Ask the Scholar

{
    "localId": "1506025",
    "label": "Procedures and Substantive Standards - ACLU Comments",
    "core": "doc",
    "dtoType": "document",
    "citationUrl": "https://catalog.archives.gov/id/1506025"
}

{
    "id": "1506025",
    "sourceUrl": "https://catalog.archives.gov/id/1506025",
    "contentType": "document",
    "title": "Procedures and Substantive Standards - ACLU Comments",
    "citationUrl": "https://catalog.archives.gov/id/1506025",
    "collections": [
        "Charles E. Goodell Papers",
        "Presidential Clemency Board Subject Files"
    ],
    "subjects": [
        "President (1974-1977 : Ford). Presidential Clemency Board. 9/16/1974-9/15/1975"
    ],
    "iiifBase": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/ford/grf-0193/648291/1506025.pdf",
    "thumbnailUrl": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/ford/grf-0193/648291/1506025.pdf",
    "largeImageUrl": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/ford/grf-0193/648291/1506025.pdf",
    "imageCount": 1,
    "hasImages": true,
    "source": "import",
    "hasTranscription": false
}

{
    "url": "https://catalog.archives.gov/id/1506025",
    "naId": 1506025,
    "coverageEndDate": {
        "logicalDate": "1974-12-31",
        "month": 12,
        "year": 1974
    },
    "coverageStartDate": {
        "logicalDate": "1974-12-01",
        "month": 12,
        "year": 1974
    },
    "levelOfDescription": "fileUnit",
    "recordType": "description",
    "ocrSource": "nara-archive"
}

{
    "seq": 1,
    "pageIndex": 0,
    "type": "document",
    "url": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/ford/grf-0193/648291/1506025.pdf",
    "mediaId": "8acbf1cbef3c4877",
    "ocrText": "The original documents are located in Box 9, folder \"Procedures and Substantive\nStandards - ACLU Comments\" of the Charles E. Goodell Papers at the Gerald R. Ford\nPresidential 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 Charles Goodell donated to the United\nStates of America his copyrights in all of his unpublished writings in National Archives collections.\nWorks prepared by U.S. Government employees as part of their official duties are in the public\ndomain.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 9 of the Charles E. Goodell Papers at the Gerald R: Ford Presidential Library\nCOMMENTS OF THE\nAMERICAN CIVIL LIBERTIES UNION\nON THE PROPOSED\nPRESIDENTIAL CLEMENCY BOARD\nPROCEDURES AND SUBSTANTIVE STANDARDS\nR FORD\nEdwin J. Oppenheimer\nClemency Litigation Director\nAmerican Civil Liberties Union\n22 East 40th Street\nNew York, New York 10016\nHenry Schwarzschild\nDirector, Project on Amnesty\nAmerican Civil Liberties Union\n22 East 40th Street\nNew York, New york 10016\nDecember 11, 1974\nCOMMENTS OF THE AMERICAN CIVIL LIBERTIES UNION\nON THE PROPOSED PRESIDENTIAL CLEMENCY BOARD\nPROCEDURES AND SUBSTANTIVE STANDARDS\nPursuant to the Notice of Proposed Rule Making issued on\nNovember 25, 1974, submitted herewith are the comments of the\nAmerican Civil Liberties Union regarding the proposed procedures\nand substantive, adjudicative standards to be employed by the\nPresidential Clemency Board as published in the Federal Register\nof November 26, 1974.\nWe commend the Board generally, for its inclusion in these\nregulations, of procedures permitting an applicant and his repre-\nsentative to appear before the Board. We hope, however, that\nthis opportunity will, for the reasons set forth below, be changed\nto a hearing as a matter of right in each case, rather than as\nan option to be granted at the Board's discretion -- no matter\nhow liberally such requests are intended to be granted. We are\nalso pleased that the Board has instituted an appeal procedure,\nbut similar objections pertain as well to the discretionary\nnature of the appellate hearing.\nThe development of formalized substantive standards, in-\ncluding the recognition of principled objection to military\nservice as a mitigating criterion is also to be commended al-\nthough, as pointed out below, other defects in the substantive\nstandards are apparent.\n2 C.F.R. $201, et seq.