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APPENDIX J.
J. HISTORY
FOR
:
GERALD
APPENDIX J
THE HISTORICAL PERSPECTIVE OF CLEMENCY
I. CONSTITUTIONAL AUTHORITY TO PARDON
(There are no changes to Chapters II through V, Appendix J)
CONSTITUTIONAL AUTHORITY TO PARDON
English Heritage
Article II, Section 2 of the Constitution of the United States reads,
in part, that the President "shall have the Power to grant Reprieves and
Pardons for Offences against the United States, except in cases of
impeachment. "1/ By the time the Founding Fathers wrote the Constitution,
they could draw upon their knowledge of English and colonial precedents
in order to shape our own national constitution. The First Supreme
Court opinion which considered the President's pardoning power expressly
recognized the important link provided by our English heritage:
-As this power had been exercised from time immemorial by the
executive of that nationa whose language is our language, and
to whose judicial institutions our bear a close resemblance, we
adopt their principles respecting the operation and effect of
a pardon, and look into their books for the rules prescribing
the manner in which it is to be used by the person who would
avail himself of it.
To properly place and interpret the President's pardoning power, it is
therefore appropriate to trace the development of the pardoning power in
England.
Clemency during the Anglo-Saxon period, up until the Normal Conquest
of 1066 was extremely vague. The king possessed relatively little power
during this period, for the real authority lay with the clan chiefs, in
whom the authority to pardon was vested. The privilege of pardon was a
question of power, not yet a problem of law. 3/ Although the king technically
had the authority to pardon, the existence of the right of private vengence
and retaliation, and the opposition of powerful nobles combined to confine
the exercise of the clemency power to those offenses which were committed
by members of the king's household, or to offenses which posed a personal
threat to the security and authority of the king.
-2-
The Norman Conquest brought with it the belief that the pardon power
was an exclusive perogative of the sovereign. 5/ However strong this
belief may have been in Norman political thought, it rarely was accepted
by the groups contending for power with the king. Other contenders for
the pardoning power includes the great earls 6/, the church (through the
use of "benefit of clergy" 7/, and finally, parliament.
The fourteenth century witnessed a long series of parliamentary attempts
to curtail the royal power. From time to time Parliament enacted laws
restricting the king's power to pardon. In 1389, Parliament enacted a law 8/
which provided that no pardon for treason, murder, or rape could be allowed
unless the offense were particularly specified in the pardon decree. In
the case of murder, the pardon decree had to state whether the murder was
committed by lying in wait, assault, or with malice. According to
Sir Edward Coke, Parliament enacted such a statute in order to curtail the
king's use of his pardon power when the enumerated felonies were committed.
The king would be less likely to grant a pardon for these kinds of offenses
if he publicly had to disclose it. 9/
During the reign of Henry VIII, the full pardon power shifted back to
the King. In 1535 Parliament enacted a statute which provided the kind with
the exclusive authority to grant a pardon:
'No person or persons, of what estate or degree soever they be
shall have any power or authority to pardon or remit but that the
Kings'
highness, his heirs and successors, kings of this realm, shall have
the whole and sole power and authority thereof united and knit to
the Imperial Crown of this realm, as of good right and equity it
appertaineth "10/
-3
Within two-hundred years following this enactment, Parliament enacted
three import restrictive measures on the kings authority to pardon:
The Habeas Corpus Act of 1679 11/, the Bill of Rights 12/, and the Act
of Settlement. 13/
Section eleven of the Habeas Corpus Act of 1679 prohibited arbitrary
imprisonment and made it an offense against the King and his government
"to send any subject of this realm of prisoner into parts beyond the seas. "
Any person committing such an offense could not receive a pardon from the
King. The Bill of Rights Act of 1689 prohibited the granting of dispensations,
by declaring it illegal for the Crown to claim its previously claimed
power of the right to suspend a given law and also the right to disregard
the law in the execution of a particular case. The Act of Settlement,
enacted twelve years later, after the king abused his pardoning power
by shielding his favorites from punishment, probihited the use of pardon in
cases of impeachment, although it did not prohibit its use after the
impeachment had been heard.
In addition to the above limitations on the kings pardoning prerogative,
it is also noted that the King could not pardon anyone who had harmed a
private individual. The King could only pardon offenses against the crown
or the public. 14/ By 1721, Parliament gave itself the authority to
grant pardons. 15/
The Kings authority to grant pardons included the right to make such
pardons conditional. Blackstone pointed out that "The king may extend his
mercy upon what terms he pleases, and may annex to his bounty a condition,
either precedent or subsequent, on performance where of the validity of
the pardon will depend, and this by the common law." 16/
-4-
One particular situation where conditional pardons were utilized by
the king was time of war. During time of war, pardons were generously
granted, subject to the condition that the particular individual agreed
to serve one year during the military. 17/ It was not necessary, however,
that the criminal serve in a foreign land in order to secure a pardon
during war time. Securance of the good offices of a nobleman who was in
who
the service of the King overseas and/would testify as to the criminal's
innocence, was sufficient. With the outbreak of hostilities, the King
needed the support of the lords and bishops, and he was eager to do them
a favor. 18/
Banishment was another form of conditional pardon utilized by the King.
The individual being pardoned had, to agree to transport himself to some
foreign country, usually the American colonies, for life, or for a term
of years. 19/ All felons under death could petition the king for a pardon
on condition of their agreeing to transport themselves to the colonies
either for life or for a specified term. The usual procedure was for the
king, if he were willing to grant such a pardon on these terms, to require
the felon to enter into a bond himself, and to provide sureties for his
transportation. 20/ If the offender did not live up to the conditions,
English judges were willing to hold that the condition upon which the original
pardon was given was broken, with the offender remitted to his original
punishment of death. 21/
- 5-
Colonial and State Government Practice Up Until the 1789
As the American colonies became settled, the English legal con-
ceptions of the seventeenth and eighteenth centuries were trans-
22/
planted to the new world.
Included in these concepts was
the principle of pardon and clemency for criminal offenders.
In most of the colonial charters the king delegated his authority to
grant pardons. However, the ultimate individual(s) who could
grant a pardon pursuant to the King's delegation of authority varied
from colony to colony, and sometimes changed within a given
colony as new charters were written. For instance, in the first
Virginia charter of 1606 no mention occurs regarding the pardoning
power, but in the second charter of 1609 there is granted:
- 6-
"until the said treasurer and company, and their
successors, and to such Governors, Officers, and
Ministers, as shall be by our Council constituted
full and absolute Power and authority to correct,
punish, pardon, govern, and rule all such the subjects
of us,
as shall from time to time adventure them-
selves in any Voyage thither
as well in cases
capital and criminal, as civil, both Marine and other.
So always as the said Statutes Ordinances and Proceedings
as near as conveniently may be, be agreeable to the Laws,
Statutes, Government, and Policy of this our realm of
England. ,23 /
The third Virginia charter written in 1612 contained no reference
to the pardon power. When this charter was annulled by writ of
quo warranto in 1624 Virginia became a royal colony and the pardon
power from then on to the American Revolution was exercised by
24/
the royal governor.
When Maine became a royal colony in 1639 Sir Ferdinando Georges
and his successors were given the authority to pardon, remit, and
release all offenses and offenders against any of the laws or
25/
ordinances within the boundaries which comprised Maine.
In
1677 Maine was purchased by the Massachusetts Bay Company and
became incorporated into that colony. It remained a part of
Massachusetts until 1820.
7
Connecticut did not receive a charter until 1662. This charter
provided that the General Assembly, or the major part thereof,
under their common seal could release or pardon offenders if the
governor and six of the assistants were present in such assembly
or court. Unlike Virginia and Maine, Connecticut's pardoning
authority did not rest solely with the royal governor. The General
Assembly was given the authority to pardon offenders as long as
26 /
the governor and six of his assistants were present.
The Carolinas received their first charter in 1663. The Lord
proprietors were given the authority to remit, release, pardon,
and abolish, whether before judgment or after, all crimes and
offenses of every character against the laws of the colony. In
1665 the proprietors granted the settlers who had settled in
Carolina a government through an instrument known as "Concessions
and Agreements of the Lord Proprietors of the Province of
Carolina. 11 Under this instrument, the governor and council, after
8
an individual was condemned could reprieve a case for cause until
the case with a copy of the whole trial proceedings could be presented
to the proprietors who would either grant the individual a pardon or
command execution of his sentence.
À new charter was granted to the lord proprietors in 1665 in which
the pardon power remained as it was in the first charter. Later,
when the Carolinas became royal colonies the pardon power became
27
lodged in the hands of the royal governors.
/
In 1664 The Duke of York was granted New York. In this same year,
the Duke transferred to Lord John Berkeley and Sir George Carteret
that part of his domain which now comprises the State of New Jersey.
These proprietors set up a government in the same year, allowing
the governor and his council to issue reprieves to condemned
offendors until the case could be presented with a copy of the entire
trial proceedings to the proprietors who would either pardon or
28
/
command the execution of the sentence.
9
Sometime later, Berkeley and Carteret divided their original
holdings. Berkeley sold his share, the western part, to William
Penn and other Quakers. The Quakers provided that any person
who should prosecute or prefer any indictment or information
against others for any personal injuries or for other criminal
matters (treason, murder, and felony only excepted) should be
"master of his own process, and have full power to forgive and remit
the person or persons offending against him or herself only, as well
before as after judgment and condemnation, and pardon and remit
the sentence, fine and imprisonment of the person or persons
29/
offending, be it personal or other whatsoever.
On August 6, 1680, the Duke of York made a second grant for both
the land and government of West Jersey to William Penn and five
other persons. This grant included the authority to grant pardons
and other forms of clemency. In March 14, 1682, the Duke of York
granted the pardoning power to twenty-four proprietors in East
10
Jersey. In the following year they set up a government known
as the Fundamental Constitutions for the Province of East New
Jersey which provided that the power of pardoning should never
be made use of but by the consent of eighteen of the proprietors
or their proxies. In addition, the governor, with four proprietors
who were to be judges of the Court of Appeals, could reprieve any
person after the day of execution had been set, not to exceed one
month. In 1702 the proprietors of East and West Jersey surrendered
their "pretended right of Government" to the governor and from
30
30/
then on the exercise of clemency was vested in the royal governor.
In New Hampshire, before it became a royal colony, it was provided
that in all criminal cases where the punishment extends to the loss of
11
life or limb, wilful murder only excepted, the person convicted shall
either be sent to England with a statement of his case, or execution
of sentence was upheld until the case could be reported to the
Privy Council and a decision reached. When New Hampshire became
a royal colony the pardon power was vested in the same governmental
31/
authority as in other royal colonies.
In 1681 William Penn received from Charles II a charter for the
province of Pennsylvania. Included in this grant was a delegation to
the proprietor and his heirs of full power to remit, release, pardon,
and abolish, whether before judgment or after, all crimes and
offenses with the exception of treason and wilful and malicious
murder. For these particular offenses, the proprietor could only
grant reprieves until the royal will could be determined. From then
on until the American Revolution it appears that the granting of
12
clemency was placed in the hands of the Executive Council of the
province. Delaware, also acquired by William Penn, in 1682,
contained the same plan for administering clemency that existed in
32/
Pennsylvania.
The Georgia charter granted in 1732 conferred authority upon the
corporation to "sell, impose, and inflict reasonable pains and penalties
upon offenders, and to mitigate the same as they or the major part
of them present shall see requisite. " When Georgia became a royal
colony this power reverted to the crown.
In general, it can be said from an examination of the above colonial
charters that the crown delegated the pardoning power in the
colonies. This power was lodged in the hands of an executive
authority, which varied from the proprietor himself or to a group of
proprietors. In the so called royal colonies the proprietor usually
could not grant pardons for treason and wilful and malicious
34/
murder.
In these instances they could only empower to grant
reprieves until the royal will could be determined.
13
With the outbreak of the American revolution colonial governments
were replaced by new state governments. Because the executive
department in the state governments had not yet gained the confidence
of the people, due to the lingering memories of royal governors and
their opposition to colonial rights, most state governments provided
that the powers of government would be concentrated in the legisla- -
35
/
ture.
Accordingly, in New Hampshire, Massachusetts,
Pennsylvania, and Virginia, the pardoning power could be exercised
only by the governor with the consent of the executive council.
Vermont, although not one of the original states, provided in its
constitution of 1777 that the pardoning authority would be exercised
36/
by the governor and the executive council.
Rhode Island and
Connecticut made no changes in the administration of clemency
37/
and retained their charter form of government for many years.
Georgia authorized the governor only to "reprieve a criminal or
suspend a fine until the meeting of the assembly, who may determine
therein as they shall judge fit. 38/ Only in the states of New York
14
Delaware, Maryland, North Carolina, and South Carolina was the
39./
pardon authority vested in the governor alone.
The President's Grant of authority under the Federal Constitution:
By the virtue of English and colonial precedent,
7
The Founding Fathers had ample precedent to establish
the pardoning power for the President. Little debate occurred on
how the power should be utilized. Part of it was directed at the
suggestion that the President would need the consent of the United
States Senate before he could grant a pardon. That suggestion was
40!
rejected by a vote of 8-1. A journal kept by James Madison on
the day to day proceedings of the Federal Convention provides the
following:
Saturday, August 25th, 1787
Mr. Sherman moved to amend the 'power to grant
reprieves and pardons, I so as to read, 'to grant re-
15
prieves until the ensuring session of the Senate,
and pardons with consent of the Senate.'
On the question, -Connecticut, aye, --1, New
Hampshire, Massachusetts, Pennsylvania, Maryland,
Virginia, North Carolina, South Carolina, Georgia,
no--8.
The words, 'except in cases of impeachment,'
were inserted, nem, con. after 'pardons.'
Two days later, on August 27, 1787, a suggestion was made that the
President should have the authority to grant a pardon only after
the offender had been convicted. That suggestion was quickly
withdrawn, however, after an objection was made to it:
Monday, August 27th, 1787
In Convention, -Article 10, Section 2, being
resumed, --
Mr. L. Martin moved to insert the words, 'after
conviction,' after the words, 'reprieves and pardons.'
Mr. Wilson objected, that pardon before conviction
might be necessary, in order to obtain the testimony of
accomplices. He stated the case of forgeries, in which
this might particularly happen.
Mr. L. Martin withdrew his motion.
Later, Edmund Randolph of Virginia proposed to add the words,
"except in cases of treason. " His motion was rejected by a vote
of 8-2:
16
Saturday, September 15th, 1787
Article 2, Sect. 2. 'He shall have power to grant
reprieves and pardons for offences against the United
States, &c.
Mr. Randolph moved to except 'cases of treason.
The prerogative of pardon in these cases was too great
a trust. The President may himself be guilty. The
traitors may be his own instruments.
Col. Mason supported the motion.
Mr. Gouverneur Morris had rather there should be
no pardon for treason, than:let the power devolve on the
Legislature.
Mr. Wilson. Pardon is necessary for cases of
treason, and is best placed in the hands of the Executive.
If he be himself a party to the guilt, he can be impeached
and prosecuted.
Mr. King thought it would be inconsistent with the
constitutional separation of the Executive and Legislative
powers, to let the prerogative be exercised by the latter.
A legislative body is utterly unfit for the purpose. They
are governed too much by the passions of the moment.
In Massachusetts, one assembly would have hung all the
insurgents in that State; the next was equally disposed to
pardon them all [Shays Rebellion]. He suggested the
expedient of requiring the concurrence of the Senate in
acts of pardon.
Mr. Madison admitted the force of objections to the
Legislature, but the pardon of treasons was so peculiarly
improper for the President, that he should acquiesce in
the transfer of it to the former, rather than leave it
altogether in the hands of the latter. He would prefer to
either, an association of the Senate, as a council of
advice, with the President.
Mr. Randolph could not admit the Senate into a
share of the power. The great danger to liberty lay in
a combination between the President and that body.
Col. Mason. The Senate has already too much power.
There can be no danger of too much leinity in legislative
pardons, as the Senate must concur; and the President
moreover can require two-thirds of both Houses.
17
On the motion of Mr. Randolph, --
Virginia, Georgia, aye--2; New Hampshire,
Massachusetts, New Jersey, Pennsylvania,
Delaware, Maryland, North Carolina, South
Carolina, no--8; Connecticut, divided.
Thereafter, Alexander Hamilton, in Federalist No. 74 presented
URE
an argument that the legislative should not have any control
39
/
41
over the pardoning power:
But the principal argument for reposing the power of
pardoning in this case in the chief magistrate, is this:
in seasons of insurrection or rebellion, there are often
critical moments, when a well-timed offer of pardon
to the insurgents or rebels may restore the tranquility
of the commonwealth; and which, if suffered to pass
unimproved, it may never be possible afterwards to
recall. The dilatory process of convening the legisla -
ture, or one of its branches, for the purpose of obtaining
its sanction, would frequently be the occasion of letting
slip the golden opportunity. The loss of a week, a day,
an hour, may sometimes be fatal. If it should be
observed, that a discretionary power, with a view to.
such contingencies, might be occasionally conferred
upon the president; it may be answered in the first
place, that it is questionalbe, whether, in a limited
constitution, that power could be delegated by law; and
18
in the second place, that it would generally be
impolitic beforehand to take any step which might
hold out the prospect of impunity: A proceeding of
this kind, out of the usual course, would be likely to
be construed into an argument of timidity or of
weakness, and would have a tendency to embolden
guilt.
Ultimately, the Founding Fathers concluded that there was no need,
contrary to the English practice, to curtail the President's
authority to grant pardons, except to one particular situation:
cases of impeachment. As one supreme court decision noted:
The framers of our Constitution had in mind no
necessity for curtailing this feature of the kings
prerogative in transporting it into the American
governmental structure save by excepting cases of
impeachment.
...
(Ex parte Grossman, 267 U.S.
87, 113, 45 S. Ct. 332, 334, 69 L. Ed. 527 (1925).
19
I.
The Exercise of the President's Power to Pardon as shown by
applicable case Law:
A.
Conditional Pardons
1) In general:
The applicable case law has uniformly supported a very broad inter-
42/
pretation of the President's pardoning authority. Ex Parte Wells,
one of the first Supreme Court decisions interpreting the President's
pardoning authority, upheld a pardon granted by President Fillmore to
a convicted murderer on the condition that he submit to life imprison-
ment in place of his death sentence. The high Court held that the
power of the President to pardon includes the power to grant less than
43
/
full pardons.
2) Limits of a Conditional Pardon:
Even if an individual accepts a conditional pardon, the condition may
not be valid if beyond the President's authority to pardon. In other
words, the President does not have an unlimited right to attach ANY
condition he may desire. One measure of the lawfulness of a condition
44/
is that it be reasonable and neither illegal nor against public policy.
