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Charles E. Goodell Papers
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President (1974-1977 : Ford). Presidential Clemency Board. 9/16/1974-9/15/1975
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The original documents are located in Box 5, folder "Final Report - Draft, 8/29/75 (9)" of
the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Charles Goodell donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 5 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library
F
II. THE PRESIDENT'S CLEMENCY PROGRAM
F. CONDITIONAL, NOT UNCONDITIONAL, CLEMENCY
F. Conditional, Not Unconditional, Clemency
1. Introduction
The President extended his offer of clemency in a spirit of recon-
ciliation. At the same time, he expected those to whom his offer was
made to accept it in a spirit of reconcil ation. This meant two things:
First, the individual had to step forward and request that he be accepted
back into the community; second, he had to indicate his willingness to
again accept the responsibilities of a citizen by performing a period of
Atternative service. This fundamental part of the President's Program
most clearly distinguishes it from proposals for unconditional amnesty.
The President believed that an unconditional program would be appro-
priate for at least three reasons. First it would serve to divide the coun-
try further, when the great need was for reconcilation. While no alterna-
tive service could match the hardships of the millions who served honor-
ably in Vietnam, much less the sacrifices of those who were wounded or
died, the President rightly believed that reconcilation would occur only
if those who did not perform their military obligation were required to
perform a kind of substitute service.
Second, the President believed that those who failed to serve could
have no sound objection to doing the same kind of service as that performed
by thousands of conscientious objectors during the Vietnam era. This
/ Certain applicants to the Presidential Clemency Board received a form
of immediate clemency even if their pardon was conditioned upon perform-
ing Alternative Service. Persons furloughed had their prison sentences
commuted when the President signed their clemency warrants. Others with
probation, parole, or fines still outstanding also had those portions of their
sentences commuted immediately.
2
service permits a citizen to fulfill his obligation to his country by non-
military means if he cannot in good conscience bear arms on its behalf.
Finally, the President's firm desire that individuals be treated on a
case-by-case basis, and offered clemency according to the particular
circumstances of their case, required that conditions be imposed which
could reflect these different decisions. The alternative service condition
was peculiarly suited to this because it enabled the Board to adjust the
length of service to fit each individual case. The power to pardon,
created in Sections 1, 2, and 3 of the Constitution, carries with it the
power to condition the pardon upon the performance of certain conditions
before or after the grant. In Schick V Reed (
) the Supreme
Court made a thorough study of the Presidential pardon power, concluding:
this Court has long read the Constitution as authorizing the
the President to deal with individual cases by granting conditional
pardons. The very essence of the pardoning power is to
case individually.
In order to treat each individual case fairly and justly, the President
chose to exercise his prerogative to grant clemency only after certain
conditions had been met.
2. Application.
The President could have directed the Board to review the cases of
all those eligible without the requirement of an application. However,
since the grant of a pardon must be accepted by the recipient and also
could involve performing alternate service, it would have been a useless
gesture to review the cases of persons who would have declined the
President's offer anyway. Those individuals who wished to be
considered for clemency were thus required to make a specific
application for it.
The requirement that individuals affirmatively apply for
clemency had one unavoidable consequence: It made it in-
cumbent on the Board that we inform potential applicants of
the existence of the program. We are persuaded that sub-
stantially all of those eligible for the DOD and DOJ phases
learned of their eligibility, but also believe that a sub-
stantial number of persons eligible for our portion were
not aware of their elibility.
The application criteria were liberally construed. To
make a timely initial filing, the applicant or a person acting
in his behalf had to contact any agency of the Federal govern-
ment not later than the deadline of March 31, 1975. If this
contact was in writing by the applicant himself, or his
attorney, it was considered to be a valid application. If
the initial filing was made over the telephone or by some-
one other than his attorney, he had until May 31, 1975 to
confirm his request for clemency.
Where the application contained insufficient information
for us to obtain the facts necessary for our case-by-case
determination, we tried to contact the applicant and obtain
these facts. However, we could not consider applications
/ This subject is treated in more detail at pages
in this report.
absentee took the oath and agreed to perform alternative
service, he was given an undesirable discharge. Only
after an eligible applicant had complied with the application
requirements of his segment of the Program was he allowed
to start performing his alternative service period to earn
an upgrade to a Clemency Discharge.
3. Alternative Service
Once we determined the disposition of a case, it was
referred to the President for his approval and signature.
The President did not execute formal grants of clemency in
two classes of case-where the individual's conviction was
not yet final and appeal rights might result in reversal,
and where the individual was presently incarcerated for a
subsequent offense. In both cases the President signed a
"letter of intent" to offer clemency once the conviction
became final or the individual was released from confinement,
as the case may be. The obligation to begin service did not
begin until the warrant was signed.
Not all of our applicants were asked to perform alternative
service. Approximately fifty percent of our applicants were
asked to perform three to twelve months at a suitable alterna-
tive service job, but, forty-three percent received immediate
pardons or clemency discharges, without having to do alterna-
tive service.
6
Those who were required to perform alternative service
under any part of the President's program they came under
the jurisdiction of the Selective Service System, pursuant
to Executive Order 11804. From the date that we mailed the
letter to one of our applicants informing him that the
President's offer of clemency was contingent upon success-
ful completion of alternative service, he had thirty days
in which to enroll with Selective Service, Department of
Defense and Department of Justice applicants had 15 days.
All individuals with alternative service to perform
were informed by their referring agency that under Selective
Service rules they could perform this service in any state
in the United States. To enroll they had to go to the
place where they wanted to reside and contact the nearest
office of Selective Service. There are over 650 such offices
throughout the United States. (These offices are supervised
by 56 State Directors, located in each of the 50 states plus
New York City, the District of Columbia, Puerto Rico, Guam,
the Panama Canal Zone, and the Virgin Islands.) Initially he
had the opportunity of finding a job of hiw own choosing. If
he found a suitable job that he wished to perform, he was
required to notify his State Director a minimum of ten days
before the end of the thirty day period. This gave the State
Director ample time to determine if, in fact, the job met
the eligibility criteria.
The following criteria for acceptable alternative
service jobs were established by Selective Service:
A.
The enrollee must work full-time (i.e., forty
(40) hours per week) at a job that promoted the
national health, safety or interest,
B.
The enrollee must not interfere with the competi-
tive labor market (i.e., he cannot be assigned to
a job for which there were more qualified appli-
cants who were not returnees than there were
spaces available),
C.
The job must be with a non-profit organization
(e.g., the government, certain religious organiza-
tions, other charitable organizations).
D.
Unless he obtains a waiver from his State Selective
Service Director, the pay that an enrollee received
from his employer must provide him with a standard
of living that was at least equivalent to that which
he would have enjoyed had he gone into or stayed in
the military.
E.
The Selective Service sought to find jobs that would
utilize any special skills or talents that an enrollee
had.
If the enrollee did not find a suitable job, the State
Selective Service Director had to have found one for him
by the end of the thirty day period.
Because of local economic situations, it has often been
difficult for enrollees to find their own jobs, and it has
not even always been possible for Selective Service to place
every enrollee within the thirty day period. To be fair to
the enrollee, Selective Service rules specified that if
through no fault of his own the enrollee had not been placed
in a job within the thirty day period, creditable time would
commence on the thirty-first day following his enrollment.
While this provision is not entirely satisfactory since
it permits an individual to "earn" clemency before he has
a job, it avoids penalizing individuals who are willing
to serve but for whom no job is available.
For many, alternative service jobs have offered the
beginning of a new career:
A former Marine's alternative service has
consisted of assisting a jailer. He adapted
well to his job, went to school on his own
time, and is now a deputy sheriff.
An Army veteran was assigned as a rodent and
insect control inspector for the city's
health department. His supervisor is so
pleased with his work that he hopes to retain
him after his alternative service is over.
So far, almost 70 people have completed their periods of
alternative service under the President's program. As the
table below indicates, the Department of Defense segment
of the program has the highest number of applicants in
this category. Others have begun their jobs, but --
unfortunately -- many others have not.
9
Information on Reconcilation Service Program
August 11, 1975)
Department
Clemency
Cummulative
Status
Military
of Justice
Board
Totals
Totals
Enrolled
4508
723
101
5332
1
Completed A/S
52
9
7
68
68
At Work
1353
459
19
1831
1899
Referred to Job(s)
909
170
12
1091
2990
Job Interruptions
145
29
2
176
3166
Postponed
63
21
2
86
3252
New Enrollees
15
57
72
3324
Terminated
1986
20
2
2008
5332
The success of the Department of Justice in having its applicants
do alternative service reflects the threat of prosecution facing
those terminated from the program. Many Department of Defense
applicants may have applied for clemency just to end their
fugitive status and receive an Undesirable Discharge. This
may explain the large number of Defense applicants who either
never enrolled with Selective Service or later terminated for
failing to accept the designated employment.
The failure of many of our applicants to enroll with Selective
Service or to begin alternative service work may be the result
of two factors. Many of our clemency recipients may not
understand some basic facts about their alternative
service obligation. Unlike the other two agencies with
clemency programs, we were unable to counsel our appli-
cants in person. Likewise, our shorter alternative service
assignments of three to six months may make it harder for
our applicants to find jobs.
III
III. PCB CASE DISPOSITIONS
CHAPTER III. CASE DISPOSITIONS
The products of our year's work on the Clemency Board were our 16,000 case
dispositions. Most Board members participated in thousands of these decisions, each
one carefully determined on the basis of our baseline formula and designated factors.
In hearing so many cases, some inconsistencies were bound to occur. However,
the process we followed and the substantive rules we applied reduced these
inconsistencies to a minimum.
Almost always, our different treatment of different kinds of individuals
reflected the contrasting facts of their cases. For example, our No Clemency rate
for black applicants was over twice (12%) what it was for whites (5%), because
of the greater number of blacks who had been convicted of violent felony offenses.
(Our pardon rate was the same for black and white applicants -- (43%).
Similarly, our case dispositions for civilian applicants were considerably
more generous than for our military applicants. Our pardon rate for civilians
was over twice that for discharged servicemen, while our civilian No Clemency rate
was less than one-fifth of that for servicemen for military applicants.
Our actual case dispositions are listed below:
*
PCB FINAL DISPOSITIONS - MILITARY
Number
Percent
Cumulative
Upgrade
468
3.6
3.6
Pardon
4420
34.0
37.6
1-3 mos.
2613
20.1
57.7
4-6 mos.
2977
22.9
80.6
7-9 mos.
1235
9.5
90.1
10-12 mos.
442
3.4
93.5
13 + mos.
26
0.2
93.7
No Clemency
819
6.3
100.0
Total
14,000
* These are projections based upon current Board trends.
