant's draft or desertion offense,
he still owed a debt of service to his country. Performance
of that service was the precondition for forgiveness.
Fourth he declared that this was to be a limited, not
universal program. Had he included only those who could
I-5
prove that their offense had resulted from opposition to
war, he would have been unfair to less educated persons.
Had he included all persons convicted of military or draft
offenses, no matter what the nature of the crime, he would
have seriously impaired respect for law. Instead, the
President listed several draft and desertion offenses, which
if committed during the Vietnam era, would automatically
make a person eligible to apply for clemency. On balance,
he drew the eligibility line generously; of the 125,000
persons eligible, only an estimated 25% actually committed
their offenses because of a professed conscientious
opposition to war.2/
Fifth he decided that this was to be a program of definite
not indefinite, length. There would be an application
deadline, giving everyone more than four months' time from
the program's inception to apply (later extended by two
months). This would permit all cases to be decided within
one year, and -- even more important -- it would put an end
to the amnesty issue. He hoped that reconciliation among
draft resisters, deserters, and their neighbors would take
place as quickly as possible. Altogether, about 22,500
eligible persons applied for clemency.3/
I-6
His final principle was the cornerstcne of the program: All
applicants would have their cases considered through a case-
by-case, not blanket, approach. Clemency would not be
dispensed automatically, by category, or by any rigid
formula. The agencies authorized to review clemency
applications were to consider the merits of each applicant's
case, with full respect given to their rights and interests.
Case dispositions had to be fair, accurate, consistent and
timely.
During the twelve months of its existence, the Presidential
Clemency Board decided close to 16,000 cases. It tried to
apply the spirit of these principles to every case. In this
report, we explain what actions we took, what we learned
about our applicants, and what we think we accomplished.
Where possible, we also try to put the President's entire
clemency program in some perspective. The policies and
procedures of the Department of Justice, the Department of
Defense, and the Selective Service System are useful
benchmarks for understanding the full context of the Board's
own policies and procedures.
The report begins with a discussion of how the Board
implemented each of the President's six principles. Next,
we describe what we learned about the experiences of the
I-7
civilian and military applicants. We then describe how we
managed what was at all times a "crisis" operation. We then
try to put the President's program into an historical
perspective through a comparative analysis of other
instances of executive clemency in American history.
Finally, we discuss what we think the President's program
accomplished.
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CHAPTER II: THE PRESIDENT'S CLEMENCY PROGRAM
A. The Need for a Program--and Its Creation
Regardless of political or philosophical perspective, all
will agree that the war in Vietnam had a significant impact
on our country and on the lives of most American citizens.
The war resulted in the loss of hundreds of thousands of
lives, including the live of fifty-six thousand American
soldiers. It forced many more people to leave their homes
and countries. Nightly, television brought the war into
every American living room. For the first time the average
citizen witnessed the reality of war, almost at first hand.
Conflict between pro- and anti-war advocates increased
dramatically. Slogans such as "American, Love It or Leave
It," "Peace with Honor," and "Unconditional Amnesty Now"
came to be symbolic of the divisions in our country.
Patriotism meant different things to different people. Most
believed that love of country could best be demonstrated by
defending America's interest on the battlefield. But others
insisted that love of country required a critical reversal
of national policy. They felt that by opposing the war and
resisting military induction, they could serve America by
changing its foreign policy.
Over and above the political consequences of the war were
the personal tragedies. Thousands of Americans lost their
lives, and thousands of American families lost their loved
II-A-2
ones. Untold hundreds of thousands must bear the physical
and psychological scars of their experience for the
remainder of their lives.
Even after the war ended, it remained painfully clear that
America had suffered other casualities, as well. The war
affected the lives of tens of thousands of young Americans
who had chosen not to serve. Their families and friends
shared their burdens of exile, imprisonment, and separation.
One of the most critical and difficult decisions confronting
a country is to send its sons to war. The stakes are high.
Nothing can every be done to compensate for the supreme
sacrifice of those who die or or those lose their loved
ones. Nonetheless, this does not preclude a subsequent
decision to be merciful toward those who did not serve in a
war many Americans did not understand or support.
Shortly after assuming his office, President Ford wanted to
"bind the Nation's wounds and to heal the scards of
divisiveness. As one of his first initiatives as President,
he issued Proclamation 4313, creating the Clemency Program.
The President felt that "in furtherance of our national
commitment to justice and mercy" it was time for an "act of
mercy" aimed at national "reconciliation" with the greatest
II-A-3
degree of public cooperation and understanding. He issued
Proclamation 4313 to outline how his program was to be
implemented. When the Program began on September 16, 1974,
a year and a half had passed since the last American
combatant had left Vietnam.
President Ford recognized that desertion and draft evasion
in wartime are serious offenses which, if unpunished, would
have an adverse effect on military discipline and national
morality. Nevertheless, he recognized that "reconciliation
among our people does not require that these acts be
condoned." It did require, however, that these offenders
have an opportunity "to contribute a share to the rebuilding
of peace among ourselves and with all nations, (and) to
earn return to their country." It was on this foundation
that President Ford constructed his Clemency Program. He
entrusted its administration to three existing government
agencies -- the Department of Justice, the Department of
Defense, and the Selective Service System -- and created the
Clemency Board within the Executive Office of the President
to consider applications from people not already under the
jurisdiction of the other agencies. These four governmental
units were ordered to implement a program offering
forgiveness and reconciliation to approximately 113,000
draft resisters and military deserters.
II-A-4
Unconvicted draft evaders were made the responsibility of
the Justice Department. Members of the Armed Forces who had
been administratively classified as being an unauthorized
absentee during the eligibility period and who remained at
large, came under the purview of the Defense Department's
program. The vast majority who had already been convicted
or otherwise punished for their Vietnam-era offenses became
the responsibility of the newly created Presidential
Clemency Board.
