Page images

This is not meant to belittle the fact that we also have many cases in which there has been genuine conscientious objection to killing. For the most part, however, even these people tend to be ones who did not understand how to pursue their rights properly. They are predominantly Jehovah's Witnesses, Muslims, and a few others whose religious or ethnical beliefs are evident from the letters which they write to us, from their probation records, and from other files predating even their conviction.

The vast preponderance of our applicants are the unfortunate orphans of an administrative system in which success was determined by being educated, clever, articulate, and sophisticated. Whether sincere or not, they got a better shake, often because they had expert assistance available to them. Those who believed deeply but couldn't express their feelings adequately wound up with conviction records and sometimes jail sentences.

I have attached to this statement the results of an analysis we have made of a sample of our cases. As the survey shows, only 3 percent of our applicants have completed college as compared with 55 percent who never finished high school. Insofar as the reasons for the offense can be gleaned from the information before us, only 16 percent expressed moral, religious, or ethical sentiments about the war, as opposed to evidence of hardship or personal problems in 57 percent of the samples. The attached breakdown gives much more detail about the social and personal characteristics of our applicants. It underlines the conclusion that the stereotype which we have had of the typical Vietnam-era offender is wrong, and is over-simplified.

We have been surprised and impressed, as well, by the public support which the President's clemency program receives, especially after its provisions are explained. Many church groups and veterans' counseling services established programs for potential applicants to the various parts of the clemency program. Other organizations which are not in total agreement with the clemency program nonetheless have helped eligible persons with the major personal decisions which they have to make about participating in the President's program.

We have learned that people in this country really do want to have a reconciliation which will bring former draft evaders and deserters back into full integration in their communities.

This reaction, however, stands in contrast to what many Americans may hear or perceive about the program. From the very vocal, be they advocates of unconditional amnesty or opponents of any clemency, we have heard a drum-fire of criticism about the program. It was pronounced as cynical and a failure on the very day it was started, and I hear very little different from some quarters even now.

The fact is that the President's program has been the victim most of confusion and ignorance. It came as a shock and a surprise to the Board, even as late as early January, after 4 months of the program and with only a few weeks remaining before the original January 31 deadline, that the press coverage from Washington was filled with error and confusion about the nature of the program and its provisions. It then became clear to us that if the Washington press corps, sophisticated and supposedly learned about the policies and activities of government, was confused, so must be the average citizen and especially those eligible for the program.

The Board then decided to conduct an information campaign, and the results were dramatic. Through press conferences, and interviews and public service announcements on radio and television, the Board got the word out. Applications which had been coming on an average of 60 a week jumped to 300, then to 1,000 and as high as 4,000 in the week ending March 17. From a total of 870 applications on January 6, the Board received 5,000 by February 1, and 9,800 by March 1. Quite clearly, lack of information on the part of the press and the public and most otherwise well-informed persons, was at the root of much of the criticism we heard. And it was also the major cause of the low participation level in the early months.

It surprised us to learn that even those who were adamantly opposed to the program based their disagreements in large part on misconceptions about the Presidential Clemency Board. Board members found in talking to peace-groups and amnesty groups, to store-front veterans counseling groups and to veterans service organizations, that their attitudes about the program changed dramatically once they heard and understood how the Board operated. I do not mean to say that we converted all opponents of the program to unqualified supporters. But, at the least, they realized that the program is not an unmitigated evil, that it indeed is reasonable and has value to those who wish to participate. What began as strident opposition changed in many, many cases to an offer of cooperation-certainly cooperation in helping to spread accurate information about the program so that each individual could decide on an informed basis whether to apply.

Let me relate an incident which illustrates the extraordinary amount of misinformation about the program. General Walt, who was commander of U.S. Marines in Vietnam and Assistant Commandant of the Corps, received an anguished phone call early last month from the mother of a Vietnam veteran. She was concerned about a clemency program for draft-evaders while her son, who had a bad discharge, wasn't being recognized for his Vietnam service. She had inquired about the program but had been told her son wasn't eligible because he had been in Vietnam. General Walt explained to her, as we have tried to explain to the general public, that Vietnam veterans are also eligible for the program if they later went AWOL and were given bad discharges. In fact, we estimate that a good 18% of our applicants fall into this category.

