Prosecutions of Draft Registration Resisters

20 prosecutions of nonregistrants since 1980 (none since 1986)

FAQ about current Selective Service registration compliance and enforcement

History of draft registration and draft resistance since 1980

• Violations of Selective Service laws and regulations: 40,000,000+ since 1980 (extrapolated from GAO and Selective Service System estimates of compliance rates; there has been no GAO or other independent audit of compliance with registration since 1982)

  • Nonregistration (at least 10% of young men never register at all)

    • Alternative To Current Draft Registration Needed Unless Level Of Compliance Improves
      (General Accounting Office report FPCD-82-20, April 19, 1982)
    • Selective Service System Peacetime Draft Registration Program
      (testimony of the General Accounting Office to Congress, July 28, 1982)
    • Selective Service System Annual Report to Congress, Fiscal Year 2017
      (See page 7: “If a man fails to register or fails to provide evidence that he is exempt from the registration requirement after receiving Selective Service reminder and/or compliance mailings, his name is referred to the Department of Justice (DoJ) as required by the Military Selective Service Act…. In FY 2017, 184,051 names and addresses of suspected violators were provided to DoJ.” None of these nonregistrants were investigated or prosecuted by the DOJ.)
    • Department of Defense report to the National Commission on Military, National, and Public Service, 17 March 2017
      (“Annually, the SSS forwards to DoJ a list of roughly 630,000 names and addresses of men aged 19-30, who have either evaded registration or refused to register. In practice, there have been no criminal prosecutions for failure to register since January 1986.”)
    • Department of Justice report to the National Commission on Military, National, and Public Service, 17 November 2017
      (“During FY 2015, 146,997 names of suspected violators were provided to the DOJ.” Note that the DOJ said nothing about what, if any, action it took to investigate or prosecute any of those people, none of whom were indicted. The DOJ also said nothing about any projections of likely noncompliance or any plans, preparations, or budget estimate for enforcing a draft or compulsory service scheme. More on the NCMNPS.)
    • Selective Service registration compliance rates by state, Calendar Year 2016
      (Note that these figures count as “in compliance” anyone for which a registration is received by age 20, regardless of when they registered or the accuracy of the address on file with the SSS)
    • Survey: Many Didn’t Register For Draft; Post Offices across US report no-shows far above 2% predicted
      (by Alan M. MacRobert, Boston Globe, 27 August 1980, p. 1; full text is available for a fee from the Globe archives and in edited wire-service versions published in other newspapers; the original Globe front-page banner headline was apparently added in page makeup and is missing from the electronic archive. “As many as 25 percent of the nation’s 19- and 20-year-old men failed to register for the draft last month… A sampling of postal districts across the country showed that 1 million of the 4 million civilian American males born in 1960 and 1961 ignored or defied the requirement…. The draft registration program appears to be, if not a failure, at least in serious trouble.” This number of nonregistrants in the initial age cohorts was later confirmed by the government, and was was twice as large as the most optimistic estimates by resistance organizations had been before registration began.)
    • Californians, as in 1960’s, Lead in Resistance to Selective Service (New York Times, 22 August 1982)
      “For every one of those who openly say, ‘I’m not going to register,’ there are probably 50 to 100 who are doing it privately,” said Fred Moore of the National Resistance Committee in San Francisco.” (Despite the headline on this article, percentages of noncompliance are much higher in the District of Columbia, Puerto Rico, and other U.S. colonies where residents lack full U.S. voting rights but are subject to registration and the draft, although in light of California’s population, the largest absolute number number of Selective Service law-breakers is undoubtedly in California.)
    • Selective Service Without a Draft (by James B. Jacobs and Dennis McNamara, Armed Forces & Society 10, no. 3, 1984)
      “Notwithstanding a few defeats in the lower courts, registration’s legal foundation has remained intact. Yet the success of the program is questionable. Perhaps as many as a million young men, for one reason or another, have failed to register. A small number have been prosecuted, even jailed, but the number of noinregistrants continues to grow. Unless a vigorous enforcement program is implemented soon, draft registration may evolve into a de facto voluntary program. Yet vigorous enforcement implies significant social, economic, and political costs. Would the costs be worth shouldering or is it more sensible to abandon draft registration?”

