Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Source Description
This file contains an article written by Lawrence Baskir and William Strauss.
Scholar Source Context
Document identity
localId
1505973
label
Controlling Discretion in Sentencing (Article in the "Notre Dame Lawyer")
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
1505973
sourceUrl
contentType
document
title
Controlling Discretion in Sentencing (Article in the "Notre Dame Lawyer")
description
This file contains an article written by Lawrence Baskir and William Strauss.
citationUrl
collections
Charles E. Goodell Papers
Presidential Clemency Board Subject Files
subjects
President (1974-1977 : Ford). Presidential Clemency Board. 9/16/1974-9/15/1975
Amnesty
iiifBase
thumbnailUrl
largeImageUrl
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
1505973
coverageEndDate
logicalDate
1976-10-31
month
10
year
1976
coverageStartDate
logicalDate
1976-03-01
month
3
year
1976
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
url
mediaId
41e51ac8e5e2c9fc
ocrText
The original documents are located in Box 2, folder "Controlling Discretion in Sentencing
(Article in the "Notre Dame Lawyer")" 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States of America his copyrights in all of his unpublished writings in National Archives collections.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 2 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library
VIETNAM OFFENDER STUDY
CENTER FOR CIVIL RIGHTS
UNIVERSITY OF NOTRE DAME
LAWRENCE M. BASKIR
1826 JEFFERSON PLACE, N.W.
PROJECT DIRECTOR
WASHINGTON, D. C. 20036
WILLIAM A. STRAUSS
(202) 296-1767
DEPUTY DIRECTOR
PADDY TALBOYS SHAKIN
March 10, 1976
ADMINISTRATIVE SECRETARY
Honorable Charles Goodell
Hydeman, Mason and Goodell
1225 19th Street, N.W.
Washington, D.C. 20036
Dear Senator Goodell:
Amidst my work with Larry on the book about Vietnam-era
offenders, I am preparing an article about the Clemency Board's
legal procedures for the June issue of the Notre Dame Lawyer.
The title of the article is "Controlling Discretion in
Sentencing -- the Presidential Clemency Board as a Working
Model." In it, I (and co-author Mike Remington) will be pre-
senting the Board's legal procedures as a model which sentenc-
ing judges may wish to follow. The emphasis will be on how
the creation of rules (especially the aggravating and mitigat-
ing factors) and the application of those rules contributed
to the consistency and fairness of Board decisions.
I would be very pleased if the article could include
some statements attributed to you. I would appreciate your
comments on any or all of the following:
1. The Board's difficulties with its first 16 cases
in October;
2. The Board's desire to create rules as a means of
channeling its discretion;
3. How hard (or easy) it was to apply those rules;
4. Your general impression of the fairness and consis-
tency of Board decisions; and
5. Your general views about the applicability of
Clemency Board techniques to sentencing judges.
Honorable Charles Goodell
March 10, 1976
Page 2
In order to include your comments in the article, I must
have them by March 24. You could either send me a letter or
give me a statement over the phone (202/296-1767). I appre-
ciate any help you can give, and I hope this article will
attract some favorable attention to the Board.
With best wishes,
Sincerely,
Bue
William A. Strauss
CONTROLLING DISCRETION IN SENTENCING:
THE CLEMENCY BOARD AS A WORKING MODEL
by
William A. Strauss*
and
Lawrence M. Baskir**
*
Faculty Fellow, University of Notre Dame; formerly
Director of Planning, Management, and Evaluation at the
Presidential Clemency Board. J.D., M.P.P., Harvard, 1973.
** Faculty Fellow, University of Notre Dame; formerly
General Counsel (staff director) at the Presidential Clemency
Board. L.L.B., Harvard, 1962. The authors wish to thank
Michael A. Remington for his research and editorial assistance
in preparing this article.
CONTROLLING DISCRETION IN SENTENCING:
THE CLEMENCY BOARD AS A WORKING MODEL
I. INTRODUCTION
The exercise of discretionary judgment is fundamental
to any system of justice -- but equally fundamental is the
consistent treatment of all individuals. To achieve the
latter, a reasonable balance is necessary between flexibility
and strict accountability to rules. Conscious efforts to
achieve this balance are made throughout almost all of the
American legal system. However, in at least one area --- the
sentencing of convicted criminals --- the system is wanting.
Attorney General Edward Levi has accused the sentencing
process of having "an accidental quality" in which imprisoned
1/
offenders consider themselves "losers in a game of chance.
=
This, he concludes, can only harm efforts at rehabilitation:
"Not only may it appear to an offender that his
imprisonment was just bad luck rather than the
inevitable consequence of wrongdoing, the unfair-
ness bred of inefficiency and unwillingness to
impose uniform punishment may make the society
outside the prison wall seem mean and hostile, a
society that itself does not follow the rules of
conduct it expects the ex-offender to follow. 2/
Typically, judges are free to make sentencing decisions
3/
according to their own personal standards.
As an inevitable
result, "the sentence a particular defendant gets is often
dependent in considerable measure on the trial judge he got -- or
2
4/
who got him.
"
What is ironic is that this unstructured sen-
tencing decision follows a very highly disciplined legal process
for establishing guilt. Yet in most criminal cases, the sentence
/
-- and not the question of guilt -- is the key issue.
Recog-
nizing this problem, critics of sentencing practices have
6/
called for more structure in the process:
"The power of judges to sentence criminal defendants
is one of the best examples of unstructured discre-
tionary power that can and should be structured. The
degree of disparity from one judge to another is
widely regarded as a disgrace to the legal system.
All the elements of structuring are needed -- open
plans, policy statements and rules, findings and
reasons, and open precedents.
One manifestation of the reaction to the undisciplined
discretion of sentencing judges is the effort to impose man-
/
datory minimum sentences --- and even mandatory sentences.
This achieves structure, but at the price of all discretion.
It equates consistency with severity. Better solutions must
be found. Unfortunately, working models have been slow to
emerge from American courts and legislatures.
The Presidential Clemency Board recently developed such
a working model, inspired in part by the Board's reaction to
the uneven treatment of convicted draft offenders by Federal
10/
judges.
In its final report, the Clemency Board noted that
sentences for draft offenses were "inconsistent and widely
varying, dependent to a great extent upon year of conviction,
11/
geography, race, and religion. " From 1968 to 1974, the
3
percentage of draft offenders sentenced to prison declined from
12/
74% to 22%.
Some judges never sent a draft offender to
prison, while others always imposed the five-year statutory
13/
maximum.
Blacks, Jehovah's Witnesses, and others outside
the middle-class mainstream were treated more harshly for
crimes that were no worse than those of other draft offenders.
Having seen the consequences of uncontrolled discretion,
the Clemency Board decided that it had to impose a measure
of discipline upon itself. According to Father Theodore M.
Hesburgh, a member of the Clemency Board, "The Board was
willing to do anything it could to get away from the vast
swing of the draft sentences." As a result, rules were developed
--- and made binding. Board members often became restless under
these rules. They were torn between the competing demands
of consistency and flexibility, sometimes complaining that
strict adherence to rules interfered with the reaching of
fair judgments in individual cases. What emerged was a
balance between the mechanical application of rules and the
subjective exercise of discretion.
As it disciplined its exercise of discretion, the Clemency
Board implemented a number of techniques which should be
14/
applicable to sentencing judges.
First, the Board developed
and published a clear set of substantive rules to serve as
criteria for case judgments, and it followed procedures which
4
ensured that these rules were explicitly applied in each case.
Second, it identified past precedents and employed them as a
basis for deciding subsequent cases. Third, it implemented
a system of internal appellate review through which inconsis-
tent judgments could be identified and reconsidered. Fourth,
it created a record which enables its decision-making performance
to be evaluated.
Taken together, these efforts resulted in a startling ---
and measurable -- degree of consistency and fairness in case
judgments. Statistics show that the Board did in fact follow
15/
its designated rules.
As a consequence, the Board achieved
one of its major goals -- that of treating persons with
16/
disadvantaged backgrounds in an evenhanded manner.
What
may be even more significant is that once the Board began
controlling its discretion, case judgments became less severe,
17/
not more so.
5
II. THE CLEMENCY BOARD EXPERIENCE
A. A Bad Experience with Uncontrolled Discretion
The Presidential Clemency Board was charged with the
responsibility of making clemency recommendations for some
19/
15,000 applicants to President Ford's program for Vietnam-
20/
era draft and military offenders.
The Board had to decide
whether each individual should be granted a Presidential
21/
pardon
-- and, if so, how much alternative service he had
22/
to perform to earn it.
Although the Board was bestowing
benefits rather than imposing punishment, it had a decision-
23/
making function comparable to that of a sentencing judge.
A judge's decisions range from minimal probation to the maxi-
mum period of imprisonment allowed by law. The Clemency Board's
judgments ranged from immediate pardons to the maximum 24-month
24/
period of alternative service set by the President
--- with
the most severe judgment being the denial of clemency in any
25/
form.
President Ford directed the Board to review every
application on a case-by-case basis to achieve equity among
applicants and to build public confidence in the clemency
26/
program.
Aside from the limited and unpersuasive precedent
27/
of the Truman Amnesty Board, the Clemency Board had no prior
experience to guide it in recommending executive clemency
on a case-by-case basis. However, the Board had to determine
6
the substantive standards and procedures to be followed in
28/
acting upon these cases.
The Board very quickly recognized
the importance of making fair and consistent decisions which
would be accepted as such by the clemency applicants and the
29/
general public.
With little guidance from the President, no help from
30
/
any precedents, and a predominantly lay membership, the
Clemency Board was faced with the problem of determining how
to proceed. At its very first meeting, the Board agreed that
it would identify and publish a list of factors to help it
review cases.