Having now been part of the Presidential Clemency Board for 6 months, my own feelings about the President's program have strengthened. I have had an opportunity to review personally hundreds of cases that thus far have come before the Board. It is now even clearer to me that the President's policy of earned or conditional clemency is the proper approach. I do not favor universal, unconditional amnesty.

First, however much we may sympathize with and respect those who refused military service because of a deep and sincere moral opposition in Vietnam, it can not be denied that in doing so they violated the law. Civil disobedience has a long and honorable tradition in our society. It is used to protest bad laws by disobey. ing them. But disobedience of the law, however lofty the motive, bears with it the risk of having to pay the penalty imposed by law. Indeed, it is an important aspect of civil disobedience that a person bear witness to his cause by accepting the law's punishment.

The program administered by the Presidential Clemency Board is a means of relieving, as much as the law can, the legal consequences borne by those who were punished for their AWOL or draft-evasion. But irrespective of the law's punishment, the country imposes a duty of service upon each citizen, and that service remains unfulfilled by those who refused military duty. However, imperfect the draft system-and I make no spirited defense of how the government over the years, particularly the Vietnam years, has implemented the draft-alternative service is designed to provide a means of satisfying this obligation of citizenship). It is not punishment. It is not retribution. Alternative service under the Presidential Clemency program is the same service that thousands upon thousands of conscientious objectors have performed ever since the principle was incorporated into our law in World War I. Recognition of the moral content of their disobe. dience does not place those persons who acted in protest to the Vietnam war in a class better than the others who objected to war but who performed alternative service. Nor does it place them in a class better than those who served in Vietnam, even though they too may have had deep and profound feelings of opposition to the war.

Total and unconditional amnesty, in the guise of seeking to do justice, would create additional injustice. We should not be misled into thinking that every person who refused service did so out of the highest moral feelings. Many persons acted out of selfish or personal reasons having nothing to do with ethical considerations. Some may deserve no clemency at all. The circumstances of each person before the Presidential Clemency Board are different and any clemency program must recognize those differences.

Consider the case of the serviceman stationed in Germany who traffics in hard drugs. Faced with a threatened court-martial, he escapes to Sweden. There he joins an anti-war commune and turns informer and provocateur on his fellows. He pushes drugs, he robs and steals. He is tried, convicted and escorted to the Swedish border where he is returned to American authorities. He is courtmartialed for AWOL and convicted. Now he applies to the Presidential Clemency Board.

This man does not deserve clemency and it would be an injustice to treat him in the same way as others whose reasons and conduct were, under all the circumstances, understandable. A program of total and indiscriminate amnesty would be wrong because it can not avoid equating this person with the Jehovah's Witness, son of a religious family. He applies for conscientious objector status

[ocr errors][ocr errors]

and is granted it, but he refuses to perform alternative service because his faith considers alternative service by order of the Selective Service System to be part of the military. He would, however, consistent with his faith, perform alternative service if so ordered by a judge. Instead he is tried for failing to perform, and serves 5 years in prison.

Compare yet another case. This individual enlists, serves for a few months, then wanders off for a few months. He is immature and can't adjust to service. He returns and goes AWOL again. Finally, he is discharged for a series of AWOLS and for failure to perform adequately.

This person has no good reason for his failure to perform satisfactorily except his immaturity. He is not a conscientious objector. He merely has failed to do his 2 years obligation. It is right and necessary, I think, to call upon him to perform some alternative service in the public interest, not as a penalty but as means of discharging the obligation to his country he failed to complete.

Any system of universal, unconditional amnesty by definition must treat these different individuals and their circumstances the same. It would do injustice lig tretaing unlike cases alike, and that is an injustice no less than treating like cases in an unequal manner. The conditional program of President Ford enables the Board to consider recommending no clemency in the first case, an immediate pardon in the second, and a requirement of some period of alternative service in the third. It permits us to deal with applicants as individuals, not as an undifferentiated mass. That, it seems to me, is a goal every government program should aim towards.

