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Procedures and Substantive Standards - ACLU Comments
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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 9, folder "Procedures and Substantive
Standards - ACLU Comments" 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States of America his copyrights in all of his unpublished writings in National Archives collections.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
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copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 9 of the Charles E. Goodell Papers at the Gerald R: Ford Presidential Library
COMMENTS OF THE
AMERICAN CIVIL LIBERTIES UNION
ON THE PROPOSED
PRESIDENTIAL CLEMENCY BOARD
PROCEDURES AND SUBSTANTIVE STANDARDS
R FORD
Edwin J. Oppenheimer
Clemency Litigation Director
American Civil Liberties Union
22 East 40th Street
New York, New York 10016
Henry Schwarzschild
Director, Project on Amnesty
American Civil Liberties Union
22 East 40th Street
New York, New york 10016
December 11, 1974
COMMENTS OF THE AMERICAN CIVIL LIBERTIES UNION
ON THE PROPOSED PRESIDENTIAL CLEMENCY BOARD
PROCEDURES AND SUBSTANTIVE STANDARDS
Pursuant to the Notice of Proposed Rule Making issued on
November 25, 1974, submitted herewith are the comments of the
American Civil Liberties Union regarding the proposed procedures
and substantive, adjudicative standards to be employed by the
Presidential Clemency Board as published in the Federal Register
of November 26, 1974.
We commend the Board generally, for its inclusion in these
regulations, of procedures permitting an applicant and his repre-
sentative to appear before the Board. We hope, however, that
this opportunity will, for the reasons set forth below, be changed
to a hearing as a matter of right in each case, rather than as
an option to be granted at the Board's discretion -- no matter
how liberally such requests are intended to be granted. We are
also pleased that the Board has instituted an appeal procedure,
but similar objections pertain as well to the discretionary
nature of the appellate hearing.
The development of formalized substantive standards, in-
cluding the recognition of principled objection to military
service as a mitigating criterion is also to be commended al-
though, as pointed out below, other defects in the substantive
standards are apparent.
2 C.F.R. $201, et seq.
[Procedures]
I. S$201.8(c)
This proposed regulation fails to provide for a hear-
ing before the Board as a matter of right either to the
applicant or his counsel. Implicit in the decision to
grant such a hearing only in the Board's discretion is the
assumption that no Constitutional right to such a hearing
is required. It is clear, however, that the Due Process
Clause and its guarantee of Equal Protection does require
such a hearing. The regulation must, therefore, be ap-
propriately amended. It is to be noted from the outset
that it is anomalous to acknowledge that an applicant has
a right to be "represented" by counsel (2 C.F.R. $201.13)
but that counsel cannot appear with him or on his behalf.
A. Adjudicative Character of the Board Function
It is apparent from the body of proposed regula-
tions that the Board hears and determines cases, much
the same as any other administrative agency performing
adjudicative functions. See, e.g., West Ohio Gas Co.
V. Public Utilities Company of Ohio, 294 U.S. 63, 70
(1935) ("suitable opportunity through evidence and
argument" to challenge a rate) ; Londoner V. City of
Denver, 210 ULSL 373, 386 (1908) (tax assessment re-
quires full and fair opportunity to be heard on ob-
jections, including oral argument and proof) ;
Hornsby V. Allen, 326 F.2d 605, 608 (5th Cir. 1964)
("licensing consists in the determination of factual
issues and the application of legal criteria to them")
The Board's processes are those of fact finding,
evaluation, and determination analogous to what occurs
in any administrative or quasi-judicial type hearing.
B. Constitutionally Minimum Standards of Due Process
Require a Hearing as of Right
An appearance before the Presidential Clemency
Board is substantially similar in all vital respects to
any other adjudicative hearing by an administrative
agency. On numerous occasions, the Supreme Court has
declared that certain minimum due process rights are
constitutionally guaranteed to "those who are brought
into contest with the Government in a quasi-judicial
proceeding aimed at the control of their activities."
Morgan V. United States, 304 U.S. 1, 18 (1938)
1/ Since an applicant may be required to perform civ-
ilian service in order to receive his pardon, a
heavy compulsion to submit to the strictures of this
work exists.
