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Goodell - Statement Before the Senate Judiciary Committee, 12/18/1974
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Goodell - Statement Before the Senate Judiciary Committee, 12/18/1974
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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 7, folder "Goodell - Statement Before the Senate
Judiciary Committee, 12/18/1974" 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States of America his copyrights in all of his unpublished writings in National Archives collections.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 7 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library
PRESIDENTIAL CLEMENCY BOARD
THE WHITE HOUSE
WASHINGTON
Statement of
Charles E. Goodell
Chairman
Presidential Clemency Board
Before the
Subcommittee on Administrative
Practices & Procedures
U.S. Senate Judiciary Committee
Wednesday, December 18, 1974
FORD & Lienany
Mr. Chairman, members of the Subcommittee, my name is
Charles E. Goodell. I am an attorney in private practice in
Washington, and I am Chairman of President Ford's Presidential
Clemency Board, which is a part of the White House Office.
I am grateful to the Subcommittee for this opportunity to
describe to you and to the American public the operations of the
Presidential Clemency Board. The program suffers from insufficient
public awareness and from confusion among potential applicants.
These hearings will broaden understanding of what the program is
about and, in doing so, will be of service to those young people who
must soon decide whether or not to participate in the program.
With the Subcommittee's consent, I would like to submit
the entire statement for the record, read its highlights, and then
will answer your questions.
At the outset, let me share with you several observations
about the program, some of which I have come to appreciate only
after becoming immersed in it.
- The Clemency Board has been continually impressed
with the depth of feeling that the President has about this
program, and with the personal attention that he gives
to it. He was personally involved in the rewriting of the
- 2 -
initial proposals, and devoted a considerable amount of
time to that. At the Board's first meeting, he met with
us in the Cabinet room for a lengthy discussion of his
hopes for the clemency program. He met with us in the
Cabinet room again for the signing of the first pardons
and conditional clemencies under the Board's part of
the program. He has spoken with me several times to
give guidance to the Board about how it should treat
applicants coming to it.
In August, in his first days in office, the President
replaced two of the portraits in the Cabinet room with
portraits of Presidents Truman and Lincoln. He told his
staff then that he particularly admired those Presidents
because they were the ones who took substantial political
risks in granting clemency in order to reunite the country
in times of bitterness and strife.
The President cares deeply about this program, asks
about its progress frequently, participates in shaping it
even now. Its goals are critical to his vision of what
this country should be.
- The members of the Presidential Clemency Board have
been impressed also by the degree to which the applicants
- 3 -
coming before us do not fit the stereotypes we had
assumed.
Many of the draft and military law violations which
we have examined were not at all consciously and directly
related to opposition to the Vietnam War. For the most
part, we have seen applicants with wives who were about
to leave them, whose fathers had died leaving a family
without any means of support, or whose mother, wife or
child had become acutely ill. Personal problems over-
whelmed them and led to violations of the law.
We have many applicants who are not from educated and
middle-class backgrounds, certainly not with college
educations. Rather, they are generally unsophisticated,
inarticulate people who were unable to pursue their remedies
properly within the legal system. Had they been able to do
so, many of these applicants would have received hardship
deferments or conscientious objection deferments, or
compassionate reassignments or hardship discharges in the
military. They just did not know how to proceed.
We have seen some cases in which there has been
genuine conscientious objection to killing. For the most
part, however, even these people tend to be ones who did
GERALD
- 4 -
not understand how to pursue their rights properly through
the Selective Service system. They are predominantly
Jehovah's Witnesses, Muslims, and a few others who
have clear religious or ethical beliefs which are evident
to the Board from the letters which they write to us,
from their probation records, and from other files pre-
dating even their conviction.
Our applicants have often proven to be the unfortunate
orphans of an administrative system in which success was
determined by being educated, clever, articulate, and
sophisticated. Those who believed deeply but couldn't
express their feelings adequately wound up with conviction
records and sometimes jail sentences. The glib and
sophisticated, whether sincere or not, got a better shake.
The applications which the Presidential Clemency Board
has received indicate to us with overwhelming force that
the image which we have had of the typical Vietnam-era
draft "evader" is simply wrong.
