297 F.Supp. 902 (D.Mass. 1969), Crim. 68-237, United States v. Sisson

Docket NºCrim. 68-237
Citation297 F.Supp. 902
Party NameUnited States v. Sisson
Case DateApril 01, 1969
CourtUnited States District Courts, 1st Circuit, District of Massachusetts

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297 F.Supp. 902 (D.Mass. 1969)



John Heffron SISSON, Jr.

Crim. No. 68-237.

United States District Court, D. Massachusetts

April 1, 1969

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Paul F. Markham, U.S. Atty., Stanislaw R. J. Suchecki, Asst. U.S. Atty., for plaintiff.

John G. S. Flym, Boston, Mass., for defendant.


WYZANSKI, Chief Judge.


March 21, 1969, in the United States District Court sitting in Boston, a jury returned a verdict that John Heffron Sisson, Jr., was guilty of unlawfully, knowingly, and wilfully having refused to comply with the order of Local Board No. 114 to submit to induction into the armed forces of the United States, in violation of the Military Selective Service Act of 1967. Title 50, Appendix, United States Code, Section 462. 32 Code of Federal Regulations 1632.14.

Pursuant to Rule 34 of the Rules of Criminal Procedure, Sisson on March 28, 1969, filed an amended motion in arrest of judgment. Adequate reference is made to earlier contentions. A new point is also raised: that the judicial power vested in this court by Article III of the United States Constitution does not give jurisdiction to adjudicate the merits of a criminal case in which the court is precluded, by the doctrine of so-called 'political questions' or otherwise, from deciding relevant constitutional, domestic, and international law questions raised by defendant. It is said that a trial designed to exclude relevant issues violates the 'due process' clause of the Fifth Amendment.

Important as is the new issue, defendant indicated both before and during the trial that he also intended to preserve his older contention that no offense is charged in the indictment because it is laid under a statute, which, as applied to him, violates the provision of the First Amendments that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof' and the 'due process' clause of the Fifth Amendment.

It would have been better practice to make in the motion in arrest of judgment a more detailed reference to, and repetition of, that earlier contention. But, of course, at every stage the court is required to bear in mind constitutional

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and jurisdictional issues which have been raised and remain of vital consequence. Furthermore, this court on March 26 provided that until April 3 defendant could file a motion in arrest. No doubt, defendant will seasonably make his motion in arrest even clearer.

This court in this opinion addresses itself not to the new point but to a further consideration of the never abandoned issue whether the government can constitutionally require combat service in Vietnam of a person who is conscientiously opposed to American military activities in Vietnam because he believes them immoral and unjust, that belief resting not upon formal religion but upon the deepest convictions and ethical commitments, apart from formal religion, of which a man is capable.

While Sisson has raised and not abandoned other issues, most of them have already been disposed of by earlier rulings in this case, United States v. Sisson, 294 F.Supp. 511, 515, 520 (D.Mass., 1968). Out of an abundance of caution this court repeats the following rulings already made, of which the first is peculiarly pertinent.

November 25, 1968 this court's opinion held that under present circumstances, described in that opinion, Sisson has the necessary standing to raise the issues he tenders. See 294 F.Supp. 511, 512-513.

The same opinion held that this court has no jurisdiction to decide the 'political question' whether the military actions of the United States in Vietnam require as a constitutional basis a declaration of war by Congress.

November 26, 1968 in a second opinion this court held it has no jurisdiction to decide the 'political question' whether American military operations in Vietnam violate international law. The holding is expanded and clarified in this court's order of December 3, 1968.

That order also ruled that if the Government should prove defendant intentionally refused to comply with a duly authorized order of his draft board to submit to induction then under the act it would not be open to defendant to offer as a statutory excuse that he regarded the war as illegal, immoral, or unjust.


From the transcript of the jury trial and the exhibits then admitted, the facts appear virtually without dispute. Indeed in substance the case arises upon an agreed statement of facts.