\n[Procedures]\nI. S$201.8(c)\nThis proposed regulation fails to provide for a hear-\ning before the Board as a matter of right either to the\napplicant or his counsel. Implicit in the decision to\ngrant such a hearing only in the Board's discretion is the\nassumption that no Constitutional right to such a hearing\nis required. It is clear, however, that the Due Process\nClause and its guarantee of Equal Protection does require\nsuch a hearing. The regulation must, therefore, be ap-\npropriately amended. It is to be noted from the outset\nthat it is anomalous to acknowledge that an applicant has\na right to be \"represented\" by counsel (2 C.F.R. $201.13)\nbut that counsel cannot appear with him or on his behalf.\nA. Adjudicative Character of the Board Function\nIt is apparent from the body of proposed regula-\ntions that the Board hears and determines cases, much\nthe same as any other administrative agency performing\nadjudicative functions. See, e.g., West Ohio Gas Co.\nV. Public Utilities Company of Ohio, 294 U.S. 63, 70\n(1935) (\"suitable opportunity through evidence and\nargument\" to challenge a rate) ; Londoner V. City of\nDenver, 210 ULSL 373, 386 (1908) (tax assessment re-\nquires full and fair opportunity to be heard on ob-\njections, including oral argument and proof) ;\nHornsby V. Allen, 326 F.2d 605, 608 (5th Cir. 1964)\n(\"licensing consists in the determination of factual\nissues and the application of legal criteria to them\")\nThe Board's processes are those of fact finding,\nevaluation, and determination analogous to what occurs\nin any administrative or quasi-judicial type hearing.\nB. Constitutionally Minimum Standards of Due Process\nRequire a Hearing as of Right\nAn appearance before the Presidential Clemency\nBoard is substantially similar in all vital respects to\nany other adjudicative hearing by an administrative\nagency. On numerous occasions, the Supreme Court has\ndeclared that certain minimum due process rights are\nconstitutionally guaranteed to \"those who are brought\ninto contest with the Government in a quasi-judicial\nproceeding aimed at the control of their activities.\"\nMorgan V. United States, 304 U.S. 1, 18 (1938)\n1/ Since an applicant may be required to perform civ-\nilian service in order to receive his pardon, a\nheavy compulsion to submit to the strictures of this\nwork exists.\nChief Justice Warren, writing for the court in\nHannah V. Larche, 363 U.S. 420, 442 (1960), held:\nwhen governmental agencies adjudicate\nor make binding determinations which directly\naffect the legal rights of individuals, it\nis imperative that those agencies use the\nprocedures which have traditionally been as-\nsociated with the judicial process.\"\nAnd, in Greene V. McElroy, 360 U.S. 474, 497 (1959),\nit was stated:\n\"This Court has been zealous to protect\nthese rights from erosion not only in\ncriminal cases but also in all types of\ncases where administrative and regulatory\nGERALD\nactions were under scrutiny.\"\nIt was pointed out in Hannah V. Larche, supra,\nthat the well-known distinction in administrative law\nbetween administrative agencies acting in a rule-making\nor investigative capacity, and agencies performing an\nadjudicatory function, had specific due process con-\nsequences. Consequently, the Court ruled that certain\ndue process rights were not available in the investiga-\ntory and fact-finding proceedings of the Civil Rights\nCommission, since such rights were not customarily\navailable \"when Governmental action does not partake of\nan adjudication.\" 363 U.S. 442. The court elabor-\nately discussed the differences between the two kinds\nof proceedings and explained that the traditional\n2/ The right to appear in person before the Commission\nwas nevertheless recognized by the Commission. Id.\nat 431.\nsafeguards of due process which were held requisite in\nMorgan V. United States, 304 U.S. 1, 18 (1938) i Greene\nV. McElroy, supra; and Joint Anti-Facist Refugee\nCommittee V. McGrath, 341 U.S. 123 (1951), were all\nbecause \"the government agency involved in each was\nfound by the Court to have made determinations in the\nnature of adjudications affecting legal rights.\"\nHannah V. Larche, 363 U.S. at 451.\nIt could hardly be contested that a person apply-\ning to the Presidential Clemency Board is involved in\na \"proceeding aimed at the control of [his] activities.\"\nMorgan V. United States, supra. See footnote 1/, supra.