The Board's original intent was to have these factors
serve as informal guidelines for case judgments, reserving
the right to identify and apply other criteria freely. The
Board honed this tentative list into what it called "mitigat-
ing" and "aggravating" factors, using them to review its first
sixteen cases. As nothing more than guidelines, the factors con-
tributed little to the Board's decisionmaking process. Sharp
disagreements arose among Board members about the purpose of
31/
the clemency program, resulting in some near-resignations.
"Everybody was going in different directions in these cases, "
notes Father Hesburgh. "Some Board members wanted to give
everyone the maximum, and some always wanted to give the
minimum."
7
In these first sixteen cases, virtually identical cases
were decided differently. For example, two draft offenders
had each committed the same crime under almost identical
circumstances; the one who was white, religious and from a
well-to-do family was recommended for an immediate pardon --
but the black immigrant from the West Indies was denied
clemency apparently because of an off-hand comment in his
record that he was "clever." In these and the other fourteen
cases, analysis later proved that Board decisions were based
on aspects of the case which had no relationship to any of its
mitigating and aggravating factors. A juvenile arrest record
for possession of beer, involvement in an alternative-lifestyle
commune, participation in a "rock" band, and even jaywalking
convictions were the apparent but unspoken bases for judgments
32/
by the Board.
These inconsistent case judgments and the application of
irrelevant standards were a result of the ad hoc process the
Board used in reaching decisions. Each member focused on
aspects of the case he or she thought most important. Often,
members did not articulate the real basis for their decisions.
No attempt was made to reach a collective agreement in each
case on the presence or absence of the criteria the Board had
previously designated as relevant. Consequently, there was
no way to prevent any member from applying his or her personal,
and often unconscious standards -- or even to know what those
standards might be.
8
Board members seemed reasonably satisfied with their
decisions in each case, but the overall results were disturbing.
If there was any pattern at all in this first collection of
decisions, the Board seemed to be favoring applicants with
middle-class backgrounds, with a demonstrated respect for
authority, and with a conventional lifestyle. In fact, a
statistical analysis of those sixteen cases showed that
"conventionality of lifestyle" was a more significant pre-
dictor of Board judgments than any of the officially designated
aggravating and mitigating factors. In effect, the Board had
discarded its agreed-upon list of substantive rules, and was
proceeding on the more comfortable basis of "gut-level"
justice.
The bad experience with these sixteen cases proved a
blessing. Once the Board was alert to what it was
doing, it imposed much tougher standards of consistency on
itself and on the staff attorneys who prepared cases. In
doing so, the Board reluctantly acknowledged the need to
control its exercise of discretion through adherence to
more rigorous procedures.
9
B. Developing Rules
Right after the Board's assessment of its first sixteen
case decisions, it met in executive session to transform its
tentative guidelines into binding rules. The Board clarified
the alternative service "baseline" formula and the mitigating
and aggravating factors which would be used as the explicit
33/
bases for all case judgments. Only when mitigating factors
outweighed aggravating factors could the alternative service
assignment be reduced below the baseline. Conversely, the
alternative service assignment could be increased above the
baseline -- or clemency might be denied altogether -- only
when aggravating factors outweighed mitigating factors.
The Board went up or down from its baseline in three- or six-
month increments according to subjective measures of the
relative strength of the factors. With minor modifications,
this became the structure for the exercise of Board discretion
and the making of consistent case judgments.
The alternative service "baseline" was a fixed formula
used as a starting point for determining the amount of alter-
34/
34/
native service
It was a jerry-built mathematical
calculation which took account of an applicant's initial
35/
sentence, his time in jail, and other factors. One theory
behind the formula was that the Board should, without discretion,
give credit for court-imposed penalties paid by each applicant.
10
Equally fundamental to the formula was the Board's belief
that only nominal amounts of alternative service should be
assigned to most applicants. The formula resulted in initial
baselines of 3-6 months for 99% of the applicants -- well
36/
below the 24-month maximum set by the President.
With applicants having virtually identical baselines, the
mitigating and aggravating factors accounted for almost all
of the differences in Board judgments. The sixteen mitigating
factors and twelve aggravating factors represented a composite
of the concerns of Board members with different philosophies.
Some argued strongly for mitigating factors which would take
account of conscientious opposition to the Vietnam War and
disadvantaged socio-economic backgrounds. Others were pri-
marily concerned about applicants' criminal records and
experience as soldiers. Although majority approval was required,
the Board usually designated as a factor anything which any
Board member felt strongly about. Only once did the Board
37/
ever vote against a proposal to establish a new factor.
Board members had three standards in mind as they
38/
developed the list of mitigating and aggravating factors:
(1) Had an applicant demonstrated that he had already
earned a grant of clemency?
11
(2) Was his background such as to qualify him for
clemency?
(3) Could the Clemency program help him in any par-
ticular way?
The notion of "earning" clemency was central to the
philosophy behind the President's program -- earned re-entry
39
into the mainstream of American society. This was based on
the view that some measure of justice had to be struck between
clemency applicants and those who had satisfactorily discharged
their obligation of national service. Also underlying this
notion of "earning" clemency was a theory of general deterrence.
The clemency program had to demonstrate to future generations
of soldiers and draft-eligible persons that those who unlaw-
fully evaded service would not receive clemency unless they
earned it. This was consistent with the President's -- and
the Board majority's -- view that most clemency applicants
still owed a debt of service to their country.
/
For some, this debt had already been partially or com-
pletely satisfied. A surprising percentage (27%) of Clemency
Board military applicants were Vietnam veterans, many with
40/
combat wounds or decorations.
Even those who never went to
Vietnam often had performed long periods of meritorious military
12
service before committing their offenses. Many convicted
draft offenders had performed substantial periods of court-
ordered alternative service. These and other related cir-
cumstances were designated as "mitigating." Considered
"aggravating" were indications of an applicant's failure to
serve when called upon -- for example, by deserting in a
war zone, failing to report to Vietnam when ordered, or fail-
ing to complete court-ordered alternative service.
The worthiness of an individual's application for
clemency was far more subjective. The majority view, by
no means unanimous, was that the conscientious war resister was
the clemency applicant for whom the program was especially intended.
As the Board began to hear military cases, it discovered that
military applicants seldon went AWOL because of expressed oppo-
sition to the war. The more common reasons were personal or
family problems, procedural unfairness on the part of the
military, or a lack of sufficient intelligence or language
skills to cope well with military life. The Board believed
that all of these reasons could be sympathetic enough to make
an individual worthy of clemency. Conversely, individuals whom
the Board thought the President did not have in mind were
distinguished on the basis of certain aggravating factors --
long or repeated AWOL offenses, the use of force in committing
the qualifying offense, and a record of non-draft-related
41/
felony convications.
13
The final notion ---- that of helping or rehabilitating a
person through a grant of clemency -- had more limited appli-
cation. Some applicants had service-incurred disabilities,
others had serious mental or physical problems, and many
more had unresolved personal problems. For some, alternative
service was seen as a means of self-help; for others, with
serious personal or family problems, it would have been
a heavy and meaningless burden. Certain categories
of military applicants were recommended by the Board for
veteran's benefits, especially medical benefits, which
would help them readjust to civilian life after difficult
42/
tours in Vietnam.
Some mitigating factors were created to
account for these rehabilitative needs, and others were
marked "strong" in true hardship cases. The only way an
applicant's lack of rehabilitative potential was translated
into an aggravating factor was if he had a criminal record
for a very serious felony offense -- especially if he was
currently facing a long period of incarceration. For these
individuals, the clemency program could be of little help.
The full list of mitigating and aggravating factors is
4 3/
presented in Figure 1, with notation of how frequently
each was applied in civilian and military cases.
14
Figure 1: FREQUENCY OF AGGRAVATING AND MITIGATING FACTORS (Percent)
Civilian
Military
Agg 1
Other adult convictions
49
53%
Agg 2
False statement to the Board
0
0
Agg 3
Use of physical force in offense
0
0
Agg 4
AWOL in Vietnam
0
2
Agg 5
Selfish motivation for offense
15
31
Agg 6
Failure to do alternative service
4
0
Agg 7
Violation of probation or parole
5
7
Agg 8
Multiple AWOL offenses
1*
36
Agg 9
Extended AWOL offenses
0
72
Agg 10
Missed overseas movement
0
7
Agg 11
Unfitness discharge with other offenses
0
5
Agg 12
Apprehension by authorities
8
37
No Aggravating Factors
72
1
Mit 1
Inability to understand
3
32
Mit 2
Personal or family problems
9
45
Mental or physical condition
9
Mit 3
19
Public service employment
57
Mit 4
2
Mit 5
Service-connected disability
0
2
Extended military service
2
35
Mit 6
Vietnam service
1*
26
Mit 7
Mit 8
Procedural unfairness
6
14
Mit 9
Questionable denial of CO status
8
0
72
Mit 10
Conscientious motivation for offense
3
Voluntary submission to authorities
59
Mit 11
37
Mit 12
Mental stress from combat
0
5
0
Mit 13
Combat volunteer
9
1*
Above average military performance
39
Mit 14
Mit 15
Decorations for valor
0
2
0
4
Mit 16
Wounds in combat
5
2
No Mitigating Factors
* A small number of civilian applicants entered military service after
their draft offenses.
15
To structure the application of these rules, the Board
implemented standard procedures by which all cases were pro-
44/
cessed.
Based upon official records, a completed application
form, and communication with the applicant, a staff attorney
45/
prepared a summary for each case. After an internal review,
the case summary was submitted to Board members for study.