20
State courts have also held that for a conditional pardon to be valid it
must not be "unlawful, unreasonable, immoral or impossible of
45/
performance. 11
Saxbe
46/
In Hoffa V. United States,
one of the most recent Federal cases to
consider the question of conditional pardons, the District Court for the
District of Columbia, after summarizing the precedents established by
earlier cases stated:
"We find in these admittedly imprecise standards two
overriding concerns in determining the lawfulness of a
condition. First, there is a public policy concern, which
can be expressed in terms of the President's duty to
exercise his discretion under the pardoning power in the
public interest. Second, there is the concept of illegality,
which in some instances may be painfully apparent, but
which, for the purposes of cases like the one at bar, might
also be taken to reflect the concern that a condition might
unduly override the rights and liberties of the convicted
person in a manner constitutionally impermissible. Based
on our study of the precedents, we therefore arrive at a two-
pronged test of reasonableness in determining the lawfulness
of a condition: first, that the condition be directly related to
the public interest; and second, that the condition not unreasonably
infringe on the individual commutee's constitutional freedoms. 147/
21
The court in. Hoffa went on to approve a four-part test enunciated
48/
in United States V. O'Brien, a case where "speech", a right
guaranteed under the First Amendment and "nonspeech" elements
were combined in the same course or conduct:
"(A) government regulation is sufficiently justified if
it is within the constitutional power of the Government;
if it furthers an important or substantial governmental
interest; if the governmental interest is unrelated to the
suppression of expression; and if the incidental restriction
on alleged First Amendment freedoms is no greater than
is essential to the furtherance of that interest. 11 49/
The most recent Supreme Court decision on the nature of the presidential
pardoning power is Schick V. Reed, 50 / a case dealing with a conditional
commutation. The Court, in upholding a particular condition imposed
by President Eisenhower, when he pardoned the petitioner in 1960,
22
recognized that the President's pardoning power is not absolute and
51/
is limited by the Constitution
"A fair reading of the history of the English pardoning
power, from which our Art. II, SEP 2, derives, of the language
of that section itself, and of the unbroken practice since 1790
compels the conclusion that the power flows from the Con-
stitution alone, not from any legislative enactments, and that
it cannot be modified, abridged, or diminished by the Congress.
Additionally, considerations of public policy and humanitarian
impulses support an interpretation of that power so as to permit
the attachment of any condition which does not otherwise offend
the Constitution. The plain purpose of the broad power con-
ferred by § 2 was to allow plenary authority in the President
to "forgive" the convicted person in part or entirely, to
reduce a penalty in terms of a specified number of years, or
to alter it with conditions which are in themselves constitu-
tionally unobjectionable. If we were to accept petitioner's
contentions, a commutation of his death sentence to 25 or
30 years would be subject to the same challenge as is now
made, i.e., that parole must be available to petitioner be-
cause it is to others. That such an interpretation of SED 2 would
in all probability tend to inhibit the exercise of the pardoning
power and reduce the frequency of commutations in hardly open
to doubt. We therefore hold that the pardoning power is an
enumerated power of the Constitution and its limitations, if
any, must be found in the Constitution itself. It would be a
curious logic to allow a convicted person who petitions for
mercy to retain the full benefit of a lesser punishment with
conditions, yet escape burdens readily assumed in accepting
the commutation which he sought. (Emphasis added)
3) The recipient of a conditional pardon or commutation
must accept it before it can become legally valid:
Applicable case law shows that with the exception of the commutation
of a prisoners death sentence by the President, the offeree of a pardon
23
or commutation has the option of either accepting the conditional
commutation or pardon, or of rejecting it. Two Supreme Court
52/
decisions speak of this necessity: United States V. Wilson,
and
53/
Burdick V. United States.
In the Wilson case, the issue before the court was whether or not a
Presidential pardon was judicially noticeable or had to be specially
pleaded. The Court stated that the pardon had to be pleaded because
a pardon was in the nature of a private deed requiring acceptance and
delivery:
"A pardon is a deed, to the validity of which delivery is
essential, and delivery is not complete without acceptance.
It may then be rejected by the person to whom it is tendered;
and if it be rejected, we have discovered no power in a
court to force it on him. 1.54
The Court pointed out that the lower court could not give notice to
a pardon where the recipient specifically "waived and declined any
advantage or protection, 55/ which might have been provided by the
pardon. The Court went on to say:
24
"It may be supposed that no being condemned to death
would reject a pardon; but the rule must be the same in
capital cases and in misdemeanors. A pardon may be
conditional, and the condition may be more objectionable
than the punishment inflicted by the judgment. 1156/
Hence, the recipient has the choice of rejecting the offer of clemency
57/
and abiding by his initial sentence.
The Court pointed out that the pardon could be rejected because it
might involve "consequences of even greater disgrace that those
58 /
from which it purports to relive. "
B.
The Pardoning Power of the President is not subject to
legislative control:
59
/
The Supreme Court stated in Ex Parte Garland that except for
impeachment, the President's pardoning power extends to every
offense known to the law, and may be exercised at any time after its
commission, either before legal proceedings are taken, or during
pendency, or after conviction and judgment.
The Supreme Court held that Garland did not have to take the oath,
notwithstanding that Congress had enacted a law requiring the oath,
25
for if Garland had to do so, it would restrict the President's
power to pardon. The Court said:
"The Constitution gives him unlimited power in respect
to pardon, save only in cases of impeachment. The
Constitution does not say what sort of pardon; but the
term being generic necessarily includes every species
of pardon, individual as well as general, conditional as
well as absolute
It extends to every offence known
to the law, and may be exercised at any time after its
commission, either before legal proceedings are taken,
or during their pendency, or after conviction and judgment.
This power of the President is not subject to legislative
control. Congress can neither limit the effect of his
pardon, nor exclude from its exercise any class of
offenders. The benign prerogative of mercy reposed
on him cannot be fettered by any legislative restrictions. 1160/
NOTES
Appendix B
The Historical Perspective of Clemency
Chapter I. Constitutional Authority to Pardon
1. U.S. Const. Art II $ 2.
2. United States V. Wilson, 32 U.S. (7 Pet.) 150, 160 (1833).
3. Attorney General's Survey of Release Procedures, Vol. III:
Pardon, 27 (1939).
4. Grupp, Some Historical Aspects of the Pardon in England, 7 Am J. Legal
History 51, 53-54 (Jan, 1963)
Jensen, The Pardoning Power in the American States 1 (1922).
"In cases of flagrant or aggravated injury vengeance was permitted
without waiting for slow redress from law. If any one slew another
openly, he was delivered over to the kindred of the person slain.
If a man detected anyone with his wife or daughter, or with his sister
or mother, within closed doors, or under the same coverlet, he might
slay him with impunity." See Allen, Inquiry into the Rise and Growth
of the Royal Prerogative in England ( ) London.
5. In 1827 See Grupp, Historical Aspects of the Pardon in England, supra
note at 57. Grupp, supra Note 4, at 55.
"As representative of the state, the king may frustrate by his pardon
an indictment prosecuted in his name. In every crime that affects the
public he is the injured person in the eye of the law, and may therefore,
it is said, pardon an offense which is held to have been committed
against himself." See Allen, supra Note 4, at 108.
6. The great Earls obtained the right to exercise a power of clemency
within their jurisdiction. They had the same right as the king to
remit and pardon treasons, murders, and felonies. By the act of 27
Henry VIII, C. 24, the greater part of the privileges that had belonged
to them were taken away. See Allen, supra note 4 at 109.
7. Benefit of clergy "originally
meant that an ordained clerk
charged with a felony could be tried only in the Ecclesiastical Court.
But, before the end of Henry III's reign, the king's court, though it
delivered him to the Ecclesiastical Court for trial, took a preliminary
inquest as to his guilt or innocence
In time it [benefit of
clergy] changed and became a complicated set of rules exempting certain
persons from punishment for certain criminal offenses. It was extended
to secular clerks, then to all who could read." -Humbert, -The Pardoning
Power of the President, at 10. It arose out of the church-state
conflict of the twelfth century. It remained in effect until abolished
by statute.
8. 13 Richard II, St. 2 C. 1
9. Blackstone, Commentaries, Book IV, p. 401. - To circumvent this statute,
the king claimed that he had the right to suspend the execution of a
law and to dispense with its execution in particular cases. The use of
the royal dispensing power was fairly common. It was apparently intro- :-
duced into English Law by Henry III in about the year 1252. Parliament,
in the English Bill of Rights enacted in 1689, declared that both of
these alleged powers were illegal. Humbert, supra note 7 at 11, P. Brett,
Conditional Pardons and the Commutation of Death Sentences, 20 Modern
Law Review, 131, 133 (1957).
NOTES
Chapter I, (Contd)
10. 27 Henry VIII, C. 24. It should be noted that notwithstanding this
particular statute, the King's pardoning authority was not absolute.
As previously noted, all those who could claim the "benefit of
clergy" were exempted from criminal responsibility, until it was
abolished by statute in 1827. The institution of sanctuary also
served as an encroachment upon the king's prerogative. If an
offender left the realm, forfeited all of his goods and submitted
to a life of banishment, he could obtain the same effect that a
king's pardon would bestow upon him. See Grupp, Historical Aspects,
supra note 4, at 57-58.
11. 31 Charles II, Stat. 11, C. 2.
12. 1 William and Mary, sess. II, C. 2.
13. 12 and 13 William III, C. 2.
14. As Blackstone put it, the king had no power to pardon "where private
justice is principally concerned" under the doctrine of "non potest
rex gratiam facese cum injuria at damno alirum" (the king cannot
confer a favour by the injury and loss of others).
Blackstone, Commentaries, supra note at 399. Blacksone also states
that the king could not pardon a common nuisance while it remained
unredressed. However, after the abatement of the nuisance, the king
could remit the fine. Blackstone states that although the prosecution
of a common nuisance is vested in the king SO as to avoid multiplicity
of suits, it is, until abated, more in the nature of a private injury
to each individual in the neighborhood. In addition, the king could
not pardon an offense against a popular or penal statute after in-
formation has been brought. Once a private individual has brought
such information he acquires a private property right in his part of
the penalty.
15. Stephen, New Commentaries on the Laws of England (London, 1903),
Vol. II, p. 370. A pardon granted by Parliament had one particular
feature that a pardon granted by the king did not. A pardon granted
by an Act of Parliament had to be judicially noticed by a court. It
did not have to be pleaded. However, if an individual received a
pardon by the king under the Great Seal, the pardon had to be pleaded
at a particular stage in the proceeding. An individual who failed to
plead his pardon at the appropriate stage could be held to have
"waived the pardon" and to be precluded from pleading it at a later
stage. See Blackstone, supra note 10 at 402 and Brett, supra note 10
at 132.
7 George 1, ch. 29 (172 ). "The power and jurisdiction of Parliament
is so transcendent and absolute, that it cannot be confined, either
for causes or persons, within any bounds. It has sovereign and un-
controllable authority in the making, conforming, enlarging, restrain-
ing, abrogating, repealing, reviving, and expounding of laws, concern-
ing matters of all possible denominations, ecclesiastical or temporal,
civil, military, maritime, or criminal."
NOTES
Chapter I, (Contd)
16. Blackstone, Commentaries, supra, note 10, at 401.
17. As soon as war was declared, it was the custom to issue a proclamation
in which a general pardon of all homicides and felonies was granted
to everyone who would serve for a year at his own cost. The terms
were readily accepted, and the king increased his force by a number of
men who would perhaps be inferior to none in courage, though they might
not improve the discipline of the army. The rolls according abound
with instances in which a pardon was alleged for military service,
and allowed without dispute. Grupp, supra note 4, at 58.
18. See Attorney General's Survey, supra note 3 at 30.
19. Blackstone, Commentaries, supra note 10, at 401.
20. P. Brett, supra note 10, at 134.
21, Ibid.
22. Jensen, Pardoning Power in the Colonies, p. 3
23. Ibid. p. 4.
24. Ibid. p. 4.
25. Ibid. p. 5.
26. Ibid. P. 5.
27. Ibid. P. 6.
28. Ibid. P. 6.
29. Ibid. P. 6.
30. Ibid. P. 7.
31. Ibid. p. 7.
32. Ibid. p. 8.
33. Ibid. p. 8.
34. Ibid. p. 8.
35. Ibid. P. 9.
36. Constitution of New Hampshire, 1784; Massachusetts, 1780, Part II, chap.
ii, Sec. 1, Art. 8; New Jersey, 1776, Part IX; Pennsylvania, 1776, Sec. 20;
Virginia, 1776, cited in Jensen, Ibid. at P. 10.
37. Ibid. p. 10.
38. Ibid. p. 10
39. Ibid. P. 10
40. Tansill, (ed) Documents Illustrative of the Formation of the American
States, Government Printing Office, Washington, D.C., at 620 (1927).
41. The Federalist No. 74, at 500 (J. Cooke, Ed. 1961) - In Federalist No.
69, Hamilton summarized the proposed §2 powers, including the power
to pardon, as "resembl (ing) equally that of the king of Great Britain
and the Governor of New York." Ibid., at 464.
42.
Ex Parte Wells, 59 U.S. (18 How. ) 307 (1856)
43.
In this particular case, the offender had his death sentence commuted
to a sentence of life imprisonment. The Court held that the commuta-
tion of a sentence is, essentially, a quid pro quo. The Presidert offers
a remission of a sentence coupled with a condition--the "convict" has
the choice of remaining under his judicially imposed sentence or
accepting the remission of his sentence and abiding by the condition
on which it was offered. There are additional cases upholding condi-
tional pardons: In Re Ruhl, 20 F. Cas. 1335 (No. 12, ,124)(D. C. Nev.
1878), in which the condition had been payment of certain fines and
costs; Kavalin V. White, 44 F. 2d 49 (10th Cir. 1930), where the
condition was deportation of the prisoner from the United States;
United States V. Six Lots of Ground, 27 F. Cas. 1097 (No. 16, 299)
that he refrain from pressing certain claims against the govern-
ment for land which had been confiscated; Lupo V. Zerbst,
92 F. 2d 362 (5th Cir. 1937), where the petitioner's sentence was
commuted on the condition that he be law-abiding and not associate
with people of "evil" character; Bishop V. United States, 223 F. 2d
582 (D. C. Cir. 1955), where the President commuted the
petitioner's death sentence to life imprisonment with the further
condition that the life term be measured, for the purposes of
parole eligibility, from the date of commutation and not from
the date of initial incarceration; and Hoffa V. Saxbe, 378 F. Supp.
1221 (1974), where the condition of a commutation of a sentence
was that the petitioner not engage in direct or indirect management
of any labor organization for nine and one -half years.
A commutation of a sentence is the substitution of a lesser punish-
ment for a more severe punishment. It is considered to be part
of the power to pardon. Id. at 316.
44.
In Bishop V. United States, supra, the President commuted the
petitioner's death sentence to life imprisonment with the condition
that the life term be measured, for the purposes of parole
eligibility, from the date of commutation and not from the date of
initial incarceration. The Court held, in sustaining the con ition,
that "it would seem clear that the power to commute the dea
44.
Continued
sentence would necessarily include the power to attach reason-
able conditions. 11 In Lupo V. Zerbst, supra, the President
commuted petitioner's sentence on the condition that he be law-
abiding and not associate with people of "evil" character. In
sustaining the condition attached by the President, the Court
said "(t)here is nothing illegal or against public policy in any
of the conditions therein contained. 11 Id. at 364.
45. See also State et nel Bailey V. Mayo, 65, So. 2d 721, 722 (Fla. 1953).
Guy V. Utecht, 216 Minn. 255, 12 N.W. 2d 753, 757 (1943). Silvey
V. Kaiser, 173 S.W. 2d 63, 64 (Mo. 1943) (en bono) ; Huff V. Aldredge,
192 Go. 12, 14 S.E. 2d 456, 458-459 (1941) Commonwealth et nel.
Meredith V. Hall, 277 Ky 612, 126 S.W. 2d 1056, 1057 (1939). Wilborn
V. Sanders, 170 Va. 153, 195 S.E. 723, 726 (1938).
46. Hoffa V. Saxbe, supra.
47.
In applying the first part of the test, Hoffa stated that the conditions
must "relate to the reason for the initial judgment of conviction,
because it is the crime and circumstances that give use to the
public interest in regulating and circumscribing the future
behavior of the offendor. 11 Id. at 1236. The Court in Hoffa used
as its standard the standard employed in setting the conditions
of parole, itself an outgrowth of the conditional pardon. Id. at
1236, citing C. L. Newman, Sourcebook on Probation, Parole
and Pardons, 18 (3rd ed. 1968). Under the federal system, the
U.S. Board of Parole can release prisoners on parole where
there is a "reasonable probability that such prisoner will live
and remain at liberty without violating the laws" and where
"such release is not incompatible with the welfare of society."
18 U.S. C. SEQ 4203(a). Also, the release may be "upon such terms
and conditions ... as the Board shall prescribe. " The conditions,
however, must be reasonably related to the valid ends of the
interests that the Government retains after the prisoner is re-
leased. In Birzon V. King, 469 F. 1241 (1972), the Second
Circuit sustained the standard condition that a parolee not
associate with persons who have a criminal record, stating:
"Although a parolee should enjoy greater freedom in
many respects than a prisoner, we see no reason why the
Government may not impose restrictions on the rights of
the parolee that are reasonably and necessarily related to
the interests that the Government retains after his condi-
tional release. " Id. at 1243.
47. Continued
Hoffa went on to state that the lawfulness of a conditional pardon
or commutation is much the same, but with respect to Presidential
pardons, the President has a broader discretion "which encom-
passes a regard for protective measures in the public interest. 11
Hoffa V. Saxbe, supra, at 1237.
With respect to the second condition, namely, that the
condition not unreasonably infringe on the individual
commutee's constitutional freedoms, Hoffa recognized
that when an individual is granted a conditional pardon or
commutation, reasonable restrictions may be placed on
the future conduct of the commutee, and when particular
constitutional rights are curtailed. as a result of restricting
future conduct, a sufficiently important governmental
interest in regulating the future conduct can justify inci-
dental limitations on one's rights guaranteed under the
Bill of Rights. Id. at 1238-40. There are num erous
cases that uphold the restriction on constitutional rights
provided that the restrictions are precisely drawn to accomplish
a legitimate governmental purpose. See Rosario V. Rockefeller,
410 U.S. 752, 93 S. Ct. 1245, 36 L. Ed. 2d 1 (1973); Dunn V.
Blumstein, 405 U.S. 330, 336, 92 S. Ct. 995, 31 L. Ed. 2d 274
(1972); Bullock V. Carter, 405 U.S. 134, 140-141, 92 S. Ct. 849,
31 L. Ed. 2d 92 (1972); Jenness V. Fortson, 403 U.S. 431, 91 S. Ct.
1970, 29 L. Ed. 2d, 554 (1971); Williams V. Rhodes, 393 U.S. 23,
30-31, 89 S. Ct. 5, 21 L. Ed. 2d 24 (1968); NAACP V. Button,
371 U.S. 415, 438, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963);
Konigsberg V. State Bar of California, 366 U.S. 36, 49, 81 S. Ct.
997, 6, L. Ed. 2d 105 (1961).
48.
United States V. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d
672 (1968).
49.
Id. at 377, 88 S. Ct. at 1679. The Hoffa court went on to note that
conditional commutations are within the President's power under
Article II, Section 2, Clause One of the Constitution, and that
with respect to Mr. Hoffa, the Government had satisfied the
other three elements of the four-part test.
50. Schick V. Reed, 95 S. Ct. 379 (1974).
51. Ibid, at 385.
Y
52.
United States V. Wilson, 32 U.S. (7 Pet.)
(1833)
53.