On September 16, 1974, the President appointed nin persons
to this Board with former U.S. Senator Charles E. Goodell
designated as Chairman.1/
Beginning in September, the Board met on a regular basis in
Washington, D.C. As the number of applications swelled from
860 in early January to 21,500 by the end of March, it
became apparent that the nine original Board Members and the
initial staff of eighteen could not complete the Board's
work within the twelve-month deadline set by the President.
Thus, in May 1975 the President expanded the Board to
eighteen members and authorized a staff increase to over 600
to complete the work on time.
II-A-5
The expanded Board included members with widely ranging
experiences and points of view. Some members openly
advocated unconditional amnesty, and others had spoken out
strongly against the war. Several believed that our mistake
lay in not pursuing the war effort more vigorously. All
members were aware that the President's clemency program had
to be implemented carefully to avoid having a serious impact
on military discipline and to avoid impairing our strength
in a future military emergency. Except for three women and
two clergymen, all Board members were veterans of military
service. Five were Vietnam veterans, two of whom were
disabled in combat. Another commanded the Marine Corps in
Vietnam. One Board member has a husband still listed among
those missing in action. Two black men, one black woman and
one Puerto Rican woman were on the Board. We also had a
former local draft Board member, an expert in military law,
and others with special backgrounds and perspectives which
contributed to a well-balanced Board. The original nin-
member Board was broadly representative of national feelings
on the war and on the issue of amnesty and clemency. The
expanded Board of eighteen was carefully selected to
preserve this balance.
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B. Limited, Not Universal, Program
When the President announced his clemency program, he had to
draw some line between those who were eligible and those who
were not. That line was drawn in a very generous manner.
In order to encompass Vietnam-era offenders who opposed the
war on conscientious grounds, the President enumerated a
sizeable list of offenses. He decided not to impose a test
of conscience. It would have been improper to regard those
who could articulate their opposition to the war as the only
persons with a legitimate claim for clemency. The complex
Selective Service procedures tend to favor the better-
educated and the sophisticated. Those who were not able to
express themselves may still have had strong feelings about
the war, but may not have been successful in pursuing their
legal opportunities. A fair program of clemency could not
be restricted to those already favored by education, income,
or background.
In a broader sense, moreover, the atmospher of division,
debate, and confusion about the war had an impact on all
those called upon to serve. If the war had been universally
regarded as critcal to the survival of the United States, it
is unlikely that many Americans would have placed their
personal needs or problems above those of the country. This
war was not universally regarded as such, and many of those
who failed to serve did so, consciously or not, because the
II-B-2
needs of the country were not as evident to them as the
personal sacrifices they or their families had to endure.
For these reasons, the President's definition of those
eligible for clemency was phrased in terms of offenses
committed, and not the reasons for the offense. The
President extended a clemency offer to Vietnam veterans who
went AWOL to find a civilian doctor to treat their wounds,
to cope with readjustment problems after returning from
Vietnam, or to support families forced to go on welfare.
Likewise, he extended it to civilians from disadvantaged
backgrounds whose ignorance and itinerancy led to their
failure to keep their draft boards informed of their
whereabouts. In the thousands of cases we have reviewed, we
found that the list of victims of the Vietnam War was one of
much greater variety than we had originally thought.
Eligibility Criteria for the Program
The Presidential Proclamation established three criteria for
eligibility. First, the Program applied only to offenses
that occurred during the war period. This was defined as
extending from the Gulf of Tonkin Resolution (August 4,
1964) through the day that the last American combatant left
Vietnam (March 28, 1973). Second, an applicant must have
II-B-3
committed one of the offenses specifically listed in the
Proclamation. Military applicants must have violated
Article 85 (Desertion) of the Uniform Code of Military
Practice, Article 86 (absence without leave) an Article 87,
(missing movement). Draft evaders must have committed one
of the following violations of Section 12 of the Selective
Service Act: (1) failure to register for the draft or
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 report for or submit to or complete alternative service.
Third, to be eligible, an applicant must not have been an
alien precluded by law from reentering the United States.
The eligibility tests set by the President no doubt excluded
some fugitives, convicted offenders, and discharged
servicemen whose offenses were motivated by their opposition
to the war. For example, there were a few military
applicants who, out of conscientious objection to the war,
refused to report to Vietnam. Instead of going AWOL, these
men faced court-martial for willful disobedience of a lawful
order. Had they gone AWOL, they would have received
clemency: because they remained on their bases and accepted
the punishment for their actions, they still have their bad
discharges. Also, persons convicted of or charged with such
II-B-4
other Selective Services offenses as draft card mutilation
or aiding and abetting draft evasion were ineligible for
clemency because these were not among the crimes listed in
the Executive Order.
Before the President announced his program, there was
considerable debate in Congress and elsewhere about the
kinds of offenses that properly should be included in a
clemency or amnesty program. As with most disputes on the
subject, opinions varied greatly. There was, however,
general agreement that absence and induction offenses should
be included because the vast proportion of Vietnam-related
offenses were of this type.2/ Categories of offenses
involving calculated interference with the draft system, or
with military discipline, or involving violence or
destruction of property would have had a far more serious
impact on respect for law and military discipline.
Eligibility for the Presidential Clemency Board
Eligible applicants to our Board included only those who had
been convicted or punished for the above offenses.
Therefore, for a civilian to be eligible, he must have been
convicted of one of the Selective Service violations listed
above. For a former serviceman to be eligible, he must have
II-B-5
received an undesirable, bad conduct, or dishonorable
discharge "as a consequence of" his absence offenses.