During Board meetings, staff attorneys and their immediate
supervisors were present to answer Board member questions or
read statements submitted by applicants.
The Clemency Board's baseline formula, mitigating and
aggravating factors, and general case procedures were published
in the Federal Register on November 27, 1974, approximately
one month after the Board had reassessed its first sixteen
46/
cases.
The primary purpose of publication was to make the
rulesbinding on the Board. Another purpose was to enable
potential applicants to understand the basis by which the
Board would make judgments in their cases. Board regulations
and application materials encouraged applicants to submit
information establishing the presence of mitigating factors
or the absence of aggravating factors. Unfortunately, appli-
47/
cants were not well counseled.
Few had lawyers, and not
many of the rest understood the importance of submitting
16
information bearing on the factors. Thus, the Clemency
Board's rules were much more effective as a means of con-
trolling its own discretion than as a means of helping
applicants to improve their chancès, before the Board.
C. The Use of Precedents
The establishment of clearly defined rules produced a
marked and immediate improvement in decisions. All of the
first sixteen cases were reconsidered, with the results much
more consistent and justifiable than before. The black immi-
grant from the West Indies received an immediate pardon, like
his white counterpart. By the time the Board published its
regulations in late November, it had made 45 case recommenda-
tions to the President. The pattern of judgments in the Board's
subsequent 14,500 cases generally matched the pattern of these
47/
first cases.
When the first 45 decisions were announced by the President,
each was accompanied by a condensed case description, which
attempted to summarize the elements of the case upon which the
result was based. This was an effort to establish open written
precedents for the guidance of the Board and future applicants.
Unfortunately, this experiment failed. First, it proved too
difficult to reconstruct accurately the reasons for each collec-
tive Board decision. Second, the Board refused to recognize
the public case descriptions as open and binding precedents.
17
One applicants' attorney requested a recommendation of an imme-
diate pardon by citing analogous case descriptions and results,
but the predominantly lay Board felt that a process of deciding
cases by arguing from precedents was-,too "legalistic" and
would infringe upon its legitimate exercise of discretion.
Specifically bound only by its published regulations in
this early period, the Board in effect developed its own
unwritten "common law" of policy precedents --- even though most
Board members, not being lawyers, failed to recognize this.
These precedents were applied informally but effectively by the
Board. At the time, simply having binding mitigating and
aggravating factors was enough to achieve consistency. Later,
this would not be so.
Not only were cases decided more consistently as a result
of having rules -- they ware also decided more leniently. The
Board's original judgments on the first 16 cases included only
two immediate pardons, four denials of clemency, and an average
of 16 months alternative service for the rest. After reconsidera-
tion, these very same cases included eight immediate pardons,
no denials of clemency, and an average of only six months alter-
native service for the rest. In part, this greater leniency
resulted from an emerging Board consensus that the Clemency
Board should be clement in deed as well as in name. Also ---
and more significantly -- this leniency was attributable to
18
the Board's greater confidence in the accuracy with which it
48/
could distinguish among applicants.
In the end, the Board
49/
denied clemency to seven percent of its applicants, but
by selecting out those cases according to clear rules and
precedents, it became more generous with all other applicants.
50/
Over time, four out of five received immediate pardons or
alternative service assignments of six months or less.
During its first few months, the nine-member Board took
about 20 minutes on each case to calculate a baseline, identify
mitigating and aggravating factors, and reach a judgment. At
the time, the Board's projected caseload was about 1,000 cases,
a disappointing but manageable size. Soon, the caseload drama-
51/
tically increased to 15,000, cases, and the President set a
six-month deadline for completing all Board operations. These
new developments forced radical changes in Board operations,
requiring new techniques to guide and monitor Board decisions.
It was no longer sufficient merely to apply the substantive
rules carefully and methodically.
Because of the expanded caseload, the Board was doubled
in size to eighteen members, and the staff expanded ten-fold.
This had two important consequences for the way in which cases
were decided. First, the Board began hearing cases in three-
member panels rather than en banc, thus creating new possibilities
for inconsistency of results. Second, the presence of 400
staff attorneys transformed the Clemency Board into a large and
complex organization in which procedures could no longer be
52/
informal.
19
By having three-member panels, it was thought that Board
rules could be applied just as consistently as the nine-member
Board had been doing. The idea of having single-member
judgments was rejected as too vulnerable to misapplication
of rules and wayward judgments. The Chairman tried to
balance the composition of each panel, wherever possible
assigning one conservative, one moderate, and one liberal to
53/
each.
Likewise, panels were reconstituted weekly to
prevent any particular panel from drifting away from estab-
lished rules.
Because of the very large caseload, panels could only
spend an average of four minutes on every case. Each
member reviewed the cases before panel meetings, and reached
tentative personal conclusions about what the judgments
should be. During the meetings, a consensus was reached
within a few minutes on all but the most difficult cases.
This process put a heavy burden not only on Board members
but also on the staff attorneys preparing cases. In addition
to preparing a factual summary for each case, attorneys were
then asked to calculate the baseline and recommend which
mitigating and aggravating factors might be applied by the
Board. Staff attorneys spent, on average, four to six hours
preparing each case and obviously had more occasion than the
20
hard-pressed Board members to understand all aspects of a
case. Even so, the Board unanimously rejected a proposal
to have staff attorneys recommend final case judgments
based upon Board precedent; this was considered too much of
an infringement upon Board discretion.
These shifts in Board and staff procedures were fine in
theory, but very difficult to implement in practice. Two
handicaps had to be overcome. First, half of the Board
and nine-tenths of the attorneys were new to the process and
could not be expected to understand immediately the unwritten
nuances of the mitigating and aggravating factors. Second,
with panels spending only four minutes per case, there was a
clear danger of hasty decisions and the arbitrary exercise of
discretion.
These handicaps were partly overcome through the codifi-
54/
cation of Board precedents in the Clemency Law Reporter.
The Reporter's five issues comprised an updated "hornbook"
of Clemency Board practice policies. Each factor was defined
in explicit terms -- often after Board debate -- and each
definition was accompanied by factual condensations or "squibs"
55/
of cases in which that factor had been applied by the Board.
The "squibs" were reviewed by the Chairman before publication,
and he deleted those which he felt were improper or misleading
applications of Board policy. In this way, the Reporter became
21
a means by which the Chairman sought to control the exercise
of discretion by Board panels. He intended it to be a
normative set of precedents to which Board panels were bound,
at least in theory.
Staff attorneys were instructed to follow the Reporter
in making preliminary designations of mitigating and aggra-
vating factors in each case as a guide for Board members.
Their designations were carefully monitored, again with the
Reporter as a guide. Finally, staff supervisors were present
at all Board panel sessions and were instructed to use the
Reporter to advise Board members of an incorrect application
of factors.
These staff procedures worked reasonably well, but the
Board members were unable or unwilling to use the Reporter
themselves. Board members still based their final designations
of mitigating and aggravating factors on their own personal
recollections of Board rules. A few rejected the advice
of staff supervisors about how factors should be applied,
insisting that Board members could properly exercise their
discretion without being bound by precedents. Despite this
resistance to formal precedents, panels rarely wandered far
from what precedent dictated. When they did, this became a
basis for the staff-attorney initiated appellate review pro-
cedures discussed below.
22
D. Internal Appellate Review
Standing alone, the Clemency Law Reporter was not enough
to ensure the consistency of case judgments. At best, it
only indicated whether factors were being applied correctly.
It did not offer any guidance to the Board in translating
those factors into a final judgment.
Consequently, some purely procedural steps were used to
structure the exercise of this discretion. As a standard
practice, Board panels waited to discuss a final judgment
until after all applicable factors had been agreed upon and
designated for the record. This tended to focus Board members
on the designated factors and away from extraneous issues.
Still, cases with identical baselines and factors were
often decided differently -- sometimes by accident and sometimes
by design. To check Board panels' exercise of discretion in
making final judgments, an internal system of appellate review was
implemented. The basic rule of this appellate system was that
any Board member could refer any panel judgment to the full
Board for reconsideration. Dissenting panel members referred
about three percent of all cases for reconsideration, usually
56/
to no effect. More significantly, this rule permitted the
Chairman to refer divergent cases identified by other review
procedures which the Board employed.
23
Staff attorneys were directed to flag cases they believed
to be decided inconsistently with Board precedents. These
cases then went through a carefully monitored system of
internal review, in which they were reviewed first by a
specially-trained team and then by the Chairman. Through
400
this procedure, approximately 100 cases were flagged by staff
200
attorneys and about 25 were ultimately reconsidered by the
full Board.
However, the most important and unusual aspect of this
57/
appellate system was STAREDEC, a computer review.
A gift
58/
from the National Aeronautics and Space Administration,
STAREDEC was programmed to analyze the Clemency Board's
precedents and identify patterns in the rendering of final
judgments. STAREDEC evolved from early manual efforts to trace
the impact of mitigating and aggravating factors on case judg-
ments. Through these ad hoc procedures, errant cases were
identified for possible reconsideration by the full Board
before final recommendations were sent to the President. Once
the Board's caseload expanded, however, this could only be
done by computer. With only about one month of planning and
preparation, STAREDEC became the foundation of a systematic
review of all case judgments before their submission to the
President.
24
STAREDEC became operational through the recording of
every case judgment on a computer-input sheet, along with
the Board's designation of mitigating and aggravating factors.
Not only did this create accurate and retrievable case records,
but it also provided a means by which case judgments could be
comparatively analyzed. After separating civilian and military
cases, STAREDEC sorted them according to their respective com-
binations of mitigating and aggravating factors. For each
factor combination, STAREDEC identified all prior case judgments
by the Board. Again for each combination, STAREDEC
identified the median case judgment and the cases with the
most extreme ("harsh" or "lenient") judgments. In flagging
these extreme cases, STAREDEC had two criteria: (1) the judg-
ment had to be among the ten percent most deviant cases for
that factor combination, and (2) the judgment had to be at
least six months away from the median for that factor combina-
59/
tion.