\nIt is, likewise, indisputable that the Board makes\n\"binding determinations which directly affect the legal\nrights of individuals.\" Hannah V. Larche, supra.\nThat an administrative agency, for all its uncir-\ncumscribed rule-making or investigatory power, cannot\nFORD\nadjudicate personal rights without providing the es-\nGERALD\nsentials of a fair hearing is virtually a first prin-\nciple of administrative law. This principle has been\napplied in a large variety of administrative proceedings\nby the Federal courts. See, e.g., Wisconsin V.\nConstantineau, 400 U.S. 433 (1971) (public listings of\nalleged alcoholics) ; Goldberg V. Kelly, 397 U.S. 254\n(1970) (termination of welfare benefits) ; Londoner\nV. City of Denver, 210 U.S. 373 (1908) (tax assessment);\nGoldsmith V. United States Board of Tax Appeals, 270\nU.S. 117 (1926) (license rights) ; United States V.\nAbilene & So. Ry., 265 U.S. 274 (1924) (public utility\nrates) ; Gonzalez V. Freeman, 334 F.2d 570 (D.C. Cir.\n1964) (debarment of Commodity Credit contractor) ;\nKwong Hai Chew V. Colding, 344 U.S. 590 (1953) (de-\n3\nportation of alien) ; Escalera V. New York City Housing\nAuthority, 425 F.2d 853 (2d Cir.), cert. denied 400 U.S.\n853 (1970) (termination of public housing tenancy and\nimposition of additional rent charges) ; Parker V. Lester,\n227 F.2d 708, 716 (9th Cir. 1955) (termination of mer-\nchant seaman's employment: \"When it is proposed to take\nfrom a citizen through administrative proceedings some\nright which he otherwise would have, it has always been\nheld that the constitutional requirement is that he\nshall be afforded notice and an opportunity to be heard.\").\nMore to the point, however, are cases such as\nMorrisey V. Brewer, 408 U.S. 471 (1972) and Gagnon\nERALD\nV. Scarpelli, 411 U.S. 778 (1973). Morrisey V. Brewer\nheld that a constitutional right to a hearing inured in\nparole revocation proceedings. Gagnon extended the\nMorrisey holding to probation revocation proceedings.\nBoth cases relied in part on the rationale enunciated\n\" not even Congress may expel him without allowing\nhim a fair opportunity to be heard.\" 344 U.S.\nat 598.\nin Goldberg V. Kelly, supra.\nThe bases for the hold-\nings in Morrisey and Gagnon are peculiarly applicable\nhere, first because of the Court's disavowal of any\nrecognition that the revocation of parole is part of a\ncriminal proceeding ( in Morrisey V. Brewer we\nheld that the revocation of parole is not a part of a\ncriminal prosecution. Gagnon, supra at 781) and sec-\nond, because of its recognition in Gagnon that, \"\na\nprobationer can no longer be denied due process, in re-\nliance on the dictum in Escoe V. Zerbst, 295 U.S. 490,\n492 (1935) that probation is an act of grace.\" 411\nU.S. at 782 n.4.\nThus, it is not Constitutionally permissible for\nthe Presidential Clemency Board to deny hearings either\non the theory that the clemency procedures are not part\nof a previous criminal proceeding\nor that a\nPresidential pardon is an act of grace and may be ad-\nministered with unfettered discretion.\nAt least three courts have previously noted the\nanalogy between conditional pardons and parole and\nprobation. See Fleenor V. Hammond, 116 F.2d 982, 986\n(6th Cir. 1941) ; Clifton V. Beto, 298 F.Supp. 1384\n(S.D. Tex. 1968) ; Hoffa V. Saxbe, 378 F.Supp. 1221,\n1236-1237 n.54 (D.D.C. 1974).\n5 Cf. also, In re Gault, 387 U.S. 1 (1967). It fol-\nlows, of course, that if the Presidential Clemency\nBoard determines that its functions are adjunct to\na criminal prosecution so that, for example, a civil-\nian furloughee might be returned to prison if he de-\nclines to accept the Board's proposed offer, a fortiori\nunder Morrisey and Gagnon he must be afforded a\nhearing.