  
  [Mike Keefe, Denver Post, 1982]

  • Late registration (most registrations are months or years after the registrant’s 18th birthday, and it is possible for a man to register at any time until his 26th birthday, by which time he is too old to be drafted)

  • Change of address without notice to the SSS (at least half of all registrants)

    • Failure Of Registrants To Report Address Changes Would Diminish Fairness Of Induction Processing
      (General Accounting Office report FPCD-82-45, September 24, 1982. “We estimate that about 20% to 40% of addresses in Selective Service files will be outdated for registrants who turn 20 in any given year…. At the end of 8 years, when registrants reach their last year of draft eligibility, the extent of outdated address could reach almost 75%. As a result of outdated addresses, mnay registrants would not receive induction notices.”)
    • Reserve Forces and Manpower Mobilization Issues
      (testimony of the General Accounting Office to Congress, March 15, 1983)
    • “The list that they have I doubt could pass the legal definition of a complete and objective list, because it is structurally flawed and Selective Service knows it. It’s a list that I’m sure the courts would throw out immediately because it’s not accurate.” (Bernard Rostker, Director of the Selective Service System 1979-1981, in a podcast interview with Lillian Cunningham of the Washington Post, 4 December 2017)
    • Testimony of former Selective Service Director Bernard Rostker to the National Commission on Military, National, and Public Service, 24 April 2019
      (“The current system of registration is ineffective and frankly less than useless. It does not provide a comprehensive nor an accurate database upon which to implement conscription…. It systematically lacks large segments of the eligible male population. And for those that are included, the currency of information contained is questionable.” Trasnscript, Video clip, more.)
    • Testimony of Edward Hasbrouck to the National Commission on Military, National, and Public Service, 25 April 2019
      (“Compliance with the requirement to tell the Selective Service System every time you move until your 26th birthday is near zero.” Written statement, Video, more.)

  • Counseling, aid, or abetment of resistance

    “The case of the United States against Andy Mager is also the case of the United States against each of us, and against many others who are not here today. We are Andy’s friends, family, and neighbors. His indictment is also an indictment of our work, of our beliefs, and of our feelings against registration, the draft, militarism, and war. We are here with Andy to answer your charges against us. For us to be here and to make this statement is for us to support, aid, and abet Andy, as unindicted co-defendants. We ask, if you convict Andy Mager, that you convict all of us, that you imprison all of us, or none of us.” (Solidarity statement signed by 2,600 people and entered into the record by Andy at his sentencing in Syracuse, NY, 4 February 1985. Suppporters had attempted to read similar statements at court hearings in the cases of Edward Hasbrouck and Russ Ford.)

  • Conspiracy to counsel, aid, abet, or resist

    • National Resistance “Conspiracy”?
      (1984 article analyzing government documents and other sources on the government’s prosecution policy and the possibility of prosecutions for conspiracy, aid, abetment, or advocacy of draft registration resistance)




[Picket line and press conference with other (unindicted) nonregistrants and supporters in front of the Federal Building in San Francisco in July, 1982, one of more than 100 protests, marches, rallies, and vigils throughout the country within days after the first indictment of a nonregistrant, Ben Sasway, in San Diego. Each indictment of a nonregistrant prompted more young men to speak out publicly about their refusal to register. At least several hundred young men who were required to register, and perhaps as many as several thousand, actively publicized their resistance or informed the government of their refusal to comply with the law, but only 20 were ever prosecuted. Many more women and older men who weren’t required to register also violated the law by advocating, organizing, and assisting resistance to draft registration, but the Department of Justice declined to prosecute any of them. Photos by Bev Ramsay for Resistance News.]