Anyone discharged with either an Honorable or a General
Discharge was not eligible.
The Proclamation prevented our Board from accepting cases in
which the underlying facts of the offense may have supported
a charge over which we had jurisdiction, but in which the
individual was in fact prosecuted for a nonqualifying
offense. The Executive Order clearly stated that the
discharge must have been based on unauthorized absence.
Thus, an Article 92 conviction for failure to obey an order
to go to an appointed place must have been charged as an
AWOL. An individual discharge for a civilian conviction
could also have been discharged for unauthorized absence
while in civilian custody. There were numerous gray areas
in which difficult jurisdictional determinations had to be
made.
The other agencies had accurate counts of eligible persons;
4,522 were eligible for the Justice program and 10,115 for
the Defense program. We had to rely entirely on estimates
which these agencies gave US. Our 8,700 total for civilian
eligibles came directly from Department of Justice records.
Our 90,000 figure for military eligibles is 80% of the
II-B-6
111,500 originally estimated by the Department of Defense
from their records of AWOL-related discharges. 3/ We reduced
that later figure by 20% because the Department of Defense
found that its original estimate of persons eligible for its
own program was 20% too high; they reduced it from 12,600 to
10,115 through a closer inspection of records. We expect
that the same attrition would result from a close inspection
of our eligible persons' records.
We recognized that this was a clemency program, requiring us
to interpret broadly and generously the jurisdictional
boundaries. To be narrow and unduly legalistic in
determining eligibility would have been contrary to the
spirit of the program.
The military cases presented difficult questions of
interpretation. For example: "The Board shall consider
the case of persons who
(1) have received punitive or
undesirable discharges as a consequence of violations of
Articles 85, 86, or 87
"
The phrase "as a consequence of"
gave us particular difficulty. We decided that the phrase
did not mean "as a consequence of" an AWOL only. In many
cases individuals were administratively discharged for
unfitness or frequent involvement with authorities based on
a pattern of offenses -- including AWOLs -- none of which
II-B-7
warranted a court-martial. The AWOL had to be viewed as
one, if not the sole cause of the discharge. This
occasionally meant that an individual might have been
administratively discharged for unfitness for a very short
AWOL, plus numerous other minor infractions. It was
impossible to devise any objective method to separate the
reasons for the discharge. The services leave
administrative discharges for unfitness to the discretion of
commanders. They do not issue hard and fast rules on the
number, kind, or severity of misconduct necessary to warrant
an Undesirable Discharge. We recommend the dual need to
have clear and objective jurisdictional rules, while at the
same time retaining flexibility to make correct dispositions
in cases in which a short AWOL was an insignificant factor
in the discharge. We decided that the need for clear and
consistent jurisdictional rules required us to accept these
marginal cases, since the right to have one's case heard
should be broadly granted. However, the overwhelmingly poor
military records of these applicants could result in a
denial of clemency, a consequence much less desirable than a
denial of jurisdiction.
The court-martial cases presented similar difficulties
because, unlike civilian courts, sentences were not rendered
separately when an individual was convicted on several
II-B-8
different charges, one of which was an AWOL. Since an
individual might well have been court-martialed for a major
felony and a very short AWOL, it was obvious that the
discharge would have been awarded irregardless of the AWOL
offense. In court-martial cases, however, military
regulations define the maximum punishments for different
offenses. Thus, we consulted the Manual for Court Martial,
1969, Table of Maximum Punishments to formulate simple rules
to determine when we had jurisdiction in cases involving
court-martial discharges. We applied the same rules to
administrative discharges given in lieu of court-martial.
As a general rule, we determined that:
1. We had jurisdiction if the AWOL offenses that
commenced within the qualifying period standing
alone were sufficient to support the discharge that
the applicant received;
2. We had jurisdiction if neither the AWOLs that
commenced within the qualifying period nor his other
offenses -- considered independently -- were
sufficient for the discharge that the applicant
received;
II-B-9
3. We did not have jurisdiction if the AWOLs that
commenced within the qualifying period were
insufficient and any one of his other offenses --
considered independently -- was sufficient for the
discharge that the applicant received.
The exclusion from the program of persons who were precluded
by law from re-entering the United States also posed
difficult problems. If an order of a court or the
Immigration and Naturalization Service had already decided
the question, we were bound by that determination. But we
considered it not within our province to decide complex
questions of immigration and citizenship law. For that
reason, we provisionally accepted the cases of persons for
whom no such determination had yet been made. We made
tentative decisions on the cases, and we forwarded them to
the President with a recommendation that he not act until
proper judicial or administrative determinations had been
made by the Justice Department. Altogether, we received
approximately 6,000 applications from ineligible persons.
Many had committed offenses during other wars, had received
general discharges, or had been discharged for reasons not
covered by the program. While we could not help them
directly, we informed each one by letter of other legal and
administrative remedies available to them.
GERALD R. FORD
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Chapter III. Case Dispositions
A. Summary
The products of our year's work on the Clemency Board were our
16,000 case dispositions. Most Board members participated in
thousands of these decisions, each one carefully determined on
the basis of our baseline formula and designated factors. In
hearing so many cases, some inconsistencies were bound to occur.
However, the process we followed and the substantive rules we
applied reduced these inconsistencies to a minimum. For example,
our pardon rate was the same for black and white applications --
(43%). Almost always, our different treatment of different kinds
of individuals reflected the contrasting facts of their cases.
Our case dispositions for civilian applicants were considerably
more generous than for our military applicants. Our pardon rate
for civilians was over twice that for discharged servicemen,
while our civilian No Clemency rate was less than one-fifth of
that for servicemen for military applicants.