Once STAREDEC flagged a case, the staff appellate review
team studied the case summary to determine whether there
appeared to be a reasonable justification for the Board's
judgment. Obviously, the facts supporting a factor could
make that factor apply more strongly in one case than in
another. In effect, what the legal analysis staff did was
to ascertain whether each case judgment was within a fair
exercise of Board discretion. In most of the reviewed cases,
there was such a justification.
25
Through STAREDEC, approximately 200 cases were referred
to the Chairman for possible reconsideration. The Chairman
then referred some 75 cases to the full Board for reconsidera-
tion. The Board reconsidered the STAREDEC-flagged cases en banc
(as it did the attorney-flagged cases) with full knowledge of
the Board panels' earlier judgments. In almost every instance,
the full Board overruled the earlier panel decisions.
Some of the cases flagged by STAREDEC and staff attorneys
represented flagrant errors. Two cases had been denied clemency
despite the absence of any aggravating factors. Other cases
had been treated harshly because staff attorneys had improperly
presented irrelevant and prejudicial facts, such as arrest
records. Still other cases had simply landed on the docket
of a Board panel in an unusually harsh mood. Without the
appellate review, these cases would have been routinely sent
to the President as originally decided by the panels.
Another stage of appellate review took place after the
President approved the Board's case recommendations. To inform
each applicant about the decision in his case, the Board sent
him a worksheet identifying the specific mitigating and aggra-
vating factors which the Board identified in his case. The
purpose was to give him an understanding of the reasons under-
lying the Board's judgment. An accompanying letter informed
60
him of his right to appeal that judgment.
26
Roughly 275 applicants did appeal, and their cases were
then reviewed by the carry-over Clemency Office at the Department
of Justice. The Clemency Board had disbanded by the time the
appeals were reviewed, so there was no direct Board input
into those latter decisions. In general, the Clemency Office
applied Board precedents in acting uppn these appeals. An
estimated 15% of these appeals were successful, resulting
in more favorable case recommendations being sent to the
61,
President.
E. Evaluating Performance
Throughout the Clemency Board's year of operations, there
was a constant staff effort to provide the Board -- and
especially its Chairman -- with feedback about decision-making
patterns. For most of the year, the feedback was mostly sub-
jective, bolstered only by administrative tallies which told
little about the quality of case judgments. Once work was
underway on the Board's final report, however, some provoca-
tive, objective data was developed -- principally through
62/
a survey of some 1,500 cases and the final output of
STAREDEC. Although this information was collected too late to
be useful as feedback, it did help the Board fulfill its strong
commitment to be accountable to the public for the consistency
and fairness of case judgments.
27
What the data show is significant, but so too is the
fact that it exists at all. Had it not been for two circumstances
-- the Chairman's eagerness for feedback and the Board's applica-
tion of clear, measurable factors in' its decisions -- an evalua-
tion of the Board's performance would have been subjective and
impressionistic only. As it is, the data tell a story of a
decision-making process which, despite some weaknesses,
63/
accomplished much.
1. Process Accomplishments
Considering the Clemency Board's tumultous and erratic
beginnings, the record shows a surprising pattern of consistent
decision-making. This consistency took a number of forms:
(1) applying mitigating and aggravating factors decisively
in case judgments; (2) judging similar cases similarly, and
different cases differently; (3) treating applicants from
disadvantaged backgrounds evenhandedly; and (4) making con-
sistent case judgments over time.
The actual application of mitigating and aggravating factors
in Board decisionmaking was always a matter of concern. The
Board clearly did not apply its factor "guidelines" in its
first sixteen tentative judgments; once those factors became
"rules," the picture changed. STAREDEC confirmed the Board
members' subjective sense that a number of mitigating and
aggravating factors were very important -- indeed, decisive
-- in judging cases. STAREDEC analysis showed that twelve
of the sixteen mitigating factors and seven of the twelve
28
aggravating factors had either a "very strong" or "strong"
64/
relationship to case decisions.
The factors most closely
related to Board decisions were too whose importance was
often reaffirmed by Board members: mitigating factor #10
(conscientious reasons for the offense) and aggravating
factor #1 (other adult convictions).
Cases with similar factors can be considered similar
cases, albeit imperfectly. If the Board were applying its
rules correctly, one would generally expect to see cases with
identical mitigating and aggravating factors getting comparable
judgments --- and cases with different factors getting different
judgments. Figures 2, 3, and 4 illustrate the Board's
65/
application of its factors in making case judgments.
These tables show what happened to cases with selected factor
combinations. Although they encompass only a fraction of all
66/
Clemency Board cases, they illustrate the general pattern
of Board decision-making. Fully 97% of the civilian cases and
84% of the military cases received judgments within three
months of the median for their factor combinations. Moreover,
Board decisions became progressively more severe as mitigating
factors were subtracted or aggravating factors added. These
tables show an occasional stray case, but all of these were
flagged by STAREDEC and reviewed for possible resubmission to
the Board.
n
29
Figure 2:
IMPACT OF SELECTED AGGRAVATING AND MITIGATING
FACTORS ON CIVILIAN CASE DISPOSITIONS
# of
Agg #
Mit #
Cases
Pardons
3 AS
4-6 AS
7+ AS
NC
-
4,9,10
14
14
-
-
-
I
-
4,10
144
139
4
1
-
-
-
10
74
69
3
2
-
-
-
-
25
16
5
1
3
-
4
-
20
1
9
8
1
1
1,5
-
4
1
-
-
1
2
1,5,7
2
-
-
-
-
-
2
Figure 3:
IMPACT OF SELECTED AGGRAVATING FACTORS
ON MILITARY CASE DISPOSITIONS
# of
Agg #
Mit #
Cases
Pardons
3 AS
4-6 AS
7+ AS
NC
-
6
2
-
1
1
-
-
8
6
11
-
5
5
1
-
5,8
6
17
1
2
7
7
-
1,5,8
6
34
2
2
14
6
10
1,5,8,9
6
38
-
2
9
16
11
1,5,8,9,11
6
3
-
-
-
1
2
Figure 4:
IMPACT OF SELECTED MITIGATING FACTORS
ON MILITARY CASE DISPOSITIONS
# of
Agg #
Mit #
Cases
Pardons
3 AS
4-6 AS
7+ AS
NC
1,8,9,12
1,2,6,7,14
11
11
-
-
-
-
1,8,9,12
2,6,7,14
28
23
3
1
-
1
1,8,9,12
2,6,14
79
34
21
18
3
3
1,8,9,12
2,6
114
20
29
47
13
5
1,8,9,12
2
50
2
3
13
26
6
1,8,9,12
-
7
-
-
1
1
5
The Clemency Board was very conscious of the need to
apply its rules fairly to persons with disadvantaged backgrounds.
In fact, the first two mitigating factors were intended to give
4
30
credit to those whose offense had resulted from severe educa-
67,
tional handicaps or personal problems.
Disadvantaged persons
did not fare better than others in Board judgments, but they
68/
did receive equal treatment.
Figure 5 shows that the Board
judgments neither favored nor disfavored blacks, whites, low
IQs, high IQs, high school dropouts, college graduates, low
69
incomes, or high incomes.
Figure 5: CLEMENCY BOARD TREATMENT OF DIFFERENT CATEGORIES
OF APPLICANTS
Civilian Cases
Military Cases
% Pardon
%No Clemency
% Pardon
%No Clemency
Black
75
5
47
14
White
76
1
39
7
Low IQ (or AFQT)
59
6
46
9
Medium IQ (or
AFQT)
63
3
37
10
High IQ (or AFQT)
68
2
33
5
High school
dropout
59
3
39
9
High School
graduate
77
1
41
8
College graduate
82
0
25
0
Disadvantaged eco-
nomic background
72
0
41
5
Not disadvantaged
74
0
36
3
31
Another measure of the fairness of a process is its
consistency over time. For all but the first 5% of its cases,
Clemency Board judgments were comparable from month to month.
Figure 6 shows how Board case judgments varied throughout the
year, as reflected by the "pardon rate" for military and
70/
civilian cases.
The civilian pardon rate hovered around
90%, and the military pardon rate around 45%. Likewise (but
not shown in Figure 61, the "no clemency" rates were also
unsteady at first, then steady in the second half of the Board's
year. Note that the rapid pace of post-April Board operations
did not impair the consistency of case judgments. In fact,
the more cases per panel-day, the more consistently they were
decided.
PHASE I
PHASE II
First Publi-
cation of
32
Policy
Precedents
Baseline,
Fall of Expansion
Agg/Mit Factors Put
South
of
Into Regulations
Vietnam
Board
(1500)
100%
100
KEY:
(500)
Civilian pardon rate
Military pardon rate
(1000)
Panel hearing rate (cases/panel/day)
80%
80
60%
60
(500)
(200)
(200)
(100)
(1000)
(2000)
(5000)
40%
(100)
40
(10000)
NUMBER OF CASES HEARD PER PANEL PER DAY
PARDON RATE (AS
20%
20
0
0
SEPT
OCT
NOV
DEC
JAN
FEB
MAR
APR
MAY
JUN
JUL
AUG
SEPT
15th
15th
Figure 6 - BOARD PARDON RATES (CIVILIAN AND MILITARY CASES)
NOTE: Numbers in parentheses show cumulative cases heard by given date.