Chief Justice Warren, writing for the court in
Hannah V. Larche, 363 U.S. 420, 442 (1960), held:
when governmental agencies adjudicate
or make binding determinations which directly
affect the legal rights of individuals, it
is imperative that those agencies use the
procedures which have traditionally been as-
sociated with the judicial process."
And, in Greene V. McElroy, 360 U.S. 474, 497 (1959),
it was stated:
"This Court has been zealous to protect
these rights from erosion not only in
criminal cases but also in all types of
cases where administrative and regulatory
GERALD
actions were under scrutiny."
It was pointed out in Hannah V. Larche, supra,
that the well-known distinction in administrative law
between administrative agencies acting in a rule-making
or investigative capacity, and agencies performing an
adjudicatory function, had specific due process con-
sequences. Consequently, the Court ruled that certain
due process rights were not available in the investiga-
tory and fact-finding proceedings of the Civil Rights
Commission, since such rights were not customarily
available "when Governmental action does not partake of
an adjudication." 363 U.S. 442. The court elabor-
ately discussed the differences between the two kinds
of proceedings and explained that the traditional
2/ The right to appear in person before the Commission
was nevertheless recognized by the Commission. Id.
at 431.
safeguards of due process which were held requisite in
Morgan V. United States, 304 U.S. 1, 18 (1938) i Greene
V. McElroy, supra; and Joint Anti-Facist Refugee
Committee V. McGrath, 341 U.S. 123 (1951), were all
because "the government agency involved in each was
found by the Court to have made determinations in the
nature of adjudications affecting legal rights."
Hannah V. Larche, 363 U.S. at 451.
It could hardly be contested that a person apply-
ing to the Presidential Clemency Board is involved in
a "proceeding aimed at the control of [his] activities."
Morgan V. United States, supra. See footnote 1/, supra.
It is, likewise, indisputable that the Board makes
"binding determinations which directly affect the legal
rights of individuals." Hannah V. Larche, supra.
That an administrative agency, for all its uncir-
cumscribed rule-making or investigatory power, cannot
FORD
adjudicate personal rights without providing the es-
GERALD
sentials of a fair hearing is virtually a first prin-
ciple of administrative law. This principle has been
applied in a large variety of administrative proceedings
by the Federal courts. See, e.g., Wisconsin V.
Constantineau, 400 U.S. 433 (1971) (public listings of
alleged alcoholics) ; Goldberg V. Kelly, 397 U.S. 254
(1970) (termination of welfare benefits) ; Londoner
V. City of Denver, 210 U.S. 373 (1908) (tax assessment);
Goldsmith V. United States Board of Tax Appeals, 270
U.S. 117 (1926) (license rights) ; United States V.
Abilene & So. Ry., 265 U.S. 274 (1924) (public utility
rates) ; Gonzalez V. Freeman, 334 F.2d 570 (D.C. Cir.
1964) (debarment of Commodity Credit contractor) ;
Kwong Hai Chew V. Colding, 344 U.S. 590 (1953) (de-
3
portation of alien) ; Escalera V. New York City Housing
Authority, 425 F.2d 853 (2d Cir.), cert. denied 400 U.S.
853 (1970) (termination of public housing tenancy and
imposition of additional rent charges) ; Parker V. Lester,
227 F.2d 708, 716 (9th Cir. 1955) (termination of mer-
chant seaman's employment: "When it is proposed to take
from a citizen through administrative proceedings some
right which he otherwise would have, it has always been
held that the constitutional requirement is that he
shall be afforded notice and an opportunity to be heard.").
More to the point, however, are cases such as
Morrisey V. Brewer, 408 U.S. 471 (1972) and Gagnon
ERALD
V. Scarpelli, 411 U.S. 778 (1973). Morrisey V. Brewer
held that a constitutional right to a hearing inured in
parole revocation proceedings. Gagnon extended the
Morrisey holding to probation revocation proceedings.
Both cases relied in part on the rationale enunciated
" not even Congress may expel him without allowing
him a fair opportunity to be heard." 344 U.S.
at 598.
in Goldberg V. Kelly, supra.