Our actual case dispositions are listed below:*
PCB FINAL DISPOSITIONS - CIVILIAN*
Number
Percent
Cumulative
III-2
Pardon
1652
82.6
82.6
1-3 months
164
8.2
90.8
4-6 months
98
4.9
95.7
7-9 months
22
1.1
96.8
10-12 months
34
1.7
98.5
13 + months
8
0.4
98.9
No Clemency
22
1.1
100.0
Total
2000
PCB FINAL DISPOSITIONS - MILITARY2/
Number
Percent
Cumulative
Pardon
4888
37.6
37.6
1-3 months
2613
20.1
57.7
4-6 months
2977
22.9
80.6
7-9 months
1235
9.5
90.1
10-12 months
442
3.4
93.5
13 + months
26
0.2
93.7
No Clemency
819
6.3
100.0
Total
24000
PCB FINAL DISPOSITIONS - TOTAL3/
Number
Percent
Cumulative
III-3
Pardon
6540
43.6
43.6
1-3 months
2777
18.5
62.1
4-6 months
3075
20.5
82.6
7-9 months
1257
8.4
91.0
10-12 months
476
3.2
94.2
13 + months
34
.2
94.4
No Clemency
841
5.6
100.0
Total
16000
B. Impact of Baseline Caculations and Aggravating/Mitigating
Factors
Our case dispositions were made on the basis of our baseline
calculation and our application of aggravating and mitigating
factors. Almost all of our applicants' alternative service
baselines were three months, and less than 2% had baselines of
over six months. This was the single most important factor
contributing to our 44% pardon rate and the short periods of
alternative service assigned to most of the rest.
Baseline
Civilian
Military
3 months
94.6%
87.8%
4-6 months
2.9%
15.5%
7-12 months
0.7%
0.6%
III-4
13-24 months
1.9%
0.7%
Our application of mitigating and aggravating factors affected
our decision to grat clemency -- and, if so, to go up or down
from the alternative service baseline. We applied these factors
with different frequency and with different weight. The table on
the following page shows the relative frequency of all factors.
Note the difference between the factors most often applied in
civilian and military cases. The typical civilian case had no
aggravating factors, but had mitigating factors #4 (public
service), #10 (motivated by conscience), and #11 surrendered).
The typical military case had aggravating factors # 1 (other
civilian or court-martial convictions), #8 (multiple AWOLs), and
#9 (extended length of AWOL), along with mitigating factor #6
(creditable military service).
The weight with which we applied our factors is difficult to
assess, even in hindsight. We often designated factors as "weak"
or "strong" when making case dispositions, and some factors were
applied in a variety of ways. For example, aggravating factor #1
was applied if an applicant had received a prior court-martial
for an AWOL offense before his discharge, and it was applied
(with much more significance) if he had been convicted for a
violent felony offense. Our tables do not distinguish between
the two.
III-5
Nevertheless, some interpretation of the weights of our factors
can be inferred from the table on the following page. This table
shows the frequency with which we applied each factor in our
three basic types of dispositions -- outright pardons,
alternative service, and no clemency.4/ For example, we applied
aggravating factor # 1 (other adult felony convictions) in 1.8% of
our civilian pardon cases, 11.2% of our civilian alternative
service cases, and 78.9% of our civilian no clemency cases. From
this table, it appears that the presence or absence of of the
following factors had some relationship to an applicant's
likelihood of receiving a pardon or a no clemency disposition.
Others appeared to have no such relationship, and still others
were applied to infrequently to prevent any inference from being
drawn.
Civilian
Military
Pardon
No Clemency
Pardon
No Clemency
Agg 1
Agg 1
Agg 5
Agg 1
Agg 5
Agg 7
Agg 4
Agg 7
Mit 2
Agg 7
Mit 4
Mit 4
Mit 3
Mit 11
Mit 9
Mit 10
Mit 5
Mit 10
Mit 11
Mit 6
Mit 7
Mit 2
III-6
Mit 8
Mit 12
Mit 11
Mit 11
Mit 12
Mit 13
Mit 14
Mit 15
The relationship between our factors and our case dispositions
can be seen even more clearly in the table on the following page.
It shows the likelihood of each type of case disposition, given
the presence of a particular factor. For example, a civilian
case with mitigating factor # 11 (surrender) resulted in an
outright pardon 85% of the time, alternative service 14% of the
time, and no clemency in the other 1%. From this table, the
following inferences can be drawn about the strength of the
various factors.
Civilian
Military
Strong No Effect
Very Strong Strong
Agg 1
Agg 3
Agg 4
Agg 1
Agg 5
Agg 6
Agg 11
Agg 2
Agg 7
Agg 12
Agg 3
Agg 5
Mit 4
Mit 1
Mit 12
Agg 7
III-7
Mit 8
Mit 2
Mit 13
Mit 9
Mit 3
Mit 15
Mit 10
Mit 6
Mit 16
Mit 4
Mit 11
Mit 5
Mit 7
Mit 8
Weak
No Effect
Agg 10
Agg 8
Agg 12
Agg 9
Mit 9
Mit 1
Mit 10
Mit 2
Mit 14
Mit 6
Mit 9
Mit 11
One problem with the preceding tables is that they focus on
factors separately, rather than in combination. Often,
aggravating and mitigating factors meant much more when they were
applied in particular combinations. For example, mitigating
factor #6 indicated the length of an applicant's military
service, while mitigating factor #14 indicated the quality of
that service. The two together told a much different story about
a person than did one without the other. The following three
tables show how our range of dispositions varied depending on
III-8
single-tactor changes in our mix of mitigating and aggravating
factors. The mean case disposition is underlined for each
combination of factors. 6/ From these tables, it appears that all
factors included in them had at least a slight effect upon our
case dispositions. (Recall that the preceding analysis finds
otherwise--that aggravating factor # 9 and mitigating factory #6
had no effect in military cases.)