PCB FINAL DISPOSITIONS - CIVILIAN
Number
Percent
Cumulative
Pardon
1652
82.6
82.6
1-3 mos.
164
8.2
90.8
4-6 mos.
98
4.9
95.7
7-9 mos.
22
1.1
96.8
10-12 mos.
34
1.7
98.5
13 + mos.
8
0.4
98.9
No Clemency
22
1.1
100.0
Total
2000
PCB FINAL DISPOSITIONS - TOTAL
Number
Percent
Cumulative
Upgrade
468
3.1%
3.1%
Pardon
6072
40.5%
43.6%
1-3 mos.
2777
18.5%
62.1%
4-6 mos.
3075
20.5%
82.6%
7-5 mos.
1257
8.4%
91.0%
10-12 mos.
476
3.2%
94.2%
13 + mos.
34
.2%
94.4%
No Clemency
841
5.6%
100.0%
Total
16,000
For our military applicants, we had four types of case dispositions: Upgrades
recommendations, Outright Pardons, Alternative Service, or No Clemency. For
civilian applicants, we had three: Outright Pardons, Alternative Service, No Clemency.
In addition, our alternative service dispositions could either stay at the applicant's
baseline, go up from that baseline, or go down from it. As shown below, our applicant's
baselines almost all were between thre e and six months.
Baseline
CIVILIAN
MILITARY
3 months
94.6%
87.8%
4-6 months
2.9%
15.5%
7-12 months
0.7%
0.6%
13-24 months
1.9%
0.7%
Examples of Case Dispositions
The reasons for our case dispositions varied greatly from case to case.
However, it is possible to give examples of frequently-encountered categories of
cases. In the discussion which follows, we illustrate our different types of
dispositions for military and civilian applicants.
Military Applicants
The most generous disposition for military cases was an upgrade recommendation.
We recognized that a few military applicants had truly outstanding service
records prior to their AWOL proglems. When we found the offenses were not so
serious that a pardon was warranted, we also recommended that the applicant's
discharge be upgraded and that he receive veteran's benefits. As a minimum,
applicants must have had creditable service and a tour in Vietnam to be considered,
but wounds in combat, decorations for valor, and other mitigating factors were also
important.
(Case # 09067)
Applicant had 4 AWOL's totalling over 8 months,
but he did not begin his AWOL's until after returning
from two tours of duty in Vietnam, when his beliefs
concerning the war changed. He came to believe that the
U. S. was wrong in getting involved in the war and that
he "was wrong in killing people in Vietnam. He had
over three years' creditable service, with 14 excellent
conduct and efficiency ratings. He re-enlisted to serve
his second tour within 3 months of ending his first. He
served as an infantry man in Vietnam, was wounded, and
received the Bronze Star for valor.
Although only 3.6% of our military cases were so outstanding as to qualify
for upgrade recommendations, 34% of our military cases merited an outright pardon
without upgrade recommendations. There were two broad groups of cases that often
received pardons. First, there were the applicants who had understandable reasons
for their offenses.
2.
(Case #12631)
Applicant enlisted in 1960 and had a good record
In 1963 he married, but he began to have marital
problems soon afterwards. He was in a car accident
in 1964. The combination of these two influences
drove him to drink, and he became an alcoholic. His
frequent AWOL's were directly attributable to his
alcoholism.
The other broad group of military pardon cases were those applicants whose
offenses were those applicants whose offenses were relatively minor and whose
service records were good:
(Case #11606)
Applicant had 4 AWOL's totalling 6 days and surrendered
after the last two. He had 1 year and 9 months' creditable
service with above average conduct and proficiency ratings
and served a tour in a task force patrolling the waters
off Vietnam.
The bulk of our military cases resulted in alternative service dispositions.
As a general rule, these cases involved both aggravating and mitigating factors
which balanced out.
(Case #00291)
The applicant commenced his first AWOL after he was assaulted
by a cook while in KP. After his second AWOL, he was
allegedly beaten by 5 MP's while confined in the stockade.
On the other hand, he committed four AWOL's, the last one
lasting almost 3 1/2 years, and had less than one month of
creditable service.
(Case # 14813)
Applicant sent AWOL because he was involved with a girl and
was using drugs. He is presently incarcerated in a civilian
prison for a minor breaking and entering. On the other hand,
his two AWOL's were each of a few days' duration, and he is
a very low category IV AFQT.
No clemency dispositions normally resulted from other serious felony convictions,
such as the following.
(Case #10147)
While in the service, applicant received a General Court
Martial for robbery with force. After his discharge, he
was arrested and found guilty of armed robbery in Michigan.
(Case #04071)
Applicant is now serving a 15-year sentence in a civilian
prison for selling heroin
(Case #14930)
After discharge, applicant was convicted in a civilian court
of first degree murder and second degree robbery. He received
3.
a sentence of 25 years to life and will not be eligible
for parole until 1997.
Occasionally, we would deny clemency when the applicant committed his offense
out of cowardice, as in the following.
(Case #03304)
Applicant would not go into the field with his unit, because
he felt the new Commanding Officer of his company was in-
competent. He was getting nervous about going out on an.
operation; there was evidence that everyone believed there
was a good likelihood of enemy contact. (His company was
subequently dropped onto a hill where they engaged the enemy
in combat). He asked to remain in the rear, but his request
was denied. Consequently he left the company area because,
in the words of his chaplain, the threat of death caused him
to exercise his right of self-preservation. Applicant was
apprehended while travelling on a truck away from his unit
without any of his combat gear.
We also denied clemency if offenses were simply too serious and plentiful to
excuse.
(Case #03444)
Applicant received an SCM for two periods of AWOL (one day
each) and one charge of missing movement. He then received
an NJP for one AWOL (one day), another NJP for three AWOL's
(1; 1; 10 days), and one NJP for two AWOL's (7; 1 days).
He then received an SPCM for two AWOL's (2 months 17 days;
3 months 19 days). He accepted an undesirable discharge
in lieu of court martial for one period of desertion (2 yrs.
10 months 20 days), five periods of qualifying AWOL (8 days;
3 months 28 days; 1 month 2 days; 2 months 13 days; 6 months
29 days) and one period of non-qualifying AWOL (3 months
28 days). This is a total of one period of desertion, 15
periods of qualifying AWOL and one non-qualifying AWOL (total
of 5 years).
Civilian Applicants
An overwhelming majority of our civilian applicants received an outright pardon
without having to perform additional alternative service. It is difficult to cate-
gorize the pardon cases; such factors as conscientious reasons for the offense, an
improper denial of conscientious objector status, other personal or procedural un-
fairness, employment or other service to the public, and surrender to the authorities
all strongly influenced the decision to grant clemency. Occasionally we had a case
that combined them all.
4.
(Case #00552)
Applicant filed for a C.O.'s exemption on the basis
of his ethical conviction that the preservation of life was
a "fundamental point of my existence.' The local
board denied it, presumably because his convictions were
ethical and not religious. Furthermore, he never re-
ceived notice that his request was denied. When ordered
to report for induction, he argued that he had not been
informed of the denial and requested an appeal. His
local board denied this request because the 30-day appeal
period had expired and mailing the denial of applicant's
request to his home constituted constructive notice of
the contents. Applicant refused induction, voluntarily
appeared at his trial, pled guilty and received a sentence
of three years' probation. During that period he worked
as a pharmacist for alternative service, but he also
worked as a volunteer on a drug abuse hotline and served
on the Board of Directors of the town's Youth Commission.
Pardon Conditioned Upon Alternative Service
The civilian cases resulting in alternative service generally fell into two
categories. First, some civilian applicants who have committed their offense for
conscientious reasons but served only a portion of their sentences.
(Case #00022)
Applicant claimed his refusal to report fro induction
was based on his philosophical convictions regarding
life. He was sentenced to three years in prison but
served only six months when he received a furlough
because of the clemency program. The second category of}
The second category of alternative service cases were those in which the
applicant committed offense for slightly selfish reasons, but there were no
other serious aggravating circumstances.
(Case #548)
Applicant was convicted of failure to inform the local
board of his current address. At the time he was drifting
around with no fixed address so he did not bother to keep
in touch with his local board.
No Clemency. Very few of our civilian applicants did not receive clemency.
When they did not, it was often because they had either committed other violent
or heinous felonies.
5.
(Case #02407)
This civilian applicant had three other felony convictions
in addition to his draft offense. On 23 September 1970
he received a one-year sentence for sale of drugs. In
1971 he received one year of imprisonment and two years
of probation for possession stolen property. On 18 October
1972 he was convicted of failure to notify his local board
of his address and sentenced to three years' imprisonment
which was suspended and applicant was placed on pro-
bation. His probation was not satisfactorily completed
because on 23 March 1974 he was convicted of assault,
abduction and rape for which he received a 20-year
sentence.
We also denied clemency to applicants whose attitude and uncooperativeness
were contradictory to the spirit of the clemency program.
(Case #10374)
Applicant wrote the local board and asked for a post-
ponement of his induction because he alleged he had
received injuries in a car accident which disqualified
him for military service. He did not submit a physician's
statement. The board, therefore, ordered to report. lie
claimed the board had ignored his earlier request and did
submit a statement from his doctor showing that he had
received some injuries in a car accident. However, another
doctor examined the applicant and found him completely
healed. Applicant refused induction and was convicted;
he received a sentence of 30 days in jail and 2 years'
probation. He admitted in an interview with the probation
officer that his reason for refusing induction was that
he did not want to go into the Army because he had recently
married and his wife was pregnant. The Probation Officer
reports that applicant's adjustment to probation is poor;
he has shown no initiative and is out of work most of the
time. His wife is now supporting him.
ANALYSIS OF BOARD DISPOSITIONS
The Board's case dispositions can perhaps best be understood by looking
at their relationships to the mitigating and aggravating factors. As one
might expect, case dispositions hinge directly upon the presence of absence of
several key factors. Consider the following table:
Alternative
No
Veterans Benefits
Pardon
Service
Clemency
Mitigating
1
35.6%
28.0%
27.9%
31.2%
2
49.8
40.6
45.5
23.7
3
19.7
18.2
14.0
12.1
4
1.0
21.8
3.9
1.7
5
20.8
2.4
.5
I
6
99.6
73.1
73.1
73.5
7
98.1
33.5
8.6
18.4
8
16.3
20.0
9.6
7.0
9
-
4.0
.5
.2
10
4.2
29.3
4.8
.2
11
51.0
50.2
36.9
20.9
12
47.4
7.4
.8
1.7
13
40.6
10.5
3.2
2.6
14
86.6
40.2
27.3
22.8
15
41.5
2.7
.2
.2
16
35.1
4.3
..3
1.0
Alternative
No
Veterans Benefits
Pardon
Service
Clemency
Aggravating
1
33.1%
32.2%
46.4%
92.3%
2
0
.1
.1
.4
3
.3
.1
.2
.8
4
.6
1.1
1.2
6.5
5
3.0
9.5
41.7
55.7
6
0
1.1
.5
.4
7
.9
1.9
4.5
10.3
8
81.0
58.3
81.1
86.8
9
5.9
44.3
68.3
56.7
10
5.1
3.9
7.9
4.1
11
.9
3.6
10.9
11.5
12
7.3
18.3
31.2
24.1
* This table combines military and civilian cases.