• Indictments: 20 (19 for self-reported or self-publicized nonregistration; most recent indictment was that of of Terry Kuelper on 23 January 1986; interviews with current and former Selective Service officials about the prosecutions and why they ended; locations listed are those of courts where indictments were issued)

  “A July 9, 1982, communication to United States Attorneys from the Justice Department ‘requires that United States Attorneys notify non-registrants by registered mail that, unless they register within a specified time, prosecutions will be considered. In most instances we anticipate that Federal Bureau of Investigation agents will also interview alleged non-registrants prior to the initiation of prosecutions. Nevertheless, if a non-registrant registers prior to indictment, no further prosecutive action will be taken. The policy is designed to ensure that the refusal to register is willful.’” (U.S. District Court decision in U.S. v. Eklund, 551 F. Supp. 964, S.D. Iowa 1982.)

  “Apparently the moral of the government’s policy is: if you want to evade the draft registration law, do nothing, say nothing, and you will not be prosecuted. Only those with the courage and candor to write the government refusing to register will be punished.” (U.S. v. Eklund, 733 F.2d 1287, 8th Circuit, 1984, en banc, Lay, Chief Judge, dissenting)

  • Indictments withdrawn by prosecutors: 5

    • Chuck Epp (Wichita, KS; Mennonite; registered by the government, prosecutor moved to dismiss the charge in mid-trial)
    • Steve Schlossberg (Minneapolis, MN; Baptist; registered, but was allowed to indicate intent to seek conscientious objector status on a special registration form)
    • Terry Kuelper (Little Rock, AR; registered, charge withdrawn before trial)
    • Michael McMillan (Madison, WI; registered, pre-trial diversion, 1 year unsupervised probation, no criminal record)
    • Phetsamay Maokhamphio (Lafayette, LA; registered, pre-trial diversion, 1 year unsupervised probation, no criminal record)

  • Convictions: 15

    • Guilty pleas: 5
      • Kendal Warkentine (Wichita, KS; Mennonite)
      • Rusty Martin (Des Moines, IA)
      • David Wayte (Los Angeles, CA)
      • Jon Harshberger (Ft. Wayne, IN; Church of the Brethren)
      • Gillam Kerley (Madison, WI; pled guilty after original jury trial verdict and prison sentence were overturned on appeal because the trial judge had failed to instruct the jury that the government had to prove the defendant knew he was legally required to register)
    • Bench trials and convictions: 2
      • Enten Eller (Roanoke, VA; Church of the Brethren)
      • Sam Matthews (Cincinnati, OH; Baptist)
    • Jury trials and convictions: 8
      • Ben Sasway (San Diego, CA)
      • Gary Eklund (Des Moines, IA)
      • Edward Hasbrouck (Boston, MA; anarchist)
      • Russ Ford (Hartford, CT)
      • Mark Schmucker (Cleveland, OH; Mennonite)
      • Andy Mager (Syracuse, NY)
      • Paul Jacob (Little Rock, AR; libertarian; more from Paul Jacob on the draft)
      • Dan Rutt (Detroit, MI)




[Posters for demonstrations at the trial of Andy Mager in Syracuse, NY, and the trial and sentencing of Edward Hasbrouck in Boston, MA. More info.]

• Convictions and Sentences: 15 (note that all of these sentences were impsoed under the rules in effect before the Federal Sentencing Reform Act of 1984 and the creation of the Federal sentencing guidelines)

  • Unsupervised probation: 1

    • Kendal Warkentine (2 years)
  
  

  • Supervised probation with special conditions: 5

    • Enten Eller (2 years “voluntary public service”)
    • Mark Schmucker (2 years “voluntary public service”, $4,000 fine; sentenced under the Youth Corrections Act and conviction vacated following completion of probation)
    • Rusty Martin (3 years, register, attend 2 naturalization ceremonies, $10,000 fine)
    • David Wayte (6 months “house arrest”)
    • Jon Harshbarger (2 years “voluntary public service”, $1,500 fine)
  
  

  • Imprisonment: 9

    
    [Each book I was allowed to receive in the Federal Prison Camp had to be approved by the camp “counselor”, James M. Swisher.]