We have been surprised and impressed, finally, by
the extraordinary public support which the President's
clemency program has received.
- 5 -
Without great fanfare, many employers, church groups,
veterans' groups, and lawyers' groups have written and
called to us and asked "What can we do to help? 11 The
church groups and the veterans' groups, in particular
have established counselling programs for potential
applicants to the various parts of the clemency program.
Numerous employers have offered opportunities for
alternate service under the program. Other organizations
which are not in total agreement with the clemency program
have united on the local level in one common goal - helping
the human beings involved with the major personal decisions
which they have to face if they are to come home to the
President's program.
Nearly everyone who could potentially help these young
people has said "We may not entirely agree with the way
that the program was set up, but the important thing is to
help these boys who are thinking about coming back to us.
Let's concentrate on them, not on our differences with
each other."
We have learned that people in this country really do
want to have a reconciliation which will bring former
draft evaders and deserters back into full integration in
- 6 -
the community. We have been humbled and touched by
the stream of offers of help from people in all parts of
the country.
Let me now describe to you what the Clemency Board's
jurisdiction is, what remedies we offer to prospective
applicants, what administrative procedures we have established,
and what substantive criteria we apply in weighing applications
for clemency.
JURISDICTION
The Presidential Clemency Board was created by Executive
Order on September 16, 1974 to implement part of President Ford's
Proclamation on clemency issued that same day. The Board,
organizationally within the White House, is composed of 9 part-time
members. Each member is in private employment and is compensated
by the Federal Government only for time spent on Board business.
The Proclamation covers three major categories of persons.
First, there are those who are presently absent without authority
from a military service, but who have not been convicted of an
offense or discharged. They must return to their military service,
which processes them and issues them an Undesirable Discharge.
At the completion of alternate service of up to 24 months, they are
issued a Clemency Discharge to replace the Undesirable Discharge.
- 7 -
Secondly, unconvicted persons who have violated the
Selective Service laws must return to a U.S. Attorney. Through
a process very similar to plea-bargaining or pre-trial diversion,
they are offered up to 24 months alternate service. Upon satisfactory
completion, charges are dropped.
The Presidential Clemency Board's jurisdiction is entirely
different. We recommend clemency for persons who have already
been convicted for or have admitted an offense, whether civilian
or military; and who have already received punishment. The Board
has jurisdiction over civilian draft evasion offenses, and over
military unauthorized absence, desertion and missing movement
offenses. Our jurisdiction over military personnel extends both
to those court-martialed and to those administratively discharged.
We recommend to the President how he should exercise his discretion
under Article II, Section 2 of the Constitution.
WHAT REMEDIES DOES THE BOARD OFFER TO APPLICANTS?
The Board has received more than 800 written applications,
of which 150 have already become ripe for decision under the administra-
tive procedures we have established. Eighteen have been referred to
the President thus far, all civilian cases; others have been decided
by the Board and will be forwarded to the President in the next several
days.
- 8 -
To the civilian applicant for clemency, the Board can offer,
on behalf of the President, executive clemency in the form of a full
pardon. Each form of executive clemency may be offered uncondi-
tionally, or conditioned upon a specified period of alternate service.
When the President accepted the unanimous recommendation
of the Board that clemency be granted to the initial 18 civilian cases,
he granted 8 full and unconditional pardons effective immediately,
and 10 conditional clemencies which will become full and unconditional
pardons upon completion of the specified alternate service. Of those
who received conditional clemencies, the lengths of alternative
service were: 3 months of alternate service for 3 applicants,
6 months for 5 applicants, 10 months for 1 applicant, and 12 months
for 1 applicant.
While we cannot reveal the Board's recommendations prior
to the President's decision on them, I can tell you that the distribution
of 32 other recommendations which are shortly to go to the President
on civilian cases is roughly similar to the distribution in the first
18 cases.
A pardon restores to an applicant his Federal civil rights.
Just as importantly, it is the custom in most states to remove most
civil disabilities, as well as licensing restrictions which prevent
ex-convicts from working in a variety of occupations. Without a
- 9 -
pardon, the typical ex-offender cannot work in any professional
occupation or, in many states, as an ambulance attendant, a watch-
maker, a tourist camp operator, a garbage collector, a barber or
beautician, a practical nurse, or a plumber.