The above table made no distinction between military and civilian cases.
However, the 83% pardon rate for civilians was twice that for military applicants
(41%) This is largely attributable to the different factors prevailing in the
the
two types of cases. The following table shows frequency with which all factors
were applied in civilian and military cases.
Percentage of
Percentage of
*
MITIGATING FACTORS
Civilian cases
Military Cases
#1 Inadequate Education
6.1
35.2
2 Personal/Family Problems
12.7
46.3
3 Mental/Physical Problems
9.7
15.1
4 Public Service
51.9
1.5
5 Service-Connected Disability
0.6
3.1
6 Creditable Military Service
2.5
81.3
7 War Zone Service
1.7
26.4
8 Procedural Unfairness
6.6
13.1
9 Denial of CO Status
11.7
1.1
10 Motivated by Conscience
65.9
4.6
11 Voluntary Return
59.7
38.4
12 Mental Stress from Combat
0.4
6.4
13 Combat Volunteer
0
10.0
14 Military Performance
1.1
41.3
15 Decorated for Valor
0
4.3
16 Wounded in Combat
0
3.8
(None)
5.3
(30)
Percentage of
Percentage of
ACGRAVATING FACTORS
Civilian Cases
Military Cases
#1 Other Adult Convictions
6.1%
48.8
2 False Statement to PCB
0
0.6
3 Physical Force
0.6
1.1
4 Desertion During Combat
0.4
2.4
5 Selfish Motivation
16.7
27.9
6 Failure to do Alternative Service
4.9
0.3
7 Probation/Parole Violation
5.7
3.7
8 Multiple AWOL/UA Offenses
1.5
80.8
9 Extended AWOL/US
0.4
63.0
10 Missed Overseas Movement
0.2
5.6
11 Other Offenses
0
3.0
12 Apprehension by Authorities
3.4
17.6
(None)
(48.3)
(1.6)
Apart from the factors which were distinctly military, a few patterns emerge.
Civilian applicants were much more likely to have mitigating factor #10 (conscientious
reasons for offense), while military applicants were much more likely to have
aggravating factor #1 (other felony convictions or other court-martial convictions). .
As the discussion below demonstrates, these two factors alone were accountable
for much of the difference between civilian and military case dispositions.
*
Note that a small percentage of our civilian applicants served in the military
their draft offense convictions.
MILITARY APPLICANTS
Mitigating and aggravating factors often had a combined, rather than separate
effect upon case dispositions. For example, mitigating factor #6 indicated the length
of creditable military service, while mitigating factor #14 reflected the quality
of service. The two together told a much different story about a person than
did one without the other. Consider the following chart of the eleven most
frequent combinations of mitigating and aggravating circumstances in military
cases, ranked in order of the generosity of our case dispositions:
Agg.
Mit.
# of
Leniency
Factors
Factors
cases
Pardon
1-3AS
4-6AS
7+AS
N/C
Ratio
8,9
2,6,11,14
47
18
17
10
2
2
3.09
1,8,9,12
2,6,14
66
30
16
14
3
3
3.02
1,8,9
1,2,6,11
50
21
10
13
4
2
2.88
8,9,12
1,2,6
44
10
21
10
3
0
2.86
1,8,9,12
2,6
78
15
22
31
7
3
2,85
1,8,9
2,6,11
63
15
22
20
3
3
2.84
1,8,9,12
1,2,6
48
13
19
13
1
2
2.83
8,9
2,6,11
57
10
23
22
2
0
2.72
8,9,12
2,6
67
11
19
33
4
0
2.55
5,8,9,12
6
43
1
4
25
13
0
1.84
1,5,8,9,12
6
59
0
6
24
24
5
0.76
Add just one factor -- mitigating factor #7 (Vietnam service) -- to the same
combinations, and completely different results emerge. The table below lists the
thirteen most frequent combinations of factors applicable to Vietnam veterans. Note
the much more widespread application of mitigating factor #14 and the total absence
of aggravating factor #5. The pardon rate of roughly 75% for Vietnam veterans
contrasted with a pardon rate of only about 25% for other military applicants.
Specifically, when mitigating factor #7 was added to the two combinations listed at the
top of the above chart markedly different results occurred. Again, note that the
"No Clemency" cases all involved aggravating factor #1, probably reflecting felony
convictions for violent crimes.
CIVILIAN CASES
As noted earlier, civilian cases were generally decided more generously than
military cases, usually because of the absence of aggravating factors and the presence
of mitigating factors #4 (prior alternative service) and #10 (conscientious reasons
for offense). In the absence of aggravating factor #5 (selfish reasons for offense),
the presence of either of these two mitigating factors generated a pardon in 97%
of all civilian cases. However, a finding of aggravating factor #5 reduced the
civilian pardon rate to just 35%. Some No Clemency decisions were based on that
factor alone. The table below lists the twenty most frequent civilian factor
combinations, in decreasing order of the generosity of case dispositions. Note
that some pardons were granted without any Mitigating Factor, and one No Clemency
without any aggravating factor. These cases were flagged by computer for
possible reconsideration by the Board.
AG
Mit.
POP
Pard.
1-3AS
4-6AS
7+AS
N/C
Ratio
None
2,4,10,11
32
32
4.00
None
9,10,11
28
28
12
4,10
19
19
4.00
12
10
16
16
4.00
None
4,9,10
13
13
4.00
None 3,4,10,11
10
10
4.00
None
10,11
152
150
2
4.99
None
4,10,11
345
340
4
1
3.98
None
4,11
23
22
1
3.96
None
4,10
117
112
4
1
3.95
None
10
64
59
3
2
3.94
6
4,10,11
13
12
1
3.92
None
2,4,10,11
11
10
1
3.91
5
4
17
10
4
2
1
3.59
None
4
16
12
2
1
1
None
3.44
None
21
12
5
1
2
1
5
3.19
4,11
15
7
3
3
2
5
3.00
11
22
7
5
6
3
1
5
2.68
None
18
1
8
4
4
1
2.22
Leniency
AG
MIT
POP
P
1-3AS
4-6AS
7+AS
N/C
Ratio
1,8,9
1,6
24
4
8
5
2
5
2.21
1,5,8,9
6,11
33
3
4
14
6
6
1.76
1,8
1,6,11
11
3
1
2
-
5
1.73
1,5,8,9
6,14
20
-
2
9
3
6
1.35
1,5,8
6
29
1
1
11
6
10
1.21
1,8
6
23
1
3
.5
2
12
1.09
1,5,8,9
6
30
-
2
8
10
10
1.07
AGG.
Mit.
POP
Pardon
1-3 AS
4-6AS
7+AS
N/C
Ratio
4.00
1,8,9,12
1,2,6,7,14
11
11
4.00
1,8
6,7,14
10
10
1,8,9
2,6,7,11,14
13
12
1
3.85
8,9
2,6,7,11,14
19
15
3
1
3.74
8,9
2,6,7,11,13,14
11
8
3
3.73
8,9
6,7,11,14
11
8
3
3,73
8,9,12
2,6,7,14
17
13
2
2
3.65
3.56
1,8,9,12
2,6,7,17
18
14
2
1
1
1,2,6,7,11,14
13
11
1
1
3.54
1,8,9,
1,8,9
2,6,7,14
10
9
1
3.30
1,8
2,6,7,11,14
15
11
1
1
2
3.27
2,6,7,
11
7
2
1
1
3.27
1,8,9,12
1,8,9,12
6,7,14
10
5
1
2
2
2.70
The No Clemency Disposition in military cases usually (but not always) involved
aggravating factor #1. Aggravating factor #5 was also often present, along with
common
few or no mitigating factors. The chart below lists the ten most combinations of
factors which produced the greatest number of military No Clemency cases. The pardon
rate for these cases was only about 5%. Note also that cases with both aggravating
factor #1 and #5 and no mitigating factor almost invariably involved a jump from
our baseline (almost always 3 - 6 months in military cases) or a No Clemency decision.
There were not many civilian No Clemency cases, but a look at them shows
the importance of aggravating factors #1 (other felony convictions) and #5.
Aggravating factor #1 was shown by the above table to have been present in none
of the most prevalent combinations of civilian factors. However, it was present
in 15 of the 19 civilian No Clemency cases, two of the remaining four being
apparently unusual panel dispositions. In the table below, note the total
absence of mitigating factor #10.
AG
MIT.
POP
Pard.
1-3AS
4-6AS
7-AS
N/C
Ratio
None
4
16
12
2
-
1
1
3.44
None
None
21
12
5
1
2
1
3.19
5
11
22
7
5
6
3
1
2.68
5
None
18
1
8
4
4
1
2.22
1,5
2
3
1
-
-
1
1
1.67
1,5
None
3
1
-
-
1
1
1.67
1
None
5
1
1
-
1
2
1.60
5,7
None
2
-
-
-
1
1
0.50
1,5,7
None
2
-
-
-
-
2
0.00
1,5,6
None
1
-
-
-
-
1
0.00
1,5,7
2
1
-
-
-
-
1
0.00
1,5
8
1
-
-
-
-
1
0.00
1,5
11
1
I
-
-
-
1
9.00
1
3
1
-
1
-
-
1
0.00
1
11
1
-
-
-
-
1
0.00
1
2,6
1
-
-
-
-
1
0.00
1,5,8
1,6,11
1
1
-
-
-
1
0.00
Comparison with Case Dispositions for the Other Programs
Our applicants -- military and civilian -- had already paid a price before
they applied for clemency. Roughly half had been incarcerated, most for several
months. Many had performed alternative service as a condition of probation.
Our baseline formula took this into account.
As a result, our case dispositions were naturally different from those of
the Justice and Defense Department programs. Their applicants had never paid
any price (other than the hardship of being a fugitive -- a factor which no
clemency program should weigh in its calculations). At the same time, we were
the only part of the President's program to grant clemency selectively. Neither
the Justice Department nor the Defense Department denied clemency to any eligible
applicant. The tables below show the alternative service assignments of the
other two parts of the President's clemency program.