Burdick V. United States, 236 U.S. 79, 35 S. Ct. 267, 59 L. Ed.
476 (1915).
54. United States V. Wilson, supra at 161.
55. Id. at 158.
56.
Id.
57. Burdick V. the United States, supra, also illustrates this point.
In this particular case President Wilson offered a pardon to the
petitioner. The effect of the pardon would have been to immunizing
him from any liability for incriminating statements made in the
course of testifying before a federal grand jury. The petitioner
had previously refused to testify concerning alleged fraud violations,
claiming his right against self-incrimination under the Fifth Amend-
ment would be violated. Even though President Wilson offered
petitioner Burdick a pardon, he still refused to testify, and was
therefore held in contempt. Upon a writ of habeas corpus, the
Supreme Court reversed the contempt conviction, arguing that
the petitioner did not have to accept the pardon, because he
had the right to refuse to testify:
"Granting, then, that the pardon was legally issued and
was sufficient for immunity, it was Burdick's right to
refuse it, as we have seen; and it, therefore, not be -
coming effective, his right under the Constitution to decline
to testify remained to be asserted. 11 Ex Parte Wells, supra at 312.
58. Id.
59. Ex Parte Garland, 71 U.S. (4 Wall.) 333 (1866).
60. Id. at 351-52. See also Schick V. Reed, 483 F. 2d 1266,
1268 (D. C. Cir. 1973) cert. granted, 42
Bishop V. United States, 223 F. 2d 582, 588 (D. C. Circuit.
1955).
APPENDIX K.
K. GALLUP POLL
APPENDIX
: The Gallup Poll of August, 1975.
For many years the Gallup Organization has polled the
American People on a variety of subjects, including clemency. As we
were about to close the Clemency Board, Gallup again felt the country's
pulse on the issue which was central to our work. We feel the results of
that poll are instructive and have included part of them in the following
pages.
Question One
"Have you heard or read anything about a program which would
grant a limited pardon to those who evaded the draft or
deserted from the armed forces during the Vietnam war?"
Yes
NATIONAL
72
SEX
Male
74
Female
71
RACE
White
75
Non-white
52
EDUCATION
College
86
High School
73
Grade School
55
REGION
East
73
Midwest
74
South
67
West
79
AGE
Total Under 30
73
18-24 years
74
25-29 years
72
30-119 yours
75
50 & older
70
"Have you heard or read anything about a program which would
grant a limited pardon 1:0 those who evaded the draft or
descrted from the armed forces during the Victnam war?"
Yes
INCOME
$20,000 & over
82
$15,000 - $19,999
85
$10,000 - $14,999
74
$7,000 DAP $9,999
75
$5,000 - $6,999
58
$3,000 - $4,999
61
Under $3,000
61
POLITICS
Republican
74
Democrat
69
S. Democrat
60
Do Democrat
Other
72
Independent
77
RELIGION
Protestant
72
Catholic
69
OCCUPATION
Prof. & Bus.
86
Cler. & Sales
78
Manual Workers
R
Non-Labor Force-
63
CITY SIZE
1,000,000 & over
71
500,000 - 999,999
77
50,000 - 499,999
77
2,500 - 49,999
72
Under 2,500, Rural
68
Question Two
"Do you happen to know which of these groups are eligible for
the program?" (Respondents were handed a card with choices;
see over for column headings.)
1
2
3
4
5
6
@
8
9
NATIONAL
43
17
14
15
2
/
4
8
in
SEX
Male
45
19
15
17
2
3
4
10
74
Female
41
16
14
13
1
/
4
7
y
RACE
White
44
18
14
15
2
/
4
8
25
Non-white
30
12
16
10
/
/
7
9
y
EDUCATION
College
63
27
15
20
/
/
/
3
is
High School
43
17
15
15
2
a
4
9
&
Grade School
17
5
10
(7)
-
-
b
12
by
REGION
East
44
19
15
15
2
in
3
8
so
Midwest
43
15
12
15
/
!
/
4
"
27
South
38
14
13
11
/
/
5
5
41
West
47
25
18
18
2
3
5
9
21
AGE
Total Under 30
51
21
16
14
3
/
3
6
18
18-24 years
so
19
16
15
3
/
3
>
A
25-29 years
54
23
17
13
3
3
3
4
23
stool 64-08
48
19
11
15
/
/
4
8
27
50 & older
31
14
15
15
/
2
5
11
40
J. Draft evaders and deserters who are now in Canada and
other foreign countries.
2. Draft evaders and deserters who are fugitives in the
United States.
3. People who served in Vietnam and then deserted the
armed forces after they came home.
4. Draft evaders and deserters who have already gone
through the courts and have been punished for their
offenses.
5. People who demonstrated against the Vietnam war.
6. First offenders convicted of non-violent federal crimes.
7. Service men still on active duty who have been court-
martialed for non-violent military offenses.
8. None are eligible.
9. Don't know
,
"Do you happen 1:0 know which of these groups are eligible for
the program?"
/
(1)
2.)
3
(21.)
5.)
b
6
(7)
D
INCOME
$20,000 & over
62
27
18
17
3
/
2
5.
19
$15,000 - $19,999
55
22
10
13
/
4
7
24
$10,000. - $14,999
44
15
16
17
2
/
4
10
25
$7,000 - $9,999
39
13
If
14
/
/
4
9
33
$5,000 - $6,999
27
15
is
15
-
/
5
9
39
$3,000 - $4,999
27
17
14
7
3
21
4
13
38
Under $3,000
26
10
14
15
3
2
5
5
53
POLITICS
Republican
47
18
15
17
/
/
3
7
29
Democrat
36
15
14
14
/
/
G
9
35
S. Democrat
29
:
12
15
12
2
/
6
7
45
Do Democrat
other
40
17
14
is
/
/
5
9.
31
Independent
49
20
13
13
a
2
4
9
25
RELIGION
Protestant.
-
43
17
12
14
/
/
4
8
33
Catholic
38
16
17.
16
/
/
6
11
27
OCCUPATION
-
Prof. & Bus.
59
25
15
16
N
/
2
4
22
-
Cler. & Sales
54
20
13
14
1
/
7
8
22
Nanual Workers
--
39
16
14
14
/
/
4
9
31
Non-Labor Force
31
12
15
16
2
2
4
12
41
-
CITY SIZE
1,000,000 & over
I
44
18
is
13
/
3
3
10
23
500,000 - 999,999
-
47
26
17
22
/
/
4
4
as
-
50,000 = 499,999
so
20
18
13
/
-
3
8
28
2,500 49,999
37
15
11
14
2
-
4
D
3:
Under 2,500, Ruyal
36
10
10
14
3
/
4
8
41
\
Question Three
"Which would you favor: a pardon after completion of alternative
service, a pardon without requiring alternative service, or no
pardon at all?"
With
Without
alternative
alternative
No
No
service
service
pardon
opinion
NATIONAL
47
18
24
11
SEX
Male
44
18
30
8
Female
49
18
18
15
RACE
White
48
17
25
10
19
Non-white
38
21
12
22
EDUCATION
College
53
25
18
4
High School
47
17
26
10
Grade School
38
10
20
26
REGION
East
47
20
24
9
Midwest
51
17
22
10
South
43
12
2>
18
West
45
24
23
8
AGE
Total Under 30
52.
24
18
6
18-24 years
SI
27
16
6
25-29 years
54
19
8
>
30-49 years
46
15
29
10
50 & older
43
16
24
17
"Which would you prefer: a pardon after completion of alternative
service, a pardon without requiring alternative service, or no
pardon at all?" /
INCOME
$20,000 & over
52
24
20
4
$15,000 $23 $19,999
47
17
30
6
$10,000 ** $14,999
49
14
28
9
$7,000 - $9,999
47
20
21
12
$5,000 - $6,999
40
16
22
22
$3,000 (ve $4,999
41
19
19
21
Under $3,000
46
21
13
:
POLITICS
Republican
54
11
21
14
Democrat
39
20
28
13
S. Democrat
35
19
25
31
Do Democrat
other
40
21
29
10
Independent
52
19
21
8
RELIGION
Protestant
47
14
26
13
Catholic
47
19
23
11
OCCUPATION
Prof. & Bus.
15
25
20
4
Cler. & Sales
46
23
23
Do
Manual Workers
45
14
28
13
Non-Labor Force.
45
14
24
17
CITY SIZE
1,000,000 & over
52
22
16
10
500,000 - 999,999
48
21
22
9
50,000 = 499,999
43
19
27
11
2,500 en 49,999
42
16
34
8
Under 2,500, Ruyal
49
13
20
18
Question Lour
"The deadline for application in the program by those seeking
a pardon has passed. Do you believe the application deadline
should be extended or should not be extended?"
Should
No
Should
Not
Opinion
NATIONAL
42
48
10
SEX
Male
41
53
6
Female
43
44
13
RACE
White
40
so
10
Non-white
ST
30
13
EDUCATION
College
49
45
6
High School
41
SI
8
Grade School
38
43
19
REGION
East
45
45
10
Midwest
43
48
9
South
36
50
14
West
48
47
5
AGE
Total Under 30
56
38
6
18-24 years
56
37
7
25-29 years
55
39
6
30-49 years
35
57
8
50 & older
39
47
14
=2
"The deadline for application in the program by those seeking
a pardon has passed. Do you believe the application deadline
should be extended or should not be extended?"
/
Should No
Should
Not
Opinion
INCCME
$20,000 & over
43
52
5
$15,000 - $19,999
42
SI
7
$10,000 are $14,999
38
56
6
$7,000 - $9,999
43
45
12
$5,000 - $6,999
43
44
13
$3,000 M $4,999
144
36
207
Under $3,000
SI
32
17
POLITICS
[
Republican
35
S3.
12
Democrat
43
46
11
S. Democrat
42
43
15
Do Democrat
Other
43
48
9.
Independent
46
48
6
RELIGION
Protestant
39
51
10
Catholic
44
46
10.
OCCUPATION
Prof. & Bus.
45
48
7
Cler. & Sales
45
48
7
Manual Workers
42
so
8
Non-Labor Force
36
46
18
CITY SIZE
1,000,000 & over
59
35
6
500,000 ** 999,999
45
45
10
50,000 - 499,999
43
48
9
2,500 - 49,999
'37
53
10
Under 2,500, Rural
31
55
14
Question five
"Persons who receive a pardon under .the present program have done
a period of alternative service to the country. How would you
react to such a person in terms of his becoming a neighbor?"
(Respondents were handed a card with the following alternatives:
I would welcome him MORE than I would welcome someone else; I would
welcome him LESS than I would someone else; I would welcome him
ABOUT AS MUCH AS I would welcome someone else.)
Welcome
Welcome
About
More
Less
Same
No opinion
NATIONAL
b
13
74
8
SEX
Male
4
19
70
7
Female
by
7
78
10
RACE
White
4
13
75
8
Non-white
00
7
73
12
EDUCATION
College
4
10
82
4
High School
4
13
76
7
Grade School
6
16
62
16
REGION
East
5
10
74
11
Midwest
4
12
79
9
South
5
18
65
12
West
4
D
82
by
AGE
Total Under 30
5
4
86
5
18-24 years
5
2
88
by
25-29 years
4
7
84
5
30-49 years
4
16
74
6
50 & older
16
16
66
12
Welcome
Welcome
About
No
More
Less
Same
Opinion
INCOME
$20,000 & over
5
13
80
2
$15,000 - $19,999
3
15
75
>
$10,000 - $14,999
4
15
75
6
$7,000 - $9,999
5
13
74
8
$5,000 - $6,999
3
9
75
13
$3,000 - $4,999
18
9
69
14
Under $3,000
11
10
67
12
POLITICS
Republican
3
14
73
10
Democrat
5
14
71
10
S. Democrat
4
15
65
15
Do Democrat
other
5
13
74
8
Independent
5
11
79
9
RELIGION
Protestant
5
14
73
8
Catholic
3
12
74
11
OCCUPATION
Prof. & Bus.
4
13
72
6
Cler. & Sales
3
15
77
9
Manual Workers
4
11
78
6
Non-Labor Force
6
i
15
64
15
CITY SIZE
1,000,000 & over
4
00
81
>
500,000 - 999,999
9
10
77
8
50,000 - 499,999
9
16
72
7
2,500 - 49,999
9
15
71
9
Under 2,500, Rural
5
12
73
10
If the sample was limited to persons who had heard or read
something about the program [A "Yes" response to Question One], the
results of the subsequent question are as follows: [National Only]
Question Two: Who was eligible ?
Response 1
54%
2
22%
3
17%
4
18%
5
1%
6
1%
7
4%
8
--
9
--
Question Three ? Which do you favor?
Pardons with A/S 50%
Pardons, no A /S
20%
No Pardons
23%
No Opinion
7%
Question Four: Should the application deadline be extended?
Yes
44%
No
50%
No Opinion
6%
Question Five: How would you welcome a pardonee in terms of
other people ?
Welcome him more
5%
Welcome hime less
13%
About the same
77%
No Opinion
5%
If the sample was limited to those who had heard about the
program ["Yes" on Question One] and who knew who was eligible for
the Presidential Clemency Board [Response Four on Question Two],
the results of the subsequent questions are as follows: [National Only]
Question Three: Which do you favor ?
Pardons with A/S
53%
Pardons, no A/S
21%
No Pardons
23%
No Opinion
3%
Question Four: Should the application deadline be extended?
Yes
50%
No
46%
No Opinion
4%
Question Five: How would you welcome a pardonee in terms of
other people ?
Welcome him more
4%
Welcome him less
14%
About same
79%
No opinion
3%
APPENDIX L.
GERALD LIBRARY 4 FORD
L. PEARMAN STUDY
An Analysis of the Impact of Clemency Discharges
on Recipient's Employment Prospects
William A. Pearman
Millersville State College
This study is directed at assessing the impact that receipt of
a clemency discharge under the recent Presidential Clemency Program will
have on an individual's employment chances.
Military discharges can be viewed as being of two basic types:
administrative and punitive. The administrative types include honorable,
general and undesirable. The punitive types are bad conduct and dis-
honorable. The clemency discharge can be classified as being of the
administrative type. 1
Although exact empirical evidences are not always available,
Army regulations, military court proceedings and various congressional
hearing presentations imply that a discharge under other than honorable
circumstances may have substantial consequences for the civilian life of
the recipient. The current study attempts to examine one aspect of this
problem, namely consequences in terms of future employment. It also
attempts to empirically evaluate the various types of discharges in re-
lation to each other. The main concern is with an assessment of the
clemency discharge relative to other types of discharges.
Data presented in this report were obtained through a mailed
questionnaire. The study was conducted in two stages. Stage one con-
sisted of a systematic random sampling drawn from a list of prospective
employers listed in the College Placement Annual and a second list com-
prising the Harrisburg, Pennsylvania Industrial Directory.
Stage two entailed an accidental non-random sample representing
small businesses and local employers in the Lancaster, Pennsylvania area,
not likely to be primarily recruiting college graduates. 2
The data demonstrate that the clemency discharge is perceived
by employers as being slightly less favorable than the general discharge,
but considerably more favorable than the undesirable discharge. The
clemency discharge is also perceived by the prospective employers as
being more favorable than either of the punitive types, bad conduct or
dishonorable. Evidences for these generalizations follow below.
Personnel directors, placement officers and company officials
engaged in the hiring process were asked to react to various types of
discharges on a scale of from one to five. Specifically, they were asked,
"What would be your reaction to the following people if they came to you
2
seeking employment?". The types of persons suggested were:
A) A former serviceman with an honorable discharge.
B) A former serviceman with a general discharge, who
was not eligible for the Presidential Clemency Program.
C) A former serviceman with an undesirable discharge for
desertion, who did not participate in the clemency program.
D) A former serviceman with a bad conduct discharge, who did
not participate in the clemency program.
E) A former serviceman with a dishonorable discharge for
desertion, who did not participate in the clemency program.
F) A former serviceman who had been discharged for desertion,
but who received an outright Presidential pardon and
clemency discharge under the clemency program.
G) A former serviceman who had been discharged for desertion,
but who received a Presidential pardon and clemency discharge
after completing three to twelve months of alternative
service under the clemency program.
H) A convicted draft offender who did not participate in the
clemency program.
I) A convicted draft offender who received an outright
Presidential pardon under the clemency program.
J) A convicted draft offender who received a Presidential
pardon after completing three to twelve months of
alternative service under the clemency program.
The scale of responses represented the employers' reaction to-
ward the above ten types. A score of one indicated an inclination to
give preference in hiring over other job applicants. A score of two
indicated that a prospective employee with the stated characteristic
could expect the same treatment as most other job applicants. A score
of three indicated that the person would be considered, but that the
employer would be less inclined to hire him than most other job applicants.
A score of four indicated that a person of the given characteristics would
be considered, but that the respondent would be reluctant to hire him. Final-
ly, a response of five indicated refusal to consider the candidate.
The following table indicates the mean response given by the em-
ployers as to their willingness to employ the ten types.
Table I
Distribution of Mean Scores Depicting
Employers' Willingness to Hire Various
Discharge Types
Mean Scores
(Scale 1-5)
3
Discharge Type
National Sample
Local Sample
Combined
Score
Honorable Discharge
1.71
1.64
1.68
General Discharge
2.40
2.50
2.45
Undesirable Discharge
3.31
3.97
3.59
Bad Conduct Discharge
3.51
4.30
3.70
Dishonorable Discharge
3.54
4.21
3.87
Clemency Discharge
2.67
3.24
2.95
Clemency Discharge
2.53
2.88
2.71
with alternate Service
Convicted Draft Offender
3.24
4.15
3.70
Convicted Draft Offender
2.64
3.42
3.03
with Clemency Discharge
Convicted Draft Offender
2.51
2.94
2.72
with Clemency Discharge
with alternate Service
As can be seen in the above table, the four clemency discharge
types all are rated somewhere between the general and the undesirable
types of administrative discharge. Those clemency discharges to which
alternate service has been attached are perceived slightly more favor-
ably than those to which it is not. In the national sample the former
serviceman who has gone through clemency proceedings is perceived just
slightly better than the civilian draft offender, while in the local
sample this reverses. This reversal may be due to a history of alternate
service by various groups in the local sample area.
The average score for the four clemency type discharges was
2.59 for the national sample, 3.12 for the local sample and 2.85 for the
combined sample. In every case, national, local, and combined sample,
the average of the four clemency type discharges was closer to the
perception of the general discharge than to the undesirable discharge.
Table II below compares the percentage of prospective em-
ployers stating that they would give something less than equal con-
sideration to persons of varying types of military discharge status.
Something less than equal consideration is operationalized as a rating
of three or less on the scale of from one to five.
4
Table II
Comparison of Various Military Status Types
According to Employers Inclination to Give
Less Than Equal Employment Consideration
Per Cent of Prospective Employers
Indicating Less than Equal Considera-
Discharge Type
tion
National Sample
Local Sample
Combined
Sample
Honorable
0 %
0%
0 %
General
36 %
41 %
39 %
Undesirable
67 %
82 %
75 %
Dishonorable
69 %
88 %
79 %
Clemency
40 %
54 %
47 %
Clemency with
36 %
45 %
40 %
Alternate Service
Civilian Draft Offender
40 %
73 %
57 %
with Presidential Pardon
under Clemency Program
Civilian Draft Offender
33 %
48 %
41 %
with Presidential Pardon
under Clemency with
Alternate Service
The above table indicates that on the average, the prospective
employers included in the national sample tend to discriminate against
persons with clemency type discharges in approximately equal proportion
to those receiving general discharges. The civilian draft offender
who receives a Presidential pardon and performs alternate service is
discriminated against slightly less than the former serviceman with
a general discharge. Persons with undesirable or dishonorable dis-
charges seem to be twice as likely to be given less than equal con-
sideration for employment than persons undergoing the clemency process.