Since most states honor Federal pardons as a matter of comity,
although they are not required to do so as a matter of law, the real
effect of a pardon is to make the ex-offender employable again.
The military applicant for clemency comes to us worse off
than the civilian applicant. Not only does he frequently have a
Federal felony conviction for violation of military law, but he also
has the stigma and the employment problems attached to a "bad
paper" discharge.
To the former military applicant, we offer a full pardon, plus
an upgrading of his discharge to at least a Clemency Discharge,
either unconditionally or conditioned upon a specified period of
alternate service.
Some of the military applicants have wounds from service in
Vietnam, decorations for valor, and multiple tours of honorable
military service. They went AWOL after this honorable service,
and received bad discharges. Some of them even went AWOL or
deserted after they had volunteered for second and third tours of
duty in Vietnam.
- 10 -
The Board has decided that in such special cases, we
will recommend to the President that he immediately upgrade
their punitive or undesirable discharges to a General Discharge or,
in exceptional cases, to an Honorable Discharge.
The cases which we request the President to upgrade
immediately will be the unusual ones, the ones in which justice
unambiguously demands immediate corrective action. We will
recommend pardons and clemency discharges in many more cases,
however. In all of those other cases, we will recommend that the
President direct the military discharge review boards or other
appropriate military tribunal to review the cases anew in order to
determine whether there should be further upgrading of discharges
beyond a Clemency Discharge. And we will recommend that that
de novo review be conducted without reference to the offense for
which a pardon has been granted -as if that AWOL or desertion offense
were not in the record.
- 11 -
We have received a firm indication from the Department of
Defense that it is amenable to the procedures which we propose for
upgrading discharges.
ADMINISTRATIVE PROCEDURES OF THE BOARD
Let me now turn to the Board's procedures, a copy of which
is attached to my statement. We have sent copies for comment to
every Member of Congress, to veterans' and civil liberties groups,
to anti-war organizations, to every State and major local bar
association and to a number of private attorneys. I am pleased to
say that for the most part, the proposed rulemaking appears to have
been well-received. Suggestions and criticisms will be reflected in
a final rulemaking which we will issue in a few days.
It took some time to develop these regulations. In part this
is explained by the fact that the Presidential Clemency Board has
no precise historical model to follow and no clear precedents in
assisting the President in what is a unique Executive function. We
also wished to become very familiar with the types of cases before
us prior to issuing any rules. Even now we find new aspects in the
cases which require further elaboration of our rules.
Let me describe briefly how the Board operates.
- 12 -
First, when we receive a communication expressing interest
by or on behalf of a possible applicant in any part of the President's
program, we mail out an instruction kit. This kit describes the
program, the Board's procedures, and other aspects of the Board's
operations. If the individual is not under the Board's jurisdiction,
but falls within the jurisdiction of the Department of Justice or
the Department of Defense, we tell him how to pursue his case with
them. If he is not under the jurisdiction of any part of the clemency
program, we try to suggest other avenues for the relief he seeks.
Once the necessary information is obtained from an applicant,
and his files are obtained from Justice or the military services, a
Board attorney prepares a summary of the files. The instructions
to Board attorneys have been submitted to you. We have an elaborate
internal procedure to ensure that the summaries are properly prepared.
This summary is then mailed to the applicant along with the
preparation instructions. The applicant is encouraged to review
the preparation instructions. The applicant is encouraged to review
the summary, submit any additions or corrections, and to send the
Board anything he believes the Board should consider when it
reviews the case.
Once this process is completed, the case is presented to the
Board together with the material the applicant has sent in.
- 13 -
After the Board examines the case and makes a recommendation,
the President reviews that recommendation and issues his decision
on clemency. Under the Board's rules, an applicant then has 30 days
after the President's action to ask for reconsideration if he feels
dissatisfied with the decision. He next passes to the jurisdiction of
the Selective Service for the performance of any required alternate
service service.
Once the service is satisfactorily completed, the Board
confirms that the clemency has been earned, and a pardon is issued.