Finally, I believe the President's program accomplishes for the Nation's wellbeing what unconditional clemency could not. One of the President's goals was to try to heal the division amongst our people on the amnesty/clemency issue. There are strong feelings on this question, to be sure, and no one can say that those on one side have all the merits of the argument. There are hundreds of thousands of people in this country with sons, husbands, brothers, or fathers who died or were seriously wounded in Vietnam, and those people have very, very profound feelings about the question of clemency. We owe those people respect for their feelings, and for the pain from which their feelings and their tears arise. For those who feel deeply about the sacrifices paid by those who served, those who died, and those who suffered grievous wounds, clemency means that those who did not serve are rewarded in place of those who went in their stead.

For others, who feel deeply about the moral questions of the war and of the sacrifices made by those whose conscience made them protest against what they saw was immoral and unjustified policy, anything less than full restitution and a confession of error by the President is unsatisfactory.

These two views, deeply held and certainly understandable, can not be completely reconciled. To deny any kind of clemency is to perpetuate the divisions in our country. To declare unconditional amnesty would create new ones. The President's goal of bringing the country to reconciliation by a conditional program is the proper approach, and I think it well on the way towards achieving that goal.

Let me now turn to a discussion of the Clemency Board's jurisdiction, the remedies we offer, the administrative procedures we have established, and the substantive criteria we apply in weighing applications for clemency.

JURISDICTION The Presidential Clemency Board was created by Executive Order No. 11803 on September 16, 1974 to implement one part of President Ford's Proclamation on clemency issued that same day. The Board, organizationally within the White House, is presently composed of 9 part-time members. Each member is in private employment and is compensated by the Federal Government only for time spent on Board business.

The Proclamation covers three major categories of persons. First, there are those wlio are presently absent without authority from a military service, but who have not been convicted of an offense or discharged. They must return to their military service, which proceses them and issues them an Undesirable Discharge. At the completion of alternative service of up to 24 months, they are issued a Clemency Discharge to replace the Undesirable Discharge.

Secondly, unconvicted persons who have violated the Selective Service laws must report to a U.S. Attorney. Through a process very similar to plea-bargaining or pre-trial diversion, they are offered up to 24 months alternative service. Upon satisfactory completion, charges are dropped.

The Presidential Clemency Board's jurisdiction is entirely different. We recommend clemency for persons who have already been convicted for or have admitted an offense, whether civilian or military, and who have already received punishment. The Board has jurisdiction over civilian draft evasion offenses, and over military unauthorized absence, desertion and missing movement offenses. Our jurisdiction over military personnel extends both to those courtmartialed and to those administratively discharged with "bad" discharges, whether Dishonorable, Bad Conduct, or Undesirable. We recommend to the President how he should exercise his personal executive discretion under Article II, Section 2 of the Constitution.


To the civilian applicant for clemency, the Board can offer, on behalf of the President, executive clemency in the form of a full pardon granted unconditionally, or conditioned upon a specified period of alternative service of up to 24 months.

A pardon restores to an applicant his Federal civil rights. Most states recognize a Presidential pardon as a matter of comity and it serves to remove the civil disabilities that the state may have imposed as a result of the federal conviction. Perhaps even more importantly, licensing restrictions which prevent ex-convicts from working in a variety of occupations are also removed. Without a pardon, the typical ex-offender cannot work in any professional occupation or, in many states, as an ambulance attendant, a watchmaker, a tourist camp operator, a garbage collector, a barber or beautician, a practical nurse, or a plumber.

While we cannot ignore or demean the symbolic importance of an act of personal grace by the President, we should also recognize that the receipt of a Presidential pardon also removes the social stigma that inevitably attaches to a draft-evader and a deserter and has the practical effect of making the exoffender employable again.

The military applicant for clemency comes to us worse off than the civilian applicant. Not only does he frequently have a Federal felony conviction for violation of military law, but he also has the stigma and the employment problems attached to a “bad paper" discharge.

To the former serviceman who applies, we offer a full pardon, plus an upgrading of his discharge to a Clemency Discharge, either unconditionally or conditioned upon a specified period of alternate service. Whatever one's feelings about the practical or symbolic importance of the Clemency Discharge, the pardon here too serves to remove the legal and social disabilities of the bad discharge. As of April 7, the Board has forwarded 114 recommendations, and the President has acted on 65. The breakdown of Presidential decisions is as follows: A full and immediate pardon. A pardon conditioned on 3 months alternative service--

21 A pardon conditioned on 6 months alternative service--

12 A pardon conditioned on 12 months alternative service-

While I cannot disclose to you the 114 latest recommendations which await his action, I can say that the breakdown of these cases, as well as the breakdown of the 300 additional cases reviewed by the Board but not yet forwarded to the President, is generally the same.