    • Russ Ford (refused to accept conditions of release on bond, jailed 35 days pending trial, sentenced to the 35 days time he had already served)
    • Dan Rutt (3 months in “Community Correctional Facility” [halfway house])
    • Sam Matthews (sentenced originally to 1 year + 1 day, sentence commuted to time served and released unconditionally after 3 months)
    • Edward Hasbrouck (sentence originally suspended, probation later revoked because judge disagreed with political message sent by peace work, despite testimony of probation officer that it satisfied conditions of sentence; resentenced to 6 months; released unconditionally after 4 1/2 months)
    • Andy Mager (sentenced to 6 months, released unconditionally after 4 1/2 months)
    • Paul Jacob (sentenced to 6 months, released on probation after 4 1/2 months)
    • Gary Eklund (sentenced originally to 2 years, sentence commuted to 7 months, released unconditionally after 5 1/2 months)
    • Gillam Kerley (final resentencing following guilty plea was to probation, “voluntary public service”, and fine, but had already been imprisoned for 6 months before original jury trial verdict and prison sentence were overturned on appeal because the trial judge had failed to instruct the jury that the government had to prove the defendant knew he was legally required to register)
    • Ben Sasway (sentenced to 2 1/2 years, released on parole after 6 months)





[Resistance News file photos, left to right, top to bottom: Ben Sasway outside the Federal courthouse in San Diego, CA, 1 July 1982, on the day after his indictment (photo © Nita Winter 1982); Michael McMillan (L) and Gillam Kerley (R) at press conference in Madison, WI, following their indictments on 8 September 1982; Rusty Martin at a demonstration outside the main post office in Des Moines, IA, on the first day of draft registration, 21 July 1980; Gary Eklund, prosecuted in Des Moines, IA, at West Coast anti-draft gathering, San Diego, 1985 (photo by Bev Ramsay); Edward Hasbrouck, outside the Federal courthouse in Boston, MA, before his sentencing, 14 January 1983 (photo © Ellen Shub); Russ Ford outside the Federal courthouse in Hartford, CT, on the day of his trial, 15 April 1983 (photo by Carol Bellin); Paul Jacob with his daughter Jessica, Little Rock, AR, 1984; Andy Mager, in custody following his sentencing, Syracuse, NY, 4 February 1985 (photo by Paul Pearce, some rights reserved, CC BY-NC 2.0); Kendal Warkentine (L) and Chuck Epp (R) at press conference in Wichita, KS, folloowing their indictments, 22 September 1982 (photo by Larry Cornies); David Wayte, Los Angeles, CA, 1982 (photo by Paul Trudeau).]




“It’s not a hate I want to apologize for…. Not hating was giving in, and giving in was a good way to end up like the Attorney General. None of us wanted that. We knew firsthand what he was all about. He made his living putting folks in a cage, and that has always seemed to me like a low way to live.” (David Harris, “I Shoulda Been Home Yesterday”, Delacorte Press, 1976)

• Congressional hearings on the enforcement of draft registration

  • Judiciary implications of draft registration — 1980
    (Hearings before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the Committee on the Judiciary, House of Representatives, 96th Congress, 2nd session, April 14 and May 22, 1980. See pp. 130-131 for the founding Call for Resistance by the National Resistance Committee, inserted in the hearing record by one of the witnesses; see also pp. 1-3 for the written testimony of Dr. Curtis W. Tarr, former Director of the SSS: “Enforcing a requirement to notify Selective Service of a changed address would be even more difficult than enforcing the duty to register…. I foresee the possibility of evasion by large numbers that that would overwhelm the agencies responsible for law enforcement and the judiciary.”)
  • Selective Service Prosecutions — 1982
    (Oversight hearing before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the Committee on the Judiciary, House of Representatives, 97th Congress, 2nd session, July 28, 1982.)