DOJ PROGRAM
Average Alternative Service by Circuit
Number
Circuit
of Cases
Average Sentence
DC
1
24.0
56
17.5
First
169
19.6
Second
48
20.5
Third
Fourth
30
19.8
Fifth
88
22.5
Sixth
54
20.9
Seventh
18
16.8
Eighth
37
18.1
186
19.6
Ninth
Tenth
16
Comparing their case dispositions to ours can be misleading, unless prior
punishments are taken into account. When our military applicants' time in jail
(average: 2½ months) is taken into account according to our baseline formula--
which gives three months credit for every one month in jail -- the comparison changes.
Our case dispositions are still shown to be somewhat more generous than Defense's
but not by as much as a straight-line comparison would indicate.*
COMPARISON OF PCB AND DOD CASE DISPOSITIONS
DOD
Unadjusted PCB
Adjusted PCB
Disposition
Cumulative %
Cumulative %
Commulative %
Pardon
0
41
0
1-5 mos
2
66
0
6-12 mos
15
28
66
13-18 mos
22
0
28
19-24 mos.
100
0
0
25+ mos
-
0
0
No Clemency
-
6
6
Likewise, compare our program with that of the Department of Justice. Our
civilian applicants have served an average of 4 months in jail and 5 months of
prior alternative service. When our baseline calculation is applied, our
dispositions are shown to have been more severe than those of the Department of Justice**
COMPARISON OF PCB AND DOJ CASE DISPOSITIONS
DOJ Cumulative
Unadjusted PCB
Adjusted PCB
Disposition
Percent
Cumulative %
Cumulative Percent
Pardon
0
83
0
1-5 mos.
2
10
0
6-12 mos.
13
6
0
13-18 mos.
36
0
0
19-24 mos.
100
0
0
25+ mos
-
0
99
No Clemency
-
1
1
* This table assumes, obviously incorrectly, that all our military applicants
were "average" applicants.
One further note should be made about the Justice Department case dispositions.
For a wholly decentralized program, implemented by 94 United States Attorneys, the
consistency of case dispositions was substantial. As indicated by the following
table, the average alternative service assignments differed very little from
circuit to circuit. Some extremes did occur: The Eastern District of New York
assigned
of
applicants to 24 months of alternative service, while the
Western District of New York assigned its
applicants only an average of
months of alternative service -- only
of whom received the maximum
24 months. However, these districts were the exceptions.
IV A
IV. PCB APPLICANTS
IV. PCB APPLICANTS
A. INTRODUCTION
IV-A-1
Chapter IV: PCB Applicants
Chance and circumstance had much to do with the sacri-
fices faced by each individual during the Vietnam War. Only
9% of all draft-age men served there. Less than 2% ever faced
charges for draft or desertion offenses, and only 0.4%--less
than one out of two hundred--were convicted or still remain
charged with these offenses. By contrast, 60% of all draft-
age men were never called upon to serve their country.
War and conscription are, by nature, selective and in-
equitable. In a sense, our applicants were victims of misfor-
tune as much as they were guilty of willful offenses. Most
other young Americans did not have to face the terrible choices
which they did. For this reason alone, applicants to the
President's clemency program deserve the compassion of their
fellow countrymen.
As we decided cases, we came to understand better the
kinds of people who had applied for clemency. By the time our
Board had reviewed all cases, each of us had read approximately
4,000 case summaries for our respective panels. From these
case summaries, we learned what our applicant's family back-
grounds were like, what experiences they had with the draft and
the military, why they committed their offenses, and what
punishments they endured.
IV-A-2
Many of our applicants fell into common categories:
The civilian conscientious war resister who was denied in
his application for CO status and faced trial and punish-
ment was a matter of principle; the Jehovah's Witness who,
although granted a CO exemption, went to jail because his
religion prohibited him from accepting an alternative service
assignment from Selective Service; the Vietnam veteran who
went AWOL because of his difficulties in adjusting to post-
combat garrison duty; the young serviceman, away from home for
the first time, who could not adjust to military life; the
serviceman with his family on welfare, who went AWOL to find
a better-paying job to support them.
We also had more extreme cases: The civilian who dodged
and manipulated the system not for conscientious reasons, but
simply to avoid fulfillment of any kind of obligation of
national service--or the soldier who deserted his post under
fire.
In this chapter, we describe our civilian and military
applicants. Who were they? What did they do? Why did they
do it? Our actual cases tell much of the story, supplemented
by the results of a comprehensive survey we conducted from
the case summaries of almost 1,500 applicants. In our conclusion,
we try to identify who did not apply, why they did nct, and
what happens to them now.
B IV
IV. PCB APPLICANTS
B. OUR CIVILIAN APPLICANTS
IV-B-1
Our Civilian Applicants
During the Vietnam Era, there were approximately 28,600,000
men of draft-eligible age. About forty percent --- 11,500,000 --
served in the Armed Forces either before or during the Vietnam
War.
The rest, 17,100,000 men, never served in the military. Of
those, 12,250,000 either never registered for the draft, built
deferment on deferment, had high lottery numbers, or were other-
wise passed over by induction calls. Another 4,650,000 were given
other kinds of permanent draft exemption usually because of mental
or physical deficiencies; 145,000 of these exemptions were for
conscientious objection to war.
The Selective Service System issued 209,000 complaints re-
garding individual draft offenses, usually for failure to report for
induction or a pre-induction physical exam. Almost 90% (173,700)
of the complaints never resulted in indictments. Some registrants
agreed to enter military service as soon as their complaint was
issued; others never had charges brought against them despite their
continued refusal to join the service. Apparently, no records
exist to show how many were in each of the two categories.
Only 25,300 Selective Service complaints resulted in grand
jury indictments. Of those indicted, 4,522 remained fugitives un-
til the start of the clemency program. The remaining 20,800 stood
trial.
IV-B-2
Most (12,100) were acquitted; 8,700 were convicted. Only 4,900
ever went to jail. Thus, about 13,000 civilians either were
convicted of draft offenses or were still facing draft charges
when the President announced his clemency program. For every one
of them, 12,000 others escaped military service by other means.
5/
Background
6
Our civilian applicants were predominantly white, and came
from average American families. Over two-thirds were raised by
both natural parents, most had one to three brothers and sisters,
and evidence of severe family instability was rare. The proportion
of Blacks and Spanish-speaking persons was about the same as found
in the general population.
They grew up in cities and suburbs, with disproportionately
many in the West and few in the South. Born largely between 1948
and 1950, they were part of the "baby boom" which was later to
face the draft during the Vietnam War. Over three quarters had
high-school degrees, yet only 18% ever finished college. Only a
very small percentage ever had trouble with the law aside from their
draft offenses. In most ways, they were not unlike young men in
cities and towns across the United States. *
*
Unless otherwise noted, all statistics about our applicants came
from our own survey of approximately 500 civilian applicants.
IV-B-3
Two things set them apart. First, over 80% opposed the
war in Vietnam strongly enough to face punishment rather than
fight there. Second, they--unlike many of their friends and
classmates - were unable or unwilling to evade the draft by ex-
emptions and deferments or escape prosecution through dismissal
and acquittal. They were unique in that they chose to stay within
the system and pay a penalty for their conscientious opposition to
the war.
Experience with the Selective Service System
Registration
Our applicants, like millions of young men, came into contact
with the Selective Service System when they reached the age of 18.
Often, it was their first actual contact with a government agency ---
an agency with which they had little in common.
The rationale behind the concept of Selective Service was that
established members of the community were the right ones to decide
from a group of eligible young who would serve in the military
and who would be exempt. It was hoped that this system would allow
decisions to be made on a case-by-case basis. Board members who
were sensitive to the national need could still consider
the special circumstances that often surrounded individual cases.
IV-B-4
This philosophy was based on a promise of trust and open
communication between individuals and board members. Often that
trust did not materialize. There were differences in age, life styles,
racial composition, values and opinions concerning the Vietnam
war.
The typical local board member was in his late fifties, with
20% over 70 years old. In the mid 1960's, 1.3% of all local board
members were black and 1.5% spanish-speaking. Many of the state
directors were Reserve or National Guard officers on active duty.
Beginning in the late 1960's and early 1970's the Selective
Service System made efforts to have the local draft boards more
accurately reflect the population of their areas. For example, 16%
of all local board members are now Spanish speaking, or of another
minority background
Classification
Immediately after our applicants registered with the local
board, they were classified by their respective "neighborhood"
draft boards according to its interpretation of the law and regu-
lations of the system. Varying interpretations resulted from this
decentralized system, and produced wide differences in the treatment
afforded to similar registrants. Today, a single national interpre-
tation of the law is promulgated in the regulations which are binding
upon local draft boards and which are supported in detailed procedural
IV-B-5
directives intended to provide uniformity of processing and
equality in treatment. The reform did not affect the authority
of the local draft board to classify men, but rather required that
all local boards classify the same way.
Another major problem in the classification procedure was the
lack of accurate and adequate information. The problem was two-
fold. Information had to be swiftly and accurately conveyed from
the National Headquarters to the local and state draft boards be-
fore it could be conveyed to the registrant. If local boards were
ignorant or misinformed of the requirements of the law, policy and
court decisions, their processing of registrants was likely to be
flawed. Secondly, when information disseminated to our applicants
was not an accurate explanation of their rights established by the
courts and the Congress, the exercise of such rights was often
meaningless. The problem is illustrated by testimony at Senate
hearings on the draft in 1972. A parent of a son killed in Vietnam
stated "I was appalled at how little sound, legal advice there
actually was available to our young men, in spite of the fact that
the Selective Service statutes have always constituted a clearly
defined body of law readily available to the legal profession as
II 10/
a source of additional practice.
(Case # 3548)
Applicant failed to apply for conscientious
objector status because he mistakenly be-
lieved that the Supreme Court had ruled
that a prerequisite for this classification
IV-B-6
(#3548) con't
was an orthbdox religious belief in a
supreme being.
Often, new registrants relied on the advice of local draft
clerks, who were neither tested nor trained in Selective Service
law, but who nevertheless gave the best advice they could and
which the registrants then relied on.
(Case #2290)
Applicant made no attempt to seek a personal
appearance before the local board or appeal
their decision, on the basis of advice
given by the clerk that the board routinely
denied such claims made by persons like
himself.
Written materials were often no more helpful than the clerks.
The language in many of the forms used by Selective Service was
not understandable by most registrants, especially those that
came from economically deprived backgrounds. One study showed that
the form 150 (the conscientious objector form) required at least
a high school graduate level reading skill to understand.