33
2. Process Disappointments
The generally good performance of the Clemency Board in
achieving consistency and fairness in its case judgments
should not be misinterpreted as an indication that everything
went well. It did not. None of the techniques described above
was implemented easily, and the Board's decision-making process
was far from ideal.
Some of the mitigating and aggravating factors were based
on questionable logic. For example, the fact that an
applicant was previously convicted by court-martial for AWOL
made aggravating factor #1 (other adult convictions) applic-
able, even though that court-martial, had it led to a discharge,
would itself have made him eligible for the clemency program.
Secondly, the Board decided to presume that the reason for
an applicant's offense was "selfish and manipulative"
(aggravating factor #5) in the absence of any evidence
about his reasons, shifting the burden to the applicant
to show that he was not selfish. Thirdly, the fact that an
applicant was AWOL for a long time was held against him (aggra-
vating factor #9) even though the difference between a short
and long AWOL was usually attributable only to the vigilance
of the police in an applicant's home town. Finally, a heroin
habit was considered mitigating (#3), not aggravating -- to
the strong displeasure of some Board members.
Certain key mitigating factors -- such as educational
handicaps (#1), family problems (#2), and mental or physical
34
71/
problems (#3) -- were not decisive in very many cases,
even though Figure 5 shows that they did contribute to the
evenhandedness of Board decisions. Conversely, one of the
Board's most controversial aggravating factors -- selfish
motivation for the offense (#5) -- did have a decisive impact.
The panels hearings were plainly a flawed process.
Applicants or applicants' counsel were almost never present,
and thousands of cases were decided at a rate of speed which
was unfortunate, however necessary. While aggregate data show
that four minutes per case did not adversely affect the overall
consistency of judgments, this fast pace sometimes interfered
with the fair treatment of individual cases. Board members,
being human, occasionally sped through cases which should have
72/
been given more time and discussion. Some Board members were
resentful when staff attorneys tried to compensate for this by
presenting an applicant's case in an especially favorable light.
The Clemency Law Reporter was not used to anything approach-
ing its true potential as a "hornbook" of Board policies. This
was partly due to the press of time, but primarily it was
because some lay members of the Board clearly felt uncomfortable
with a staff-prepared instrument which monitored their exercise
of discretion.
The computer-aided appellate review system was just being
perfected when the Board went out of business. At least twice
as many cases would have been reconsidered by the Board en banc
had there been time. Also, like any experimental computer
35
program, STAREDEC had its flaws. It was based on a narrower
concept of precedent than it might have been; this too could
73/
have been corrected in time.
The process of reviewing applicants' appeals was inappro-
priate per se. The appeals were heard not by the Board --
which no longer existed by then -- but by a carry-over staff
of attorneys who had middle-management positions at the Clemency
Board. From all indications, it appears that they administered
the appeals process fairly, but they were the wrong individuals
to be making appellate decisions.
In general, these inadequacies resulted from (1) an awkward
compromises among Board members with different philosophies,
(2) the lay character of the Board, and (3) the press of time.
*
*
*
From looking at the accomplishments -- and notwithstanding
the disappointments -- it appears that the Clemency Board did
achieve a rather good record for consistency and fairness of
judgments. Much of the credit for this must go to the fair-
mindedness and hard work of the eighteen men and women who made
them -- and, one should add, to the quality of the preparatory
work of the 400 staff attorneys. But high-mindedness and
hard work are not by themselves guarantees of good results.
What is more significant is that the Clemency Board developed
rules, followed those rules, and evaluated its performance in
applying them. The mitigating and aggravating factors, the
36
Clemency Law Reporter, the internal appellate system, and the
computer analysis together provided the mechanism by which
this was accomplished.
III. APPLICABILITY OF THE CLEMENCY BOARD MODEL TO
JUDICIAL SENTENCING
The experience of the Clemency Board in controlling adjudi-
cative discretion suggests that sentencing judges might improve
the consistency of their decisions if they implemented some
of the techniques tested by the Board. Indeed, the Clemency
Board model may have an even wider application --- to decisions
74/
by parole boards, military discharge review boards, and other
adjudicative bodies.
What makes the Board's experience particularly transferrable
to sentencing judges is the comparability of the alternative
service decision to the sentencing deçision. When a judge
chooses between probation and incarceration -- and, whichever
his choice, when he fixes the length of sentence --- he is
doing essentially the same thing the Clemency Board did. Cer-
tainly, the task of the sentencing judge is more difficult.
75/
The Clemency Board reviewed only two categories of offenses and
76/
had fairly homogeneous defendants; sentencing judges must act
upon a much wider range of offenses and offenders. The
Clemency Board had problems enough interpreting its vague
77/
mandate of "bind[ing] the nation's wounds; sentencing
judges must base their decisions upon the much more problematic
37
and conflicting notions of deterrence, rehabilitation, and
the protection of society.
The more complicated task facing sentencing judges should
not excuse them from having to apply&clear decision-making
rules. On the contrary, the complexity of judges' sentencing
decisions makes the use of such rules all the more important.
Of course, this greater complexity does mean that the rules
applicable to the sentencing process would have to be more
sophisticated than the rules applied by the Clemency Board.
The Board offers only a first-stage experiment
with baseline formulas, mitigating and aggravating factors, the
use of case precedents, appellate review, and computer-aided
analysis of consistency. Each of these techniques needs test-
ing in the actual sentencing process before any conclusions can
be drawn about their usefulness to a judge. However, there
is every reason to believe that such a sentencing experiment
would be as successful as the Clemency Board model.
The components of a sentencing experiment could be much
like that described below, tailored to the needs of a particular
jurisdiction. It should encompass as many sentencing judges
and offense categories as possible to provide the most meaning-
ful test of consistency.
38
1. A "baseline" would be stablished for each type of
offense, giving the sentencing judge a starting point for
his exercise of discretion. The baseline would be the presump-
tive sentence for all cases involving that offense. Also,
a minimum and maximum sentence "range" would be set for each
offense, indicating the outer limits of a judge's exercise of
discretion. For example, the "baseline" for armed
robbery might be five years, with a "range" of one-to-
twenty years.
2. A list of mitigating and aggravating factors would
be developed as the basis for the judge's sentencing decision.
The factors would take into account the diverse purposes of
sentencing. For example, the mitigating factors might include
such notions as mental duress, restitution to victims, and
evidence of current rehabilitation. The aggravating factors
might encompass the use of firearms, prior convictions, and
substantial evidence of bad character. Of course, these
lists would be much longer and would have to be prepared with
78/
great care.
3. With the factors articulated in advance, judges
would only consider these factors in rendering sentences. If
experience were to demonstrate the need for the creation of
additional factors, these would also be articulated and estab-
lished by rule, and not simply applied in an ad hoc fashion.
39
4. The information upon which the sentence is based
would be restricted to that which bears upon the designated
mitigating and aggravating factors.
5. Sentences would be group decisions, perhaps by
three-judge panels. This would ensure that the true basis
for each judgment would be the articulated rules --- not one
judge's personal standards.
6. Sentencing judges would be required to note for the
record which factors applied to a particular defendant before
pronouncing sentence.
7. If the mitigating and aggravating factors balance
each other out, the "baseline" sentence would be imposed.
If the mitigating factors outweigh the aggravating factors,
the sentence would be reduced below the baseline. Conversely,
if the aggravating factors outweigh the mitigating factors,
the sentence would be increased above the baseline. Obviously,
in no case would the sentence fall outside the legislated outer
limits of the judge's discretion.
8. Sentencing judges' identification of mitigating and
aggravating factors would have to be consistent with case
precedents showing prior use of those factors.
9. Each sentencing decision would be analyzed by a
STAREDEC-type computer before appeal to provide an immediate,
40
objective measure of consistency. Eventually, each sentencing
judge might be given feedback about how comparable cases were
being decided.
10. Sentences would be made subject to appeal, with
appeals based on either (1) a wrong identification of factors,
or (2) an inappropriate sentence, given the applicable factors.
Appellate courts would, through their decisions, try to main-
tain consistent patterns in sentences.
11. All sentencing judges would meet periodically to
maintain conformity in their interpretation of the rules
and their implementation of experimental procedures.
12. A comprehensive survey of cases would be conducted
as a means of evaluating the experiment. An identical survey
of a non-experimental "control group" would be useful for
comparison.
Not all of these techniques need be applied in any one
experiment. The three-judge concept, the STAREDEC-like computer
review, and the appellate review of sentencing decisions are
separable items. However, all aspects of the model reinforce
one another and should enhance the prospects for a successful
experiment.
Reduced to its simplest features, this Clemency Board
model consists of establishing clear rules, following those
rules, and measuring performance. The exercise of discretion is
a
41
controlled -- and the quality of decision-making improves
as a result.
Even with its discretion disciplined, the Clemency Board
had its wayward moments and applicants were sometimes asked
to do too much or too little alternative service. Sentencing
judges, with almost limitless discretion, can be expected to
be wayward much more often. When they are, the price is
paid by an underprotected public or by an overpunished offender.
Either way, the price is too high.
a
FOOTNOTES
1/ Address by Attorney General Edward H. Levi before the
Governor of Wisconsin's Conference on Employment and the
Prevention of Crime, February 2, 1976.
2/ Id.
3/ Judge Lombard gave the following example at the 1965
Philadelphia Judicial Sentencing Institute: "You may have
heard of the visitor to a Texas court who was amazed to
hear the judge impose a suspended sentence where a man had
pleaded gulty to manslaughter. A few minutes later the
same judge sentenced a man who pleaded guilty to stealing a
horse and gave him life imprisonment. At recess he was
introduced to the judge, and he expressed surprise at these
sentences. The judge thought a moment and replied, "Well,
down here there is some men that need killin', but there ain't
no horses that need stealin. Lombard, SENTENCING AND
LAW ENFORCEMENT, 40 F.R.D. 399, 409 (1965).