\nFinally, in the absence of any formal, published\ncriterion, how is the Board even to decide who is to re-\nceive a hearing and who is not? How is an applicant or\nhis counsel to know how to frame his case in the first\ninstance so as to insure that he will be one of those\napplicants who will receive a hearing? Will not the\nunequal grants of hearings place two appealing appli-\ncants in different postures with respect to the burden\nof proof each must later shoulder under the appeal pro-\ncedures contained in $$201.10? These questions, ob-\nviously unconsidered by the Board, leave open substan-\ntial possibilities of administrative abuse rising to\nthe level of serious equal protection problems. See\ngenerally, Bolling V. Sharpe, 347 U.S. 497 (1953)\nII. $$201.8 (d)\nWe are also dismayed that under this regulation, the\nreasons given by the Board to the President in support of\nits recommendations are not made available to the applicant\nor his counsel for inspection and comment thereon, prior\nto the President receiving them. We believe that under\nboth the Due Process Clause and the Administrative Procedure\nAct (to which the Board is subject) such reasons must be\nserved upon the applicant.\nA. Due Process\nEnlightened courts have now recognized that\nMorrisey V. Brewer's application of Fifth Amendment\ndue process standards to parole proceedings also\ncompel similar requirements in parole application\nproceedings:\n\"The rudiments of procedural due process\nare not observed unless the administrative\nbody details the reasons for its findings.\nSee Goldberg V. Kelly, 397 U.S. 254 (1970) ;\nIn Re Gault, 387 U.S. 1 (1967) ; Davis,\nAdministrative Law, $16.12 at 585 (1970 Supp.)\nWe are persuaded, as was the New Jersey\nSupreme Court in Monks V. New Jersey State\nParole Board, 58 N.J. 238, 277 A.2d 193, 197\n(1971), that \"[t]he need for fairness is as\nurgent in the parole process as elsewhere\nin the law and the furnishing of reasons\nfor denial would be the much fairer course\n\" The need for a statement of reasons\nor findings not only insures a responsible\nand just determination by the agency, but\nalso affords a proper basis for effective\njudicial review. The New Jersey decision is\nconsistent with the recent expansion by the\nUnited States Supreme Court of due process\nguarantees with respect to parole revocation\nproceedings. Morrissey V. Brewer, 408 U.S.\n471, 92 S.Ct. 2593, 33 L.Ed. 2d 484 (1972).\nAn analogous trend may be found in the selec-\ntive service reclassification cases decided\nin this Circuit. See, e.g., United States\nV. Neamand, 452 F.2d 25, 26, 30 (3d Cir.\n1971); United States V. Hershey, 451 F.2d\n1007, 1008 (3d Cir. 1971) ; Scott V. Com-\nmanding Officer, 431 F.2d 1132, 1137 (3d\nCir. 1970). Moreover, the furnishing of\nreasons will have a positive effect on the\ngoal of rehabilitation. See President's\nCommission on Law Enforcement and Adminis-\ntration of Justice, Task Force Report;\nCorrections, at 64 (1967) ; Davis, Discre-\ntionary Justice, at 131 (1969). Further-\nmore, the requirement that the Board give\nits reasons for denial of parole does not\ncast an undue burden upon the administrative\nbody.\"\nUnited States ex rel. Harrison V. Pace, 357 F. Supp.\n6\n354, 356-357 (E.D. Pa. 1973).\nSee also, Johnson\nV. Heggie, 362 F.Supp. 851 (D. Col. 1973) ; Childs\nV. Board of Parole, 14 Crim. L. Rep. 2135 (D.D.C.\n1973) ; United States ex rel. Johnson V. Board of\nParole, 363 F.Supp. 416 (E.D.N.Y. 1973). Cf.,\nFreeman V. Schoen, 370 F.Supp. 1144 (D. Minn. 1974)\nAdditional due process concepts counsel such a\nrule. As the eminent jurist Marvin Frankel has\nobserved:\n\"The duty to give an account of the decision\nis to promote thought by the decider, to com-\npel him to cover the relevant points, to make\nhim show that these necessities have been\nserved.\" Criminal Sentences 40-41 (Hill and\nWang, New York 1973).\nB. Access to Reasons and a Meaningful Appeal Under\nBoard Regulation 210.10\nThe failure of Regulation 201.8 (d) to provide for\naccess to the Board's reasons for its denial of the\napplicant's requested disposition also renders nuga-\ntory much of the applicant's appeal rights under\n$201.10. Cf. also $201.5(b).\nAs with the question of hearings, discussed supra,\nthe rejection of the statement of reasons require-\nment cannot be founded upon a \"right-privilege\"\ndichotomy. Gagnon V. Scarpelli, supra at 411\nU.S. 782 n.4.\nIn Gonzalez V. United States, 348 U.S. 407 (1955),\nthe Supreme Court, in a closely related context, recog-\nnized that the failure of the Selective Service System\nto supply a registrant with a copy of the Department\nof Justice's recommendation to his appeal board re-\ngarding his claim for a conscientious objector defer-\nment, unconstitutionally deprived him of an opportunity\nto rebut any adverse evidence contained therein. The\nCourt, relying on its two prior decisions in Simmons\nV. United States, 348 U.S. 397 (1955) and United States\nV. Nugent, 346 U.S. 1 (1953), held that:\nThe right to file a statement\nincludes\nthe right to file a meaningful statement\nwith awareness of the arguments to be\ncountered. 