11/
The problem of applicant misinformation was compounded by the
difficulty national headquarters sometimes had in providing the
local boards with prompt and adequate information regarding binding
judicial interpretations of the Act. For example, the important
case of Mulloy V. United States (398 U.S. 410) regarding classifi-
cation processing was decided by the Supreme Court on June 15,
1970. This decision had the possibility of effecting every regi-
strant within the system. The decision and interpretation regard-
ing the decision were not communicated to local boards until
IV-B-7
WELSH JUNE 1970?
August 11, 1970, a period of approximately two months. The
landmark decision in Welsh v/ United States (398 US 333)
was decided the same day by the Supreme Court and expanded the
scope of conscientious objection. Yet some two years after the
Welsh decision, special forms for conscientious objectors had not
been amended to accurately reflect this decision. 12/ Many court
decisions regarding registration, classification and processing
were never communicated to registrants in informational brochures.
They had to rely on their own resources to gain a full understanding
of their legal rights and obligations.
Because of the inadequate amount of information available,
some of our applicants turned to draft counseling centers for
information. However, even the trained draft counselors found it
difficult to keep current regarding directives in the system. Sub-
scriptions to GPO publications were unsatisfactory. For example,
changes made in June 1971 did not reach the subscriber until
February 1972. 13/ Requests by registrants and draft counsellors
for state headquarters directives explaining policy and interpre-
tations plus copies of Operational Bulletins were denied on the
14
ground that these materials were internal communications.
Other questions of procedural due process arose. Our appli-
cants did not have the right to a personal appearance prior to the
local draft board's initial classification decision. When a personal
IV-B-8
appearance before a local board or an appeal board was granted,
they did not have the right to bring witnesses to their personal
appearance. Also, local and appeal boards were originally not
required to provide a registrant with reasons for their decision.
(Case # 00596)
No reasons were given applicant regarding
the denial of his claim for conscientious
objector status. Consequently he was
simply unaware of how or where to appeal
his case to a higher level.
After 1971, such information was required, but often consisted of
only a check-list with the general reasons for denial marked
but not explained for procedure similar to one already found acceptable.
(Case # 1318)
Denial of applicant's C.O. claim consisted
only of the board's conclusions. His
petition for certiorari was denied, although
one Justice indicated that he felt pro-
cedural due process required the factual
basis behind the conclusions be included.
Once a local draft board issued a final classification to our appli-
cants, they could appeal to the state appeals board and under
certain conditions, to the Presidential Appeals Board. The value
of these appellate rights was questionable. State boards often
gave their cases only cursory consideration, sometimes so, brief
that the procedure was held to deprive the registrant of due process
15/
of law.
However, these appeals were essential if our applicant
hoped to prove his case in court.
(Case # 4296)
Applicant failed to appeal his local board's
denial of his C.O. claim, which was done
without giving any reasons to the applicant
for the denial. Although the District
Judge indicated, that the local board's
action was improper, he nevertheless convicted
appligant
the
IV-B-9
(Case # 4296) con't
local board's decision and thereby,
exhaust his administrative remedies.
If an applicant was unsuccessful in his initial bid for a particu-
lar classification status--whether or not he appealed his local
board's decision--he could request a rehearing at any time prior
to receiving his induction notice. If his request contained
evidence of a prima facie case for reclassification, the board
had to reopen the case, and failure to do SO was found to be a
denial of procedural due process. This right was critical to an
applicant, since a reopening theoretically brought with it the
entire sequence of appellate rights associated with an initial
classification determination. Similar appellate rights were not
provided for a board's refusal to reopen, (as distinguished from
a reopening with a denial of the claim). In addition, most circuits
required that a denial of a prima facie reopening case be accom-
panied with a reason for the denial. In practice, this was not
always the case.
(Case #2317)
Applicant's local board decided to give
him another hearing after he accumulated
additional evidence to support his claim.
In spite of this de facto rehearing, the
board proclaimed no such reopening had
occurred, and denied the applicant any
appeal rights.
Deferments and Exemptions
Many of our applicants held and many more sought a range of
deferments which would have postponed their draft eligibility, or
exemptions which would have ended it entirely. The most common
IV-B-10
deferments and exemptions were for student, occupational, hard-
ship and mental/physical status.
During most of the Vietnam era, it was the policy of Selective
Service to defer students who were enrolled on a full-time basis
until they terminated or completed their formal college education,
at which time they became available for selection and induction.
The only legal requirement relating to student deferments was
that which obliged the local draft board to permit college students
called up for induction to finish their current academic year.
A student's immediate future depended upon state headquarter's
interpretation of the overall national policy. Some state and local
boards instructed their registrants to use as a basis for determining
2-S status college qualifications tests scores and information
regarding rank in class, while others told their local boards that
these criteria were only advisory and could be ignored. The
definition of the term "full-time student" posed many problems.
Finally, some state headquarters extended student deferments to
individuals in business, trade or vocational school, while others
limited it to colleges.
There were three major criteria for obtaining an occupational
deferment: The registrant had to be employed in industries related
to the Defense Department, science, research and development,
engineering and health services. His employer had to show that
someone of similar competence was not available to replace the
IV-B-11
individual for whom the deferment was requested. Finally, the
employer had to show that loss of the individual to the draft
would have an adverse effect on the employer's ability to carry
out essential work. Formal guidelines and interpretations of
these criteria varied among the state and local boards, and
resulted in a lack of uniformity in the identification and deter-
16
mination of critical skills, occupations and professions.
The hardship deferment was granted only to those applicants
whose induction would create "extreme hardship" for their depen-
dents. To qualify, an applicant had to demonstrate that he made
a substantial financial contribution to a qualified dependent,
and that without this contribution, the dependent would suffer
extreme hardship. Although the formulation of this test varied
slightly among the circuits, determinations of extreme hardship
were by their nature subjective, and as in the other deferments,
there were varying applications of this standard among the local
boards. Even when the facts were relatively objective, policies
varied. For example, a provision in the 1967 Act authorized
"fatherhood" deferments and was duly incorporated into the regu-
7PR 71
lations, only to be revoked by the President in 1970. Thereafter,
fathers were not automatically grant such deferments.
Because of manpower needs during the war, the Selective
Service and Defense Department revised downward the physical
and mental standards for service in the military. Physical and
IV-B-12
mental exemptions thus became harder to obtain. The prein-
duction rejection rates for all causes dropped from about 50%
17/
in FY 65 to 40% in FY 66 and approximately 35% in FY 67.
The Defense Department estimated that these revisions of standards
increased the induction or enlistment or previously ineligible
men by about 100,000 a year.
The exemption status of greatest concern to most of our
civilian applicants was that of conscientious objector (I-0).
We have evidence that almost half (44%) of our applicants took
some initiative to obtain a "CO" exemption, and the true proportion
may be even higher. Of that percentage, 15% never actually com-
pleted a CO application, 17% applied but were denied, and 12% were
granted CO status. Many of our applicants evidenced a great deal
of confusion concerning the CO exemption. There was no institut-
ionalized method for informing prospective conscientious objectors
when or how to fill out the necessary forms and present their
case to the local board. A strinking 26% of our applicants sub-
scribed to a pacifist religion which would ordinarily entitle
them to CO status most (20%) being Jehovah's Witnesses. Because
only 10% of our applicants received CO status for religious ob-
jection to war, it appears that the remaining 16% never applied or
were denied. Many of our applicants were simply uninformed about
the availability of the CO exemption and the procedures which must
be followed to obtain it.
IV-B-13
(Case # 10768)
Applicant, a Jehovah's Witness, had his
claim for ministerial exemption denied.
Since he made no claim for conscientious
objector status, he was classified 1-A
and inducted one month later. (He later
went AWOL and received an Undesirable
Discharge.
Some of our other applicants knew enough about the existence of
the exemption to inquire about it, but were subsequently dis-
couraged by their local boards.
(Case # 803)
In reply to applicant's request for a
Form 150, his local board included a note
stating that a CO classification was given
only to members of pacifist-oriented
religions. Accordingly, applicant did
not bother to return the form.
In the midst of the Vietnam War, the substantive law regarding
conscientious objectors changed dramatically, profoundly affecting
the ability of a great number of our applicants to submit C.O.
claims with any reasonable chance of success. In June
1970
the Supreme Court clafified
conscientious objection in Welsh
V. United States ; supra, stating that this exemption should be
extended to cover those whose conscientious objection stemmed from a
secular belief. Section 6 (j) was held to exempt from military
service those persons who consciences, spurred by deeply held
moral, ethical or religious beliefs, would give them no rest or
peace, if they allowed themselves to become a part of an instrument
of war. In the later case of Clay V. U.S.
(
) the
court stated the three requirements for CO classification as:
opposition to war in any form, the basis of opposition to war must be
IV-B-14
moral, ethical or religious, and the beliefs must be sincere.
Based upon these standards, it is surprising that more of
our applicants did not apply for CO status, receive a CO exemp-
tion from their local boards, or raise a successful defense at
trial. We have found that 66% of our civilian applicants committed
their offense for conscientious reasons. Not all of these appli-
cants would have qualified for a C.O. classification because many
did not object to all wars, as required by Gillette.
(
).
(Case # 2338)
Applicant's conscientious objector claim
was denied by the local board because he
objected only to the Vietnam War, rather
than all wars.
Despite this, it is likely that more than the 12% of our applicants
who actually received such an exemption would have qualified under
today's standards. Why did this happen? Ninety percent of our
applicants registered prior to Welsh, so their first information
about the CO exemption was that it applied primarily, if not
exclusively, to members of pacifist religions. Many of our applicants
may have been reluctant to apply for CO status prior to Welsh out
of recognition that, at the time, their moral and ethical beliefs
would not have persuaded their local boards.
(Case # 1213)
Applicant did not submit a CO application be-
cause it was his understanding that his
local draft board would not consider a CO
request unless a registrant were associated
IV-B-15
(#1213) con't
with a widely recognized pacifist religion
and his refusal to participate in war
in any form stemmed from his personal
beliefs and general religious feelings.
He pled guilty to failure to submit to
induction and was convicted one year prior
to Welsh.
Many others passed through the Selective Service System be-
fore the middle of 1970, when Welsh was announced. Fifty-three
percent of our applicants who applied for a CO exemption did SO
before Welsh, and 35% committed their draft offense before the
decision. However, only 13% were actually convicted of their
offense before Welsh. Many of these individuals could have raised
Welsh defenses at trial, but a significant percentage of our appli-
cants (26%) pled guilty to their charges. The most likely expla-
nation for the small percentage of applicants who sought and were
granted CO exemptions is their lack of understanding of what the
Selective Service standards and procedures actually were. Despite Welsh,
Selective Service made no immediate substantial changes in the
form 150 to reflect this broadening of the CO category. As a result
the format of the form 150 misled many applicants into thinking
that the non-religious nature of their beliefs disqualified them
from conscientious objector status.