Let me now turn to the Board's procedures, a copy of which is attached to my statement. In November we sent copies of the proposed rules for comment to every Member of Congress, to veterans' counseling and service organizations, to civil liberties groups, to anti-war organizations, to every State and major local bar association and to a number of private attorneys. We had over 40 comments and suggestions, most of which proved to be very helpful to the Board in revising its provisional rules. I am pleased to say that for the most part, the proposed rulemaking appears to have been well received. Suggestions and criticisms were carefully reviewed, and a final set of procedures was published on March 21, 1975.

It took some time to develop these regulations. In part this is explained by the fact that the Presidential Clemency Board has no precise historical model to follow and no clear precedents to guide it in the role of assisting the President in what is a unique and personal executive function. We also wished to become very familiar with the types of cases before us prior to issuing any rules. Even now we find new aspects in the cases which will require further elaboration of our rules.

One main goal of the Board's rules was to make them as simple and easy to understand as possible. In particular, we tried to make applying to the Board as uncomplicated as we could.

First, when we received a communication from a possible applicant or a friend or relative expressing interest in any part of the President's program, we mailed out an instruction kit. This kit describes the Board's program, its procedures, and other aspects of the Board's operations. If the individual was not under the Board's jurisdiction, but fell within the jurisdiction of the Department of Justice or the Department of Defense, we told him how to pursue this case with them. If he was not under the jurisdiction of any part of the clemency program, we tried to suggest other avenues for the relief he sought. We informed him of private sources of counseling, including legal assistance, which he might pursue before applying.

Each applicant is not only informed of his right to counsel, but encouraged to secure one. For those who have no resources, the Board has endeavored to persuade groups with volunteer legal counseling to provide assistance, and we mail summaries are properly prepared.

Once the necessary information is obtained from an applicant, and his files are obtained from Justice or the military services, a Board attorney prepares a summary of the files. We have an elaborate internal procedure to ensure that the summaries are propertly prepared.

This summary is then mailed to the applicant along with a copy of the Board regulations and the preparation instructions which we give to our attorneys. The applicant is encouraged to review the preparation instructions and Board rules. He is especially directed to review the summary, submit any additions or corrections, and to send the Board anything he believes it should consider when it reviews the case.

Once this process is completed, the case is presented to the Board together with the material the applicant has sent in.

After the Board examines the case and makes a recommendation, the President reviews that recommendation and issues his decision on clemency. Under the Board's rules, an applicant then has 30 days after the President's action to ask for reconsideration if he feels dissatisfied with the decision. He next passes to the jurisdiction of the Selective Service for the performance of any required alternative service.

Once the service is satisfactorily completed, the Board confirms that the clemency has been earned, and a pardon is automatically issued.


The President's Proclamation contemplates a case-by-case evaluation of applications to the Board, rather than a blanket treatment of whole classes of people. We have carefully drawn our substantive standards so that they are a tool to assist the Board in weighing each case on its merits. The standards help us to separate out cases which should be treated differently, and to treat with consistency and equity those which are similarly situated.

In deciding appropriate lengths of alternative service we give special weight to time already spent in prison, and to alternative service, probation and parole which has been satisfactorily completed.

Equity compels us to consider factors beyond simply time spent in prison. For this reason, for example, Jehovah's Witnesses and members of other religious communities who have served little time in prison, but whose violations of law were clearly motivated by deeply held religious beliefs, typically have been offered outright pardons, or have been asked to serve minimal amounts of time where aggravating circumstances have existed in particular cases. Individuals with similarly held moral or ethical beliefs but who are not members of traditional religious faiths are treated the same way. Any person whose conviction predated a change in the law of conscientious objection is considered in a similar category. On the other hand, persons who acted from no apparent sincerely heli ethical or religious convictions about the war have received clemency contingent upon longer lengths of alternative service, even when those persons may have served more time in prison.

« PreviousContinue »