Similar trends appear in the data obtained in the local sample, how-
ever, alternate service appears as an important consideration there.
5
The table below reports outright refusal on the part of
prospective employers to consider various military status types.
Table III
Comparison of Various Military Status Type
According to Employers Refusal to
Consider for Employment
Per Cent of Prospective Employers
Indicating Refusal to Consider for
Discharge Type
Employment
National Sample
Local Sample
Combined
Sample
Honorable
0 %
0%
0 %
General
3%
6 %
5 %
Undesirable
23 %
45%
34 %
Dishonorable
43 %
61 %
52%
Clemency
11 %
24 %
18 %
Clemency with
6 %
18 %
12 %
Alternate Service
Civilian Draft Offender
9 %
24 %
16 %
with Presidential Pardon
under Clemency Program
Civilian Draft Offender
6%
18 %
12 %
with Presidential Pardon
under Clemency with
Alternate Service
When we analyze only the refusals to consider for employment,
clemency discharges maintain the same relative position as earlier, i. e.
somewhere between the general and undesirable discharge type, closer to
the general. A relatively small percentage of employers, approximately
16%, refuse to consider a person with clemency discharge for employment.
Alternate service does add some appeal to the consideration.
6
Respondents were asked whether they would be more likely to
hire a clemency recipient if he had been a Victnam Veteran whose de-
sertion offense was not in a combat situation. 41% of the national
sample, 36% of the local sample, and 39% of the combined sample answered
in the affirmative. A substantial number of respondents who would not
have given clemency recipients equal consideration for employment prob-
ably would if they knew more about the nature of the offense, and if it
were non-combatant.
The employers were asked, "Would you view a clemency re-
cipient differently depending on the type of job he was seeking?".
17% of the National sample answered in the affirmative, while the
smaller businessmen in the local sample answered "yes" 42% of the
time. The data on consideration according to type of job can be
summarized as follows: prospective employers were less likely to
consider individuals with clemency discharges for professional or
sales jobs, slightly more likely to give equal consideration with
other job applicants for clerical or blue collar skilled jobs, most
likely to give equal consideration with other job applicants for
unskilled or labor jobs. There is a tendency to not consider persons
with clemency discharges for jobs which will result in substantial
contact with the public, or presentation of the company to the out-
side world.
Respondents were asked both why they might not hire a clemency
recipient, and why they might hire him. In both cases they were given
eight possible reasons as well as the opportunity to provide 'other'
answers. They were encouraged to check as many responses as applied.
The respondents in the national sample provided approximately as many
reasons for not hiring as for hiring clemency recipients. The local
respondents gave two times as many negative as positive responses. The
three most frequently offered reasons for not hiring a clemency recipient
in the national sample were: 1) It is unfair to give him a job when so
many veterans with honorable discharges are unemployed, 2) He may be
untrustworthy or undependable as an employee, 3) His fellow employees
might not accept him well. The above three were noted by 38, 31, and
27 per cent of the respondents respectively. Local respondents also
checked #1 and #2 above as their main reasons as to why they might not
hire a clemency recipient, but as their third most often cited reason
they offered, "He has not fulfilled his obligation to his country". These
responses were offered by 58, 42 and 42 per cent of the respondents re-
spectively.
In the national sample the three most frequently cited reasons
why an employer might hire a clemency recipient were: 1) His draft or
desertion offenses have nothing to do with how well he will perform his
job, 2) If he performed alternative service, he has fulfilled his ob-
ligation to his country, and 3) It would be discriminatory and unfair to
7
hold these offenses against him. These responses were checked by 42,
36, and 16 per cent of the respondents respectively. In the local
sampling the three most often cited reasons why an employer might hire
a clemency recipient were: 1) If he performed alternative service, he
has fulfilled his obligation to his country, 2) His draft or desertion
offenses have nothing to do with howwell he vill perform his job, 3) He
stood up for what be believed. These responses were offered by 33, 27,
and 18 per cent of the respondents respectively. Again, alternative
service seems to lessen the stigma attached to a discharge that is other
than honorable.
An indication of employer's agreement with the President's
clemency program was solicited. At the national level, 47% of the re-
spondents said they personally agreed with the program, 40% personally
disagreed with the program and 13% did not answer. On the local level,
39% personally agreed with the program, 58% personally disagreed with the
program, and 3% did not answer.
The disagreements were analyzed separately as to whether the
respondent disagreed because he felt the clemency program to be too
generous, or because he perceived it as being not generous enough. On
the national level the disagreement were divided into 71% feeling the
program was too generous, 22% feeling the program was not generous enough,
and 7% simply registering disagreement. On the more conservative local
level, the negatives divided into 79% feeling the program was too generous,
only 5% feeling it was not generous enough, with the balance of the replies
feeling that some aspects of the program were too generous, others not
generous enough.
Data was obtained on other sociologically and demographically
relevant variables. These included the scope of the employment operation,
the number of persons employed, the type of business or industry involved,
the role of military status in the hiring process. Generally, larger more
specialized businesses expressed a greater willingness to employ clemency
recipients. More detailed information on this aspect of the study will be
reported elsewhere.
For a clearer distinction between the various types of discharges the
reader is referred to Army Regulation No. 635-200, Para. 1-5 C 15 Jul. 1966.
The distinction is also presented in "The Gravity of Administrative Dis-
charges: A Legal and Empirical Evaluation' by Major Bradley R. Jones in
Military Law Review Vol. 59, Winter 1973, pp. 1-25
2The data presented in this article is drawn from replies received at the
time of writing. It is expected that sample size will increase while and
after the current report is in press. The national sample, as stated, draws
from companies which engage in nationwide recruiting of personnel. The
local sample is biased in the direction of such industries as small retail,
contruction, food and restaurant, and repair services.
FORD i LIBRARY GERALD
APPENDIX M.
M. BIBLIOGRAPHY
A Selected Bibliography on Amnesty, AWOL and Sesertion
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4
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- 5 -
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63. Stouffer, S. A., Suchman, E. A., DeVinney, L. C., Star, S. A., and
Williams, R. M. The American Soldier: Adjustment During Army Life.
Volume I. New York: Wiley, 1965. (Originally published, 1949.)
64. A study of desertion. (n.p., n.d.) Available from Pentagon Library,
call number UB 789. S33.
65. U. S. Army Recruiting Command. Armed Forces Examining and Entrance
Station Qualitative Distribution Report of Male Enlistments, Inductions,
and Rejections (RCS DD-M(M) 663). Ft. Sheridan, Evanston, IL: Continuous
distributions monthly and annually.
66. U. S. Congress. House of Representatives, Committee on the Judiciary.
Amnesty, Hearings before the Subcommittee on Courts, Civil Liberties
and the Advisory station of Justice. 93rd Congress, 2d Sess., 1974.
67. U. S. Congress. Senate. Committee on the Judiciary. Amnesty and Pardon
for Political Prisoners. Hearings before a subcommittee on the Judiciary
on S. J. Res. 171. 66th Congress, 3d sess., 1921.
68. U. S. Congress. Senate. Committee on the Judiciary. Selective Service
System Procedures and Administrative Possibilities for Amnesty. Hearings
before a subcommittee on Administrative Practice and Procedure. 92nd
Congress, 2d sess., 1972.
69.
U. S. Library of Congress. Congressional Research Service. Amnesty: A
Selective and Annotated Bibliography. April 9, 1973.
70. U. S. President. Proclamation "Granting Pardon to Certain Persons Con-
victed of Violating the Selective Training and Service Act of 1940 as
Amended." Federal Register, XII, No. 250, 24 December 1947, P. 8731.
- 6 -
71.
US Selective Service System. Backgrounds of Selective Service--A Historical
Review of the Principle of Citizen Complusion in the Raising of Armies.
Washington: Government Printing Office, 1947.
72.
U.S. War Department. War Department policy with reference to the disposal
of draft deserters (August 1920). Washington, D.C.: U.S. Government
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U.S. War Department. The War of the Rebellion: a Compilation of the
Official Records of the Union and Confederate Armies. Washington, D.C.:
U.S. Government Printing Office, 1890-1901. (See Index vol., P. 248
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Washington, G. The Writings of George Washington. Washington, D.C.: U.S.
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.A5 1931.)
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Weisman, Norman. "A History and Discussion of Amnesty." Columbia Human
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Wick, William D. "The Case for an Unconditional Amnesty for Draft-Evaders
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Williston, Samuel. "Does a Pardon Blot Out Guilt?" Harvard Law Review
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79. Wool, Harold, The Military Specialist: Skilled Manpower For the Armed
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"ocrText": "The original documents are located in Box 4, folder \"Final Report - Draft, Undated (6)\" of\nthe Charles E. Goodell Papers at the Gerald R. Ford Presidential Library.\nCopyright Notice\nThe copyright law of the United States (Title 17, United States Code) governs the making of\nphotocopies or other reproductions of copyrighted material. Charles Goodell donated to the United\nStates of America his copyrights in all of his unpublished writings in National Archives collections.\nWorks prepared by U.S. Government employees as part of their official duties are in the public\ndomain. The copyrights to materials written by other individuals or organizations are presumed to\nremain with them. If you think any of the information displayed in the PDF is subject to a valid\ncopyright claim, please contact the Gerald R. Ford Presidential Library.\nDigitized from Box 4 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library\nAPPENDIX J.\nJ. HISTORY\nFOR\n:\nGERALD\nAPPENDIX J\nTHE HISTORICAL PERSPECTIVE OF CLEMENCY\nI. CONSTITUTIONAL AUTHORITY TO PARDON\n(There are no changes to Chapters II through V, Appendix J)\nCONSTITUTIONAL AUTHORITY TO PARDON\nEnglish Heritage\nArticle II, Section 2 of the Constitution of the United States reads,\nin part, that the President \"shall have the Power to grant Reprieves and\nPardons for Offences against the United States, except in cases of\nimpeachment. \"1/ By the time the Founding Fathers wrote the Constitution,\nthey could draw upon their knowledge of English and colonial precedents\nin order to shape our own national constitution. The First Supreme\nCourt opinion which considered the President's pardoning power expressly\nrecognized the important link provided by our English heritage:\n-As this power had been exercised from time immemorial by the\nexecutive of that nationa whose language is our language, and\nto whose judicial institutions our bear a close resemblance, we\nadopt their principles respecting the operation and effect of\na pardon, and look into their books for the rules prescribing\nthe manner in which it is to be used by the person who would\navail himself of it.\nTo properly place and interpret the President's pardoning power, it is\ntherefore appropriate to trace the development of the pardoning power in\nEngland.\nClemency during the Anglo-Saxon period, up until the Normal Conquest\nof 1066 was extremely vague. The king possessed relatively little power\nduring this period, for the real authority lay with the clan chiefs, in\nwhom the authority to pardon was vested. The privilege of pardon was a\nquestion of power, not yet a problem of law. 3/ Although the king technically\nhad the authority to pardon, the existence of the right of private vengence\nand retaliation, and the opposition of powerful nobles combined to confine\nthe exercise of the clemency power to those offenses which were committed\nby members of the king's household, or to offenses which posed a personal\nthreat to the security and authority of the king.\n-2-\nThe Norman Conquest brought with it the belief that the pardon power\nwas an exclusive perogative of the sovereign. 5/ However strong this\nbelief may have been in Norman political thought, it rarely was accepted\nby the groups contending for power with the king. Other contenders for\nthe pardoning power includes the great earls 6/, the church (through the\nuse of \"benefit of clergy\" 7/, and finally, parliament.\nThe fourteenth century witnessed a long series of parliamentary attempts\nto curtail the royal power. From time to time Parliament enacted laws\nrestricting the king's power to pardon. In 1389, Parliament enacted a law 8/\nwhich provided that no pardon for treason, murder, or rape could be allowed\nunless the offense were particularly specified in the pardon decree. In\nthe case of murder, the pardon decree had to state whether the murder was\ncommitted by lying in wait, assault, or with malice. According to\nSir Edward Coke, Parliament enacted such a statute in order to curtail the\nking's use of his pardon power when the enumerated felonies were committed.\nThe king would be less likely to grant a pardon for these kinds of offenses\nif he publicly had to disclose it. 9/\nDuring the reign of Henry VIII, the full pardon power shifted back to\nthe King. In 1535 Parliament enacted a statute which provided the kind with\nthe exclusive authority to grant a pardon:\n'No person or persons, of what estate or degree soever they be\nshall have any power or authority to pardon or remit but that the\nKings'\nhighness, his heirs and successors, kings of this realm, shall have\nthe whole and sole power and authority thereof united and knit to\nthe Imperial Crown of this realm, as of good right and equity it\nappertaineth \"10/\n-3\nWithin two-hundred years following this enactment, Parliament enacted\nthree import restrictive measures on the kings authority to pardon:\nThe Habeas Corpus Act of 1679 11/, the Bill of Rights 12/, and the Act\nof Settlement. 13/\nSection eleven of the Habeas Corpus Act of 1679 prohibited arbitrary\nimprisonment and made it an offense against the King and his government\n\"to send any subject of this realm of prisoner into parts beyond the seas. \"\nAny person committing such an offense could not receive a pardon from the\nKing. The Bill of Rights Act of 1689 prohibited the granting of dispensations,\nby declaring it illegal for the Crown to claim its previously claimed\npower of the right to suspend a given law and also the right to disregard\nthe law in the execution of a particular case. The Act of Settlement,\nenacted twelve years later, after the king abused his pardoning power\nby shielding his favorites from punishment, probihited the use of pardon in\ncases of impeachment, although it did not prohibit its use after the\nimpeachment had been heard.\nIn addition to the above limitations on the kings pardoning prerogative,\nit is also noted that the King could not pardon anyone who had harmed a\nprivate individual. The King could only pardon offenses against the crown\nor the public. 14/ By 1721, Parliament gave itself the authority to\ngrant pardons. 15/\nThe Kings authority to grant pardons included the right to make such\npardons conditional. Blackstone pointed out that \"The king may extend his\nmercy upon what terms he pleases, and may annex to his bounty a condition,\neither precedent or subsequent, on performance where of the validity of\nthe pardon will depend, and this by the common law.\" 16/\n-4-\nOne particular situation where conditional pardons were utilized by\nthe king was time of war. During time of war, pardons were generously\ngranted, subject to the condition that the particular individual agreed\nto serve one year during the military. 17/ It was not necessary, however,\nthat the criminal serve in a foreign land in order to secure a pardon\nduring war time. Securance of the good offices of a nobleman who was in\nwho\nthe service of the King overseas and/would testify as to the criminal's\ninnocence, was sufficient. With the outbreak of hostilities, the King\nneeded the support of the lords and bishops, and he was eager to do them\na favor. 18/\nBanishment was another form of conditional pardon utilized by the King.\nThe individual being pardoned had, to agree to transport himself to some\nforeign country, usually the American colonies, for life, or for a term\nof years. 19/ All felons under death could petition the king for a pardon\non condition of their agreeing to transport themselves to the colonies\neither for life or for a specified term. The usual procedure was for the\nking, if he were willing to grant such a pardon on these terms, to require\nthe felon to enter into a bond himself, and to provide sureties for his\ntransportation. 20/ If the offender did not live up to the conditions,\nEnglish judges were willing to hold that the condition upon which the original\npardon was given was broken, with the offender remitted to his original\npunishment of death. 21/\n- 5-\nColonial and State Government Practice Up Until the 1789\nAs the American colonies became settled, the English legal con-\nceptions of the seventeenth and eighteenth centuries were trans-\n22/\nplanted to the new world.\nIncluded in these concepts was\nthe principle of pardon and clemency for criminal offenders.\nIn most of the colonial charters the king delegated his authority to\ngrant pardons. However, the ultimate individual(s) who could\ngrant a pardon pursuant to the King's delegation of authority varied\nfrom colony to colony, and sometimes changed within a given\ncolony as new charters were written. For instance, in the first\nVirginia charter of 1606 no mention occurs regarding the pardoning\npower, but in the second charter of 1609 there is granted:\n- 6-\n\"until the said treasurer and company, and their\nsuccessors, and to such Governors, Officers, and\nMinisters, as shall be by our Council constituted\nfull and absolute Power and authority to correct,\npunish, pardon, govern, and rule all such the subjects\nof us,\nas shall from time to time adventure them-\nselves in any Voyage thither\nas well in cases\ncapital and criminal, as civil, both Marine and other.