(Case # 537)
Applicant initially failed to fill out a
form to request C.O. status because the
religious orientation of the form led him
to believe he would not qualify. After
Welsh, the applicant believed he could
qualify under the Supreme Court's expanded
definition, and requested another Form 150.
When the board returned a Form 150 identical
to the one he received initially, the applicant
IV-B-16
(# 537)
again failed to complete it, believing
that he could not adaquately express his
beliefs on a form designed for members of
organized religious.
This misinformation was often reinforced by the local boards.
(Case # 2320)
Applicant failed to complete an outdated
Form 150 after being told by his local
board only members of certain religious sects
were eligible. This occurred after the
Welsh decision.
Those who did apply for CO status faced a form which asked
about the philosophical nature of the applicant's beliefs, their
relationship to his religion, and to the manner in which conducted
his life. While less-educated persons may have been discouraged from
applying for C.O. status because of the complexity of the Form 150
and other factors, the experiences of our applicants who did apply
reveals no such bias. Of our applicants with college degrees, 28%
applied for CO status, but only 4% were accepted. Of our applicants
with less education, 19% applied, but 10% (more than half) were
accepted. This may be attributable to the fact that persons with
more education usually based their claims on moral and ethical,
rather than religious grounds, as well as the fact that our appli-
cants may not have been a representative, sample of all C.O. applicants.
Welsh specifically authorized local boards to grant CO exemptions
to persons sincerely opposed to war on moral and ethical (i.e.,
non-religious) grounds, yet some ( %) of our civilian applicants
had possibly valid "moral and ethical" CO applications denied after
IV-B-17
Welsh. Some local boards may still have relied on a test which
required belief in a supreme being. In one post-Welsh study
of CO applicants, all those interviewed who failed to express
belief in a supreme being had their CO applications denied.
(Case # 1373)
Applicant's request for conscientious
objector status was denied, partially on
the basis that he had no particular re-
ligious training or expreience to establish
opposition to war. This determination
was made after the Supreme Court stated in
Welsh that such formal religious training
was not a prerequisite to conscientious
objector status.
In contrast, CO applicants who claimed to be members of a pacifist
religion enjoyed a 56% success rate throughout the Vietnam era.
Registrants associated with recognized pacifist religions - Jehovah's
Witnesses, Black Muslims, and the Society of Krishna - were also
occassionally denied CO classification. The basis for denial of
CO status by Selective Service in these instances was usually lack
of sincerity. However, in many of these cases, the lack of famili-
arity with the teachings of a particular religion and the lack of
general acceptance of that religion may have been factors in the
denial of CO status. If the local board turned down as applicant's
CO claim, he could appeal to the state appeals board. However,
there were time limits and other procedures which appellante had to
observe. Some of our applicants were apparently not advised about
these procedures.
IV-B-18
(Case # 2317)
Applicant, a Jehovah's Witnsss, unaware
of the time limitation on filing notice
of appeal, continued to gather evidence
for his appeal, which was ultimately
denied on the procedural grounds of
failure to give timely notice of appeal.
For many of our applicants, the realization that they were
conscientiously opposed to war came only after they received an
induction notice. This notice often acted as the catalyst which
led to an introspective examination of the applicant's convictions,
and a crystalization of his beliefs.
(Case #3099)
Applicant stated that "the induction order
forced me for the first time to make a
decision as to my views with regard to war.
However, when a registrant's request for a change in status came
after his induction notice was mailed, his ability to obtain a
rehearing was considerably limited, because reopening under such
conditions was prohibited unless the registrant experienced a
change in circumstances beyond his control. The question then was
whether his "late crystalization" constituted a change in circum-
stances beyond the applicant's control. The local boards were
split on this issue until the Supreme Court spoke in 1971, holding
in Ehlert V. U.S. (
) that a post-induction-notice
claim for consciencious objector status did not constitute a change
in circumstances beyond the applicant's control. Accordingly, those
applicants were left to press their claims in the military after
induction.
IV-B-19
Approximately one-eight of our civilian applicants did re-
ceive CO exemptions and were assigned to alternative service em-
ployment. Once the draft board recognized that a registrant was
a conscientious objector, it assigned him 24 months alternative
service in lieu of induction. Before 1971, there were wide dis-
crepancies among states and local draft boards regarding stan-
dards of appropriate civilian work. One local board might have
had a liberal policy of job approval allowing CO's to choose a
variety of jobs, while another board might have imposed highly
restrictive approval standards. Some individuals had difficulty
holding alternative service jobs because of personal of family
problems. Others decided that they could not, on good conscience,
continue to cooperate with the Selective Service System because of
their opposition to the war.
(Case # 560)
Applicant refused to perform alternative
service as a protest against the war in
Vietnam, and specifically requested that
his probation be revoked for those reasons.
However, most of our applicants assigned to alternative service who
refused to accept such assignments from Selective Service did so
because they felt their religion forbade them from cooperating with
any part of a war effort. These applicants, mostly Jehovah's
Witnesses, Muslims and Quakers, were prepared to accept an alter-
native service assignment ordered by a judge in their sentence upon
conviction for refusing to perform alternative service. However,
IV-B-20
many judges faced with such a request sentenced them to prison
instead.
(Case # 2336)
Applicant, a Jehovah's Witness, refused
to perform alternative service ordered by
the Selective Service System, on the grounds
that even this attenuated participation in
the war effort would violate his religious
beliefs; he did indicate that he would
be willing to perform similar services
under the court's order of probation.
Rather than accept this distinction, the
Judge sentenced the applicant directly to
prison for failure to perform alternative
service.
The Draft Offense
To be eligible for the clemency program, our applicants must
have committed at least one of six offenses enumerated in the
Executive Order. These offenses include the failure to register
(or register on time), failure to report changes in status
(primarily changes in address), failure to report for pre-induction
physical examination, failure to report for induction, failure to
submit to induction, and failure to perform alternative civilian
employment. The Clemency Board could not consider applications of
those who had only been convicted of other violations of the
Selective Service Act making false statements regarding a draft
classification; aiding and abetting another to refuse or evade
registration or requirements of the Selective Service Act; forging,
destroying or mutilating Selective Service documents such as draft
cards or other official certificates; or failing to carry a draft
card or carrying a false draft card. However, because the vast
majority of the Selective Service offenses committed during 1964-73
IV-B-21
fell within the eligibility requirements of the clemency program,
most civilian offenders during that period were eligible for the
program.
Our typical applicant initially complied with his Selective
Service responsibilities by registering for the draft, submitting
classification-requests, and notifying his local board about changes
in address and other changes in status. Betwwen the ages of 19
and 21, most of our applicants were classified 1-A. They, like
350,000 other young men during the peak draft years, were ordered
to report for induction. Nearly all of our applicants reported
for their pre-induction physical examination. It was not until
the date of induction, after complying with regulations to the
fullest extent, that our applicants actually decided to violate the
Selective Service Law. In fact, of those applicants who received
orders to report for induction, nearly half actually appeared for
induction. But, when the time came to take the symbolic step
forward, these applicants found that their conscience would not
allow them to participate further in the induction process. At
the time of our typical applicant's final decision to violate the
law, he was between the ages of 20 and 22 and the year was 1970-72.
For over 95% of these applicants, their failure to comply with the
Selective Service law was their first offense.
Our applicants committed draft offenses which fall into three
basic categories. The first of these categories, consisting of
IV-B-22
approximately 13% of all our applicants, were those who failed
to register, or to register on time and those who failed to re-
port changes in status, such as new addresses. Many of these
applicants did not graduate from high school, having achieved only
an elementary level of education. In addition, they were often
raised in economic and family environments which was not likely to
lead to an appreciation of their Selective Service responsibilities.
For example, according to Selective Service regulations and case
law, "current address" was the address at which mail would have
reached the registrant. While use of a false address was a willful
violation, forgetfulness was no defense. Furthermore, the local
board was under no obligation to find the registrant's current
address, and giving the address of a parent or relative was not
enough to avoid liability.
(Case # 822)
The applicant's induction notice was sent by
his local board to his mother. The letter
was returned to the local board and sub-
sequently the mother telephoned a new
address to the local board. Local board
mail still failed to reach the applicant,
and he was indicted and convicted of failure
to keep the board informed of his address.
The last address his mother gave the local
board was correct, but the court did not
accept the applicant's defense that mail did
not reach him because his name was not on the
mail box.
However, most of our applicants in this category committed their
offenses because of their unintentional misunderstanding of Selective
Service obligations.
IV-B-23
(Case # 3151)
The applicant registered for the
draft and subsequently moved to a new
address. He reported his change of address to
the local post office but did not specifi-
cally notify his local board. He stated
that he thought this action fulfilled his
obligation to notify his local board in
writing of address changes.
The second category of offenses committed by our applicants
includes those who failed to perform required alternative civilian
employment, comprising 13% of our civilian applicants. Typically,
the applicant received a conscientious objection exemption from
his local board because of his membership in a widely recognized
Pacifist religious group as Jehovah's Witness, Black Muslim or the
Society of Friends. These applicants complied with all Selective
Service requirements prior to receipt of an order from Selective
Service to report to a designated civilian job for two years work
of national importance, intended as a substitute for military ser--
vice these applicants refused to accept employment because they
believed that because of its relationship to the war effort, such
work would compromise their religious principles. However, as an
indication of their acceptance of their continuing responsibili-
ties as citizens, most of these applicants indicated at the time of
their offense that they would perform alternative service, as long
as it was at the direction of the courts.
Almost three-quarters of our applicants fell into the third
category of offenses which relate to the induction process. This
category includes those who failed to report for their pre-induction
IV-B-24
physical examination, failed to report for induction, or failed
to submit to induction. Applicants in this category represent
approximately 74% of all our applicants. Following their classi-
fication as 1-A, these applicants were ordered by their local
boards to report for pre-induction examinations, which only 4% of
our applicants failed to do. Subsequent to passing the pre-induction
examination, our applicant received orders to report for induction.
Once induction was ordered, a postponement of the induction date,
could have been sought but would not have invalidated the original
order to report for induction, even if the inductee passed his
twenty-sixth birthday in the interim. Once the induction order
was issued and after all postponements were exhausted he had a con-
tinuing duty to report for induction, although it was often the
practice of the Selective Service to issue several induction orders
before filing a complaint with the district attorney, and many of
our applicants received two or three induction orders. Approximately
38% of our applicants failed to report for induction, but nearly
the same percentage decided to appear at the induction station for
initial processing Until the final step in this process, the oath
of induction into the Armed Forces and the symbolic step forward,
the inductee is under civilian control. It was at this final stage
of the process that the remaining one-third of our civilian appli-
cants broke the law.