The bases for the hold-
ings in Morrisey and Gagnon are peculiarly applicable
here, first because of the Court's disavowal of any
recognition that the revocation of parole is part of a
criminal proceeding ( in Morrisey V. Brewer we
held that the revocation of parole is not a part of a
criminal prosecution. Gagnon, supra at 781) and sec-
ond, because of its recognition in Gagnon that, "
a
probationer can no longer be denied due process, in re-
liance on the dictum in Escoe V. Zerbst, 295 U.S. 490,
492 (1935) that probation is an act of grace." 411
U.S. at 782 n.4.
Thus, it is not Constitutionally permissible for
the Presidential Clemency Board to deny hearings either
on the theory that the clemency procedures are not part
of a previous criminal proceeding
or that a
Presidential pardon is an act of grace and may be ad-
ministered with unfettered discretion.
At least three courts have previously noted the
analogy between conditional pardons and parole and
probation. See Fleenor V. Hammond, 116 F.2d 982, 986
(6th Cir. 1941) ; Clifton V. Beto, 298 F.Supp. 1384
(S.D. Tex. 1968) ; Hoffa V. Saxbe, 378 F.Supp. 1221,
1236-1237 n.54 (D.D.C. 1974).
5 Cf. also, In re Gault, 387 U.S. 1 (1967). It fol-
lows, of course, that if the Presidential Clemency
Board determines that its functions are adjunct to
a criminal prosecution so that, for example, a civil-
ian furloughee might be returned to prison if he de-
clines to accept the Board's proposed offer, a fortiori
under Morrisey and Gagnon he must be afforded a
hearing.
Finally, in the absence of any formal, published
criterion, how is the Board even to decide who is to re-
ceive a hearing and who is not? How is an applicant or
his counsel to know how to frame his case in the first
instance so as to insure that he will be one of those
applicants who will receive a hearing? Will not the
unequal grants of hearings place two appealing appli-
cants in different postures with respect to the burden
of proof each must later shoulder under the appeal pro-
cedures contained in $$201.10? These questions, ob-
viously unconsidered by the Board, leave open substan-
tial possibilities of administrative abuse rising to
the level of serious equal protection problems. See
generally, Bolling V. Sharpe, 347 U.S. 497 (1953)
II. $$201.8 (d)
We are also dismayed that under this regulation, the
reasons given by the Board to the President in support of
its recommendations are not made available to the applicant
or his counsel for inspection and comment thereon, prior
to the President receiving them. We believe that under
both the Due Process Clause and the Administrative Procedure
Act (to which the Board is subject) such reasons must be
served upon the applicant.
A. Due Process
Enlightened courts have now recognized that
Morrisey V. Brewer's application of Fifth Amendment
due process standards to parole proceedings also
compel similar requirements in parole application
proceedings:
"The rudiments of procedural due process
are not observed unless the administrative
body details the reasons for its findings.
See Goldberg V. Kelly, 397 U.S. 254 (1970) ;
In Re Gault, 387 U.S. 1 (1967) ; Davis,
Administrative Law, $16.12 at 585 (1970 Supp.)
We are persuaded, as was the New Jersey
Supreme Court in Monks V. New Jersey State
Parole Board, 58 N.J. 238, 277 A.2d 193, 197
(1971), that "[t]he need for fairness is as
urgent in the parole process as elsewhere
in the law and the furnishing of reasons
for denial would be the much fairer course
" The need for a statement of reasons
or findings not only insures a responsible
and just determination by the agency, but
also affords a proper basis for effective
judicial review. The New Jersey decision is
consistent with the recent expansion by the
United States Supreme Court of due process
guarantees with respect to parole revocation
proceedings. Morrissey V. Brewer, 408 U.S.
471, 92 S.Ct. 2593, 33 L.Ed. 2d 484 (1972).
An analogous trend may be found in the selec-
tive service reclassification cases decided
in this Circuit. See, e.g., United States
V. Neamand, 452 F.2d 25, 26, 30 (3d Cir.
1971); United States V. Hershey, 451 F.2d
1007, 1008 (3d Cir. 1971) ; Scott V. Com-
manding Officer, 431 F.2d 1132, 1137 (3d
Cir. 1970). Moreover, the furnishing of
reasons will have a positive effect on the
goal of rehabilitation. See President's
Commission on Law Enforcement and Adminis-
tration of Justice, Task Force Report;
Corrections, at 64 (1967) ; Davis, Discre-
tionary Justice, at 131 (1969). Further-
more, the requirement that the Board give
its reasons for denial of parole does not
cast an undue burden upon the administrative
body."
