Lawyers: Helping to Avoid the Draft

As trained protectors of people in trouble, lawyers often specialize in certain kinds of clients, ranging from injured motorists to businessmen fending off regulatory agencies. Now the law has a new specialist: the lawyer whose role is to prevent young men from being drafted unfairly. Most of the draft lawyers are young men in big cities who oppose the Viet Nam war and work for modest fees—though some charge as much as $3,000 for a case that goes to court. All disclaim any intention of counseling their clients to evade the draft, a federal crime that carries a five-year sentence. As in tax cases, the legal word is “avoidance,” euphemistic as it sounds.

Draft lawyers are quick to defend their motives. Many feel that peacetime conscription is unjust, unnecessary and unAmerican. They are convinced that draft boards are often callous, bureaucratic, discriminatory—and usually ignorant of the law. Under the circumstances, they argue, a young man is perfectly justified in hiring a lawyer to protect his rights.

Student Deferment. Detroit’s James Lafferty, 31, claims that any good lawyer can block a client’s induction for at least two years. His firm of Lafferty, Reosti, Jabara, Papakhian, James & Stickgold has already handled 700 draft cases, although it is less than a year old. Milwaukee Draft Lawyer Harry Peck, 34, says: “A person who follows my advice and works hard on developing his case is probably going to stay out of the Army.” Los Angeles Attorney William Smith, 36, who is an ex-Air Force captain, claims that if a boy and his parents can afford $250 a year, “I can give them 99.9% assurance that he won’t be drafted—and I won’t do anything illegal.” He adds: “That is the tremendous inequity of the system.”

How do they do it? When a youth first comes to them, draft lawyers thoroughly question him to determine whether he has even the remotest right to a deferment. Even college students are sometimes not aware of all the possibilities. Lafferty once interviewed a young man who faced induction after losing his student deferment and wanted to flee to Canada. “We talked for a while,” says Lafferty, “then I found out that the kid had a child and a blind wife waiting for him outside the office.” The client received an automatic deferment to support his wife. Occupational deferments are available to those who join apprenticeship programs for certain skilled trades (glass cutting, for example) and to farmers who can prove that they cannot be replaced in their work.

One of the most questionable features of the Selective Service rules is that they do not permit a man to have a lawyer when he comes before either his draft board or an appeals board. As a result, most lawyers advise their clients to bring a witness to take notes on everything that is said (draft boards do not always keep adequate written records of such appearances). Those claiming conscientious-objector status are urged to question board members aggressively, in the hope that they will reveal for the record a lack of understanding of U.S. v. Seeger. In that decision, the U.S. Supreme Court ruled that a man may be classified a C.O. if his antiwar views come from convictions that are “sincere and meaningful” and “occupy a place in the life of its possessor parallel to that filled by the orthodox belief in God.”

Sad Proof. When all else fails, most young men threatened with induction have only two ways of bringing their case before the courts. They can gothrough with induction and then ask a court to order their release on a writ of habeas corpus. They can also refuse induction and be tried for draft evasion —risking a five year sentence. Despite the risk, the number of federal criminal prosecutions brought under the Selective Service law has risen steadily —from a mere 287 in fiscal 1964 to 3,305 last year.

To win a client’s case in court, a lawyer usually has to find a draft-board error either in procedure or in interpretation of the law. In many instances, that search is not difficult. Some men have been drafted at a meeting of only two out of five members of a board; yet the law requires that no fewer than three be present. A San Francisco lawyer, Joel Shawn, 33, recently persuaded a federal judge to rule for his client because a majority of the draft-board members lived outside the district, a violation of the Selective Service rule that a man should be drafted only by his neighbors “if at all practical.”

As long as draft boards can act capriciously, draft lawyers perform a valid legal service. Unfortunately, an obvious problem is that men who can afford skilled draft lawyers have a clear advantage over the sons of poor families who cannot pay high legal fees. Though some lawyers are helping to train “draft counselors,” who give free help, the poor still get less than professional advice—more sad proof that the present draft laws not only make draft lawyers necessary but also breed contempt for law in general.