348 U.S. at 415.\nSimilarly, Judge Weinstein, in his highly cited\nopinion in United States V. St. Clair, 293 F.Supp. 387,\n345 (E.D.N.Y. 1968) observed that:\n\"In permitting an appeal from the decisions\nof a local board, the regulations governing\nthe selective service system provide that the\nregistrant may specify claimed errors. 32\nC.F.R. $1626.12 [compare clemency board regu-\nlation 201.10]. The opportunity to rebut al-\nlegedly incorrect conclusions\nis essential\nto a meaningful appeal\nWhere no facts or\ninferences upon which the local board's con-\nclusion is based are stated, effective re-\nbuttal is impossible. No advocate can per-\nsuasively assert grounds for reversal when\nthe bases for the decision below are unknown.\nThe right of appeal from an administrative\ndecision, guaranteed by the regulation was,\nin effect, denied.\"\nHow incongruous that a board promulgated under the\nauthority of a proclamation which stated that the na-\ntion was in need of an act of mercy, would be given\nlicense to operate under lesser standards of due pro-\ncess than those imposed by Federal courts upon the very\nagency whose abuses, in large measure, caused the state\nof affairs for which a Presidential proclamation of\nclemency was eventually needed to remedy.\nC. The Presidential Clemency Board is Subject to Adminis-\ntrative Procedure Act Jurisdiction and therefore the\nReasons Underlying the Board's Recommendation Must Be\nDivulged\nThe Administrative Procedure Act (APA) applies to\neach \"agency\" which means \"each authority of the\nGovernment of the United States.\" 5 U.S.C. $551 $551(1).\nThe President created the Clemency Board. There is no\nlanguage in the congressionally enacted APA exempting\nFORD\nthe Clemency Board from its provisions nor could such\nan exception be carved out by an executive order.\nGERAL\n\"Exemptions from the Administrative Procedure Act\nare not lightly to be presumed.\" Marcello V. Bonds,\n349 U.S. 302, 310 (1955) ; Brownell V.- Tom We Shung,\n352 U.S. 150, 185 (1956). 5 U.S.C. $555 (e) provides\nas follows:\n\"Prompt notice shall be given of the denial\nin whole or in part of a written application,\n(cont.)\npetition, or other request of an in-\nterested person made in connection\nwith any agency proceeding. Except\nin affirming a prior denial or when\nthe denial is self-explanatory, the\nnotice shall be accompanied by a\nbrief statement of the grounds for\ndenial.\"\nThe provisions of $555 (e) apply to a \"written\napplication, petition or other request of an interested\nperson made in connection with any agency proceeding.\"\nTo be considered for clemency, a person must make a\nwritten application. 2 C.F.R. $$201.3, 201.4.\nJust as the APA applies to parole release hear-\nings held by the United States Board of Parole, United\nStates V. King, 492 F.2d 1337 (7th Cir. 1974); Pickus\nV. Board of Parole,\nF.2d\n1 16 Crim. L. Rep. 2080\n(D.C. Cir. 1974) ; Sobell V. Reed, 327 F.Supp. 1294,\n1301-1302 (S.D.N.Y. 1971), so too, in the absence of\nany statutory exemption, it applies to the Presidential\nClemency Board. See also, Davis, Administrative Law\nTreatise 376 (1970 Supp.) ; Davis, Discretionary\nJustice: A Preliminary Inquiry 129 (1969). It follows\nthat in accordance with the Act, these reasons must be\ndivulged.\nIII. $$201.12\nThe final sentence of this proposed regulation states\nthat \" ..information which reveals the existence of a\nviolation of law (other than an offense subject to the\nPresidential Clemency Program) will of necessity be for-\nwarded to the appropriate authorities.\nWhile such an acknowledgment in the context of any\n\"clemency\" program is, at best, unseemly, it also places\nupon the Board substantial constitutional obligations.