United States ex rel. Harrison V. Pace, 357 F. Supp.
6
354, 356-357 (E.D. Pa. 1973).
See also, Johnson
V. Heggie, 362 F.Supp. 851 (D. Col. 1973) ; Childs
V. Board of Parole, 14 Crim. L. Rep. 2135 (D.D.C.
1973) ; United States ex rel. Johnson V. Board of
Parole, 363 F.Supp. 416 (E.D.N.Y. 1973). Cf.,
Freeman V. Schoen, 370 F.Supp. 1144 (D. Minn. 1974)
Additional due process concepts counsel such a
rule. As the eminent jurist Marvin Frankel has
observed:
"The duty to give an account of the decision
is to promote thought by the decider, to com-
pel him to cover the relevant points, to make
him show that these necessities have been
served." Criminal Sentences 40-41 (Hill and
Wang, New York 1973).
B. Access to Reasons and a Meaningful Appeal Under
Board Regulation 210.10
The failure of Regulation 201.8 (d) to provide for
access to the Board's reasons for its denial of the
applicant's requested disposition also renders nuga-
tory much of the applicant's appeal rights under
$201.10. Cf. also $201.5(b).
As with the question of hearings, discussed supra,
the rejection of the statement of reasons require-
ment cannot be founded upon a "right-privilege"
dichotomy. Gagnon V. Scarpelli, supra at 411
U.S. 782 n.4.
In Gonzalez V. United States, 348 U.S. 407 (1955),
the Supreme Court, in a closely related context, recog-
nized that the failure of the Selective Service System
to supply a registrant with a copy of the Department
of Justice's recommendation to his appeal board re-
garding his claim for a conscientious objector defer-
ment, unconstitutionally deprived him of an opportunity
to rebut any adverse evidence contained therein. The
Court, relying on its two prior decisions in Simmons
V. United States, 348 U.S. 397 (1955) and United States
V. Nugent, 346 U.S. 1 (1953), held that:
The right to file a statement
includes
the right to file a meaningful statement
with awareness of the arguments to be
countered. 348 U.S. at 415.
Similarly, Judge Weinstein, in his highly cited
opinion in United States V. St. Clair, 293 F.Supp. 387,
345 (E.D.N.Y. 1968) observed that:
"In permitting an appeal from the decisions
of a local board, the regulations governing
the selective service system provide that the
registrant may specify claimed errors. 32
C.F.R. $1626.12 [compare clemency board regu-
lation 201.10]. The opportunity to rebut al-
legedly incorrect conclusions
is essential
to a meaningful appeal
Where no facts or
inferences upon which the local board's con-
clusion is based are stated, effective re-
buttal is impossible. No advocate can per-
suasively assert grounds for reversal when
the bases for the decision below are unknown.
The right of appeal from an administrative
decision, guaranteed by the regulation was,
in effect, denied."
How incongruous that a board promulgated under the
authority of a proclamation which stated that the na-
tion was in need of an act of mercy, would be given
license to operate under lesser standards of due pro-
cess than those imposed by Federal courts upon the very
agency whose abuses, in large measure, caused the state
of affairs for which a Presidential proclamation of
clemency was eventually needed to remedy.
C. The Presidential Clemency Board is Subject to Adminis-
trative Procedure Act Jurisdiction and therefore the
Reasons Underlying the Board's Recommendation Must Be
Divulged
The Administrative Procedure Act (APA) applies to
each "agency" which means "each authority of the
Government of the United States." 5 U.S.C. $551 $551(1).
The President created the Clemency Board. There is no
language in the congressionally enacted APA exempting
FORD
the Clemency Board from its provisions nor could such
an exception be carved out by an executive order.