\nSo always as the said Statutes Ordinances and Proceedings\nas near as conveniently may be, be agreeable to the Laws,\nStatutes, Government, and Policy of this our realm of\nEngland. ,23 /\nThe third Virginia charter written in 1612 contained no reference\nto the pardon power. When this charter was annulled by writ of\nquo warranto in 1624 Virginia became a royal colony and the pardon\npower from then on to the American Revolution was exercised by\n24/\nthe royal governor.\nWhen Maine became a royal colony in 1639 Sir Ferdinando Georges\nand his successors were given the authority to pardon, remit, and\nrelease all offenses and offenders against any of the laws or\n25/\nordinances within the boundaries which comprised Maine.\nIn\n1677 Maine was purchased by the Massachusetts Bay Company and\nbecame incorporated into that colony. It remained a part of\nMassachusetts until 1820.\n7\nConnecticut did not receive a charter until 1662. This charter\nprovided that the General Assembly, or the major part thereof,\nunder their common seal could release or pardon offenders if the\ngovernor and six of the assistants were present in such assembly\nor court. Unlike Virginia and Maine, Connecticut's pardoning\nauthority did not rest solely with the royal governor. The General\nAssembly was given the authority to pardon offenders as long as\n26 /\nthe governor and six of his assistants were present.\nThe Carolinas received their first charter in 1663. The Lord\nproprietors were given the authority to remit, release, pardon,\nand abolish, whether before judgment or after, all crimes and\noffenses of every character against the laws of the colony. In\n1665 the proprietors granted the settlers who had settled in\nCarolina a government through an instrument known as \"Concessions\nand Agreements of the Lord Proprietors of the Province of\nCarolina. 11 Under this instrument, the governor and council, after\n8\nan individual was condemned could reprieve a case for cause until\nthe case with a copy of the whole trial proceedings could be presented\nto the proprietors who would either grant the individual a pardon or\ncommand execution of his sentence.\nÀ new charter was granted to the lord proprietors in 1665 in which\nthe pardon power remained as it was in the first charter. Later,\nwhen the Carolinas became royal colonies the pardon power became\n27\nlodged in the hands of the royal governors.\n/\nIn 1664 The Duke of York was granted New York. In this same year,\nthe Duke transferred to Lord John Berkeley and Sir George Carteret\nthat part of his domain which now comprises the State of New Jersey.\nThese proprietors set up a government in the same year, allowing\nthe governor and his council to issue reprieves to condemned\noffendors until the case could be presented with a copy of the entire\ntrial proceedings to the proprietors who would either pardon or\n28\n/\ncommand the execution of the sentence.\n9\nSometime later, Berkeley and Carteret divided their original\nholdings. Berkeley sold his share, the western part, to William\nPenn and other Quakers. The Quakers provided that any person\nwho should prosecute or prefer any indictment or information\nagainst others for any personal injuries or for other criminal\nmatters (treason, murder, and felony only excepted) should be\n\"master of his own process, and have full power to forgive and remit\nthe person or persons offending against him or herself only, as well\nbefore as after judgment and condemnation, and pardon and remit\nthe sentence, fine and imprisonment of the person or persons\n29/\noffending, be it personal or other whatsoever.\nOn August 6, 1680, the Duke of York made a second grant for both\nthe land and government of West Jersey to William Penn and five\nother persons. This grant included the authority to grant pardons\nand other forms of clemency. In March 14, 1682, the Duke of York\ngranted the pardoning power to twenty-four proprietors in East\n10\nJersey. In the following year they set up a government known\nas the Fundamental Constitutions for the Province of East New\nJersey which provided that the power of pardoning should never\nbe made use of but by the consent of eighteen of the proprietors\nor their proxies. In addition, the governor, with four proprietors\nwho were to be judges of the Court of Appeals, could reprieve any\nperson after the day of execution had been set, not to exceed one\nmonth. In 1702 the proprietors of East and West Jersey surrendered\ntheir \"pretended right of Government\" to the governor and from\n30\n30/\nthen on the exercise of clemency was vested in the royal governor.\nIn New Hampshire, before it became a royal colony, it was provided\nthat in all criminal cases where the punishment extends to the loss of\n11\nlife or limb, wilful murder only excepted, the person convicted shall\neither be sent to England with a statement of his case, or execution\nof sentence was upheld until the case could be reported to the\nPrivy Council and a decision reached. When New Hampshire became\na royal colony the pardon power was vested in the same governmental\n31/\nauthority as in other royal colonies.\nIn 1681 William Penn received from Charles II a charter for the\nprovince of Pennsylvania. Included in this grant was a delegation to\nthe proprietor and his heirs of full power to remit, release, pardon,\nand abolish, whether before judgment or after, all crimes and\noffenses with the exception of treason and wilful and malicious\nmurder. For these particular offenses, the proprietor could only\ngrant reprieves until the royal will could be determined. From then\non until the American Revolution it appears that the granting of\n12\nclemency was placed in the hands of the Executive Council of the\nprovince. Delaware, also acquired by William Penn, in 1682,\ncontained the same plan for administering clemency that existed in\n32/\nPennsylvania.\nThe Georgia charter granted in 1732 conferred authority upon the\ncorporation to \"sell, impose, and inflict reasonable pains and penalties\nupon offenders, and to mitigate the same as they or the major part\nof them present shall see requisite. \" When Georgia became a royal\ncolony this power reverted to the crown.\nIn general, it can be said from an examination of the above colonial\ncharters that the crown delegated the pardoning power in the\ncolonies. This power was lodged in the hands of an executive\nauthority, which varied from the proprietor himself or to a group of\nproprietors. In the so called royal colonies the proprietor usually\ncould not grant pardons for treason and wilful and malicious\n34/\nmurder.\nIn these instances they could only empower to grant\nreprieves until the royal will could be determined.\n13\nWith the outbreak of the American revolution colonial governments\nwere replaced by new state governments. Because the executive\ndepartment in the state governments had not yet gained the confidence\nof the people, due to the lingering memories of royal governors and\ntheir opposition to colonial rights, most state governments provided\nthat the powers of government would be concentrated in the legisla- -\n35\n/\nture.\nAccordingly, in New Hampshire, Massachusetts,\nPennsylvania, and Virginia, the pardoning power could be exercised\nonly by the governor with the consent of the executive council.\nVermont, although not one of the original states, provided in its\nconstitution of 1777 that the pardoning authority would be exercised\n36/\nby the governor and the executive council.\nRhode Island and\nConnecticut made no changes in the administration of clemency\n37/\nand retained their charter form of government for many years.\nGeorgia authorized the governor only to \"reprieve a criminal or\nsuspend a fine until the meeting of the assembly, who may determine\ntherein as they shall judge fit. 38/ Only in the states of New York\n14\nDelaware, Maryland, North Carolina, and South Carolina was the\n39./\npardon authority vested in the governor alone.\nThe President's Grant of authority under the Federal Constitution:\nBy the virtue of English and colonial precedent,\n7\nThe Founding Fathers had ample precedent to establish\nthe pardoning power for the President. Little debate occurred on\nhow the power should be utilized. Part of it was directed at the\nsuggestion that the President would need the consent of the United\nStates Senate before he could grant a pardon. That suggestion was\n40!\nrejected by a vote of 8-1. A journal kept by James Madison on\nthe day to day proceedings of the Federal Convention provides the\nfollowing:\nSaturday, August 25th, 1787\nMr. Sherman moved to amend the 'power to grant\nreprieves and pardons, I so as to read, 'to grant re-\n15\nprieves until the ensuring session of the Senate,\nand pardons with consent of the Senate.'\nOn the question, -Connecticut, aye, --1, New\nHampshire, Massachusetts, Pennsylvania, Maryland,\nVirginia, North Carolina, South Carolina, Georgia,\nno--8.\nThe words, 'except in cases of impeachment,'\nwere inserted, nem, con. after 'pardons.'\nTwo days later, on August 27, 1787, a suggestion was made that the\nPresident should have the authority to grant a pardon only after\nthe offender had been convicted. That suggestion was quickly\nwithdrawn, however, after an objection was made to it:\nMonday, August 27th, 1787\nIn Convention, -Article 10, Section 2, being\nresumed, --\nMr. L. Martin moved to insert the words, 'after\nconviction,' after the words, 'reprieves and pardons.'\nMr. Wilson objected, that pardon before conviction\nmight be necessary, in order to obtain the testimony of\naccomplices. He stated the case of forgeries, in which\nthis might particularly happen.\nMr. L. Martin withdrew his motion.\nLater, Edmund Randolph of Virginia proposed to add the words,\n\"except in cases of treason. \" His motion was rejected by a vote\nof 8-2:\n16\nSaturday, September 15th, 1787\nArticle 2, Sect. 2. 'He shall have power to grant\nreprieves and pardons for offences against the United\nStates, &c.\nMr. Randolph moved to except 'cases of treason.\nThe prerogative of pardon in these cases was too great\na trust. The President may himself be guilty. The\ntraitors may be his own instruments.\nCol. Mason supported the motion.\nMr. Gouverneur Morris had rather there should be\nno pardon for treason, than:let the power devolve on the\nLegislature.\nMr. Wilson. Pardon is necessary for cases of\ntreason, and is best placed in the hands of the Executive.\nIf he be himself a party to the guilt, he can be impeached\nand prosecuted.\nMr. King thought it would be inconsistent with the\nconstitutional separation of the Executive and Legislative\npowers, to let the prerogative be exercised by the latter.\nA legislative body is utterly unfit for the purpose. They\nare governed too much by the passions of the moment.\nIn Massachusetts, one assembly would have hung all the\ninsurgents in that State; the next was equally disposed to\npardon them all [Shays Rebellion]. He suggested the\nexpedient of requiring the concurrence of the Senate in\nacts of pardon.\nMr. Madison admitted the force of objections to the\nLegislature, but the pardon of treasons was so peculiarly\nimproper for the President, that he should acquiesce in\nthe transfer of it to the former, rather than leave it\naltogether in the hands of the latter. He would prefer to\neither, an association of the Senate, as a council of\nadvice, with the President.\nMr. Randolph could not admit the Senate into a\nshare of the power. The great danger to liberty lay in\na combination between the President and that body.\nCol. Mason. The Senate has already too much power.\nThere can be no danger of too much leinity in legislative\npardons, as the Senate must concur; and the President\nmoreover can require two-thirds of both Houses.\n17\nOn the motion of Mr. Randolph, --\nVirginia, Georgia, aye--2; New Hampshire,\nMassachusetts, New Jersey, Pennsylvania,\nDelaware, Maryland, North Carolina, South\nCarolina, no--8; Connecticut, divided.\nThereafter, Alexander Hamilton, in Federalist No. 74 presented\nURE\nan argument that the legislative should not have any control\n39\n/\n41\nover the pardoning power:\nBut the principal argument for reposing the power of\npardoning in this case in the chief magistrate, is this:\nin seasons of insurrection or rebellion, there are often\ncritical moments, when a well-timed offer of pardon\nto the insurgents or rebels may restore the tranquility\nof the commonwealth; and which, if suffered to pass\nunimproved, it may never be possible afterwards to\nrecall. The dilatory process of convening the legisla -\nture, or one of its branches, for the purpose of obtaining\nits sanction, would frequently be the occasion of letting\nslip the golden opportunity. The loss of a week, a day,\nan hour, may sometimes be fatal. If it should be\nobserved, that a discretionary power, with a view to.\nsuch contingencies, might be occasionally conferred\nupon the president; it may be answered in the first\nplace, that it is questionalbe, whether, in a limited\nconstitution, that power could be delegated by law; and\n18\nin the second place, that it would generally be\nimpolitic beforehand to take any step which might\nhold out the prospect of impunity: A proceeding of\nthis kind, out of the usual course, would be likely to\nbe construed into an argument of timidity or of\nweakness, and would have a tendency to embolden\nguilt.\nUltimately, the Founding Fathers concluded that there was no need,\ncontrary to the English practice, to curtail the President's\nauthority to grant pardons, except to one particular situation:\ncases of impeachment. As one supreme court decision noted:\nThe framers of our Constitution had in mind no\nnecessity for curtailing this feature of the kings\nprerogative in transporting it into the American\ngovernmental structure save by excepting cases of\nimpeachment.\n...\n(Ex parte Grossman, 267 U.S.\n87, 113, 45 S. Ct. 332, 334, 69 L. Ed. 527 (1925).\n19\nI.\nThe Exercise of the President's Power to Pardon as shown by\napplicable case Law:\nA.\nConditional Pardons\n1) In general:\nThe applicable case law has uniformly supported a very broad inter-\n42/\npretation of the President's pardoning authority. Ex Parte Wells,\none of the first Supreme Court decisions interpreting the President's\npardoning authority, upheld a pardon granted by President Fillmore to\na convicted murderer on the condition that he submit to life imprison-\nment in place of his death sentence. The high Court held that the\npower of the President to pardon includes the power to grant less than\n43\n/\nfull pardons.\n2) Limits of a Conditional Pardon:\nEven if an individual accepts a conditional pardon, the condition may\nnot be valid if beyond the President's authority to pardon. In other\nwords, the President does not have an unlimited right to attach ANY\ncondition he may desire. One measure of the lawfulness of a condition\n44/\nis that it be reasonable and neither illegal nor against public policy.\n20\nState courts have also held that for a conditional pardon to be valid it\nmust not be \"unlawful, unreasonable, immoral or impossible of\n45/\nperformance. 11\nSaxbe\n46/\nIn Hoffa V. United States,\none of the most recent Federal cases to\nconsider the question of conditional pardons, the District Court for the\nDistrict of Columbia, after summarizing the precedents established by\nearlier cases stated:\n\"We find in these admittedly imprecise standards two\noverriding concerns in determining the lawfulness of a\ncondition. First, there is a public policy concern, which\ncan be expressed in terms of the President's duty to\nexercise his discretion under the pardoning power in the\npublic interest. Second, there is the concept of illegality,\nwhich in some instances may be painfully apparent, but\nwhich, for the purposes of cases like the one at bar, might\nalso be taken to reflect the concern that a condition might\nunduly override the rights and liberties of the convicted\nperson in a manner constitutionally impermissible. Based\non our study of the precedents, we therefore arrive at a two-\npronged test of reasonableness in determining the lawfulness\nof a condition: first, that the condition be directly related to\nthe public interest; and second, that the condition not unreasonably\ninfringe on the individual commutee's constitutional freedoms. 147/\n21\nThe court in. Hoffa went on to approve a four-part test enunciated\n48/\nin United States V. O'Brien, a case where \"speech\", a right\nguaranteed under the First Amendment and \"nonspeech\" elements\nwere combined in the same course or conduct:\n\"(A) government regulation is sufficiently justified if\nit is within the constitutional power of the Government;\nif it furthers an important or substantial governmental\ninterest; if the governmental interest is unrelated to the\nsuppression of expression; and if the incidental restriction\non alleged First Amendment freedoms is no greater than\nis essential to the furtherance of that interest. 11 49/\nThe most recent Supreme Court decision on the nature of the presidential\npardoning power is Schick V. Reed, 50 / a case dealing with a conditional\ncommutation. The Court, in upholding a particular condition imposed\nby President Eisenhower, when he pardoned the petitioner in 1960,\n22\nrecognized that the President's pardoning power is not absolute and\n51/\nis limited by the Constitution\n\"A fair reading of the history of the English pardoning\npower, from which our Art. II, SEP 2, derives, of the language\nof that section itself, and of the unbroken practice since 1790\ncompels the conclusion that the power flows from the Con-\nstitution alone, not from any legislative enactments, and that\nit cannot be modified, abridged, or diminished by the Congress.\nAdditionally, considerations of public policy and humanitarian\nimpulses support an interpretation of that power so as to permit\nthe attachment of any condition which does not otherwise offend\nthe Constitution. The plain purpose of the broad power con-\nferred by § 2 was to allow plenary authority in the President\nto \"forgive\" the convicted person in part or entirely, to\nreduce a penalty in terms of a specified number of years, or\nto alter it with conditions which are in themselves constitu-\ntionally unobjectionable. If we were to accept petitioner's\ncontentions, a commutation of his death sentence to 25 or\n30 years would be subject to the same challenge as is now\nmade, i.e., that parole must be available to petitioner be-\ncause it is to others. That such an interpretation of SED 2 would\nin all probability tend to inhibit the exercise of the pardoning\npower and reduce the frequency of commutations in hardly open\nto doubt. We therefore hold that the pardoning power is an\nenumerated power of the Constitution and its limitations, if\nany, must be found in the Constitution itself. It would be a\ncurious logic to allow a convicted person who petitions for\nmercy to retain the full benefit of a lesser punishment with\nconditions, yet escape burdens readily assumed in accepting\nthe commutation which he sought. (Emphasis added)\n3) The recipient of a conditional pardon or commutation\nmust accept it before it can become legally valid:\nApplicable case law shows that with the exception of the commutation\nof a prisoners death sentence by the President, the offeree of a pardon\n23\nor commutation has the option of either accepting the conditional\ncommutation or pardon, or of rejecting it. Two Supreme Court\n52/\ndecisions speak of this necessity: United States V. Wilson,\nand\n53/\nBurdick V. United States.