The usual preliminaries having been completed, Local Board No. 114, Middlesex County, Massachusetts, on Form 252, executed and mailed to Sisson March 18, 1968 an order to report for induction on April 17, 1968. Sisson received the order. On the scheduled day he reported to the local board and from there went to the Boston induction center, as required. At the Boston center, Sisson, after the officer in charge had painstakingly warned him of the consequences, deliberately refused to take the step forward which is, as he understood, the symbolic act of accepting induction.

The evidence shows that the proceedings were in every respect regular. Sisson has never made complaint that there was any error with respect to his registration, the chronological order in which he was called, his physical, mental, and moral examinations, or any other procedural step.

Sisson does not now and never did claim that he is or was in the narrow statutory sense a religious conscientious objector.

Sisson graduated in 1963 from the Phillips Exeter Academy and in 1967 from Harvard College. He enlisted in the Peace Corps in July 1967, but after training he was, for reasons that have no moral connotations, 'deselected' in September 1967. In January 1968 he went to work as a reporter for The Southern Courier, published in Montgomery, Alabama. That paper assigned him to work in Mississippi, where he was when he received the induction order.

The first formal indication in the record that Sisson had conscientious

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scruples is a latter of February 29, 1968 in which he notified Local Board No. 114 that 'I find myself to be conscientiously opposed to service in the Armed Forces. Would you please send me SSS Form No. 150 so that I might make my claim as a conscientious objector.' On receiving the form, Sisson concluded that his objection not being religious, within the administrative and statutory definitions incorporated in that form, he was not entitled to have the benefit of the form. He, therefore, did not execute it.

But, although the record shows no earlier formal indication of conscientious objection, Sisson's attitude as a nonreligious conscientious objector has had a long history. Sisson himself referred to his moral development, his educational training, his extensive reading of reports about and comments on the Vietnam situation, and the degree to which he had familiarized himself with the U.N. Charter, the charter and judgments of the Nuremberg Tribunal, and other domestic and international matters bearing upon the American involvement in Vietnam.

On the stand Sisson was diffident, perhaps beyond the requirements of modesty. But he revealed sensitiveness, not arrogance or obstinacy. His answers lacked the sharpness that sometimes reflects a prepared mind. He was entirely without eloquence. No line he spoke remains etched in memory. But he fearlessly used his own words, not mouthing formulae from court cases or manuals for draft avoidance.

There is not the slightest basis for impugning Sisson's courage. His attempt to serve in the Peace Corps, and the assignment he took on a Southern newspaper were not acts of cowardice or evasion. Those actions were assumptions of social obligations. They were in the pattern of many conscientious young men who have recently come of age. From his education Sisson knows that his claim of conscientious objection may cost him dearly. Some will misunderstand his motives. Some will be reluctant to employ him.

Nor was Sisson motivated by purely political considerations. Of course if 'political' means that the area of decision involves a judgment as to the conduct of a state, then any decision as to any war is not without some political aspects. But Sisson's table of ultimate values is moral and ethical. It reflects quite as real, pervasive, durable, and commendable a marshalling of priorities as a formal religion. It is just as much a residue of culture, early training, and beliefs shared by companions and family. What another derives from the discipline of a church, Sisson derives from the discipline of conscience.

Thus, Sisson bore the burden of proving by objective evidence that he was sincere. He was as genuinely and profoundly governed by his conscience as would have been a martyr obedient to an orthodox religion.

Sisson's views are not only sincere, but, without necessarily being right, are reasonable. Similar views are held by reasonable men who are qualified experts. The testimony of Professor Richard Falk of Princeton University and Professor Howard Zinn of Boston University is sufficient proof. See also Ralph B. Potter, New Problems for Conscience in War, American Society for Christian Ethics, January 19, 1968; War and Moral Discourse, John Knox Press, 1969.


The facts found by the jury and recited above raise many points of law, some presented early in this case, others raised explicitly or inferentially in the amended motion filed in arrest of judgment.

If any one of those points is incontrovertibly sound, the court should so state and probably not give rulings on others. Such additional rulings would be gratuitous and violative of the canon of avoidance of unnecessary constitutional adjudications. Hence if this court were a court of last resort, this court would adopt the prudential principle of striking for the jugular alone.

But this inferior court cannot say...

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