GERAL
"Exemptions from the Administrative Procedure Act
are not lightly to be presumed." Marcello V. Bonds,
349 U.S. 302, 310 (1955) ; Brownell V.- Tom We Shung,
352 U.S. 150, 185 (1956). 5 U.S.C. $555 (e) provides
as follows:
"Prompt notice shall be given of the denial
in whole or in part of a written application,
(cont.)
petition, or other request of an in-
terested person made in connection
with any agency proceeding. Except
in affirming a prior denial or when
the denial is self-explanatory, the
notice shall be accompanied by a
brief statement of the grounds for
denial."
The provisions of $555 (e) apply to a "written
application, petition or other request of an interested
person made in connection with any agency proceeding."
To be considered for clemency, a person must make a
written application. 2 C.F.R. $$201.3, 201.4.
Just as the APA applies to parole release hear-
ings held by the United States Board of Parole, United
States V. King, 492 F.2d 1337 (7th Cir. 1974); Pickus
V. Board of Parole,
F.2d
1 16 Crim. L. Rep. 2080
(D.C. Cir. 1974) ; Sobell V. Reed, 327 F.Supp. 1294,
1301-1302 (S.D.N.Y. 1971), so too, in the absence of
any statutory exemption, it applies to the Presidential
Clemency Board. See also, Davis, Administrative Law
Treatise 376 (1970 Supp.) ; Davis, Discretionary
Justice: A Preliminary Inquiry 129 (1969). It follows
that in accordance with the Act, these reasons must be
divulged.
III. $$201.12
The final sentence of this proposed regulation states
that " ..information which reveals the existence of a
violation of law (other than an offense subject to the
Presidential Clemency Program) will of necessity be for-
warded to the appropriate authorities.
While such an acknowledgment in the context of any
"clemency" program is, at best, unseemly, it also places
upon the Board substantial constitutional obligations.
See, Mathis V. United States, 391 U.S. 1 (1968) ; United
States V. Dickerson, 413 F.2d 1111 (7th Cir. 1969) ;
United States V. Casias, 306 F.Supp. 166 (D. Colo. 1969) ;
United States V. Turzynski, 268 F.Supp. 847 (N.D. Ill. 1967)
Specifically, under these cases, the Board bares an ob-
ligation under Miranda V. Arizona, 384 U.S. 436 (1969) to
warn each applicant, at the time his application is
solicited and certainly after it is received, of the pro-
visions of regulation $201.12.
Whatever public claims the Board has heretofore been
able to make with respect to the non-adversarial nature
of its proceedings, the Board cannot now make them in good
faith in light of regulation 201.12.
In both Dickerson and Casias, supra, non-criminal ad-
ministrative proceedings (one involving tax audits and
one involving a selective service local board appearance)
resulted in statements being obtained from an applicant and
thereafter forwarded to prosecutive authorities. These
statements later resulted in the commencement of criminal
proceedings against the individuals. Relying on the de-
cisions in Mathis and Miranda, the courts ordered suppres-
sion of the elicited, incriminating statements on the ground
that the agencies, even in the context of an allegedly non-
adversarial administrative proceeding, had failed to give
appropriate warnings to the persons to whom the inquiry
was directed. Accord, United States V. Turzynski, supra.
We assume that if the Board intends to retain regula-
tion 201.12, appropriate amendments to the Board's initial
mailings and application forms will be made incorporating
the appropriate constitutional warnings in accordance with
the aforecited opinions.
2 C.F.R. $202, et seq.
[Substantive Standards]
We first note the absence of definitions of the remedies
offered by the Presidential Clemency Board.
We urge that the substantive standards explicitly state
that the "executive clemency" to be recommended by the Board,
whether or not it is contingent upon the performance of al-
ternate service, is a full and complete pardon.
We urge that the substantive standards explicitly state
that the military discharge to be recommended for former (or
present) military personnel subject to the Board's mandate be
an Honorable Discharge, given pursuant to the Presidential
Clemency Program. (The discharge may be coded accordingly in
the confidential military records, but not on the papers issued
to the veteran.) Since the Presidential Proclamation estab-
lishing the Clemency Program specifically disqualifies persons
given discharges pursuant to the Clemency Program from receiving
veteran's benefits, we recognize that issue to be beyond the
scope of administrative rule-making.
IV. 2 C.F.R. $202.3 (a). Aggravating Circumstances
(1) Prior adult criminal convictions.