Impact of Selected Factors on Civilian Case Dispositions
AGG #
MIT #
# of Cases
Pardons
3 AS
4-6 AS
7+ AS
NC
-
4,9,10
14
14
-
-
-
-
-
4, 10
144
139
4
1
I
I
-
10
74
69
3
2
I
I
-
-
25
16
5
1
3
I
5
-
20
1
9
8
1
1
15
-
4
1
-
-
1
2
1.5.7
I
2
-
-
-
I
2
Impact of Selected Mitigating Factors on Military Case Disposition
Agg 1
Mit #
# of Cases Pardons 3 AS 4-6 AS 7+ AS NC
III-9
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
Impact of Selected Aggravating Factors on Military Case Dispositions
Agg 1
Mit #
# of 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
C. Civilian Case Dispositions
Our civilian applicants received mostly outright pardons (83%),
with a much smaller proportion assigned to alternative service
(16%), and very few denied clemency (1.1%). The following table
shows the most frequent combinations of factors in civilian
cases. The cases repressented in the table accounted for over
III- 10
half of all our civilian cases. Aggravating factors were
virtually absent in these cases, and mitigating factor #10
(conscientious reasons for offense) appeared in the six most
frequent combinations of factors.
Most Frequent Civilian Cases
Agg Factors
Mit Factors
# Cases
Pardon
AS
NoC1
-
4.10.11
375
370
5
0
I
10.11
161
159
2
0
-
4,10
144
139
5
0
-
10
74
69
5
0
-
4,9,11
33
33
0
0
-
9,10,11
32
32
0
0
-
4
31
30
1
0
5
11
26
8
18
0
-
-
25
16
9
0
Civilian cases which received outright pardons typically had no
aggravating factors (or just #12, apprehension), mitigating
factor #10 (conscientious reasons), and mitigating factor #4
(public service). The table below lists the combinations of
factors which had the greatest proportion of outright pardons. 7/
III-11
Civilian Pardon Cases
Agg Factors
Mit Factors
# Cases
# Pardons
-
4,9,10,11
33
33
-
9,10,11
32
32
12
10
16
16
-
4,9,10
14
14
-
3,4,10,11
10
10
-
10,11
161
159
-
4,10,11
375
370
-
4,11
31
30
12
4,10
22
21
-
10
74
69
-
2,4,10,11
12
11
From our sample of civilian applicants,8/ it appears that those
most likely to receive outright pardons were Jehovah's Witnesses
(96%) 9/ who were granted CO status (92%), whose offense was
failure to perform draft-board-ordered alternative service (94%)
because of their membership in a religion opposed war (92%), who
were sentenced to alternative service (84%), and who completed
over two years of court-ordered alternative service work (90%).
III-12
Also likely to receive an outright pardon was a civilian
applicant with a college education (82%) who had a CO application
denied (82%), refused to submit to induction (81%) because of
ethical or moral opposition to war (78%), who surrendered (80%),
served more than one year in prison (78%), who was in school at
the time of his clemency application (85%), who submitted a
letter in support of his application (79%), and whose Selective
Service files were used by our case attorney in preparing his
case summary (82%).
Much less likely to receive an outright pardon was a civilian
applicant of a minority background other than black (55%) from a
severely unstable family background (63%) who had only a grade
school education (59%), and an TQ under 90 (59%), whose offense
was failing to register for the draft (58%) or failing to keep
his board informed of his address (58%), whose offense was not
related to opposition to war (65%) or involved specific
opposition to the Vietnam War (62%), who fled to a foreign
country (55%) before being apprehended (59%), who served 1-12
months in prison (59%), who has committed another nonviolent
felony (25%) or violent felony (0%), who was either underemployed
(67%) or incaracerated (11%) at the time of his application, and
whose records were incomplete when our case attorney prepared his
summary (60%). .
III-13
The following case is a typical civilian applicant who received
an outright pardon.
(Case #00552)
Applicant filed for a C.O.'s exemption on the
basis of his ethical conviction that the
preservation of life was a "Fundamental point
of my existence." The local board denied it,
presumbably because his conviction were ethical
and not religious. Furthermore, he never
received notice that his request was denied.
When ordered to report for induction, he argued
that he had not been informed of the denial and
requested an appeal. His local board denied
this request because the 30-day appeal period
had expired and mailing the denial of
applicant's request to his home constituted
constructive notice of the contents. Applicant
refused induction, voluntarily appeared at his
trial, pled quilty and received a sentence of
three years probation. During that period he
worked as a pharmacist for alternative service,
but he also worked as a volunteer on a drug
abuse hotline and served on the Board of
Directors of the town's Youth Commission.
III-14
The civilian cases resulting in Alternative Service generally
fell into two categories. First, some civilian applicants who
have committed their offense for conscientious reasons but served
only a portion of their sentences.
(Case #00022)
Applicant claimed his refusal to report for
induction was based on his philosophical
convictions regarding life. He was sentenced
to three years in prison but served only six
months when he received a furlough because of
the clemency program.
The second category of alternative service cases were those in
which the applicant committed offense for slightly selfish
reasons, but there were no other serious aggravating
circumstances.
(Case #548)
Applicant was convicted of failure to inform
the local board of his current address. At the
time he was drifting around with no fixed
address so he did not both to keep in touch
with his local board.
Civilian cases which received no clemency dispositions almost
always had aggravating factor #1 (other adult felony
III-15
convictions), and usually had aggravating factor #5 (selfish
reasons for offense) and no mitigating factors. The table below
lists the only combinations of factors which accounted for two or
more civilian no clemency cases.