\nIn the Wilson case, the issue before the court was whether or not a\nPresidential pardon was judicially noticeable or had to be specially\npleaded. The Court stated that the pardon had to be pleaded because\na pardon was in the nature of a private deed requiring acceptance and\ndelivery:\n\"A pardon is a deed, to the validity of which delivery is\nessential, and delivery is not complete without acceptance.\nIt may then be rejected by the person to whom it is tendered;\nand if it be rejected, we have discovered no power in a\ncourt to force it on him. 1.54\nThe Court pointed out that the lower court could not give notice to\na pardon where the recipient specifically \"waived and declined any\nadvantage or protection, 55/ which might have been provided by the\npardon. The Court went on to say:\n24\n\"It may be supposed that no being condemned to death\nwould reject a pardon; but the rule must be the same in\ncapital cases and in misdemeanors. A pardon may be\nconditional, and the condition may be more objectionable\nthan the punishment inflicted by the judgment. 1156/\nHence, the recipient has the choice of rejecting the offer of clemency\n57/\nand abiding by his initial sentence.\nThe Court pointed out that the pardon could be rejected because it\nmight involve \"consequences of even greater disgrace that those\n58 /\nfrom which it purports to relive. \"\nB.\nThe Pardoning Power of the President is not subject to\nlegislative control:\n59\n/\nThe Supreme Court stated in Ex Parte Garland that except for\nimpeachment, the President's pardoning power extends to every\noffense known to the law, and may be exercised at any time after its\ncommission, either before legal proceedings are taken, or during\npendency, or after conviction and judgment.\nThe Supreme Court held that Garland did not have to take the oath,\nnotwithstanding that Congress had enacted a law requiring the oath,\n25\nfor if Garland had to do so, it would restrict the President's\npower to pardon. The Court said:\n\"The Constitution gives him unlimited power in respect\nto pardon, save only in cases of impeachment. The\nConstitution does not say what sort of pardon; but the\nterm being generic necessarily includes every species\nof pardon, individual as well as general, conditional as\nwell as absolute\nIt extends to every offence known\nto the law, and may be exercised at any time after its\ncommission, either before legal proceedings are taken,\nor during their pendency, or after conviction and judgment.\nThis power of the President is not subject to legislative\ncontrol. Congress can neither limit the effect of his\npardon, nor exclude from its exercise any class of\noffenders. The benign prerogative of mercy reposed\non him cannot be fettered by any legislative restrictions. 1160/\nNOTES\nAppendix B\nThe Historical Perspective of Clemency\nChapter I. Constitutional Authority to Pardon\n1. U.S. Const. Art II $ 2.\n2. United States V. Wilson, 32 U.S. (7 Pet.) 150, 160 (1833).\n3. Attorney General's Survey of Release Procedures, Vol. III:\nPardon, 27 (1939).\n4. Grupp, Some Historical Aspects of the Pardon in England, 7 Am J. Legal\nHistory 51, 53-54 (Jan, 1963)\nJensen, The Pardoning Power in the American States 1 (1922).\n\"In cases of flagrant or aggravated injury vengeance was permitted\nwithout waiting for slow redress from law. If any one slew another\nopenly, he was delivered over to the kindred of the person slain.\nIf a man detected anyone with his wife or daughter, or with his sister\nor mother, within closed doors, or under the same coverlet, he might\nslay him with impunity.\" See Allen, Inquiry into the Rise and Growth\nof the Royal Prerogative in England ( ) London.\n5. In 1827 See Grupp, Historical Aspects of the Pardon in England, supra\nnote at 57. Grupp, supra Note 4, at 55.\n\"As representative of the state, the king may frustrate by his pardon\nan indictment prosecuted in his name. In every crime that affects the\npublic he is the injured person in the eye of the law, and may therefore,\nit is said, pardon an offense which is held to have been committed\nagainst himself.\" See Allen, supra Note 4, at 108.\n6. The great Earls obtained the right to exercise a power of clemency\nwithin their jurisdiction. They had the same right as the king to\nremit and pardon treasons, murders, and felonies. By the act of 27\nHenry VIII, C. 24, the greater part of the privileges that had belonged\nto them were taken away. See Allen, supra note 4 at 109.\n7. Benefit of clergy \"originally\nmeant that an ordained clerk\ncharged with a felony could be tried only in the Ecclesiastical Court.\nBut, before the end of Henry III's reign, the king's court, though it\ndelivered him to the Ecclesiastical Court for trial, took a preliminary\ninquest as to his guilt or innocence\nIn time it [benefit of\nclergy] changed and became a complicated set of rules exempting certain\npersons from punishment for certain criminal offenses. It was extended\nto secular clerks, then to all who could read.\" -Humbert, -The Pardoning\nPower of the President, at 10. It arose out of the church-state\nconflict of the twelfth century. It remained in effect until abolished\nby statute.\n8. 13 Richard II, St. 2 C. 1\n9. Blackstone, Commentaries, Book IV, p. 401. - To circumvent this statute,\nthe king claimed that he had the right to suspend the execution of a\nlaw and to dispense with its execution in particular cases. The use of\nthe royal dispensing power was fairly common. It was apparently intro- :-\nduced into English Law by Henry III in about the year 1252. Parliament,\nin the English Bill of Rights enacted in 1689, declared that both of\nthese alleged powers were illegal. Humbert, supra note 7 at 11, P. Brett,\nConditional Pardons and the Commutation of Death Sentences, 20 Modern\nLaw Review, 131, 133 (1957).\nNOTES\nChapter I, (Contd)\n10. 27 Henry VIII, C. 24. It should be noted that notwithstanding this\nparticular statute, the King's pardoning authority was not absolute.\nAs previously noted, all those who could claim the \"benefit of\nclergy\" were exempted from criminal responsibility, until it was\nabolished by statute in 1827. The institution of sanctuary also\nserved as an encroachment upon the king's prerogative. If an\noffender left the realm, forfeited all of his goods and submitted\nto a life of banishment, he could obtain the same effect that a\nking's pardon would bestow upon him. See Grupp, Historical Aspects,\nsupra note 4, at 57-58.\n11. 31 Charles II, Stat. 11, C. 2.\n12. 1 William and Mary, sess. II, C. 2.\n13. 12 and 13 William III, C. 2.\n14. As Blackstone put it, the king had no power to pardon \"where private\njustice is principally concerned\" under the doctrine of \"non potest\nrex gratiam facese cum injuria at damno alirum\" (the king cannot\nconfer a favour by the injury and loss of others).\nBlackstone, Commentaries, supra note at 399. Blacksone also states\nthat the king could not pardon a common nuisance while it remained\nunredressed. However, after the abatement of the nuisance, the king\ncould remit the fine. Blackstone states that although the prosecution\nof a common nuisance is vested in the king SO as to avoid multiplicity\nof suits, it is, until abated, more in the nature of a private injury\nto each individual in the neighborhood. In addition, the king could\nnot pardon an offense against a popular or penal statute after in-\nformation has been brought. Once a private individual has brought\nsuch information he acquires a private property right in his part of\nthe penalty.\n15. Stephen, New Commentaries on the Laws of England (London, 1903),\nVol. II, p. 370. A pardon granted by Parliament had one particular\nfeature that a pardon granted by the king did not. A pardon granted\nby an Act of Parliament had to be judicially noticed by a court. It\ndid not have to be pleaded. However, if an individual received a\npardon by the king under the Great Seal, the pardon had to be pleaded\nat a particular stage in the proceeding. An individual who failed to\nplead his pardon at the appropriate stage could be held to have\n\"waived the pardon\" and to be precluded from pleading it at a later\nstage. See Blackstone, supra note 10 at 402 and Brett, supra note 10\nat 132.\n7 George 1, ch. 29 (172 ). \"The power and jurisdiction of Parliament\nis so transcendent and absolute, that it cannot be confined, either\nfor causes or persons, within any bounds. It has sovereign and un-\ncontrollable authority in the making, conforming, enlarging, restrain-\ning, abrogating, repealing, reviving, and expounding of laws, concern-\ning matters of all possible denominations, ecclesiastical or temporal,\ncivil, military, maritime, or criminal.\"\nNOTES\nChapter I, (Contd)\n16. Blackstone, Commentaries, supra, note 10, at 401.\n17. As soon as war was declared, it was the custom to issue a proclamation\nin which a general pardon of all homicides and felonies was granted\nto everyone who would serve for a year at his own cost. The terms\nwere readily accepted, and the king increased his force by a number of\nmen who would perhaps be inferior to none in courage, though they might\nnot improve the discipline of the army. The rolls according abound\nwith instances in which a pardon was alleged for military service,\nand allowed without dispute. Grupp, supra note 4, at 58.\n18. See Attorney General's Survey, supra note 3 at 30.\n19. Blackstone, Commentaries, supra note 10, at 401.\n20. P. Brett, supra note 10, at 134.\n21, Ibid.\n22. Jensen, Pardoning Power in the Colonies, p. 3\n23. Ibid. p. 4.\n24. Ibid. p. 4.\n25. Ibid. p. 5.\n26. Ibid. P. 5.\n27. Ibid. P. 6.\n28. Ibid. P. 6.\n29. Ibid. P. 6.\n30. Ibid. P. 7.\n31. Ibid. p. 7.\n32. Ibid. p. 8.\n33. Ibid. p. 8.\n34. Ibid. p. 8.\n35. Ibid. P. 9.\n36. Constitution of New Hampshire, 1784; Massachusetts, 1780, Part II, chap.\nii, Sec. 1, Art. 8; New Jersey, 1776, Part IX; Pennsylvania, 1776, Sec. 20;\nVirginia, 1776, cited in Jensen, Ibid. at P. 10.\n37. Ibid. p. 10.\n38. Ibid. p. 10\n39. Ibid. P. 10\n40. Tansill, (ed) Documents Illustrative of the Formation of the American\nStates, Government Printing Office, Washington, D.C., at 620 (1927).\n41. The Federalist No. 74, at 500 (J. Cooke, Ed. 1961) - In Federalist No.\n69, Hamilton summarized the proposed §2 powers, including the power\nto pardon, as \"resembl (ing) equally that of the king of Great Britain\nand the Governor of New York.\" Ibid., at 464.\n42.\nEx Parte Wells, 59 U.S. (18 How. ) 307 (1856)\n43.\nIn this particular case, the offender had his death sentence commuted\nto a sentence of life imprisonment. The Court held that the commuta-\ntion of a sentence is, essentially, a quid pro quo. The Presidert offers\na remission of a sentence coupled with a condition--the \"convict\" has\nthe choice of remaining under his judicially imposed sentence or\naccepting the remission of his sentence and abiding by the condition\non which it was offered. There are additional cases upholding condi-\ntional pardons: In Re Ruhl, 20 F. Cas. 1335 (No. 12, ,124)(D. C. Nev.\n1878), in which the condition had been payment of certain fines and\ncosts; Kavalin V. White, 44 F. 2d 49 (10th Cir. 1930), where the\ncondition was deportation of the prisoner from the United States;\nUnited States V. Six Lots of Ground, 27 F. Cas. 1097 (No. 16, 299)\nthat he refrain from pressing certain claims against the govern-\nment for land which had been confiscated; Lupo V. Zerbst,\n92 F. 2d 362 (5th Cir. 1937), where the petitioner's sentence was\ncommuted on the condition that he be law-abiding and not associate\nwith people of \"evil\" character; Bishop V. United States, 223 F. 2d\n582 (D. C. Cir. 1955), where the President commuted the\npetitioner's death sentence to life imprisonment with the further\ncondition that the life term be measured, for the purposes of\nparole eligibility, from the date of commutation and not from\nthe date of initial incarceration; and Hoffa V. Saxbe, 378 F. Supp.\n1221 (1974), where the condition of a commutation of a sentence\nwas that the petitioner not engage in direct or indirect management\nof any labor organization for nine and one -half years.\nA commutation of a sentence is the substitution of a lesser punish-\nment for a more severe punishment. It is considered to be part\nof the power to pardon. Id. at 316.\n44.\nIn Bishop V. United States, supra, the President commuted the\npetitioner's death sentence to life imprisonment with the condition\nthat the life term be measured, for the purposes of parole\neligibility, from the date of commutation and not from the date of\ninitial incarceration. The Court held, in sustaining the con ition,\nthat \"it would seem clear that the power to commute the dea\n44.\nContinued\nsentence would necessarily include the power to attach reason-\nable conditions. 11 In Lupo V. Zerbst, supra, the President\ncommuted petitioner's sentence on the condition that he be law-\nabiding and not associate with people of \"evil\" character. In\nsustaining the condition attached by the President, the Court\nsaid \"(t)here is nothing illegal or against public policy in any\nof the conditions therein contained. 11 Id. at 364.\n45. See also State et nel Bailey V. Mayo, 65, So. 2d 721, 722 (Fla. 1953).\nGuy V. Utecht, 216 Minn. 255, 12 N.W. 2d 753, 757 (1943). Silvey\nV. Kaiser, 173 S.W. 2d 63, 64 (Mo. 1943) (en bono) ; Huff V. Aldredge,\n192 Go. 12, 14 S.E. 2d 456, 458-459 (1941) Commonwealth et nel.\nMeredith V. Hall, 277 Ky 612, 126 S.W. 2d 1056, 1057 (1939). Wilborn\nV. Sanders, 170 Va. 153, 195 S.E. 723, 726 (1938).\n46. Hoffa V. Saxbe, supra.\n47.\nIn applying the first part of the test, Hoffa stated that the conditions\nmust \"relate to the reason for the initial judgment of conviction,\nbecause it is the crime and circumstances that give use to the\npublic interest in regulating and circumscribing the future\nbehavior of the offendor. 11 Id. at 1236. The Court in Hoffa used\nas its standard the standard employed in setting the conditions\nof parole, itself an outgrowth of the conditional pardon. Id. at\n1236, citing C. L. Newman, Sourcebook on Probation, Parole\nand Pardons, 18 (3rd ed. 1968). Under the federal system, the\nU.S. Board of Parole can release prisoners on parole where\nthere is a \"reasonable probability that such prisoner will live\nand remain at liberty without violating the laws\" and where\n\"such release is not incompatible with the welfare of society.\"\n18 U.S. C. SEQ 4203(a). Also, the release may be \"upon such terms\nand conditions ... as the Board shall prescribe. \" The conditions,\nhowever, must be reasonably related to the valid ends of the\ninterests that the Government retains after the prisoner is re-\nleased. In Birzon V. King, 469 F. 1241 (1972), the Second\nCircuit sustained the standard condition that a parolee not\nassociate with persons who have a criminal record, stating:\n\"Although a parolee should enjoy greater freedom in\nmany respects than a prisoner, we see no reason why the\nGovernment may not impose restrictions on the rights of\nthe parolee that are reasonably and necessarily related to\nthe interests that the Government retains after his condi-\ntional release. \" Id. at 1243.\n47. Continued\nHoffa went on to state that the lawfulness of a conditional pardon\nor commutation is much the same, but with respect to Presidential\npardons, the President has a broader discretion \"which encom-\npasses a regard for protective measures in the public interest. 11\nHoffa V. Saxbe, supra, at 1237.\nWith respect to the second condition, namely, that the\ncondition not unreasonably infringe on the individual\ncommutee's constitutional freedoms, Hoffa recognized\nthat when an individual is granted a conditional pardon or\ncommutation, reasonable restrictions may be placed on\nthe future conduct of the commutee, and when particular\nconstitutional rights are curtailed. as a result of restricting\nfuture conduct, a sufficiently important governmental\ninterest in regulating the future conduct can justify inci-\ndental limitations on one's rights guaranteed under the\nBill of Rights. Id. at 1238-40. There are num erous\ncases that uphold the restriction on constitutional rights\nprovided that the restrictions are precisely drawn to accomplish\na legitimate governmental purpose. See Rosario V. Rockefeller,\n410 U.S. 752, 93 S. Ct. 1245, 36 L. Ed. 2d 1 (1973); Dunn V.\nBlumstein, 405 U.S. 330, 336, 92 S. Ct. 995, 31 L. Ed. 2d 274\n(1972); Bullock V. Carter, 405 U.S. 134, 140-141, 92 S. Ct. 849,\n31 L. Ed. 2d 92 (1972); Jenness V. Fortson, 403 U.S. 431, 91 S. Ct.\n1970, 29 L. Ed. 2d, 554 (1971); Williams V. Rhodes, 393 U.S. 23,\n30-31, 89 S. Ct. 5, 21 L. Ed. 2d 24 (1968); NAACP V. Button,\n371 U.S. 415, 438, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963);\nKonigsberg V. State Bar of California, 366 U.S. 36, 49, 81 S. Ct.\n997, 6, L. Ed. 2d 105 (1961).\n48.\nUnited States V. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d\n672 (1968).\n49.\nId. at 377, 88 S. Ct. at 1679. The Hoffa court went on to note that\nconditional commutations are within the President's power under\nArticle II, Section 2, Clause One of the Constitution, and that\nwith respect to Mr. Hoffa, the Government had satisfied the\nother three elements of the four-part test.\n50. Schick V. Reed, 95 S. Ct. 379 (1974).\n51. Ibid, at 385.\nY\n52.\nUnited States V. Wilson, 32 U.S. (7 Pet.)\n(1833)\n53.\nBurdick V. United States, 236 U.S. 79, 35 S. Ct. 267, 59 L. Ed.\n476 (1915).\n54. United States V. Wilson, supra at 161.\n55. Id. at 158.\n56.\nId.\n57. Burdick V. the United States, supra, also illustrates this point.\nIn this particular case President Wilson offered a pardon to the\npetitioner. The effect of the pardon would have been to immunizing\nhim from any liability for incriminating statements made in the\ncourse of testifying before a federal grand jury. The petitioner\nhad previously refused to testify concerning alleged fraud violations,\nclaiming his right against self-incrimination under the Fifth Amend-\nment would be violated. Even though President Wilson offered\npetitioner Burdick a pardon, he still refused to testify, and was\ntherefore held in contempt. Upon a writ of habeas corpus, the\nSupreme Court reversed the contempt conviction, arguing that\nthe petitioner did not have to accept the pardon, because he\nhad the right to refuse to testify:\n\"Granting, then, that the pardon was legally issued and\nwas sufficient for immunity, it was Burdick's right to\nrefuse it, as we have seen; and it, therefore, not be -\ncoming effective, his right under the Constitution to decline\nto testify remained to be asserted. 11 Ex Parte Wells, supra at 312.\n58. Id.