We believe that criminal offenses unrelated to
the acts which are subject to the clemency program
should not be considered for any purpose whatever by
the Board. A prior adult, criminal conviction has
presumably been resolved in accordance with the law,
and the applicant will have paid his penalty.
Society has done with him on that score. The prior
conviction cannot be subject to clemency; but neither
should it become the occasion for double punishment of
the clemency applicant, who now would pay once more for
an offense for which punishment had already been executed.
(2) False statement by applicant to the Presidential
Clemency Board.
We believe that this "aggravating circumstance"
needs to be limited to material misstatements to the Board.
We believe that it needs to be made clear who is the
judge of the falsity of a material statement. Cf.
Bronston V. United States, 409 U.S. 352 (1973)
We urge that the rules explicitly guarantee the ap-
plicant an opportunity to rebut the charge of a false
material statement.
(3) Use of force by applicant collaterally to AWOL,
desertion, missing movement, or civilian draft
evasion offense.
This standard is objectionable: (a) There is, in
all candor, something perverse and absurd about the
United States Government, in the context of the Vietnam
War, proposing to punish the violence of the war
refusers. (b) If the use of force caused serious
injury to persons, or damage to property, it would pre-
sumably have given rise to separate criminal proceed-
ings. Cf. Bradley V. Laird, 315 F.Supp. 544 (D. Kan.
1970) aff'd, 449 F.2d 898 (10th Cir. 1971). The
Presidential Clemency Board should not be a combined
super-prosecutor and super-judge. (c) The relatedness
of the "use of force," the proportionality of the force
to the impulse to resist the war and to the circum-
stances of the resistance, should be held in mitigation
of the conduct. If the use of force was collateral to
acts being given clemency, this ought to temper the
Board's judgment of the aggravating nature of the
matter. It is only unrelated, quasi-criminal, use of
force that might be more reasonably held against an
applicant.
(5) Evidence that the applicant committed the offense
for obviously manipulative and selfish reasons.
The intent here is benign, but the test mis-
understands the nature of the war and people's response
to it. Refusal to participate in the Vietnam War,
however manipulative and selfish it may appear in a
given case, is a quintessential example of Adam Smith's
dictum that "private vices are public virtues." It is
a tragic irony that a governmental body, established
by the heir of the Kennedy, Johnson and Nixon adminis-
trations who prosecuted the Vietnam War with unparal-
lelled manipulativeness, should now judge solitary
citizens, holding no public responsibility or power,
who wanted to pursue their own lives untrammeled by
governmental intervention caused by = war that the
American people increasingly rejected as a gigantic
mistake. The selfish pursuit of one's own life is
precisely what the Constitution safeguards against the
unlawful interference by government. The government
is not authorized to punish selfishness except where
it interferes harmfully with other people.
(6) Prior refusal to fulfill alternate service.
Such prior refusal may be the result of an ap-
plicant's conscientious non-cooperation with the draft
and the war. The Clemency Board should re-phrase the
standard to meet the problem of conscientious non-
cooperation with alternate service.
(7) Prior violation of probation or parole requirements.
Such prior violations of probation or parole have
legal sanctions sufficient in themselves. Treating
such violations as "aggravating circumstances" sub-
jects the applicant to double jeopardy and double pun-
ishment. See comment on 2 C.F.R. $202.3(a), supra.
V.
2 C.F.R. $202.4(b). Mitigating Circumstances
(7) Substantial evidence of personal or procedural unfair-
ness in treatment of applicant by Selective Service
System or by a military service.
It is the duty of the government to treat those
subject to its jurisdiction with fairness. Where there
is "substantial evidence of personal or procedural un-
fairness," such evidence should be held in exculpation,
not merely in mitigation of the applicant's offense.
Applicants falling in this category may, in fact, have
a claim under 28 U.S.C. $2255 to have their convictions
set aside.
(8) Denial of conscientious objector status, of other claim
for Selective Service exemption or deferment, or of a
claim for hardship discharge, compassionate reassign-
ment, emergency leave, or other remedy available under
military law, on procedural, technical, or improper
grounds, or on grounds which have subsequently been held
unlawful by the judiciary.
(cont.)