Civilian No Clemency Cases
Agg Factors
Mit Factors
# Cases
# No Clemency
1,5,7
-
2
2
1,5
-
4
2
1
-
5
2
From our sample, the civilian applicants most likely to be deneid
clemency1 were black (4.9%) 11/ with a grade school education
(3.3%) and an IQ under 90 (5.9%), whose offense was failing to
register for the draft (8.3%), who did not commit the offense
because of opposition to war (12.6%), who was sentenced to
probation (2.4%), who performed no alternative service (2.5%),
who had committed another nonviolent felony offense (6.7%) or a
violent felony offense (100%), who was incarcerated at the time
of his clemency application (33%), whose lawyer communicated with
us while his clemency application was pending (5.5%), and whose
records were incomplete at the time our case attorney prepared
his summary (5.2%).
III-16
Two-thirds of our civilian no clemency dispositions were
attributable to our applicants' convictions for violent felony
offenses. The following case is typical.
(Case #02407)
This civilian applicant had three other felony
convictions in addition to his draft offense.
On September 23, 1970 he received a one-year
sentence for sale of drugs. In 1971 he
received one year of impriosnment and two years
of probation for possession of stolen property.
On October 18, 1972 he was convicted of failure
to notify his local board of his address and
sentenced to three years' imprisonment which
was suspended and applicant was placed on
probation.
His
probation
was
not
satisfactorily completed because on March 23,
1974 he was convicted of assault, adbuction and
rape for which he received a 20-year sentence.
The other no clemency case dispositions went to applicants whose
attitude and uncooperativeness were contradictory to the spirit
of the clemency program.
(Case # 10374)
Applicant wrote the local board and asked for a
postponement of his induction because he
III-17
alleged he had received injuries in a car
accident which disqualified him for military
service. He did not submit a physician's
statement. The board, therefore, ordered to
report. He claimed the board had ignored his
earlier request and did submit a stement from
his doctor showing that he had received some
injiries in a car accident. However, another
doctor examined the applicant and found him
completely healed. Applicant refused induction
and was convicted; he received a sentence of 30
days in jail and 2 years' probation. He
admitted in an interview with the probation
officer that his reason for refusing induction
was that he did not want to go into the Army
because he had recently married and his wife
was pregnant. The Probation Officer reports
that applicant's adjustment to probation was
poor; he has shown no initiative and is out of
work most of the time. His wife is now
supporting him.
Not all of our civilian cases fell clearly into the categories
described above. In a very few cases, our Board was sharply
divided -- especially where very strong mitigating and
III-18
aggravating factors conflicted with one another. Consider the
following case:
(Case #0041)
Applicant had a very unstable family
backqround, with an alcoholic father who had a
series of wives. Despite this, applicant
graduated near the top of his class, was senior
class president, and completed tow years of
college. He applied for and received CO
status, but he failed to report to his
alternative service work at a local hospital.
Instead, he traveled through Europe and the
Middle East. He was arrested for smuggling
hashish in Lebanon and served nine months in a
Lebanese prison. Thereafter, he joined a
religious cult which advocated trepanation
(drilling a hole in one' head). He performed
the operation on himself, but suffered an
infection and had to be hospitalized. He was
conficted for his draft offense and was
sentenced to two years imprisonment. He served
seven months before being furloughed for his
clemency application. A prison psychiatrist
indicates that applicant sufferes from paranoid
III-19
schizophrenia, said to be caused by his belief
in trepantation.
This case was debated by our full Board on four separate
occasions. Originally, the Board was sharply split between
outright pardon, because of the conscientious nature of his
beliefs and his apparent mental problems--and no clemency because
of his hashish smuggling conviction and his selfish failure to
perform alternative service of his offense. After much
discussion, the Board decided to recommend clemency. The issue
then became whether he should perform at least a minimal period
of serivce, but there was concern that he would be unable to
perform it. Finally, a divided recommendation was presented for
the President who approved the majority's recommendation of an
outright pardon.
D. Military Case Dispositions
Most of our military applicants were assigned to alternative
service (56%), with a smaller proportion receiving outright
pardons (38%), and the others denied clemency (6.3%). The
following table shows the most frequent combinations of factors
in military cases. All had aggravating factors #8 (multiple
AWOLs) and #9 (length AWOL) and mitigating factor #6 (creditable
military service). All but one had mitigating factor #2
III-20
(personal or family problems). However, these cases represent
just 4% of all military cases, because of the great variety of
factor combinations applied to these cases.
Most Frequent Military Cases
Agg Factors Mit Factors # Cases Pardon As No Clemency
1,8,9,12
2,6
114
20
89
5
8,9,12
2.6
85
12
73
0
1,5,8,19,2
6
81
1
75
7
1,8,9
2,6,11
81
18
56
3
1,8,9,12
2,6,14
79
34
32
0
1,8,9.12
1,2,6
70
16
51
3
Military cases which received outright pardons typically had
mitigating factors #2 (personal or family problems), #6
(creditable military service), #7 (Vietnam service), and # 14
(satisfactory military performance). The table below lists the
III-21
combinations of factors which had the greatest proportion of
outright pardons. 12/
Military Outright Pardon Cases
Agg Factors
Mit Factors
# of Cases
# Pardons
1,8,9,12
1,2,6,7,14
11
11
8,9,12
2,6,7,14
11
11
8,9
1,2,6,7,11,14
10
10
1,8,9
2,6,7,11,14
16
15
1,8,9
2,6,7,11,14
13
12
1,8,9,12
1,2,6,8,14
11
10
8,9
2,6,7,14
23
19
1,8,9,12
2,6,7,14
28
23
8,9.12
2,6,7,14
21
17
III-22
8,9
1,2,6,8,11
15
12
From our sample military applicants, those most likely to receive
outright pardons were blacks (47%)13/ or persons of other
minority backgrounds (55%), born before 1945 (52%), with an AFQT
score of Category IV (46%), who had over two years (62%) or over
three years (78%) of creditable military service, including a
partial Vietnam tour (61%) or a full Vietnam tour (83%) or
multiple Vietnam tours (93%), whose last AWOL offense was after
1971 (46%), whose AWOLs were attributable to post-combat
psychological problems (88%), who was unemployed at the time of
his application (50%), and whose lawyer communicated with us
while his clemency application was pending (78%).