\n59. Ex Parte Garland, 71 U.S. (4 Wall.) 333 (1866).\n60. Id. at 351-52. See also Schick V. Reed, 483 F. 2d 1266,\n1268 (D. C. Cir. 1973) cert. granted, 42\nBishop V. United States, 223 F. 2d 582, 588 (D. C. Circuit.\n1955).\nAPPENDIX K.\nK. GALLUP POLL\nAPPENDIX\n: The Gallup Poll of August, 1975.\nFor many years the Gallup Organization has polled the\nAmerican People on a variety of subjects, including clemency. As we\nwere about to close the Clemency Board, Gallup again felt the country's\npulse on the issue which was central to our work. We feel the results of\nthat poll are instructive and have included part of them in the following\npages.\nQuestion One\n\"Have you heard or read anything about a program which would\ngrant a limited pardon to those who evaded the draft or\ndeserted from the armed forces during the Vietnam war?\"\nYes\nNATIONAL\n72\nSEX\nMale\n74\nFemale\n71\nRACE\nWhite\n75\nNon-white\n52\nEDUCATION\nCollege\n86\nHigh School\n73\nGrade School\n55\nREGION\nEast\n73\nMidwest\n74\nSouth\n67\nWest\n79\nAGE\nTotal Under 30\n73\n18-24 years\n74\n25-29 years\n72\n30-119 yours\n75\n50 & older\n70\n\"Have you heard or read anything about a program which would\ngrant a limited pardon 1:0 those who evaded the draft or\ndescrted from the armed forces during the Victnam war?\"\nYes\nINCOME\n$20,000 & over\n82\n$15,000 - $19,999\n85\n$10,000 - $14,999\n74\n$7,000 DAP $9,999\n75\n$5,000 - $6,999\n58\n$3,000 - $4,999\n61\nUnder $3,000\n61\nPOLITICS\nRepublican\n74\nDemocrat\n69\nS. Democrat\n60\nDo Democrat\nOther\n72\nIndependent\n77\nRELIGION\nProtestant\n72\nCatholic\n69\nOCCUPATION\nProf. & Bus.\n86\nCler. & Sales\n78\nManual Workers\nR\nNon-Labor Force-\n63\nCITY SIZE\n1,000,000 & over\n71\n500,000 - 999,999\n77\n50,000 - 499,999\n77\n2,500 - 49,999\n72\nUnder 2,500, Rural\n68\nQuestion Two\n\"Do you happen to know which of these groups are eligible for\nthe program?\" (Respondents were handed a card with choices;\nsee over for column headings.)\n1\n2\n3\n4\n5\n6\n@\n8\n9\nNATIONAL\n43\n17\n14\n15\n2\n/\n4\n8\nin\nSEX\nMale\n45\n19\n15\n17\n2\n3\n4\n10\n74\nFemale\n41\n16\n14\n13\n1\n/\n4\n7\ny\nRACE\nWhite\n44\n18\n14\n15\n2\n/\n4\n8\n25\nNon-white\n30\n12\n16\n10\n/\n/\n7\n9\ny\nEDUCATION\nCollege\n63\n27\n15\n20\n/\n/\n/\n3\nis\nHigh School\n43\n17\n15\n15\n2\na\n4\n9\n&\nGrade School\n17\n5\n10\n(7)\n-\n-\nb\n12\nby\nREGION\nEast\n44\n19\n15\n15\n2\nin\n3\n8\nso\nMidwest\n43\n15\n12\n15\n/\n!\n/\n4\n\"\n27\nSouth\n38\n14\n13\n11\n/\n/\n5\n5\n41\nWest\n47\n25\n18\n18\n2\n3\n5\n9\n21\nAGE\nTotal Under 30\n51\n21\n16\n14\n3\n/\n3\n6\n18\n18-24 years\nso\n19\n16\n15\n3\n/\n3\n>\nA\n25-29 years\n54\n23\n17\n13\n3\n3\n3\n4\n23\nstool 64-08\n48\n19\n11\n15\n/\n/\n4\n8\n27\n50 & older\n31\n14\n15\n15\n/\n2\n5\n11\n40\nJ. Draft evaders and deserters who are now in Canada and\nother foreign countries.\n2. Draft evaders and deserters who are fugitives in the\nUnited States.\n3. People who served in Vietnam and then deserted the\narmed forces after they came home.\n4. Draft evaders and deserters who have already gone\nthrough the courts and have been punished for their\noffenses.\n5. People who demonstrated against the Vietnam war.\n6. First offenders convicted of non-violent federal crimes.\n7. Service men still on active duty who have been court-\nmartialed for non-violent military offenses.\n8. None are eligible.\n9. Don't know\n,\n\"Do you happen 1:0 know which of these groups are eligible for\nthe program?\"\n/\n(1)\n2.)\n3\n(21.)\n5.)\nb\n6\n(7)\nD\nINCOME\n$20,000 & over\n62\n27\n18\n17\n3\n/\n2\n5.\n19\n$15,000 - $19,999\n55\n22\n10\n13\n/\n4\n7\n24\n$10,000. - $14,999\n44\n15\n16\n17\n2\n/\n4\n10\n25\n$7,000 - $9,999\n39\n13\nIf\n14\n/\n/\n4\n9\n33\n$5,000 - $6,999\n27\n15\nis\n15\n-\n/\n5\n9\n39\n$3,000 - $4,999\n27\n17\n14\n7\n3\n21\n4\n13\n38\nUnder $3,000\n26\n10\n14\n15\n3\n2\n5\n5\n53\nPOLITICS\nRepublican\n47\n18\n15\n17\n/\n/\n3\n7\n29\nDemocrat\n36\n15\n14\n14\n/\n/\nG\n9\n35\nS. Democrat\n29\n:\n12\n15\n12\n2\n/\n6\n7\n45\nDo Democrat\nother\n40\n17\n14\nis\n/\n/\n5\n9.\n31\nIndependent\n49\n20\n13\n13\na\n2\n4\n9\n25\nRELIGION\nProtestant.\n-\n43\n17\n12\n14\n/\n/\n4\n8\n33\nCatholic\n38\n16\n17.\n16\n/\n/\n6\n11\n27\nOCCUPATION\n-\nProf. & Bus.\n59\n25\n15\n16\nN\n/\n2\n4\n22\n-\nCler. & Sales\n54\n20\n13\n14\n1\n/\n7\n8\n22\nNanual Workers\n--\n39\n16\n14\n14\n/\n/\n4\n9\n31\nNon-Labor Force\n31\n12\n15\n16\n2\n2\n4\n12\n41\n-\nCITY SIZE\n1,000,000 & over\nI\n44\n18\nis\n13\n/\n3\n3\n10\n23\n500,000 - 999,999\n-\n47\n26\n17\n22\n/\n/\n4\n4\nas\n-\n50,000 = 499,999\nso\n20\n18\n13\n/\n-\n3\n8\n28\n2,500 49,999\n37\n15\n11\n14\n2\n-\n4\nD\n3:\nUnder 2,500, Ruyal\n36\n10\n10\n14\n3\n/\n4\n8\n41\n\\\nQuestion Three\n\"Which would you favor: a pardon after completion of alternative\nservice, a pardon without requiring alternative service, or no\npardon at all?\"\nWith\nWithout\nalternative\nalternative\nNo\nNo\nservice\nservice\npardon\nopinion\nNATIONAL\n47\n18\n24\n11\nSEX\nMale\n44\n18\n30\n8\nFemale\n49\n18\n18\n15\nRACE\nWhite\n48\n17\n25\n10\n19\nNon-white\n38\n21\n12\n22\nEDUCATION\nCollege\n53\n25\n18\n4\nHigh School\n47\n17\n26\n10\nGrade School\n38\n10\n20\n26\nREGION\nEast\n47\n20\n24\n9\nMidwest\n51\n17\n22\n10\nSouth\n43\n12\n2>\n18\nWest\n45\n24\n23\n8\nAGE\nTotal Under 30\n52.\n24\n18\n6\n18-24 years\nSI\n27\n16\n6\n25-29 years\n54\n19\n8\n>\n30-49 years\n46\n15\n29\n10\n50 & older\n43\n16\n24\n17\n\"Which would you prefer: a pardon after completion of alternative\nservice, a pardon without requiring alternative service, or no\npardon at all?\" /\nINCOME\n$20,000 & over\n52\n24\n20\n4\n$15,000 $23 $19,999\n47\n17\n30\n6\n$10,000 ** $14,999\n49\n14\n28\n9\n$7,000 - $9,999\n47\n20\n21\n12\n$5,000 - $6,999\n40\n16\n22\n22\n$3,000 (ve $4,999\n41\n19\n19\n21\nUnder $3,000\n46\n21\n13\n:\nPOLITICS\nRepublican\n54\n11\n21\n14\nDemocrat\n39\n20\n28\n13\nS. Democrat\n35\n19\n25\n31\nDo Democrat\nother\n40\n21\n29\n10\nIndependent\n52\n19\n21\n8\nRELIGION\nProtestant\n47\n14\n26\n13\nCatholic\n47\n19\n23\n11\nOCCUPATION\nProf. & Bus.\n15\n25\n20\n4\nCler. & Sales\n46\n23\n23\nDo\nManual Workers\n45\n14\n28\n13\nNon-Labor Force.\n45\n14\n24\n17\nCITY SIZE\n1,000,000 & over\n52\n22\n16\n10\n500,000 - 999,999\n48\n21\n22\n9\n50,000 = 499,999\n43\n19\n27\n11\n2,500 en 49,999\n42\n16\n34\n8\nUnder 2,500, Ruyal\n49\n13\n20\n18\nQuestion Lour\n\"The deadline for application in the program by those seeking\na pardon has passed. Do you believe the application deadline\nshould be extended or should not be extended?\"\nShould\nNo\nShould\nNot\nOpinion\nNATIONAL\n42\n48\n10\nSEX\nMale\n41\n53\n6\nFemale\n43\n44\n13\nRACE\nWhite\n40\nso\n10\nNon-white\nST\n30\n13\nEDUCATION\nCollege\n49\n45\n6\nHigh School\n41\nSI\n8\nGrade School\n38\n43\n19\nREGION\nEast\n45\n45\n10\nMidwest\n43\n48\n9\nSouth\n36\n50\n14\nWest\n48\n47\n5\nAGE\nTotal Under 30\n56\n38\n6\n18-24 years\n56\n37\n7\n25-29 years\n55\n39\n6\n30-49 years\n35\n57\n8\n50 & older\n39\n47\n14\n=2\n\"The deadline for application in the program by those seeking\na pardon has passed. Do you believe the application deadline\nshould be extended or should not be extended?\"\n/\nShould No\nShould\nNot\nOpinion\nINCCME\n$20,000 & over\n43\n52\n5\n$15,000 - $19,999\n42\nSI\n7\n$10,000 are $14,999\n38\n56\n6\n$7,000 - $9,999\n43\n45\n12\n$5,000 - $6,999\n43\n44\n13\n$3,000 M $4,999\n144\n36\n207\nUnder $3,000\nSI\n32\n17\nPOLITICS\n[\nRepublican\n35\nS3.\n12\nDemocrat\n43\n46\n11\nS. Democrat\n42\n43\n15\nDo Democrat\nOther\n43\n48\n9.\nIndependent\n46\n48\n6\nRELIGION\nProtestant\n39\n51\n10\nCatholic\n44\n46\n10.\nOCCUPATION\nProf. & Bus.\n45\n48\n7\nCler. & Sales\n45\n48\n7\nManual Workers\n42\nso\n8\nNon-Labor Force\n36\n46\n18\nCITY SIZE\n1,000,000 & over\n59\n35\n6\n500,000 ** 999,999\n45\n45\n10\n50,000 - 499,999\n43\n48\n9\n2,500 - 49,999\n'37\n53\n10\nUnder 2,500, Rural\n31\n55\n14\nQuestion five\n\"Persons who receive a pardon under .the present program have done\na period of alternative service to the country. How would you\nreact to such a person in terms of his becoming a neighbor?\"\n(Respondents were handed a card with the following alternatives:\nI would welcome him MORE than I would welcome someone else; I would\nwelcome him LESS than I would someone else; I would welcome him\nABOUT AS MUCH AS I would welcome someone else.)\nWelcome\nWelcome\nAbout\nMore\nLess\nSame\nNo opinion\nNATIONAL\nb\n13\n74\n8\nSEX\nMale\n4\n19\n70\n7\nFemale\nby\n7\n78\n10\nRACE\nWhite\n4\n13\n75\n8\nNon-white\n00\n7\n73\n12\nEDUCATION\nCollege\n4\n10\n82\n4\nHigh School\n4\n13\n76\n7\nGrade School\n6\n16\n62\n16\nREGION\nEast\n5\n10\n74\n11\nMidwest\n4\n12\n79\n9\nSouth\n5\n18\n65\n12\nWest\n4\nD\n82\nby\nAGE\nTotal Under 30\n5\n4\n86\n5\n18-24 years\n5\n2\n88\nby\n25-29 years\n4\n7\n84\n5\n30-49 years\n4\n16\n74\n6\n50 & older\n16\n16\n66\n12\nWelcome\nWelcome\nAbout\nNo\nMore\nLess\nSame\nOpinion\nINCOME\n$20,000 & over\n5\n13\n80\n2\n$15,000 - $19,999\n3\n15\n75\n>\n$10,000 - $14,999\n4\n15\n75\n6\n$7,000 - $9,999\n5\n13\n74\n8\n$5,000 - $6,999\n3\n9\n75\n13\n$3,000 - $4,999\n18\n9\n69\n14\nUnder $3,000\n11\n10\n67\n12\nPOLITICS\nRepublican\n3\n14\n73\n10\nDemocrat\n5\n14\n71\n10\nS. Democrat\n4\n15\n65\n15\nDo Democrat\nother\n5\n13\n74\n8\nIndependent\n5\n11\n79\n9\nRELIGION\nProtestant\n5\n14\n73\n8\nCatholic\n3\n12\n74\n11\nOCCUPATION\nProf. & Bus.\n4\n13\n72\n6\nCler. & Sales\n3\n15\n77\n9\nManual Workers\n4\n11\n78\n6\nNon-Labor Force\n6\ni\n15\n64\n15\nCITY SIZE\n1,000,000 & over\n4\n00\n81\n>\n500,000 - 999,999\n9\n10\n77\n8\n50,000 - 499,999\n9\n16\n72\n7\n2,500 - 49,999\n9\n15\n71\n9\nUnder 2,500, Rural\n5\n12\n73\n10\nIf the sample was limited to persons who had heard or read\nsomething about the program [A \"Yes\" response to Question One], the\nresults of the subsequent question are as follows: [National Only]\nQuestion Two: Who was eligible ?\nResponse 1\n54%\n2\n22%\n3\n17%\n4\n18%\n5\n1%\n6\n1%\n7\n4%\n8\n--\n9\n--\nQuestion Three ? Which do you favor?\nPardons with A/S 50%\nPardons, no A /S\n20%\nNo Pardons\n23%\nNo Opinion\n7%\nQuestion Four: Should the application deadline be extended?\nYes\n44%\nNo\n50%\nNo Opinion\n6%\nQuestion Five: How would you welcome a pardonee in terms of\nother people ?\nWelcome him more\n5%\nWelcome hime less\n13%\nAbout the same\n77%\nNo Opinion\n5%\nIf the sample was limited to those who had heard about the\nprogram [\"Yes\" on Question One] and who knew who was eligible for\nthe Presidential Clemency Board [Response Four on Question Two],\nthe results of the subsequent questions are as follows: [National Only]\nQuestion Three: Which do you favor ?\nPardons with A/S\n53%\nPardons, no A/S\n21%\nNo Pardons\n23%\nNo Opinion\n3%\nQuestion Four: Should the application deadline be extended?\nYes\n50%\nNo\n46%\nNo Opinion\n4%\nQuestion Five: How would you welcome a pardonee in terms of\nother people ?\nWelcome him more\n4%\nWelcome him less\n14%\nAbout same\n79%\nNo opinion\n3%\nAPPENDIX L.\nGERALD LIBRARY 4 FORD\nL. PEARMAN STUDY\nAn Analysis of the Impact of Clemency Discharges\non Recipient's Employment Prospects\nWilliam A. Pearman\nMillersville State College\nThis study is directed at assessing the impact that receipt of\na clemency discharge under the recent Presidential Clemency Program will\nhave on an individual's employment chances.\nMilitary discharges can be viewed as being of two basic types:\nadministrative and punitive. The administrative types include honorable,\ngeneral and undesirable. The punitive types are bad conduct and dis-\nhonorable. The clemency discharge can be classified as being of the\nadministrative type. 1\nAlthough exact empirical evidences are not always available,\nArmy regulations, military court proceedings and various congressional\nhearing presentations imply that a discharge under other than honorable\ncircumstances may have substantial consequences for the civilian life of\nthe recipient. The current study attempts to examine one aspect of this\nproblem, namely consequences in terms of future employment. It also\nattempts to empirically evaluate the various types of discharges in re-\nlation to each other. The main concern is with an assessment of the\nclemency discharge relative to other types of discharges.\nData presented in this report were obtained through a mailed\nquestionnaire. The study was conducted in two stages. Stage one con-\nsisted of a systematic random sampling drawn from a list of prospective\nemployers listed in the College Placement Annual and a second list com-\nprising the Harrisburg, Pennsylvania Industrial Directory.\nStage two entailed an accidental non-random sample representing\nsmall businesses and local employers in the Lancaster, Pennsylvania area,\nnot likely to be primarily recruiting college graduates. 2\nThe data demonstrate that the clemency discharge is perceived\nby employers as being slightly less favorable than the general discharge,\nbut considerably more favorable than the undesirable discharge. The\nclemency discharge is also perceived by the prospective employers as\nbeing more favorable than either of the punitive types, bad conduct or\ndishonorable. Evidences for these generalizations follow below.\nPersonnel directors, placement officers and company officials\nengaged in the hiring process were asked to react to various types of\ndischarges on a scale of from one to five. Specifically, they were asked,\n\"What would be your reaction to the following people if they came to you\n2\nseeking employment?\". The types of persons suggested were:\nA) A former serviceman with an honorable discharge.\nB) A former serviceman with a general discharge, who\nwas not eligible for the Presidential Clemency Program.\nC) A former serviceman with an undesirable discharge for\ndesertion, who did not participate in the clemency program.\nD) A former serviceman with a bad conduct discharge, who did\nnot participate in the clemency program.\nE) A former serviceman with a dishonorable discharge for\ndesertion, who did not participate in the clemency program.\nF) A former serviceman who had been discharged for desertion,\nbut who received an outright Presidential pardon and\nclemency discharge under the clemency program.\nG) A former serviceman who had been discharged for desertion,\nbut who received a Presidential pardon and clemency discharge\nafter completing three to twelve months of alternative\nservice under the clemency program.\nH) A convicted draft offender who did not participate in the\nclemency program.\nI) A convicted draft offender who received an outright\nPresidential pardon under the clemency program.\nJ) A convicted draft offender who received a Presidential\npardon after completing three to twelve months of\nalternative service under the clemency program.\nThe scale of responses represented the employers' reaction to-\nward the above ten types. A score of one indicated an inclination to\ngive preference in hiring over other job applicants. A score of two\nindicated that a prospective employee with the stated characteristic\ncould expect the same treatment as most other job applicants. A score\nof three indicated that the person would be considered, but that the\nemployer would be less inclined to hire him than most other job applicants.\nA score of four indicated that a person of the given characteristics would\nbe considered, but that the respondent would be reluctant to hire him. Final-\nly, a response of five indicated refusal to consider the candidate.\nThe following table indicates the mean response given by the em-\nployers as to their willingness to employ the ten types.\nTable I\nDistribution of Mean Scores Depicting\nEmployers' Willingness to Hire Various\nDischarge Types\nMean Scores\n(Scale 1-5)\n3\nDischarge Type\nNational Sample\nLocal Sample\nCombined\nScore\nHonorable Discharge\n1.71\n1.64\n1.68\nGeneral Discharge\n2.40\n2.50\n2.45\nUndesirable Discharge\n3.31\n3.97\n3.59\nBad Conduct Discharge\n3.51\n4.30\n3.70\nDishonorable Discharge\n3.54\n4.21\n3.87\nClemency Discharge\n2.67\n3.24\n2.95\nClemency Discharge\n2.53\n2.88\n2.71\nwith alternate Service\nConvicted Draft Offender\n3.24\n4.15\n3.70\nConvicted Draft Offender\n2.64\n3.42\n3.03\nwith Clemency Discharge\nConvicted Draft Offender\n2.51\n2.94\n2.72\nwith Clemency Discharge\nwith alternate Service\nAs can be seen in the above table, the four clemency discharge\ntypes all are rated somewhere between the general and the undesirable\ntypes of administrative discharge. Those clemency discharges to which\nalternate service has been attached are perceived slightly more favor-\nably than those to which it is not. In the national sample the former\nserviceman who has gone through clemency proceedings is perceived just\nslightly better than the civilian draft offender, while in the local\nsample this reverses. This reversal may be due to a history of alternate\nservice by various groups in the local sample area.\nThe average score for the four clemency type discharges was\n2.59 for the national sample, 3.12 for the local sample and 2.85 for the\ncombined sample. In every case, national, local, and combined sample,\nthe average of the four clemency type discharges was closer to the\nperception of the general discharge than to the undesirable discharge.\nTable II below compares the percentage of prospective em-\nployers stating that they would give something less than equal con-\nsideration to persons of varying types of military discharge status.\nSomething less than equal consideration is operationalized as a rating\nof three or less on the scale of from one to five.\n4\nTable II\nComparison of Various Military Status Types\nAccording to Employers Inclination to Give\nLess Than Equal Employment Consideration\nPer Cent of Prospective Employers\nIndicating Less than Equal Considera-\nDischarge Type\ntion\nNational Sample\nLocal Sample\nCombined\nSample\nHonorable\n0 %\n0%\n0 %\nGeneral\n36 %\n41 %\n39 %\nUndesirable\n67 %\n82 %\n75 %\nDishonorable\n69 %\n88 %\n79 %\nClemency\n40 %\n54 %\n47 %\nClemency with\n36 %\n45 %\n40 %\nAlternate Service\nCivilian Draft Offender\n40 %\n73 %\n57 %\nwith Presidential Pardon\nunder Clemency Program\nCivilian Draft Offender\n33 %\n48 %\n41 %\nwith Presidential Pardon\nunder Clemency with\nAlternate Service\nThe above table indicates that on the average, the prospective\nemployers included in the national sample tend to discriminate against\npersons with clemency type discharges in approximately equal proportion\nto those receiving general discharges. The civilian draft offender\nwho receives a Presidential pardon and performs alternate service is\ndiscriminated against slightly less than the former serviceman with\na general discharge. Persons with undesirable or dishonorable dis-\ncharges seem to be twice as likely to be given less than equal con-\nsideration for employment than persons undergoing the clemency process.\nSimilar trends appear in the data obtained in the local sample, how-\never, alternate service appears as an important consideration there.\n5\nThe table below reports outright refusal on the part of\nprospective employers to consider various military status types.