THE SUBSTANTIVE CRITERIA FOR EVALUATING APPLICATIONS
The President's Proclamation contemplates a case-by-case
evaluation of applications to the Board, rather than a blanket treat-
ment of whole classes of people. We have carefully drawn our
substantive standards so that they are a tool to assist the Board in
weighing each case on its merits. The standards help us to separate
out cases which should be treated differently, and to treat with
consistency and equity those which are similarly. situated.
We give special weight to time already spent in prison, and to
alternate service and probation or parole already satisfactorily com-
pleted under judicial order in deciding appropriate lengths of alternate
service.
Equity compels us to consider factors beyond simply time spent
in prison. For this reason, for example, Jehovah's Witnesses who have
- 14 -
served a little time in prison, but whose violations of law were
motivated by deeply held religious beliefs, typically have been
offered outright pardons, or have been asked to serve minimal
amounts of time where aggravating circumstances have existed in
particular cases. On the other hand, persons who acted from no
apparent sincerely held ethical or religious convictions about the war
have received clemency contingent upon longer lengths of alternate
service, even when those persons may have served more time in
prison.
The Board has been diligent in creating procedural and
substantive rules which can be readily understood by a layman who
gives them a careful reading, as well as by a lawyer or other
counsellor who has not specialized in Selective Service or military
law. We have tried to use simple and clear language, and we have
tried to bring the greatest practical degree of due process to a
procedure which is, constitutionally, inherently discretionary on the
part of the President.
PROTECTIONS OF APPLICANTS
Anyone calling or writing in to the Presidential Clemency Board
is guaranteed that his name, address, telephone number, and any other
information which he gives us will be held in the strictest confidence,
unless he has committed a serious non-draft-related or non-AWOL-related
- 15 -
criminal offense such as homicide. The Justice Department has
agreed that with this exception, we may keep our own records
completely sealed to other agencies.
Since most evaders and deserters within our jurisdiction
apparently do not read the New York Times or watch Walter Cronkite
frequently, we have taken pains to communicate to them that they
are eligible for the President's program. We are mailing information
about the program to the last addresses of each person convicted of
draft evasion and eligible for Board consideration, thanks to the very
fine cooperation of the Federal Probation Service and the Administrative
Office of the U.S. Courts. Assuming that such addresses are available
from the Department of Defense and the Coast Guard, we will do a
mailing to over 114, 000 convicted AWOLs and deserters as well.
Everyone who applies or inquires to the Board is advised of
the advantages of legal assistance. We give to any person who needs
counsel the names of organizations which provide volunteer services.
The American Legion, the Los Angeles County Bar, the
New York County Bar, the American Bar Association and the Harvard
Military Justice Committee have either offered their services as
volunteer representatives or expressed a strong interest in doing SO.
But with the application period over half-completed, many potential
applicants are undecided on how to proceed. I would like to see every
- 16 -
one of the 800 who have already applied put in touch with a volunteer
attorney. I cannot hide my disappointment that a number of legal
organizations have declined to help because of political or
philosophical differences with the program. I urge them to put
aside these differences in favor of the needs of the applicants.
This is a particularly serious problem because, as I
mentioned earlier, many persons eligible for the program, both
civilian and military, are not highly sophisticated, well-educated
individuals who opposed the war for articulate, well-thought through
reasons. Typically, we have a man who found his family ill, or in
dire financial straits, or who had domestic problems. Often we find
veterans with good and faithful service, often in combat, scarred
psychologically by their war experiences and unable to adjust to
garrison duty back home. Many of these veterans went AWOL only
after being refused a request to return to combat.
We have prepared thumb-nail sketches of the cases the
Board has considered. I just want to read a few representative
cases:
Let me close with a final comment about the program.
- 17 -
President Ford has acted in the tradition of Presidents
Truman, Wilson, Lincoln, and Washington. I hope that this
hearing today will help make more Americans aware of the deep
historical roots of clemency and of the country's need for it now.
Perhaps, if it serves that purpose, our being here today will make it
just a little bit easier for those who do come back to integrate
themselves fully, with dignity and with pride, as Americans and
as members of their community again.