\nSee, Mathis V. United States, 391 U.S. 1 (1968) ; United\nStates V. Dickerson, 413 F.2d 1111 (7th Cir. 1969) ;\nUnited States V. Casias, 306 F.Supp. 166 (D. Colo. 1969) ;\nUnited States V. Turzynski, 268 F.Supp. 847 (N.D. Ill. 1967)\nSpecifically, under these cases, the Board bares an ob-\nligation under Miranda V. Arizona, 384 U.S. 436 (1969) to\nwarn each applicant, at the time his application is\nsolicited and certainly after it is received, of the pro-\nvisions of regulation $201.12.\nWhatever public claims the Board has heretofore been\nable to make with respect to the non-adversarial nature\nof its proceedings, the Board cannot now make them in good\nfaith in light of regulation 201.12.\nIn both Dickerson and Casias, supra, non-criminal ad-\nministrative proceedings (one involving tax audits and\none involving a selective service local board appearance)\nresulted in statements being obtained from an applicant and\nthereafter forwarded to prosecutive authorities. These\nstatements later resulted in the commencement of criminal\nproceedings against the individuals. Relying on the de-\ncisions in Mathis and Miranda, the courts ordered suppres-\nsion of the elicited, incriminating statements on the ground\nthat the agencies, even in the context of an allegedly non-\nadversarial administrative proceeding, had failed to give\nappropriate warnings to the persons to whom the inquiry\nwas directed. Accord, United States V. Turzynski, supra.\nWe assume that if the Board intends to retain regula-\ntion 201.12, appropriate amendments to the Board's initial\nmailings and application forms will be made incorporating\nthe appropriate constitutional warnings in accordance with\nthe aforecited opinions.\n2 C.F.R. $202, et seq.\n[Substantive Standards]\nWe first note the absence of definitions of the remedies\noffered by the Presidential Clemency Board.\nWe urge that the substantive standards explicitly state\nthat the \"executive clemency\" to be recommended by the Board,\nwhether or not it is contingent upon the performance of al-\nternate service, is a full and complete pardon.\nWe urge that the substantive standards explicitly state\nthat the military discharge to be recommended for former (or\npresent) military personnel subject to the Board's mandate be\nan Honorable Discharge, given pursuant to the Presidential\nClemency Program. (The discharge may be coded accordingly in\nthe confidential military records, but not on the papers issued\nto the veteran.) Since the Presidential Proclamation estab-\nlishing the Clemency Program specifically disqualifies persons\ngiven discharges pursuant to the Clemency Program from receiving\nveteran's benefits, we recognize that issue to be beyond the\nscope of administrative rule-making.\nIV. 2 C.F.R. $202.3 (a). Aggravating Circumstances\n(1) Prior adult criminal convictions.\nWe believe that criminal offenses unrelated to\nthe acts which are subject to the clemency program\nshould not be considered for any purpose whatever by\nthe Board. A prior adult, criminal conviction has\npresumably been resolved in accordance with the law,\nand the applicant will have paid his penalty.\nSociety has done with him on that score. The prior\nconviction cannot be subject to clemency; but neither\nshould it become the occasion for double punishment of\nthe clemency applicant, who now would pay once more for\nan offense for which punishment had already been executed.\n(2) False statement by applicant to the Presidential\nClemency Board.\nWe believe that this \"aggravating circumstance\"\nneeds to be limited to material misstatements to the Board.\nWe believe that it needs to be made clear who is the\njudge of the falsity of a material statement. Cf.\nBronston V. United States, 409 U.S. 352 (1973)\nWe urge that the rules explicitly guarantee the ap-\nplicant an opportunity to rebut the charge of a false\nmaterial statement.\n(3) Use of force by applicant collaterally to AWOL,\ndesertion, missing movement, or civilian draft\nevasion offense.\nThis standard is objectionable: (a) There is, in\nall candor, something perverse and absurd about the\nUnited States Government, in the context of the Vietnam\nWar, proposing to punish the violence of the war\nrefusers. (b) If the use of force caused serious\ninjury to persons, or damage to property, it would pre-\nsumably have given rise to separate criminal proceed-\nings. Cf. Bradley V. Laird, 315 F.Supp. 544 (D. Kan.