[Edward Hasbrouck outside the Federal courthouse in Boston before his sentencing for refusal to register with the Selective Service System, 14 January 1983. Photo by Tom Landers, Boston Globe, via Getty Images]

• Articles and interviews by and about draft registration resisters in the 1980s

  • Gender-Neutral Draft Registration Would Create Millions of Female Felons
    (by Steven Nelson, U.S. News & World Report, 3 May 2016. Includes interviews with nonregistrants Edward Hasbrouck and Dan Rutt.)
  • Government admits resistance made draft registration unenforceable
    (by Edward Hasbrouck, 3 May 2016.)
  • Courage Under Fire: Resistance to War
    (Interview with Edward Hasbrouck beginning at 20:10, National Radio Project, 2004; background)
  • A Conversation with Draft Resisters from the Vietnam War Era and Resisters from the Early 1980s
    (Video outtake from the 2020 documentary film, The Boys Who Said No)
  • History of Draft Registration and Draft Resistance since 1980
    (by Edward Hasbrouck, updated June 2016)
  • Robert Mueller and Me
    (by Edward Hasbrouck, updated March 2019)
  • POEM: Attorney General Edwin Meese III
    (by Dan Rutt, 20 August 2015. Blog post includes a poem written in prison in 1987, and more reflections on draft registration resistance.)
  • Testimony of Dan Rutt to the National Commission on Military, National, and Public Service
    (by Dan Rutt, 28 June 2018)
  • Unrepentant Resister: Looking Back 20 Years to my Draft Resistance Trial
    (by Andy Mager, Syracuse Peace Council Newsletter, February 2005)
  • Protesters proud of actions opposing draft: Today, he’s convinced it was the right thing to do.
    (Interviews with Russ Ford, Edward Hasbrouck, and Dan Rutt, Connecticut Post, Sunday, 3 September 2006)
  • Where are they now: Rusty Martin
    (by Cyrus Moussavi, Waterloo-Cedar Falls [IA] Courier, 18 June 2005)
  • Collateral Damage: Draft Resistance & the Anti-War Movement
    (by Chris Clarke, Coyote Crossing, 18 July 2006; incorporates an earlier article first published by CounterPunch, 25 January 2003)
  • Bernie and Me
    (by Alex Reyes, Eastern Regional Director and Washington, DC, representative of the National Resistance Committee; note that this is about Bernard Rostker, former Director of Selective Service, and not about Bernie Sanders)
  • Draft resistance and the politics of identity and status
    (by Edward Hasbrouck, in We Have Not Been Moved: Resisting Racism and Militarism in 21st Century America, edited by Elizabeth Betita Martinez, Mandy Carter, and Matt Meyer, October 2012, published by PM Press and the War Resisters League)
  • Costs of a Flimsy Card
    (by Michael Wehle, The Progressive, April 1987)
  • When Law and Conscience Conflict: The Draft Nonregistration Case of U.S. v. Mark Arden Schmucker
    (by one of Mark Schmucker’s attorneys; published as a chapter in the the court’s officially-commissioned history of its notable cases, pp. 266-288)
  • Why I Refuse to Register
    (Op-Ed by Paul Jacob, first published 17 May 1985, The Orange County Register)
  • More from Paul Jacob on the draft
  • I’m a Free Man Resisting Slavery
    (profile of Paul Jacob on his release from prison, by James W. Harris, Reason magazine, February 1987)
  • Draft Resistance, 80’s Style
    (Profile of 1980’s draft resister Ben Sasway by 1960’s draft resister and New York Times staff writer David Harris, The New York Times Magazine, 22 August 1982, comparing draft resistance in the 1960’s and in the 1980’s)
  • Nothing About the Draft Makes Sense
    (by William Greider, Rolling Stone, 30 September 1982. “Registration is not working…. [H]undreds of thousands are not signing up. Collectively, they confront the government with one of the grossest episodes of mass defiance of the law since Americans decided to drink their way through Prohibition. In this case as well, the only practical solution is repeal.” See also William Greider’s 1981 Rolling Stone profile of draft registration resisters Matt Meyer, Matt Nicodemus, and Edward Hasbrouck, not available online.)
  • Men and Women Who Dare to Say No