4/ M. Frankel, Comments on an Independent, Variable Sentencer,
42 U. Cinn. L. Rev. 667 (1973) See, e.g., American Bar
Association Project on Minimum Standards for Criminal Justice,
STANDARDS RELATING TO APPELLATE REVIEW OF SENTENCES, 27-28
(Approved Draft 1968) ; R. Dawson, SENTENCING, ch. 8 (1969) ;
S. Rubin, et al., THE LAW OF CRIMINAL CORRECTION, 116-119
(1963)
5/ See the report of the American Bar Association, STANDARDS
RELATING TO APPELLATE REVIEW OF SENTENCES, as quoted in
W. Gaylin, IN SERVICE OF THEIR COUNTRY, 323-324 (1970).
Many of these critics are judges themselves. See, e.g.,
M. Frankel, CRIMINAL SENTENCES (1973) ; Devitt, How Can We
Effectively Minimize Unjustified Disparity in Federal Criminal
Sentences? in INSTITUTE OF SENTENCING, 42 F.R.D. 175, 218
(1967) ; Levin, Toward a More Enlightened Sentencing Procedure,
45 Neb. L. Rev. 499 (1966) ; Rubin, DISPARITY AND EQUALITY OF
SENTENCE, 40 F.R.D. 55 (1967) ; Wyzanzki, A Trial Judge's
Freedom and Responsibility, 65 Harv. L. Rev. 1281 (1952)
1/ Kenneth Culp Davis, DISCRETIONARY JUSTICE, 133 (1971)
See especially S. 2698 and S. 2699, introduced in the
current session of Congress by Senator Edward M. Kennedy
of Massachusetts. At the time of this writing, these bills
are still pending.
2
9/ Sentencing councils and appellate review of sentencing
have been implemented by a number of jurisdictions.
See generally the ABA STANDARDS (approved drafts) relating
to sentencing alternatives and procedures. See also the
A.L.I. Model Penal Code (1962).
10/ See also Sentencing Selective Service Violators: A
Judicial Wheel of Fortune, Col. J. of Law and Soc. Prob.,
Vol. 5:2, 164 (1969).
11/ Presidential Clemency Board, REPORT TO THE PRESIDENT
(hereinafter referred to as REPORT), 49 (1975).
12/ Id., cited from the ANNUAL REPORT OF THE DIRECTOR OF THE
ADMINISTRATIVE OFFICE OF UNITED STATES COURTS for 1968 and
1974.
13/ The most extreme sentence was given
to a black civil rights worker in Louisiana --- five concurrent
five-year sentences for separate draft violation charges.
By contrast, a Wisconsin defendant recently received a sen-
tence of probation for one day under the FEDERAL YOUTH
CORRECTIONS ACT (under which his conviction record was then
expunged).
14/ These techniques are described infra in the order pre-
sented here.
15/ See infra. See also the Clemency Board REPORT,
ch. 5.
16/ See infra.
17/ See infra.
18/ The Presidential Clemency Board was created on September
16, 1974, by President Gerald R. Ford in Proclamation 4313
and the accompanying Executive Order 11803 of the same date
(reproduced in the Clemency Board REPORT, App. B). The
Clemency Board was originally to have been in existence until
December 31, 1976 (see §9 of the Executive Order), but it was
instead terminated on September 15, 1975. The Board submitted
its REPORT TO THE PRESIDENT on December 15, 1975. Carry-over
administrative tasks were delegated to a newly designated
Clemency Office in the Office of the Pardon Attorney, Department
of Justice. Upon completion of these functions, scheduled for
March 31, 1976, any residual matters are the responsibility of
the Pardon Attorney himself.
3
footnote 18/ continued:
The Chairman of the Clemency Board was Charles E. Goodell,
former United States Senator from New York. The Board had
a total of nine members: Dr. Ralph Adams, James P. Dougovito,
Robert H. Finch, Father Theordore M. Hesburgh, Vernon E. Jordan,
James A. Maye, Aida Casanas O'Connor, and General Lewis W. Walt.
In April, 1975, the Board was expanded by Executive Order to
eighteen members because of the expanded workload. The new
members were Timothy Lee Craig, John A. Everhard, W. Antoinette
Ford, John Roy Kauffmann, Rev. Msgr. Francis J. Lally,
E. Frederick Morrow, Lewis B. Puller, Jr., Harry Riggs, and
Joan Vinson. Robert H. Finch resigned from the Board in June
and was replaced by Robert S. Carter. For biographies of the
Board members, see Id., App. A.
19/ The Clemency Board received approximately 21,500 applica-
tions, of which some 6,000 were found to be ineligible. From
among the 15,468 eligible applications, the Clemency Board made
14,514 case recommendations to the President before it ter-
minated operations on September 15, 1975. The Board took no
action on the remaining 954 cases because of insufficient
information; the carry-over Clemency Office in the Department
of Justice later made case recommendations for those cases
in which the necessary information could be obtained. Id.,
163-165. Clemency Board case recommendations were not final.
Only the President can exercise the constitutional power to
grant pardons, and no Clemency Board case recommendation was
final until approved by him. See Art. II, §2, cl. 1 of the
Federal CONSTITUTION and the discussion in the Clemency Board
REPORT, 11-12. As of March 1, 1976, the President had acted
upon all but about 750 case recommendations -- and, without
exception, he accepted the judgment of the Board.
20/ The Clemency Board had jurisdiction over draft offenders
who had been convicted for one of the following violations of
§12 of the SELECTIVE SERVICE ACT: (1) failure to register for
the draft, or failure to register on time; (2) failure to keep
the local draft board informed of his current address; (3) failure
to report for or submit to preinduction or induction examination;
(4) failure to report for or submit to induction; or (5) failure
to complete alternative service to satisfy the requirements of
a conscientious objector exemption. Draft offenders who were
fugitives still charged with such violations were the jurisdic-
tion of the Department of Justice, which implemented a separate
4
footnote 20/ continued:
part of the President's clemency program. To be eligible,
an applicant must have committed his offense between August
4, 1964, and April 28, 1973, and he must not have been an
alien excluded by law from entering the United States under
U.S.C. 1182 (a) (22).
The Clemency Board also had jurisdiction over military
offenders who received Undesirable, Bad Conduct, or
Dishonorable Discharges as a result of violations of Articles
85 (desertion), (86) AWOL, or 87 (missing movement) of the
Uniform Code of Military Justice (10 U.S.C. 885, 886, and
887). Military offenders who were fugitives still charged
with such violations were the jurisdiction of the Department of
Defense, which implemented a separate part of the President's
clemency program.
Of the 8,700 convicted draft offenders eligible to apply
to the Clemency Board, 1,879 (22%) applied. Of the approxi-
mately 90,000 discharged military offenders eligible to apply
to the Board, 13,589 (15%) applied. Of the 4,522 fugitive
draft offenders eligible for the Department of Justice
clemency program, 706 (16%) applied. Of the 10,115 fugitive
military offenders eligible for the Department of Defense
clemency program, 5,555 (55%) applied. Altogether, 21,729
of the approximately 113,000 eligible persons applied -- for
an overall participation of 19%.
For a further description of eligibility criteria and
application statistics, see Id., 7-9 and 21-22.
21/ The Presidential pardon was the remedy offered convicted
draft offenders who applied to the Clemency Board. For
discharged military offenders, the remedy was a Presidential
pardon and a recharacterization of discharge as a "Clemency
Discharge," a new type of discharge created for the purposes
of this program. For a discussion of the implications of
these remedies (and a description of the remedies offered by
the Department of Justice and Department of Defense clemency
programs), see Id., 15-21.
22/ This alternative service was to be performed in a position
which served the "national health, safety, or interest" and
which did not take a job away from any other qualified individual.
Applicants to the Clemency Board who were assigned to six months
or less of alternative service could fill part-time, volunteer
positions which would not require an interruption of their
regular jobs. The Selective Service System was given the
responsibility of supervising the performance of assigned
periods of alternative service. See Executive Order 11804,
5
footnote 22/ continued:
September 16, 1974, and the Clemency Board REPORT, 17-21. The
performance of alternative service has been uneven so far,
and it appears that perhaps as many as 4,000 of the Clemency
Board applicants will fail to complete alternative service.
23/ Curiously, one point of disagreement between the
Clemency Board and the pro-amnesty community has been over
whether the Board was in fact engaged in "sentencing" of
applicants. The latter always maintained that alternative
service was punitive and that the Clemency Board was meting
out alternative service "sentences." See the Statement made
by Henry Schwarzschild of the ACLU Amnesty Project in the
CLEMENCY PROGRAM PRACTICES AND PROCEDURES, Hearings of the
Subcommittee on Administrative Practice and Procedure,
U.S. Senate Committee on the Judiciary (1975). However, the
Board's position was that it was offering a benefit which could
be accepted or rejected by every applicant. Indeed, every
Clemency Board applicant could refuse to perform alternative
service without legal jeopardy, and no Presidential pardon
could be effective unless accepted by its recipient. This
was not as much a debate over whether the Board was following
or should follow procedures comparable to those of a sentenc-
ing judge, but rather over the merits of the alternative
service aspect of the President's clemency program.
24/ Presidential Proclamation 4313.
25/ Executive Order #11803, $3.
26/ See generally Proclamation 4313 and accompanying
Presidential statement, both dated September 16, 1974.