\n1970) aff'd, 449 F.2d 898 (10th Cir. 1971). The\nPresidential Clemency Board should not be a combined\nsuper-prosecutor and super-judge. (c) The relatedness\nof the \"use of force,\" the proportionality of the force\nto the impulse to resist the war and to the circum-\nstances of the resistance, should be held in mitigation\nof the conduct. If the use of force was collateral to\nacts being given clemency, this ought to temper the\nBoard's judgment of the aggravating nature of the\nmatter. It is only unrelated, quasi-criminal, use of\nforce that might be more reasonably held against an\napplicant.\n(5) Evidence that the applicant committed the offense\nfor obviously manipulative and selfish reasons.\nThe intent here is benign, but the test mis-\nunderstands the nature of the war and people's response\nto it. Refusal to participate in the Vietnam War,\nhowever manipulative and selfish it may appear in a\ngiven case, is a quintessential example of Adam Smith's\ndictum that \"private vices are public virtues.\" It is\na tragic irony that a governmental body, established\nby the heir of the Kennedy, Johnson and Nixon adminis-\ntrations who prosecuted the Vietnam War with unparal-\nlelled manipulativeness, should now judge solitary\ncitizens, holding no public responsibility or power,\nwho wanted to pursue their own lives untrammeled by\ngovernmental intervention caused by = war that the\nAmerican people increasingly rejected as a gigantic\nmistake. The selfish pursuit of one's own life is\nprecisely what the Constitution safeguards against the\nunlawful interference by government. The government\nis not authorized to punish selfishness except where\nit interferes harmfully with other people.\n(6) Prior refusal to fulfill alternate service.\nSuch prior refusal may be the result of an ap-\nplicant's conscientious non-cooperation with the draft\nand the war. The Clemency Board should re-phrase the\nstandard to meet the problem of conscientious non-\ncooperation with alternate service.\n(7) Prior violation of probation or parole requirements.\nSuch prior violations of probation or parole have\nlegal sanctions sufficient in themselves. Treating\nsuch violations as \"aggravating circumstances\" sub-\njects the applicant to double jeopardy and double pun-\nishment. See comment on 2 C.F.R. $202.3(a), supra.\nV.\n2 C.F.R. $202.4(b). Mitigating Circumstances\n(7) Substantial evidence of personal or procedural unfair-\nness in treatment of applicant by Selective Service\nSystem or by a military service.\nIt is the duty of the government to treat those\nsubject to its jurisdiction with fairness. Where there\nis \"substantial evidence of personal or procedural un-\nfairness,\" such evidence should be held in exculpation,\nnot merely in mitigation of the applicant's offense.\nApplicants falling in this category may, in fact, have\na claim under 28 U.S.C. $2255 to have their convictions\nset aside.\n(8) Denial of conscientious objector status, of other claim\nfor Selective Service exemption or deferment, or of a\nclaim for hardship discharge, compassionate reassign-\nment, emergency leave, or other remedy available under\nmilitary law, on procedural, technical, or improper\ngrounds, or on grounds which have subsequently been held\nunlawful by the judiciary.\n(cont.)\nFrom our comments on subparagraph (7) supra,\nit follows a fortiori that wrongful denial of such an\napplication should serve as a totally exculpating\nfactor, not as a mitigating one.\n(10) Voluntary submission to authorities by applicant.\nMany war resisters disbelieved in the legitimacy\nof the government's war policies and therefore, dis-\nbelieved in the legitimacy of the government's power\nto punish those who refused to participate in the war.\nThey did not intend to be imprisoned martyrs, nor were\ntheir political commitments attuned to \"bearing moral\nwitness\" (in the style of the 1960's civil disobedience).\nAvoiding arrest and prosecution was, for them, not a\nselfish and self-protective act, but a moral-political\ngesture as well, precisely as the conduct of a member\nof the French underground might have been during\nWorld War II. The failure to submit to authorities\nvoluntarily, therefore, should not be held against\napplicants, and this standard for mitigation by im-\nplication would weigh against applicants who were\napprehended.