Conditional Amnesty Debated

Conditional Amnesty Debated

One law professor says President’s alternative service program smacks of "involuntary servitude.” Another calls it representative of views of a majority of Americans.

How justified is President Ford's program of two years’ alternative service for draft resisters?

One U-M law professor, speaking in  favor of unconditional amnesty for draft evaders, says the President’s program borders on “involuntary servitude” and “strikes against our fundamental notions of personal freedom.”

But another U-M law professor upholds the program as politically justified and representative of the views of a majority of Americans who disapprove of draft evasion.

This debate between Prof. Joseph L. Sax, who opposes the President’s program, and Prof. Douglas A. Kahn, who favors it, is featured in the upcoming issue of Law Quadrangle Notes, a publication of the U-M Law School.

"I find it very strange," Prof. Sax reasons, “that in a country where many people are strongly agitated by the government telling citizens how to manage their business, how to use their property, how much they may charge for their service, or even what they may buy, there seems to be so little revulsion against telling people how they must spend two years of their lives.”

Prof. Sax, who has written on the amnesty problem since visiting draft evaders in Stockholm and Paris in 1967, says personally he thinks “it would be a fine thing if many young people felt a sufficient sense of community obligation that they would devote a few years to public service.” But, he adds, “a penal approach to the achievement of such goals seems misdirected

Sax challenges a number of popular notions about the current program of conditional amnesty.

For example, he notes that many people believe the President’s program will have a “deterrent effect” for the future, making it less attractive for persons to refuse to serve on the armed forces.

But Sax insists that, in the view of many criminal law experts, deterrent punishment is most effective when it is imposed quickly. On the contrary, amnesties “usually come considerably after the event,” says Sax, “when passions have cooled.”

Sax also challenges the notion that alternative service “imports a version of fairness” by equalizing burdens of draft , resisters and military veterans. In reality, he argues, “to join the army with its rather modest risk of death even in wartime is not ipso facto a more courageous act than was taking the high risk of a lengthy jail term or the highly uncertain fate of those who fled the country."

Prof. Kahn, on the other hand, supports President Ford’s program because he says it represents "a political compromise” between those who are opposed to amnesty and those who favor unconditional amnesty.

“This is a compromise in the best traditions of democracy,” says the U-M professor. “President Ford’s program provides both groups with a share of their goals. For those who oppose amnesty, the draft evaders have been subjected to a (legal) sanction — alternative service. And for those who favor unconditional amnesty, the sanction imposed is especially gentle.''

In further support of the program of alternative service, Kahn asserts that “the act of desertion or avoidance is not a mere technical legal violation but a serious offense and a morally reprehensible act." And, says the professor, "if society fails to punish those acts, it will condone grievously illegal behavior.”

Thus, he maintains, an unconditional amnesty “would be read by many as an official recognition that the actions of the evaders and deserters were justified. On the other hand, the condition of service signals a condemnation of the returnees’ acts.”

Kahn continues: “Prof. Sax describes this as involuntary servitude and indeed it is; so is the draft and so are the prison sentences imposed on those who refuse to serve in the draft but who did not flee the country.”

Prof. Kahn stresses that justification for President Ford’s program rests on a political reality: “If there is a consensus in this nation that the acts of the evaders and deserters were reprehensible, then the symbolic condemnation of these acts is quite appropriate, and in no event should the government signal its approval of those acts.”

Kahn goes on to note, as did Prof. Sax, that an April 1974 Gallup poll showed only 34 per cent of the population favoring unconditional amnesty.