\nTable III\nComparison of Various Military Status Type\nAccording to Employers Refusal to\nConsider for Employment\nPer Cent of Prospective Employers\nIndicating Refusal to Consider for\nDischarge Type\nEmployment\nNational Sample\nLocal Sample\nCombined\nSample\nHonorable\n0 %\n0%\n0 %\nGeneral\n3%\n6 %\n5 %\nUndesirable\n23 %\n45%\n34 %\nDishonorable\n43 %\n61 %\n52%\nClemency\n11 %\n24 %\n18 %\nClemency with\n6 %\n18 %\n12 %\nAlternate Service\nCivilian Draft Offender\n9 %\n24 %\n16 %\nwith Presidential Pardon\nunder Clemency Program\nCivilian Draft Offender\n6%\n18 %\n12 %\nwith Presidential Pardon\nunder Clemency with\nAlternate Service\nWhen we analyze only the refusals to consider for employment,\nclemency discharges maintain the same relative position as earlier, i. e.\nsomewhere between the general and undesirable discharge type, closer to\nthe general. A relatively small percentage of employers, approximately\n16%, refuse to consider a person with clemency discharge for employment.\nAlternate service does add some appeal to the consideration.\n6\nRespondents were asked whether they would be more likely to\nhire a clemency recipient if he had been a Victnam Veteran whose de-\nsertion offense was not in a combat situation. 41% of the national\nsample, 36% of the local sample, and 39% of the combined sample answered\nin the affirmative. A substantial number of respondents who would not\nhave given clemency recipients equal consideration for employment prob-\nably would if they knew more about the nature of the offense, and if it\nwere non-combatant.\nThe employers were asked, \"Would you view a clemency re-\ncipient differently depending on the type of job he was seeking?\".\n17% of the National sample answered in the affirmative, while the\nsmaller businessmen in the local sample answered \"yes\" 42% of the\ntime. The data on consideration according to type of job can be\nsummarized as follows: prospective employers were less likely to\nconsider individuals with clemency discharges for professional or\nsales jobs, slightly more likely to give equal consideration with\nother job applicants for clerical or blue collar skilled jobs, most\nlikely to give equal consideration with other job applicants for\nunskilled or labor jobs. There is a tendency to not consider persons\nwith clemency discharges for jobs which will result in substantial\ncontact with the public, or presentation of the company to the out-\nside world.\nRespondents were asked both why they might not hire a clemency\nrecipient, and why they might hire him. In both cases they were given\neight possible reasons as well as the opportunity to provide 'other'\nanswers. They were encouraged to check as many responses as applied.\nThe respondents in the national sample provided approximately as many\nreasons for not hiring as for hiring clemency recipients. The local\nrespondents gave two times as many negative as positive responses. The\nthree most frequently offered reasons for not hiring a clemency recipient\nin the national sample were: 1) It is unfair to give him a job when so\nmany veterans with honorable discharges are unemployed, 2) He may be\nuntrustworthy or undependable as an employee, 3) His fellow employees\nmight not accept him well. The above three were noted by 38, 31, and\n27 per cent of the respondents respectively. Local respondents also\nchecked #1 and #2 above as their main reasons as to why they might not\nhire a clemency recipient, but as their third most often cited reason\nthey offered, \"He has not fulfilled his obligation to his country\". These\nresponses were offered by 58, 42 and 42 per cent of the respondents re-\nspectively.\nIn the national sample the three most frequently cited reasons\nwhy an employer might hire a clemency recipient were: 1) His draft or\ndesertion offenses have nothing to do with how well he will perform his\njob, 2) If he performed alternative service, he has fulfilled his ob-\nligation to his country, and 3) It would be discriminatory and unfair to\n7\nhold these offenses against him. These responses were checked by 42,\n36, and 16 per cent of the respondents respectively. In the local\nsampling the three most often cited reasons why an employer might hire\na clemency recipient were: 1) If he performed alternative service, he\nhas fulfilled his obligation to his country, 2) His draft or desertion\noffenses have nothing to do with howwell he vill perform his job, 3) He\nstood up for what be believed. These responses were offered by 33, 27,\nand 18 per cent of the respondents respectively. Again, alternative\nservice seems to lessen the stigma attached to a discharge that is other\nthan honorable.\nAn indication of employer's agreement with the President's\nclemency program was solicited. At the national level, 47% of the re-\nspondents said they personally agreed with the program, 40% personally\ndisagreed with the program and 13% did not answer. On the local level,\n39% personally agreed with the program, 58% personally disagreed with the\nprogram, and 3% did not answer.\nThe disagreements were analyzed separately as to whether the\nrespondent disagreed because he felt the clemency program to be too\ngenerous, or because he perceived it as being not generous enough. On\nthe national level the disagreement were divided into 71% feeling the\nprogram was too generous, 22% feeling the program was not generous enough,\nand 7% simply registering disagreement. On the more conservative local\nlevel, the negatives divided into 79% feeling the program was too generous,\nonly 5% feeling it was not generous enough, with the balance of the replies\nfeeling that some aspects of the program were too generous, others not\ngenerous enough.\nData was obtained on other sociologically and demographically\nrelevant variables. These included the scope of the employment operation,\nthe number of persons employed, the type of business or industry involved,\nthe role of military status in the hiring process. Generally, larger more\nspecialized businesses expressed a greater willingness to employ clemency\nrecipients. More detailed information on this aspect of the study will be\nreported elsewhere.\nFor a clearer distinction between the various types of discharges the\nreader is referred to Army Regulation No. 635-200, Para. 1-5 C 15 Jul. 1966.\nThe distinction is also presented in \"The Gravity of Administrative Dis-\ncharges: A Legal and Empirical Evaluation' by Major Bradley R. Jones in\nMilitary Law Review Vol. 59, Winter 1973, pp. 1-25\n2The data presented in this article is drawn from replies received at the\ntime of writing. It is expected that sample size will increase while and\nafter the current report is in press. The national sample, as stated, draws\nfrom companies which engage in nationwide recruiting of personnel. The\nlocal sample is biased in the direction of such industries as small retail,\ncontruction, food and restaurant, and repair services.\nFORD i LIBRARY GERALD\nAPPENDIX M.\nM. BIBLIOGRAPHY\nA Selected Bibliography on Amnesty, AWOL and Sesertion\n1. Addlestone, David F. and Susan Hewman,\nPractice Manual on\nMilitary Discharge Upgrading, American Civil Liberties Union Foundation,\n1975.\n2. American State Papers: Documents, Legislative and Executive of the\nCongress of the United States Class X, Miscellaneous, Vol. I.\nWashington: Gales and Seaton, 1832.\n3. Amnesty: Repatriation for Draft-Evaders, Deserters.\" Congressional\nQuarterly Weekly, March 4, 1972, PP. 506-509.\n4. Army War College, Carlisle Barracks, Pa. Amnesty for those who Wouldn't\nGo, by Wilfred L. Ebel, 1973.\n5. AWOL in the Court of Claims: Denying pay without a military determinaion\nof absence. Iowa Law Review, June 1974, 59, 1365-1377.\n6. \"AWOL.\" The New Yorker, 21 October 1972, pp. 96-133.\n7. Baldwin, Leland D. Whiskey Rebels. Pittsburgh: Univ. of Pittsburgh\nPress, 1939.\n8. Bell, D. B. and Houston, T. J., The Vietnam Era Deserter: Characteristics\nof Unconvicted Army Deserters Participating in the Presidential Clemency\nProgram (Unpublished draft). U.S. Army Research Institute for the\nBehavioral and Social Services, 1975.\n9. Berbiglia, J. C. The AWOL Syndrome. Los Angeles: Psychological\nPublications, In\n1971.\n10. Begard, R., McCubbin, H., and Connolly, J., Jr. CTF AWOL study: The\ninfluence of assignment and MOS on the rates of AWOL recidivism: The\nPreliminary report. Ft. Riley, Kans.: U.S. Army Correctional Training\nFacility, 1969.\n11. Boyd, N. K., and Jones, H. H. An analysis of factors related to desertion\namong FY 1968 and FY 1969 Army accessions. Alexandria, Va. : Manpower\nDevelopment Division, Air Force Human Resources Laboratory, AFHRL-\nTR-73-63, January 1973. (AD 772 751)\n12. Boyle, Richard. Flower of the Dragon: The Breakdown of the US Army in\nVietnam. San Francisco: Ramparts Press, 1972.\n13. Chapman, James F., Presidential Pardons, JAG Journal, May, 1975, pp. 7-10.\n14. A Compilation of the Messages and Papers of the Presidents. 20 Vols.\nNew York: Bureau of National Liturature, [n. d.]\n- 2 -\n15. Comptroller General of the United States. Uniform Treatment of Prisioners\nUnder the Military Correctional Facilities Act Currently Not Being\nAchieved. Washington, D. C.: The Comptroller General of the United States,\nMay 1975.\n16. Congress and the Amnesty Issue; A Review of Activities and Proposals\nduring the Period 1969-1972. February 5, 1973.\n17. Cooke, Jacob E., ed. The Federalist. Middletown: Wesleyan Univ.\nPress, 1961.\n18. Commager, H.S., Documents of American History. New York: Appleton-\nCentury Crofts, 1963.\n19. Cortright, David, Soldiers in Revolt: The American Military Today.\nNew York: Anchor Press/Doubleday, 1975.\n20. Davis, D. B., Wolman, H. M., Berman, R. E., and Wright, J. Absence\nwithout Leave. War Medicine, 1945, 7, 147-151.\n21. Department of the Army Pamphlet 600-14. The AWOL Soldier, a Challenge\nto Leadership, September 1972.\n22. Department of Defense. Assignment of Male and Female Serving on Active\nDuty as of 30 June 1971, and 30 June 1972 by Service and DOD. (Manpower\nResearch Note 73-3.) Washington, D. C.: Office of the Assistant\nSecretary of Defense (Manpower and Reserve Affairs), June 1973.\n23. Department of Defense. Racial and Ethnic Group Composition of the Male\nEnlisted Force: 30 June 1971 and 30 June 1972. (Manpower Research Note\n73-8.) Office of the Assistant Secretary of Defense (Manpower and\nReserve Affairs), August 1973.\n24. Dorris, Jonathan Truman. Pardon and Amnesty Under Lincoln and Johnson.\nChapel Hill: Univ. of North Carolina.\n25. \"Draft Resisters in Exile: Prospects and Risks of Return.\"\nColumbia Journal of Law and Social Problems 7 (1971): 1-24\n26. Drucker, E., and Schwartz, S. The predicition of AWOL, Military Skills\nand Treadership Potential. Alexandria, Va.: Human Resources Research\nOrganization, January 1973.\n27. Etridge, John C. \"Amnesty: A Brief Historical Overview.\" In Amnesty\nHearings, infra, pp. 660-671. In remarks of Sen. Kennedy (Mass.) in\nthe Senate, 92d Congress, 2d Sess., Cong. Record 118: S3332-3337\n(daily ed.-- March 6, 1972.\n28. Finan, J. L., et al. A Preliminary Investigation of Delinquency in the\nArmy. (HumRRO Tech. Rep. 5) Alexandria, Va.: Human Resources Research\n- 3 -\n29. Fitt, A. B. Military Deserters. Statement at Hearings Before the U.S.\nSenate Committee on Armed Forces, Subcommittee on the Treatment of\nDeserters, 90th Cong., 2d Sess., 21-22 May 1968. Washington, D. C.:\nGovernment Printing Office, 1968.\n30. Fox, L., Sullivan, T., and McCubbin, H. Literature review: Research on\nMilitary Offenders. Ft. Riley, Kans.: U. S. Army Correctional Training\nFacility, November 1970.\n31. Freeman, Harrop A. \"An Historical Justification and Legal Basis for\nAmnesty Today.\" Law and the Social Order 1971: 515-534. In Amnesty\nHearings, infra, pp. 437-450.\n32. Glynn, Edward. \"Wooing of the President: Views of Richard Nixon and the\nU.S. Bishops on Amnesty.\" America, September 30, 1972, P. 221.\n33. Guttmacher, M. S., and Stewart, F. A. A psychiatric study of absence with-\nout leave. American Journal of Psychiatry, 1945, 102, 74-81.\n34. Halifax, Montreal, Toronto and Vancouver Aid Groups. A Trans-\nCanada Position Statement. Halifax, 17 January 1972.\n35. Howay, Jack W. \"Amnesty: An Old Gift in New Wrappings.\" Naval War\nCollege Review 25 (March-April, 1973): 46-57.\n36. Index to Legal Periodicals. New York: H. W. Wilson Co. Citations for\namnesty are found under the heading pardon.\" The best source for law-\nreview articles.\n37. Jones, Bradley K., \"The Gravity of Administrative Discharges,\"\nMilitary Law Review, Vol. 59, Winter 1973.\n38. Jones D., and Raish, D. American deserters and draft dodgers: Exile, punish-\nment or amnesty? Harvard International Law Journal, Winter 1971, 13, 88-131.\n39. Leach, Jack Franklin. Conscription in the United States: Historical Back-\nground. Rutland, Vermont: Charles E. Tuttle Publishing Co., 1952.\n40. Lindley, Forrest B., unpublished draft of paper on the administrative dis-\ncharge system. Available from Vietnam Veterans Center, Washington, D. C.\n41. Littlepage, G. E., and Fox, L. J. Personnel control facilities: An\nanalysis of AWOL offenders awaiting disposition. Ft. Riley Kans.\n4\n42.\nMcCubbin, H. I., et al. Leadership and Situational Factors Related to\nAWOL: A Research Report. Ft. Riley, Kans.: U.S. Army Correctional\nTraining Facility, 1971.\n43.\nMcCubbin, H. I., Fox L. J., and Connolly, J. R. AWOL Factors and\nTrainees' Evaluations of the Correctional Training Facility program.\nFt. Riley, Kans.: U.S. Army Correctional Training Facility, 1969.\n44.\nMalloy, William M. Treaties, Conventions, International Acts, Protocols\nand Agreements Between the United States of America and Other Powers,\n1776-1909. 2 Vol. Washington: G.P.O., 1910.\n45.\n\"Memo to Nixon: Why Not an Amnesty?\" National Catholic Reporter 5,\nno. 10, January 1, 1969.\n46.\nMiller, James Robert. \"Amnesty for Draft-Evaders.\" San Diego Law Review\n10 (1972) 176-193.\n47.\nMueller, J. E. Trends in Popular Support for the Wars in Korea and\nVietnam. American Political Science Review, 1971, 65(2), 358-375.\n48.\nOffice of the White House Press Secretary. Program for the Return of\nVietnam Era Draft Evaders and Military Deserters. Washington, D.C.:\nMimeographed Fact Sheet, 16 September 1974.\n49.\nOfficial Opinions of the Attorneys-General. Published privately and by\nthe Government Printing Office. Volume 11, published by W. H. and O.\nMorrison, Washington, 1869; Volume 20 by the G.P.O. Washington, 1895.\n50.\nThe Pardoning Power of the President. Washington: American Council on\nPublic Affairs, 1941.\n51.\nPennsylvania Archives. 2d Series, Vol. 4. Harrisburg: Secretary of\nthe Commonwealth, 1876.\n52.\nPlag, J. A., and Goffman, J. M. The prediction of four-year military\neffectiveness from characteristics of Naval recruits. Military Medicine,\n1966, 131, 729-735.\n53. Polner, Murray, ed. When Can I Go Home Again: A Debate on Amnesty for\nExiles, Anti-War Prisoners and Others. Garden City: Doubleday and Co.,\nAnchor Books, 1972.\n54.\nRichardson, James D.\nA Compilation of the Messages and Papers of\nthe Presidents. 10 Vols. Washington: G.P.O., 1897.\n55.\nRoth, Jeffrey and Rothman, Mitchell. \"The Authority of Congress to Grant\nAmnesty.\" Yale Legislative Services, April 14. 1972; in Amnesty Hearings,\nPP. 490-501.\n56..\nRuss, William A. \"Does the President Still Have Amnestying Power?\"\nMississippi Law Journal 16 (1944): 127-141.\n- 5 -\n57.\nSchaffer, Helen B. \"Amnesty Question.\" Editorial Research Reports, 2,\nno. 6 (August 9, 1972).\n58. Schissel, Lillian, ed. Conscience in America. New York: E. P. Dutton\n& Co., Inc., 1968.\n59. \"Sentencing Selective Service Violators: A Judicial Wheel of Fortune.\"\nColumbia Journal of Law and Social Problems 5 (1969) : 164-196.\n60. Shapiro, Andrew 0., and Striker, John M. Mastering the Draft--A Compre-\nhensive Guide for Solving Draft Problems. Boston: Little, Brown &\nCompany, 1970.\n61. Starr, Paul with James Henry & Raymond Bonner, The Discarded Army:\nVeterans After Vietnam. New York: Charterhouse, 1975.\n62.\nStouffer, S. A., et al. The American Soldier: Adjustment During Army\nLife. Princeton, N. J.: Princeton University Press, 1949.\n63. Stouffer, S. A., Suchman, E. A., DeVinney, L. C., Star, S. A., and\nWilliams, R. M. The American Soldier: Adjustment During Army Life.\nVolume I. New York: Wiley, 1965. (Originally published, 1949.)\n64. A study of desertion. (n.p., n.d.) Available from Pentagon Library,\ncall number UB 789. S33.\n65. U. S. Army Recruiting Command. Armed Forces Examining and Entrance\nStation Qualitative Distribution Report of Male Enlistments, Inductions,\nand Rejections (RCS DD-M(M) 663). Ft. Sheridan, Evanston, IL: Continuous\ndistributions monthly and annually.\n66. U. S. Congress. House of Representatives, Committee on the Judiciary.\nAmnesty, Hearings before the Subcommittee on Courts, Civil Liberties\nand the Advisory station of Justice. 93rd Congress, 2d Sess., 1974.\n67. U. S. Congress. Senate. Committee on the Judiciary. Amnesty and Pardon\nfor Political Prisoners. Hearings before a subcommittee on the Judiciary\non S. J. Res. 171. 66th Congress, 3d sess., 1921.\n68. U. S. Congress. Senate. Committee on the Judiciary. Selective Service\nSystem Procedures and Administrative Possibilities for Amnesty. Hearings\nbefore a subcommittee on Administrative Practice and Procedure. 92nd\nCongress, 2d sess., 1972.\n69.\nU. S. Library of Congress. Congressional Research Service. Amnesty: A\nSelective and Annotated Bibliography. April 9, 1973.\n70. U. S. President. Proclamation \"Granting Pardon to Certain Persons Con-\nvicted of Violating the Selective Training and Service Act of 1940 as\nAmended.\" Federal Register, XII, No. 250, 24 December 1947, P. 8731.\n- 6 -\n71.\nUS Selective Service System. Backgrounds of Selective Service--A Historical\nReview of the Principle of Citizen Complusion in the Raising of Armies.\nWashington: Government Printing Office, 1947.\n72.\nU.S. War Department. War Department policy with reference to the disposal\nof draft deserters (August 1920). Washington, D.C.: U.S. Government\nPrinting Office, 1920.\n73.\nU.S. War Department. The War of the Rebellion: a Compilation of the\nOfficial Records of the Union and Confederate Armies. Washington, D.C.:\nU.S. Government Printing Office, 1890-1901. (See Index vol., P. 248\nunder \"Deserters.\"\n74. Walkup, John Knox. \"Swords into Plowshares: Alternative Service require-\nments for Conscientious Objectors.\" Harvard Civil Rights--Civil Liberities\nLaw Review, Vol. 6, No. 3, May 1971, PP. 505-524.\n75.\nWashington, G. The Writings of George Washington. Washington, D.C.: U.S.\nGovernment Printing Office, 1931-44. Desertion during the Revolution.\n(See Vol. 38, General Index A-N under \"Desertion\", PP. 173-174. E 312.7\n.A5 1931.)\n76.\nWeisman, Norman. \"A History and Discussion of Amnesty.\" Columbia Human\nRights Law Review 4 (1972).\n77.\nWick, William D. \"The Case for an Unconditional Amnesty for Draft-Evaders\nand Armed Forces Deserters.\" Buffalo Law Review 22 (1972: 311-334\n78.\nWilliston, Samuel. \"Does a Pardon Blot Out Guilt?\" Harvard Law Review\n28 (1915).\n79. Wool, Harold, The Military Specialist: Skilled Manpower For the Armed\nForces. Baltimore: The John Hopkins Press, 1968."
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