\nVI. 2 C.F.R. $202.5. Calculation of Length of Alternative Service\nThis section gives no standards for the calculation\nof alternate service periods for veterans with less-than-\nhonorable discharges which were issued administratively.\nSince that is numerically the largest class by far of\npersons qualifying for Board consideration, this omission\nis a serious fault.\n(2), (3), (4) That starting point will be reduced by\nthree times the amount of prison time\nserved. etc.\nThis calculus necessarily makes the Board func-\ntion as a body that metes out compensatory punishment.\nWhere an applicant had a liberal court and received a\nbrief or probationary sentence, the Board will now see\nto it that the judge's decency and the applicant's\ngood fortune are undone by the Board's calculations.\nSince we can only agree that prison time served should\nbe a mitigating factor, we cannot suggest a way out of\nthis dilemma except to indicate that this paradox is\ninherent in a punitive clemency system such as this.\n(5) The remainder of those three subtractions will be the\n\"baseline period of alternative service\" applicable to\na particular case before the Board, provided that the\nbaseline period of alternative service shall not exceed\na judge's sentence to imprisonment in any case, and\nprovided further that the baseline period of alternative\nservice shall be, notwithstanding the remainder of the\ncalculation above, not less than a minimum of three (3)\nmonths.\n(cont.)\nThis regulation fails to take into account the\nprovisions of 18 U.S.C. §§4161 and 4162 which\nprovide for statutorily mandated computation of non-\ndiscretionary \"good time. \"\n1/\n$4161. Computation generally\nEach prisoner convicted of an offense against\nthe United States and confined in a penal or cor-\nrectional institution for a definite term other than\nfor life, whose record of conduct shows that he has\nfaithfully observed all the rules and has not been\nsubjected to punishment, shall be entitled to a de-\nduction from the term of his sentence beginning with\nthe day on which the sentence commences to run, as\nfollows:\nFive days for each month, if the sentence is not\nless than six months and not more than one year.\nSix days for each month, if the sentence is not\nmore than one year and less than three years.\nSeven days for each month, if the sentence is\nnot less than three years and less than five years.\nEight days for each month, if the sentence is\nnot less than five years and less than ten years.\nTen days for each month, if the sentence is\nten years or more.\nWhen two or more consecutive sentences are to\nbe served, the aggregate of the several sentences\nshall be the basis upon which the deduction shall be\ncomputed. As amended Sept. 14, 1959, Pub.L. 86-259,\n73 Stat. 546.\n$4162. Industrial good time\nA prisoner may, in the discretion of the Attorney\nGeneral, be allowed a deduction from his sentence of\nnot to exceed three days for each month of actual em-\nployment in an industry of camp for the first year\nor any part thereof, and not to exceed five days for\neach month of any succeeding year or part thereof.\nIn the discretion of the Attorney General such\nallowance may also be made to a prisoner performing\nexceptionally meritorious service or performing\nduties of outstanding importance in connection with\ninstitutional operations.\nSuch allowance shall be in addition to commuta-\ntion of time for good conduct, and under the same terms\nand conditions and without regard to length of sentence.\nThe second clause of this regulation should there-\nfore be amended to read:\nprovided that the baseline period of\nalternate service shall exceed neither a\njudge's sentence to imprisonment nor the\nactual time which would be served under\nsuch sentence as provided in 18 U.S.C.\nSS4161 and 4162\n\"\nIn addition, the establishment of a minimum three\nmonth baseline should be eliminated since, in reality,\nit will, with the state of the economy, be impossible\nfor anyone to secure employment for a period of ninety\ndays. The only possible equitable way to retain the\nthree month baseline formula would be to add a provi-\nsion giving credit for bona fide time spent by a cle-\nmency applicant looking for work."
}