IV-B-25
Numerous reasons were given by our applicants for their
offenses. The most frequent of-their-reasons was their con-
scientious objection to war in either general or particular form.
Fifty-seven percent expressed either religious, ethical or moral
objection to all war, and an additional 14% expressed specific
objection to the Vietnam War. When other related reasons were
considered, (such as denial of CO status), 81% of our civilian
applicants committed their offenses for reasons related to their
opposition to war. Expressions of conscience were found by the
Clemency Board to be valid mitigating circumstances in nearly four-
fifths of these cases. By contrast, less than one out of six of
all our civilian applicants were found by the Board to have committed
their offenses for obviously manipulative and selfish reasons.
Other major reasons given by our civilian applicants for their offense
include procedural errors and denial of CO status (5%), various
medical problems (6%) and family or personal problems (10%). In
evaluating these reasons, we found that both family/personal prob-
lems and medical problems were determined to be mitigating in
nearly all the cases in which applicants raised them. Surprisingly,
procedural errors and improper denial of CO status were found in
nearly one fifth of all cases, a far greater proporation than one
would expect from the reasons given by our applicants. This large
discrepancy was probably due to the unfamiliarity of most of our
applicants with either Selective Service procedures or CO requirement
IV-B-26
Thus, many of our applicants probably were never aware that
the disposition of their cases by Selective Service might have
been either incorrect or not according to established procedure.
Experiences as a Fugitive
At one time or another, our applicants faced the difficult
decision whether to submit to the legal process or become a
fugitive. Nearly two-thirds of our applicants immediately surren-
dered themselves to the authorities. Of the remaining one-third
who did not immediately surrender, the vast majority never left
their hometown. Of the 18% of our applicants who left their
hometowns to evade the draft, slightly less then half ever left
the United States. Most of our at--large civilian applicants re-
mained fugitives for less than one year. Many reconsidered their
initial decisions to flee. About one-third surrendered, and many
of the rest were apprehended only because they lived openly at
home and made no efforts to avoid arrest. Over two-thirds of our
at-large applicants were employed full-time; most others were
employed part-time, and only one out of ten was unemployed. Only
a small percentage assumed false identities or took steps to hide from
authorities.
Most of our fugitive applicants who chose to go abroad went
to Canada. Geographical proximity was one reason why some of our
applicants chose Canada, and the similarity in culture, history
IV-B-27
and language was another. However, the major reason for the large
emigration of American draft-resisters to Canada was the openness
of their immigration laws. After 1965, when the Pearson govern-
ment accepted 1, 700 American resisters (largely draft resisters)
as landed immigrants, the Canadian government instituted a liberal
immigration policy toward American draft resisters and military
deserters. In 1967, Prime Minister Pearson's Parlimentary Secre-
tary of the Department of Manpower and Immigration told the
Canadian House of Commons that "an individual's status with regard to
compulsory military service in his own country has no bearing upon
his admissibility to Canada either as an immigrant or as a visitor. "
The
present policy toward American draft resistors and mili-
tary deserters was announced by Prime Minister Trudeau in 1969:
"Canada will become a refuge from militarism. "
The living conditions of draft-related emigres varied con-
siderably. Many existed as transients, at first living in hotels
and on the road. Others lived in Canadian homes until they were
able to support themselves. With the average pay close to ten to
thirty percent less than the income received in the United States
and the unemployment rates nearly identical, many American emigres
were forced to live from donation but some found excellent jobs as
and
school teachers, plumbers // carpenters, and many went back to school.
Once settled, the living conditions the draft evader experienced
in Canada were very similar to those found in the United States.
IV-B-28
Since 1964, many efforts were made to tabulate the total
number of civilian draft resistors and military deserters. The
estimates varied widely,
ranging
from 2,000 to 25,000
to 100,000
the State Department announced in 1970 that there
were only 2,000. A list released by the Justice Department in Jan
of 1975 showed that there remained only 4,400 Vietnam-era draft-
law violators anywhere in the world who were subject to criminal pro--
secution.
There are several explanations for these discrepancies. For
one, political motivations might have influenced both government
and private figures during the war era.
In
addition,
the
counting
methods used by all sources are certainly not infallible. The
Canadian exile figures of up to 100,000 were derived by counting the
number of files on newly arrived American emigrants at the aid
centers strategically placed near the United States border, many of
which included Americans who emigrated to Canada for reasons other
than the draft or AWOL related offenses. A few aid centers kept
files on American draft-age males without asking them whether a
file had been previously started at another center. For these reasons,
many were counted twice, some even perhaps even more. Speculation
based upon our sample of applicants and the Department of Defense's
sample of its applicants (and assuming that virtually all of the
Department of Justice applicants are Canadian exiles), would indicate
that only about 8,000 out of 123,000 persons eligible for the
IV-B-29
President's program were ever Canadian exiles. There may have
been others against whom complaints were issued but no indictments
ever brought, who are now free to come home without penalty.
Experience with the Judicial Process
Filing of the complaint. Our applicant began to face court
action when his local draft board determined that sufficient evidence
of a Selective Service violation existed to warrant the forwarding
of his file to the United States attorney. Between 1964 and
1974, 209,000 cases were referred by Selective Service to the
Department of Justice for prosecution; of that number, only 25,000
indictments were returned. This startling figure can be par-
tially explained by the practice of allowing violators to enlist
rather than face prosecution; another major factor was the
unwillingness of local U.S. Attorneys to prosecute draft cases
which were increasingly unpopular, weak, and of relatively low priority.
2. Disposition of Draft Cases
a. Dismissals. After a complaint was filed by Selective Service
and an indictment returned against our applicant's both the courts
and the Justice Department determined whether further prosecution was
warranted. Statistics from the Justice Department show that a large
number of cases were dropped after indictment because of faulty
Selective Service processing or recordkeeping. For instance, draft
records were routinely destroyed when a registrant reached age 26.
IV-B-30
Therefore, unless the records were separated, his files were
destroyed and prosecution rendered impossible.
The courts dismissed draft cases for many reasons. Many
dismissals represent cases involving legal flaws in which the
defendants "committed no Selective Service violation at all, be-
cause the induction orders they refused were illegal as determined
authoritatively by federal courts and U. S. attorneys." Included
among these defendants are those who were called by their local
draft boards earlier than usual or by mistake. In addition, in
districts where careful pre-indictment investigations were the
exception rather than the rule, cases were dismissed where it was
found that the defendant never received his orders to report or where
the local draft board never requested that the defendant be pro-
secuted.
Analysis of the number of cases and the dismissal rate during
the years 1968 1974 reveals a continuous increase in both the num-
ber of cases and the dismissal rate (except for 1974). Through
1968, only about 25% of all cases resolved in dismissal. From
1969 through 1972, about 55% were dismissed -- and in 1973, over
two-thirds were dismissed.
One important element influencing the dismissal rate in par-
ticular jurisdictions was the practice of forum shopping. Many
defendants searched for judges with a reputation for leniency or
IV-B-31
a tendency to dismiss draft cases.
As an example, the Northern
District of California was known for its willingness to dismiss
draft indictments on minor technicalitios. Since 1970, nearly
70% of the cases tried in that court resulted in dismissal or
acquittal. At that time, many young men transferred their draft
orders to the Oakland induction center before refusing induction,
thus enabling them to try their cases in the Northern District.
In 1970, this dismiss averaged 48.9 draft cases per 10,000 population
compared the national average of 14.1; the Central District of
California closely followed with 43.1. Some apparently "Forum
Shopped in California and other Western states; Five percent of
them received their convictions in the Ninth Circuits, even though
their homes were elsewhere.
Jurisdictional inequities in the dismissal rate for draft offenses
within the same state were common during the war era. For example, in
contrast to the dismissal rate in the Northern District of California
(70%), the Eastern District of California dismissed only 40% of
its draft cases. Similarly,
.n the Eastern District of
Virginia 63% of the draft cases were dismissed, versus only 35% in
the Western District.
Convictions and Acquitals
After our applicants were indicted and their motions for dis-
missal refused, many indicted draft violations pled not guilty,
and they next entered the trial stage. Nearly three-fourths of our
IV-B-32
applicants pled either guilty or nolo contendre. The emotional
and financial drain of a protracted trial was certainly a
factor in this decision, as was the availability of a plea bargain,
especially in those jurisdictions where the U.S Attorney routinely
brought multiple-count indictments.
Of the 21,400 draft law violators who stood trial during the
Vietnam era, 12,700 were acquitted. From our applicants statis-
tics, it appears that a person pleading not guilty to a draft
offense stood only a 15% chance of conviction. Not surprisingly,
none of our applicants were among the 12,700 fortunate persons
who were acquitted of draft charges. There were many reasons for
these acquittals. In 1970-71, an increasing number of draft defen-
dants were acquitted because of irregular or unconstitutional pro--
cedures used by local draft boards. Many of those acquitted were
subjected to deliberately accelerated draft calls because they
were regarded as troublemakers. The Supreme Court struck down this
18,
practice in Gutnecht V. U.S
by holding that punitive reclassi-
fication was "blatantly lawless." Acquittals often occurred when
local draft boards or state appeal boards failed to consider requests
for medical deferments based on disqualifying conditions such as
Astma. A number of acquittals also were obtained when it was found
that the local board did not follow proper procedures, such as failure
to state reasons for denying substantial claims for conscientious
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objector or hardship status and failure to provide adequate ad-
rights.
In 1970 the Supreme Court in Welsh
broadened the conscien-
tious objection exemption by ruling that strongly held non-religi-
ous pacifist beliefs qualified for the exemption. For some time
after this decision, Selective Service gave inadequate advice to
local boards on the effect of this and other decisions. This lack
of guidance resulted in acquittals for those post-Welsh denials of
conscientious objection status which were based on pre-Welsh grounds.
As described earlier, many of our applicants might have qualified
for this type of acquittal.
Another significant factor in the increased rate of acquittals
was the increased level of activity by competent attorneys in the
field of Selective Service law. By 1970, anti-war feelings made
it respectable for attorneys to represent draft violators. Draft
counseling centers were also better able to recommend lawyers well
versed in Selective Service law.