27/ The 1946-47 Truman Amnesty Board decided cases according
to broad categories, not on a case-by-case basis. Also, it
denied clemency to 90% of its 15,805 applicants. Its Report
is reproduced in full in SELECTIVE SERVICE AND AMNESTY,
Hearings before the Subcommittee on Administrative Practice
and Procedure of the Committee on the Judiciary, United States
Senate, 185-189 (1972).
28/ Clemency Board REPORT, 83ff.
6
29/ Clemency Board case judgments were as follows:
Civilian Cases
Military Cases
#
olo
#
of
Immediate pardon
1432
82%
4620
36%
Alternative service:
3 months
140
8%
2555
20%
4-6 months
91
5%
2941
23%
7+ months
68
4%
1756
14%
No clemency
26
1%
885
7%
(Source: Id., xxiii).
30/ The eighteen-member Board consisted of five lawyers and
thirteen non-lawyers.
31/ The Board included a number of individuals who had
earlier taken strong public positions on these issues. For
example, Father Theodore M. Hesburgh (President of the
University of Notre Dame) had been a long-standing opponent
of the Vietnam war and an advocate of unconditional amnesty;
General Lewis W. Walt (Commandant of Marine forces in Vietnam
during the war) had the opposite point of view. The Board's
Chairman, Charles E. Goodell, had opposed the war as a United
States Senator but was not in favor of unconditional amnesty.
Understandably, the development of consensus Board positions
required substantial time and compromise.
32/ At the time, staff attorney procedures were just as
unstructured as Board procedures. Vague, unsubstantiated, or
irrelevant facts were sometimes included in case summaries.
After the first sixteen cases, the work of staff attorneys
was monitored by a special quality control unit.
33/ first, the Board established eleven mitigating factors
and seven aggravating factors, later expanded to sixteen and
twelve, respectively. See Figure 1, infra, for the final
list of factors.
34/ It should be noted that this "baseline" was neither a
minimum nor a maximum. It was more of a target median, with
the expectation that equal numbers of cases would be decided
on either side of it. As a general rule, an applicant's
baseline calculation was found to be the most important deter-
minant of his case judgment. See Id., 126.
7
35/ The "other factors" were the time spent on probation or
parole, time spent performing alternative service, and the
judge's initial sentence. The baseline formula worked as
follows:
(1) Starting with the maximum baseline of 24 months,
three months were reduced for every month of confinement.
The baseline was further reduced by one month for every
month of court-ordered alternative service, probation, or
parole previously served, provided that the applicant had
not been prematurely terminated because of lack of coopera-
tion.
(2) If this baseline calculation was greater than the
applicant's sentence from a Federal judge or court-martial,
that original sentence became the baseline.
(3) The minimum baseline was three months, without
exception.
(4) Applicants who had been sentenced to probation or
discharged administratively from the Armed Forces were con-
sidered to have sentences of zero months imprisonment. Their
baseline was the three-month minimum. Id., 95-96.
36/ The Clemency Board assigned much less alternative service
than either the Department of Justice or the Department of
Defense clemency programs. Each of the latter had a fixed
baseline of 24 months which was reduced in some cases because
of mitigating circumstances. Most applicants to the Justice
and Defense programs were assigned to 18-24 months of alternative
service. Id., 145-147. The Clemency Board justified its
more lenient decisions as a reflection of "the basic difference
between Clemency Board applicants and those eligible for the
Justice and Defense programs. Clemency Board applicants had
already paid a legal penalty for their offenses; they had
received civilian or military convictions, or less-than-
honorable administrative discharges. Also, a pardon could
never be as beneficial a remedy as complete relief from prose-
cution or administrative punishment." Id., 95.
37/ The only factor ever rejected was a proposal to make
habitual drug use an aggravating factor. At the time, the
Board was applying mitigating factor #3 (mental or physical
problems) to persons with serious drug habits, and it voted
continue that practice.
8
38/ For a list of these factors, see Figure 1, infra.
The standards noted here were not specifically articulated by
the Board, but they were implicit in Board discussions. The
Clemency Board REPORT notes that the factors can also be
categorized as follows: the reason for the offense, the cir-
cumstances surrounding the offense, the individual's overall
record in the military, his overall record in the civilian
community, and circumstances surrounding his application for
clemency. Id., 97ff.
39/ See generally Proclamation 4313 and the accompanying
Presidential statement, both dated September 16, 1974.
40/ See the Clemency Board REPORT, ch. 3-4 for a description
of the applicants and the exact manner in which the Board
applied each mitigating and aggravating factor. The Vietnam
veteran discussion appears at 60-65.
41/ The Clemency Board's experience with this last aggravat-
ing factor reflects the compromise and fragile consensus which
went into the establishment of these rules. Some Board
members considered these offenses to be unrelated to the
clemency mission, urging that they be disregarded altogether.
Other insisted that applicants convicted of felony offenses
be denied clemency automatically, much as the Truman Amnesty
Board had excluded persons with criminal records. Instead,
the Board adopted the middle view, considering felony convic-
tions to be a "highly aggravating factor." Id., xxi.
42/ Proclamation 4313 specifically notes that Clemency
Discharges "shall not bestow entitlement to benefits
=
Despite this, the Clemency Board recommended that the President
personally exercise his authority as Commander-in-Chief of the
Armed Forces by (a) personally directing the discharge upgrades
of the most meritorious applicants, (b) referring other cases
with slightly less merit to the military discharge review
boards for special consideration, and (c) referring
cases involving service-incurred physical disabilities to the
Veterans' Administration for medical benefits only. The
President never specifically acted on these recommendations --
and, given the passage of time, it appears that they have been
"pocket-vetoed."
43/ Clemency Board REPORT, 127
9
44/ Id., 24-26 and 85-94.
45/ Each applicant had a 30-day opportunity to comment on
his case summary. Because of the press of time, cases were
decided before the end of the 30-day comment period. Comments
were rarely received about case summaries; when this happened,
a case was submitted to another Board panel de novo if the
comments or corrections were possibly significant.
46/ 39 FR 41351.
47/ See note
.
48/ Father Hesburgh attributes the Board's leniency directly
to the fact that Board members had to follow a clear set of
rules. "If we had to fight all cases one-by-one, we would
not have been as successful in making clement dispositions."
49/ For a discussion of what kinds of cases were denied
clemency, see Id., 136-138 and 141-143.
50/ For a discussion of what kinds of cases received immediate
pardons, see Id., 134-135 and 139-141.
51/ This increase resulted from the Board's concerted efforts
to educate the public about who was eligible for the clemency
program. Before this public information campaign, most people
thought that the program only included exiles and fugitives --
and not punished offenders. Immediately after this information
campaign was begun, Clemency Board applications showed a sharp
increase. For this reason, the President extended the applica-
tion deadline for two months (from January 31, 1975 to March
31, 1975). The Clemency Board's application rate was still
increasing when the deadline was reached. See Id., 20-23.
52/ The total staff of the Clemency Board grew from 100 to
600 in a period of just a few weeks. For a description of
the "crisis management" aspect of Board operations, see Id.,
ch. 6.
53/ Among the Board members, there was unanimous approval for
the concept of balancing these panels. Very rarely did a
panel result in a sharp two-against-one voting pattern.
According to Father Hesburgh, "there was shared input from
all sides, as we all recognized that we had to compromise
occasionally." Had the panels not been balanced philosophically,
the judgments would have been very uneven.
10
54/ The CLEMENCY LAW REPORTER began as a staff paper illus-
trating how the Board was applying its mitigating and aggra-
vating factors. Later, it served as a guide to Board precedents
and as an internal forum for staff-prepared articles on issues
of professional concern. An index to the REPORTER issues, with
article highlights, is included in the Clemency Board REPORT,
App. D. Appendix D to the REPORT also contains the entire
fifth issue of the CLEMENCY LAW REPORTER, the final statement
of the Board's case precedents. All five issues are available
to the public at the National Archives, Washington, D.C.
55/ As illustrations, the definitions and case examples for
mitigating factor #7 (Vietnam service) and aggravating factor
#4 (AWOL in Vietnam) are shown below. They are extracted
from the fifth issue of the REPORTER, reproduced in the Clemency
Board REPORT, 310-311 and 292.
MITIGATING FACTOR #7: Tours of Service in the War Zone
This factor is applicable in cases where the applicant
has served a minimum of three months in Vietnam or on a Navy
ship that had a sea patrol off the coast of Vietnam. It can
be applied where the applicant had not completed a tour, but
while on authorized leave from Vietnam assumed an unauthorized
absence status. Shorter periods of Vietnam service are not
covered, unless the applicant was injured in Vietnam or trans-
ferred out of the war zone by the military service for reasons
other than serious military or nonmilitary offenses (including
AWOL offenses)
(1) During his initial enlistment, applicant served
as a military policeman and spent 13 months in that
capacity in Korea. He then served two tours of duty
in Vietnam, as an assistant squad leader during the
first tour, and as a squad leader and chief of an
armored car section during the second.
(2) Applicant served in Vietnam for eleven months.
(3) Applicant served in Vietnam with the 101st Airborne
as a light weapons infantryman. His tour lasted four
months and 22 days. He returned to the United States
on emergency leave for five months. Applicant stated
that he went AWOL because he could not face going back
to Vietnam, due to the incompetence of his officers
and the killing of civilians.
11
footnote 55/ continued:
(4) The applicant served for three months in Vietnam
in a combat status. While in Vietnam, he was given
emergency leave back to the United States because of
the death of his mother. Applicant overstayed his
leave and became AWOL. He was apprehended shortly
thereafter.
(5) Applicant saw service in Vietnam for a period of
two months, 13 days. He served as a combat medic.
While in Vietnam, he broke his ankle. He was operated
on and was evacuated for rehabilitation.