Those less likely to receive outright pardons were applicants
with college educations (25%), who had less than 12 months of
creditable military service (22%), who never went to Vietnam
(27%), who went AWOL because of conscientious oppostion to war
(15%), who immediately returned after going AWOL (30%), who has
committed a violent felony offense (20%), and whose records were
incomplete at the time our case attorney prepared his summary
(29%).
The most clear outright pardon cases among our military
applicants were those with truly outstanding service records
III-23
prior to their AWOL problems. These particularly meritorious
cases (3-6%) were referred to our Full Board for possible
recommendation to the President that their discharges be upgraded
and that they receive veterans benefits. As a minimum applicants
must have had creditable service and a tour in Vietnam to be
considered, but wounds in combat, decorations for valor, and
other mitigating factors were also important.
(Case #09067)
Applicant had 4 AWOL's totalling over 8 months,
but he did not begin his AWOL's until after
returning from two tours of duty in Vietnam,
when his beliefs concerning the war changed.
He came to believe that the U.S. was wrong in
getting involved in the war and that he "was
wrong in killing people in Vietnam. " He had
over three years' creditable service with 14
excellent conduct and efficiency ratings. He
re-enlisted to serve his second tour within 3
months of ending his first. He served as an
infantry man in Vietnam, was wounded, and
received the Bronze Star for valor.
Our less meritorious military pardon cases either had
understandable reasons for their offenses or committed relatively
minor AWOL offenses had had good service records.
III-24
(Case # 12631)
Applicant enlisted in 1960 and had a good
record. In 1963 he married, but he began to
have marital problems scon afterwards. He was
in a car accident in 1964. The combination of
these two influences drove him to drink, and he
became an alcoholic. His frequent AWOL's were
directly attributable to his alcoholism.
(Case #11606)
Applicant had 4 AWOL's totalling 6 days and
surrendered after the last two. He had 1 year
and 9 months' creditable service with above
average conduct and croficiency ratings and
served a tour in a task force patrolling the
waters off Vietnam.
The bulk of our military cases resulted in alternative service
dispositions. As a general rule, these cases involved both
aggravating and mitigating factors which balanced one another.
Where some factors outweighted others, we went up or down from
our alternative service "baseline," usually by 3-6 months.
(Case #00291)
The applicant commenced his first AWOL after he
was assaulted by a cook while in KP. After his
second AWOL, he was allegedly beaten by 5 MP's
while confined in the stokade. On the other
III-25
hand, he committed four AWOL's, the last one
lasting almost 3 1/2 years, and had less than
one month of creditable service.
(Case # 14813)
Applicant went AWOL because he was involved
with a girl and was using drugs. He is
presently incarcerated in a civilian prison for
a minor breaking and entering. On the other
hand, his two AWOL's were each of a few days
duration, and he is a very low category IV
AFQT.
Military cases which received no clemency dispositions almost
always had aggravating factor #1 (other adult telony
convictions), and usually aggravating factor #5 (selfish reasons
for offense) and no mitigating factors other than #2 (creditable
military service). The table below lists the combinations of
factors most likely to result in no clemency dispositions. 14/
Military No Clemency Cases
Agg Factors
Mit Factors
# of Cases
# No Clemency
1,5,8
-
18
9
III-26
1,8
6
29
14
1,5,8,9
1
14
6
1,8
I
13
5
1,5,8,9
2,6
18
7
1,8
1,6.11
18
6
1,5,8
6
34
10
1,5,8,9
6
38
11
From our sample, the military applicants most likely to be denied
clemency were black (14%) 15/, or of other minority backgrounds
(11%), born after 1949 (11%), with AFQT scores in Category III
(10%) or Category IV (9%), who had less than 12 months creditable
service (11%) and a partial tour in Vietnam (13%), whose AWOL
resulted either from post-combat psycholcgical problems (12%) or
any reason unrelated to opposition to war or personal/family
problems (11%), who fled to a foreign country while AWOL (23%)
before being apprehended (10%), who faced non-AWOL charges at the
time of his discharge (14%), who has committed non-violent felony
offense (24%) or violent felony offenses (73%), who was
III-27
incaracerated at the time of his clemency applications (61%), and
whose records were incomplete when our case attorney prepared his
summary (12%).
Applicants relatively unlikely to be denied clemency were born
before 1945 (4%), college-educated (0%), with an AFQT score of
Category I (5%), who was drafted (6%), who had more than two
years (4%) or three years creditable service (3%) with one full
Vietnam tour (6%) or multiple Vietnam tours (0%), whose AWOL
offense resulted from conscientious objection to war (3%), who
lived openly at home while AWOL (3%) before surrendering (6%),
who did not face non-AWOL charges at the time of his discharge
(6%), who has committed no civilian felony offenses (3%), who was
in school (0%) or unemployed (0%) at the time of his clemency
application, and whose lawyer communicated with our case attorney
while his clemency application was pending (0%).
Two-thirds of our military no clemency dispositions were
attributable to our applicants' convictions for violent felony
offenses. The following cases are typical.
No clemency dispositions normally resulted from other serious
felony convictions, such as the following:
III-28
(Case #10147)
While in the service, applicant received a
General Court Martial for robbery with force.