Our typical applicant was convicted at the age of 23, nearly
two years after his initial offense. Less than one out of ten of.
our applicants appealed his conviction. An analysis of thse con-
victions rates shows clear jurisdictional discrepancies. For in-
stance, the Southern states had the highest propensity for conviction,
with the Eastern states and California having the lowest. In 1972
IV-B-34
there were 27 draft cases tried in Connecticut, with only one
resulting in conviction. In the Northern District of Alabama
during the same period, 16 draft cases resulted in 12 convictions.
These different conviction rates apparently occurred because of wide
differences in attitude toward the draft violators. Regardless of
the explanation, it is clear that these differences in treatment
encouraged wide scale forum shooping by our applicants.
The conviction rate itself varied considerably during the war
era. In 1968, the conviction rate for violators of the Selective
Service Act was 66%; by 1974, the conviction rate was cut in half
to 33%. Apparently, as time went by, prosecutors, judges and juries
had less and less enthusiasm for convicting draft-law violators.
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Sentence:
The first aspect of the draft and judicial systems which often
dealt favorably with our applicants was the sentence of the District Court
Judge. Only about one-third of our applicants ever went to prison. A
breakdown of the length of incarceration for our applicants is as follows:
No incarceration - 67%
1-6months #* 15%
7-12 months - 5%
13-18 months - 8%
20-22 months - 5%
The sentencing provisions of the Military Selective Service Act of 1967
provided for jail terms ranging from zero to 5 years, giving judges almost
unlimited sentencing discretion. The sentencing dispositions of the courts
were inconsistent and widely varying, dependent to a great extent upon year
of conviction geography, race, and religion. In 1968,
% of all convicted
draft offenders were sentenced to prison, their average sentence was 37 months,
and 13% received the maximum 5-year sentence. By 1974, only 22% were sentenced
to prison, their average sentence was just 15 months, and no one received the
maximum. Geographic ineqaities were almost as striking: In 1968, almost
one-third of those convicted in the southern-states 5th Circuit received
the maximum 5-year prison sentence contrasted with only 5% receiving the
maximum in the eastern=states 2nd Circuit. During the early years of draft
offense trials in 1968, of 33 convicted Selective Service violators in
Oregon 18 were put on probation, and only one was given a sentence over 3 years.
In Southern Texas, of 16 violators, none were put on probation, 15 out of 16
received at least 3 years and 14 received the maximum 5-year sentence. 21/
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Other sentencing inequities occured on the basis of race. In 1972, the
average sentence for all incarcerated
Selective Service violators was
33.5. months while for blacks and other minorities the average sentence
was 45.1 a disparity which decreased to a difference of slightly more
than two months in 1974. The average length of sentence for our black
applicants were
% compared to
for white applicants.
Some religious inequities may also have occurred. For the years 1966 through
1969 incarcerated Jehovah's Witness received sentences averaging about 1 month
longer than the average Selective Service violators. During this same period,
religious objectors other than Jehovah's Witness received average sentences
about 6 months shorter than the average violator.
Although a variety of sentencing procedures were available, the majority
of convicted Selective Service violators were sentenced under normal adult
procedures. If the offender were sentenced to jail, two types of sentence were
available: (1) a sentence of definite time during which he might be paroled
after serving 1/3 of his term; or (2) an indeterminate sentence during which
parole eligibility might be determined by a judge on the Board of Parole at
a date before, but not after 1/3 of the sentence had expired. Under the Youth
Correction Act, the convicted defendant might be unconditionally discharged
before the end of the period of probation or commitment. This discharge
automatically operated to set aside the conviction. Because commitments and
probations under the Youth Corrections Act were indeterminate, the period of
supervison might have lasted as long as six years. Bureau of prison statistics
indicate, however, that the Youth Corrections Act was used as a sentencing
procedure only in 10% of all violation cases. When it was applied, the six
year maximum period of supervison was imposed in almost all cases.
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Prison Experience: Over one-third of our applicants received prison
sentences and were incarcerated, some for periods of up to five years.
Since very little information is available concerning the treatment of
Selective Service violators, we relied upon a brief survey of prison officials
across the country to provide us with some evidence of the experience of
our applicants in prison. Although this survey was not scientific and
comprehensive, it did reveal the possible lack of uniformity in handling
draft violators accross the country.
During the early years of the Vietnam war, Jehovah's Witnesses rather
than other draft resisters filled the prisons. Jehovah's Witnesses were
ideal prisoners because of their adaptability and tendency to avoid creating
security problems. Most officials in our survey stated that Jehovah's
Witnesses were selective about their associates, either sticking with one
another or living alone. Other draft violators with other than religious
reasons for their offenses experienced greater difficulty adapting to prison life.
The first prison in our survey was a Northeastern prison. This prison
official stated that around 1970, as the climate changed on the outside, the
men on the inside became more vocal. Stressing unity in numbers, this official
found that draft violators were no longer a strange breed. They started
to meet and socialize with each other and attempt to organize protests,
which usually were not permitted. Draft violators tended to gravitate toward
the Inmate Grievance committee and, by 1971, they were less cooperative and
more disruptive. While this prison official denied that homosexual attacks
were directed specifically against draft violators, he did characterize the
vast majority of them as "young, not streetwise, pacifist and intellectual,"
thus "drawing attention" from hardened criminals.
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A prison official in a Midwestern prison admitted that the draft
violators were "not the most popular individuals" and caused staff resentment.
He stated that because most of the other inmates were conservative, "waving
the red, white and blue," who tried to isolate the draft violators. While
he spoke highly of the Jehovah's Witnesses, he believed that draft violators
did not adjust as well to incarceration. The draft violators were placed in
minimum custody and were neither particularly "vocal" nor organized enough
to make protests.
A Southern Prison official admitted that both his staff and the surrounding
residents were conservative, an attitude reflected in prison life. The draft
violators were subject to severe peer pressure. If they tried to expound
on their beliefs, they were subject to ridicule from the other inmates.
Anyone who spoke out against the war was considered "weird," SO draft resisters
stayed among themselves. They experienced some difficulty adjusting to prison
life and, because of their passive nature, required support and encouragement.
Although the prison maintained a work release program, draft violators were
not allowed to participate in the 1960's because of adverse community reaction
to them.
Our final prison interview was with an official in a Western prison.
This official stated that the draft violators located in his prison generally
posed no threat to security, adjusted well and abided by the rules and
regulations. Although they had the potential to be influential and disruptive
because of their higher educational level, they were not. This official thought
they were more well-liked than draft violators during World War II. Their
acceptability was attributed to the easygoing atmosphere of the surrounding
community. Although anti-war ceremonies were not permitted at the prison,
this official claimed no punishment or retaliation resulted from criticism
of the war. He stated that draft violators were not excluded from work release
IV-V-39
programs, but because they showed less need than other inmates, few expressed
any desire to participate.
It appears that the draft violator faced the same pressure, boredom
and loneliness as other inmates. Most reports from incarcerated draft
violators themselves show that their strategy was a typical prison strategy:
survival. This was hardly unique in view of the need for a callous and
conformist response to a life-style of confinement. Whether a particular
prejudice was directed toward them seemed to be a problem of locale.
While the Clemency Board has discovered no evidence of wide scale
mistreatment of draft violators in federal prisons, isolated instances of
harsh treatment occurred.
Case 1210
Applicant was arrested in Arizona and extradited to
the Canal Zone for trial (location of his local board).
Prior to trial, he was confined for four months in an
unairconditioned four by six foot cell in a hot jungle.
Some evidence exists that the applicant was denied the
full opportunity to post reasonable bail. At his
trial the applicant was convicted and sentenced to an
additional two months confinement. By the time of his
release, the applicant's mental and physical health
substantially deteriorated and he was confined in a
mental hospital for several months. The applicant is
presently back in society but his mental health is still
a subject of great concern.
Some could not excape the effects of their prison experience even after
their release.
Case # 0059) Applicant became addicted to herion while serving the prison
sentence for his draft conviction. Unable to legitimately
support his habit after he was released, he turned to
criminal activities. He was later convicted of robbery,
and returned to prison.
The parole grant rates for Selective Service violators, like all other
prisoners, was determined categorically: it depended primarily on the nature
of their offense and not on individualized aspects of their personal history
or their imprisonment. It was the policy of many parole boards that draf t
IV-V-40
violators serve a minimum of two years for parity with military duty, but
most Selective Service violators were released after their initial parole
application. Jehovah's Witnesses received first releases in nearly all
instances. The majority of those serving prison sentences over one year
were released on parole whereas the great majority of those with prison
sentences less than one year served until their normal expiration date.
Most Selective Service violators were granted parole after serving approximately
half their prison sentences. This is higher than the national average for
all crimes, including rape and kidnapping. However, in each year from 1965
to 1974, Selective Service violators were granted parole more often than
other federal criminals.
Consequences of The Felony Conviction
A felony conviction had many grave ramifications for our applicants.
The overwhelming majority of states construe a draft offense as a felony,
denying our applicants the right to vote -- or, occasionally, just suspending
it during confinement. Some of the consequences of felony conviction are
less well known. In some states, for example, a felon lacks the capacity
to sue, although he or his representative may be sued; he may be unable to
execute judicially enforceable instruments or to serve as a court appointed
judiciary; he may be prohibited from participation in the judicial process as
a witness or a juror. A lesser known consequence of a felony conviction
might be that he may even lose certain domestic rights, such as his right to
exercise parental responsibility. For example, six states permit the adoption
of an ex- convict's children without his consent. The principle disability
arising from a felony conviction is usually its effect upon employment
opportunities. This effect is widespread among employers. One study found
only one employer out of 25 willing to hire a convicted felon. Often,
IV-V-41
this job discrimination is reinforced by statute. States license close to
4,000 occupations, with close to half requiring "good moral character"
as a condition to receiving the license; therefore, cnnvicted felons are
often barred from such occupations as accountant, architect, cosmetologist,
dry cleaner and barber.
Case #1256)
Applicant, a third year law student, was told he could
not be admitted to the bar because of his draft conviction.
Even more severe restrictions exist in the public employment section.
Case # 2448 Applicant graduated from college, but was unable to find
work comparable to his education because of his draft
conviction. He qualified for a job with the Post Office
but was then informed that his draft conviction rendered
him ineligible.
Case #1277
Applicant qualified for a teaching position, but the
local board of education refused to hire him on the basis
of his draft conviction. The Board later reversed its
position at the urging of applicant's attorney and the
local federal judge.
Despite this, ) our civilian applicants generally fared reasonable well
in the job market. Nearly three out of four applicants were employed either
full time or part time when they applied for clemency. In fact, only 2% of
our civilian applicants were unemployed at the time of their application.
The remainder of our applicants had returned to school (13%), were presently
incarcerated ( %), or were furloughed by prison officials pending disposition
of their cases by our Board ( %).