(6) Applicant served in Vietnam for nine months as a
mortar specialist and participated in two combat cam-
paigns. He received fragment wounds necessitating
evacuation to Japan and then to the United States.
(7) Applicant was wounded after 3 months in Vietnam,
requiring two operations and prolonged convalesence.
(8) Applicant served aboard the USS Buchanan for seven
months off the coast of Vietnam.
AGGRAVATING FACTOR #4: Desertion During Combat or Leaving
Combat Zone
This factor indicates that an applicant went AWOL from
his unit either during actual enemy attack or before any
reasonably anticipated enemy attack. Going AWOL directly
from Vietnam gives automatic rise to this factor. However,
departing AWOL from R&R outside of Vietnam or home leave
from Vietnam does not constitute this factor though it does
constitute Aggravating Factor #10. An applicant's reasons
for his qualifying offense do not affect the applicability
of this factor.
(1) Applicant was an infantryman in Vietnam when he
went AWOL. He was picked up in a rear area by Military
Police and ordered back to the field by two lieutenants.
He refused to fly out to join his company.
(2) Applicant commenced the first of three AWOLs while
in Vietnam. He flew back to California. His subsequent
AWOLs occurred after his apprehension in the U.S.
12
footnote 55/ continued:
(3) Applicant stated at his trial that he became
extremely frightened in combat. He went AWOL after
he was sent to a rear area for chills and fever.
(4) Applicant bought orders to-return to the U.S.
from Vietnam.
(5) Applicant received an Undesirable Discharge for
unfitness; two of four AWOL offenses occurred while
applicant was in Vietnam.
56/ Usually, these Board-member referrals reflected basic
philosophical differences with the policies of the Board
majority. Half of these cases were referred by one particular
Board member. See Id, 124-125.
57/ STAREDEC, named after the legal concept of stare decisis
cost approximately $75,000 to implement,
staff time included -- or roughly $5.00 per case. For a more
detailed description of STAREDEC, see Id., App. E. The
complete STAREDEC tape is available to the public at the
National Archives, Washington, D.C.
58/ The idea of having a computer review of panel judgments
arose from a recommendation of the Inter-Agency Team to
Survey the Presidential Clemency Board, a team of management
specialists sent by the White House to help plan the expansion
of Board operations. Because the Board was making decisions
so quickly, the Inter-Agency Team suggested that a "post-audit
review" be conducted before case judgments were submitted to
the President. The computer program was based upon prior staff
statistical analyses of Board precedents. With the help of
NASA (which absorbed most of the cost), STAREDEC took only
one month to become fully operational. Id., App. E.
59/ The following example shows how STAREDEC worked. There
were 114 military cases which had the factor combination of
2 and 6 mitigating and 1, 8, 9, and 12 aggravating. Those
cases were decided as follows:
Immediate
3 months
4-6 months
7-9 months
10-24 months
no
Pardon
alt. serv.
alt. serv.
alt. serv.
alt. serv.
clemency
20
24
47
11
2
5
The median Clemency Board judgment was a four-to-six
month alternative service recommendation. The two judgments
of 10-24 months of alternative service and the five "no
clemency" judgments were flagged by STAREDEC as "harsh" cases.
n
13
60/ The worksheet and letter sent to clemency recipients
are included in Id., App. D.
61/ Because of the Selective Service rule that applicants
with six months or less of alternative service could complete
this obligation through part-time work (see note 22, supra),
the Clemency Office frequently reduced appellants' assignments
to six months. Appeal decisions were made with the CLEMENCY
LAW REPORTER as a guide.
62/ The primary purpose of this survey was to learn about
the background characteristics of clemency applicants. It
was based upon a representative sample of 1,009 military
cases and 472 civilian cases. See the Clemency Board REPORT,
App. C. Survey findings are presented in Id., ch. 3 and 5.
63/ These "process" accomplishments do not necessarily trans-
late into substantive achievements. The overall clemency pro-
gram is in fact subject to much criticism on the ground that it
offers little if any tangible benefit to applicants. While
the Presidential pardon has great symbolic value and restores
civil rights lost by reason of the underlying criminal convic-
tion, it does not translate directly into improved economic
circumstances. The Clemency Discharge by definition does not
confer rights to veterans' benefits, and it is uncertain how
it will affect the decisions of military discharge boards and
the Veteran's Administration when they review subsequent
applications for benefits by clemency applicants. Successful
participation in the program requires a sustained interest on
the part of applicants, most of whom are socially, economically,
and educationally disadvantaged. As a consequence, there has
been a high drop-out rate due to undeliverable notices, failure
to report for alternative service, and failure to complete
alternative service.
64/ Id., 126-132.
65/ Id., 133.
66/ The case judgments shown in Figures 2, 3, and 4 represent
only 13% of the Board's civilian cases and 3% of the military
cases. Comparable tables can be made of other factor combina-
tions, based upon STAREDEC's final print-out.
67/ Mitigating factor #1 (inability to understand obligations)
and mitigating factor #2 (personal or family problems). Id.,
290-291.
14
68/ The Board consciously tried to be clement towards appli-
cants with disadvantaged backgrounds, with a number of mitigating
factors (#1, 2, 3, 5, and 8) made directly applicable to them.
Curiously, this resulted in evenhanded treatment -- and not
more favorable treatment, which the Board intended. This
indicates that applicants with disadvantaged backgrounds
probably would have been treated much worse than others had
the Board's intent not been so strong, and had these mitigating
factors not existed.
69/ These statistics are drawn from the comprehensive survey
of Clemency Board applicants. See note
.
For further
data about who received pardons and who was denied clemency,
see Id., 134-145. Only one category of applicants fared badly
because of circumstances which did not reflect upon their
behavior: those for whom the military or Federal court system
had not compiled complete records. These partial records tended
to focus on an applicant's offense and not his background, pro-
viding more evidence about aggravating factors than about miti-
gating factors. This unfortunate inequity marred an otherwise
quite even-handed pattern of judgments.
70/ Id., 173.
71/ Id., 126-132. Board member Timothy Craig "strongly
disagrees" with this observation, but it is demonstrated
clearly by statistics. See Figure 5 and note 68, supra.
72/ Father Hesburgh believes that Board judgments were, 'if
anything, more fair when cases were decided in panels. He
considers full Board judgments to have involved "posture
and charade, with the panels having given more serious
attention to the circumstances of each applicant's case.
73/ The principal flaw in the STAREDEC program was its
inability to develop a precedent pattern for cases which
had unique combinations of mitigating and aggravating factors.
Since they were the only cases with those combinations, they
were also the median cases -- and thus were not flagged. To
compensate for this, the legal analysis staff automatically
reviewed judgments of "no clemency" or more than twelve months
of alternative service. This shortcoming of STAREDEC could
be overcome by applying a regression formula to cases with
unique factor combinations -- or, indeed to all cases.
15
74/ Congressman Thomas Downey of New York recently introduced
H.R. 11097, a bill to alter the Armed Forces discharge review
procedures. This bill would require military discharge review
boards to apply sixteen "mitigating" and fifteen "extenuating"
circumstances when reviewing applications for discharge. The
bill has no provisions for aggravating circumstances, under
the apparent assumption that those boards will consider them
without being required to do so by an Act of Congress. The
experience of the Clemency Board indicates that the inclusion
of aggravating factors is even more important than mitigating
factors for the protection of the individual. Aggravating
factors require the structuring and recording of negative
feelings, preventing irrelevant facts from being applied to
anyone's detriment. Likewise, the Clemency Board's legal
analysis staff found their review of aggravating factors to
be more determinative than the review of mitigating factors.
75/ Draft offenses and military absence offenses can each be
considered single categories, although each encompasses a
range of specific offenses. See note 20, supra.
76/ Clemency Board applicants proved to be much more diverse
than the Board had expected, but they still were far more homo-
geneous than defendants in criminal trials. The applicants
were virtually all between the ages of 21-35, all military
applicants had military backgrounds per se, and virtually no
one had committed a violent act as part of his draft or military
absence offense. See the Clemency Board REPORT, ch. 3.
77/ ,Proclamation 4313.
78/ See generally the A.L.I. MODEL PENAL CODE (1962)
VIETNAM OFFENDER STUDY
CENTER FOR CIVIL RIGHTS
UNIVERSITY OF NOTRE DAME
LAWRENCE M. BASKIR
1826 JEFFERSON PLACE. N.W.
PROJECT DIRECTOR
WASHINGTON, D. C. 20036
WILLIAM A. STRAUSS
(202) 296-1767
DEPUTY DIRECTOR
PADDY TALBOYS SHAKIN
October 18, 1976
ADMINISTRATIVE SECRETARY
RECEIVED OCT 19 1976
Senator Charles E. Goodell
Hydeman, Mason and Goodell
1220 19th Street, N.W.
Washington, D.C. 20036
Dear Senator:
We have enclosed a reprint of our article about the
Clemency Board in the Notre Dame Lawyer.
Our "white paper" will be printed soon, and we'll get
a copy of that to you as soon as it is ready. Thank you
for your comments and maybe this time we'll spell your name
right.
Sincerely,
Laz
Lawrence M. Baskir
Blu
William A. Strauss
encl.
notre
lawyer
volume 51 no. 5
july 1976
REPRINT -
ARTICLES
Controlling Discretion in Sentencing: The
Clemency Board as a Working Model
William A. Strauss
Lawrence M. Baskir
PAGE 919
Published by the Notre Dame Law School
© 1976 by the University of Notre Dame
Some items in this folder were not digitized because it contains copyrighted
materials. Please contact the Gerald R. Ford Presidential Library for access to
these materials.