After his discharge he was arrested and found
quilty for armed robbery in Michigan.
(Case #04071)
Applicant is now serving a 15-year sentence in
a civilian prison for selling herion.
(Case #14930)
After discharge, applicant was convicted in a
civilian court of first degree murder and
second degree robbery. He received a sentence
of 25 years to life and will not be eligible
for parole until 1997.
Occasionally, we would deny clemency when the applicant committed
his offense out of cowardice, as in the following:
(Case #03304)
Applicant would not go into the field with his
unit, because he felt the new Commanding
Officer of his company was incompetent. He was
getting nervous about going out on an
operation; there was evidence that everyone
believed there was a good likelihood of enemy
contact. (His company was subsequently dropped
onto a hill where they engaged the enemy in
III-29
combat). He asked to remain in the rear, but
his request was denied. Consequently he left
the company area because, in the words of his
chaplain, the threat of death caused him to
exercise his right of self-preservation.
Applicant was apprehended while travelling on a
truck away from his unit without any of his
combat gear.
We also denied clemency if offenses were simply too serious and
plentiful.
(Case #03444)
Applicant received an SCM for two periods of
AWOL (one day each) and one charge of missing
movement. He then received an NJP for one AWOL
(one day), another NJP for three AWOL's (1;1;10
days), and one NJP for two AWOL's (7;1 days).
He then received an SPCM for two AWOL's (2
months 17 days; 3 months 19 days). He accepted
an undesirable discharge in lieu of court
martial for one period of desertion (2 years 10
months 20 days), five periods of qualifying
AWOL (8 days; 3 months 28 days; 1 month 2 days;
2 months 13 days; 6 months 29 days) and one
period of non-qualifying AWOL (3 months 28
III-30
days). This is a total of one period of
desertion, 15 periods of qualifying AWOL and
one non-qualifying AWOL (total of 5 years).
Not all decisions to grant outright pardons or deny clemency were
as clear as the above examples. Nor were they all unanimous.
Sharp disagreement occasionally arose over cases which had very
strong mitigating and aggravating factors. Consider the
following case:
(Case # 17562)
Applicant's records were lost or destroyed and
have been only partially reconstructed. The
reconstructed records cover only the past
several years not describing the three years
which applicant claimed that he spent in
Vietnam as a rifleman and armored personnel
carrier driver. They do not cover the period
of his alleged leg wounds, Purple Heart, and
Bronze Star. However, they do show that he was
discharged in lieu of court-martial because of
nine AWOL incidents in Vietnam, six of which
were for durations of longer than one month.
Neither applicant nor his records indicate the
reasons or circumstances of his AWOL offenses,
although almost all of them occurred after his
III-31
alleged combat wounds. Applicant claims that
he is now disabled and has required
hospitalization for his leg wounds. He is
presently unemployed.
In the above case, the applicant went AWOL numerous times in
Vietnam, probably combat zones. However, he claims to be
disabled, and his AWOLs may have been related to his serious
wounds. His records are incomplete through no fault of his own,
so the full story cannot be known. Our full Board was sharply
split, some for an outright pardon and others for no clemency.
By a close vote, our final recommendation to the President was
for an outright pardon.
E. Comparison with Case Dispositions for the Other Programs
Our applicants -- military and civilian -- had already paid a
price before they applied for clemency. Roughly half had been
incarcerated, most for several months. Many had performed
alternative service as a condition of probation. Our baseline
forumla took this into account.
As a result, our case dispositions were naturally different from
those of the Justice and Defense Department programs. Their
applicants had never paid any price (other than the hardship of
III-32
being a fugitive -- a factor which no clemency program should
weigh in its calculations). At the same time, we were the only
part of the President's program to grant clemency selectively.
Neither the Justice Department nor the Defense Department denied
clemency to any eligible applicant. The tables below show the
alternative service assignments of the other two parts of the
President's clemency program.
DOJ PROGRAM
Average Alternative Service by Circuit
Circuit
Number of Cases
Average Sentence
DC
1
24.0
First
56
17.5
Second
169
19.6
Third
48
20.5
Fourth
30
19.8
Fifth
88
22.5
III-33
Sixth
54
20.9
Seventh
18
16.8
Eighth
37
18.1
Ninth
186
19.6
Comparing their case dispitions to ours can be misleading, unless
prior punishments are taken into account. When our military
applicants' time in jail (average: 2 1/2 months) is taken into
account according to our baseline formula--which gives three
months credit for every one month in jail -- the comparison
changes. Our case dispositions are still shown to be somewhat
more generous than Defense's but not by as much as a straight-
line comparison would indicate. 16/
Comparison of PCB and DOD Case Dispositions
DOD
Unadjusted PCB
Adjusted PCB
Disposition
Cumulative %
Cumulative %
Cumulative %
Pardon
0
41
0
III-34
1-5 months
2
66
0
6-12 months
15
28
66
13-18 months
22
0
28
19-24 months
100
0
0
25+ months
-
0
0
No Clemency
-
6
6
Likewise, compare our program with that of the Department of
Justice. Our civilian applicants have served an average of 4
months in jail and 5 months of prior alternative service. When
our baseline calculation is applied, our dispositions are shown
to have been more severe than those of the Department of
Justice. 17/
Comparison of PCB and DOJ Case Dispositions
DOJ Cumulative
Unadjusted PCB
Adjusted PCB
Disposition
Percent
Cumulative %
Cumulative Percent
III-35
Pardon
0
83
0
1-5 months
2
10
0
6-12 months
13
6
0
13-18 months
36
0
0
19-24 months
100
0
0
25+ months
-
0
99
END OF DOCUMENT III
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