From our comments on subparagraph (7) supra,
it follows a fortiori that wrongful denial of such an
application should serve as a totally exculpating
factor, not as a mitigating one.
(10) Voluntary submission to authorities by applicant.
Many war resisters disbelieved in the legitimacy
of the government's war policies and therefore, dis-
believed in the legitimacy of the government's power
to punish those who refused to participate in the war.
They did not intend to be imprisoned martyrs, nor were
their political commitments attuned to "bearing moral
witness" (in the style of the 1960's civil disobedience).
Avoiding arrest and prosecution was, for them, not a
selfish and self-protective act, but a moral-political
gesture as well, precisely as the conduct of a member
of the French underground might have been during
World War II. The failure to submit to authorities
voluntarily, therefore, should not be held against
applicants, and this standard for mitigation by im-
plication would weigh against applicants who were
apprehended.
VI. 2 C.F.R. $202.5. Calculation of Length of Alternative Service
This section gives no standards for the calculation
of alternate service periods for veterans with less-than-
honorable discharges which were issued administratively.
Since that is numerically the largest class by far of
persons qualifying for Board consideration, this omission
is a serious fault.
(2), (3), (4) That starting point will be reduced by
three times the amount of prison time
served. etc.
This calculus necessarily makes the Board func-
tion as a body that metes out compensatory punishment.
Where an applicant had a liberal court and received a
brief or probationary sentence, the Board will now see
to it that the judge's decency and the applicant's
good fortune are undone by the Board's calculations.
Since we can only agree that prison time served should
be a mitigating factor, we cannot suggest a way out of
this dilemma except to indicate that this paradox is
inherent in a punitive clemency system such as this.
(5) The remainder of those three subtractions will be the
"baseline period of alternative service" applicable to
a particular case before the Board, provided that the
baseline period of alternative service shall not exceed
a judge's sentence to imprisonment in any case, and
provided further that the baseline period of alternative
service shall be, notwithstanding the remainder of the
calculation above, not less than a minimum of three (3)
months.
(cont.)
This regulation fails to take into account the
provisions of 18 U.S.C. §§4161 and 4162 which
provide for statutorily mandated computation of non-
discretionary "good time. "
1/
$4161. Computation generally
Each prisoner convicted of an offense against
the United States and confined in a penal or cor-
rectional institution for a definite term other than
for life, whose record of conduct shows that he has
faithfully observed all the rules and has not been
subjected to punishment, shall be entitled to a de-
duction from the term of his sentence beginning with
the day on which the sentence commences to run, as
follows:
Five days for each month, if the sentence is not
less than six months and not more than one year.
Six days for each month, if the sentence is not
more than one year and less than three years.
Seven days for each month, if the sentence is
not less than three years and less than five years.
Eight days for each month, if the sentence is
not less than five years and less than ten years.
Ten days for each month, if the sentence is
ten years or more.
When two or more consecutive sentences are to
be served, the aggregate of the several sentences
shall be the basis upon which the deduction shall be
computed. As amended Sept. 14, 1959, Pub.L. 86-259,
73 Stat. 546.
$4162. Industrial good time
A prisoner may, in the discretion of the Attorney
General, be allowed a deduction from his sentence of
not to exceed three days for each month of actual em-
ployment in an industry of camp for the first year
or any part thereof, and not to exceed five days for
each month of any succeeding year or part thereof.
In the discretion of the Attorney General such
allowance may also be made to a prisoner performing
exceptionally meritorious service or performing
duties of outstanding importance in connection with
institutional operations.
Such allowance shall be in addition to commuta-
tion of time for good conduct, and under the same terms
and conditions and without regard to length of sentence.
The second clause of this regulation should there-
fore be amended to read:
provided that the baseline period of
alternate service shall exceed neither a
judge's sentence to imprisonment nor the
actual time which would be served under
such sentence as provided in 18 U.S.C.
SS4161 and 4162
"
In addition, the establishment of a minimum three
month baseline should be eliminated since, in reality,
it will, with the state of the economy, be impossible
for anyone to secure employment for a period of ninety
days. The only possible equitable way to retain the
three month baseline formula would be to add a provi-
sion giving credit for bona fide time spent by a cle-
mency applicant looking for work.