    (History of Mennonite resistance to draft registration, 1980-1985)
  • Letters in the New York Times about the prosecutions of draft registration resisters:
    • On the Failures of Draft Registration
      (letter to the editor by Edward Hasbrouck from Lewisburg [PA] Federal Prison Camp, 21 March 1984: “The issue for Congress and the American people is the failure of draft registration: After almost four years of registration, a million of those eligible haven’t registered…. In such circumstances, it is absurd to think that reinstatement of the draft is a realistic possibility, and it is dangerously naive to make foreign policy commitments that will require a draft.”)
    • A Consensus in Support of Draft Registration (1)
      (letter to the editor by Wil Ebel, Assistant Director of Selective Service for Public Affairs, 23 March 1984: “Edward Hasbrouck’s letter assailing draft registration is woefully in error. Perhaps we should not expect an incarcerated individual to have accurate and up-to-date information, but your readers should not be deluded by Mr. Hasbrouck’s misrepresentations. Draft registration is not a failure.”)
    • A Consensus in Support of Draft Registration (2)
      (letter to the editor by Rep. Gerald Solomon: “Edward Hasbrouck called the Solomon Amendment, which denies student aid to those who refuse to register for the draft, ‘a failure.’ The real failure is his inability to separate constitutional rights from taxpayer-financed privileges. We’re hearing a lot these days about ‘yuppies,’ the young urban professionals from the baby boom now on the cusp of political and economic power. I’d hate to think they still cling to the ‘me generation’ notion that the working taxpayers of this country owe them a college education and upward mobility…. If I had my way, those who do not register would lose not only the ‘right’ to a student loan but every other taxpayer-funded benefit.”)
    • Courageous Foes of Draft Registration
      (letter to the editor by Marjorie Baechler, 7 April 1984: “The remark by Wil Ebel of the Selective Service System that ‘perhaps we should not expect an incarcerated individual to have accurate and up-to-date information’… is an attempt to demean Edward Hasbrouck… and all of us who share conscientious objection to the settling of disputes through the violence of war.”)
    • We Still Won’t Go!
      (letter to the editor by Edward Hasbrouck, 9 December 1990; PDF of print version as leaflet. “Only 20 nonregistrants were ever prosecuted, the last almost five years ago. The attempt to enforce registration has been abandoned, essentially in failure, while millions continue not to register.”)
  • Draft Foe Naive, But He Has A Point
    (column by Margery Eagan, Boston Herald-American, 14 October 1982, p. 8)
  • Protest At Hearing For Draft Resister
    (by William Doherty, Boston Globe, 15 October 1982, p. 21)
  • Who is Ed Hasbrouck, and why is he bucking the system?
    (Profile by Melinda Macauley, The Townsman, Wellesley, MA, 9 December 1982, pp. 10-11)
  • Draft Count Defendant Is Guilty
    (by Berkley Hudson, Providence Journal, 16 December 1982, p. 1)
  • Draft Resister Ordered To Do Public Service
    (by James Hammond, Boston Globe, 15 January 1983, p. 1)
  • Open letter to the Selective Service System
    (by Edward Hasbrouck, 3 October 1981; published in Fifth Estate and elsewhere)
  • Letter to U.S. District Judge David S. Nelson
    (by Edward Hasbrouck, 5 August 1983)
  • Who Is Edward Hasbrouck?
    (Background to my draft registration resistance, other political activism, and personal philosophy; see also Ageism, Youth Liberation, and the the Draft and Why do people oppose the draft?)
  • Advice to nonregistrants singled out for prosecution
    (by Edward Hasbrouck, Resistance News #15, July 1984)
  • No Draft, No War: Prosecutions Falter
    (The Veteran, Vietnam Veterans Against the War, February/March 1983)
  • How the Chicago 8 (“Chicago 7”) might have been the Chicago 9
    (Eric Weinberger, Dave Dellinger, and my draft resistance; by Edward Hasbrouck, 19 October 2020)
  • Voting from prison: A story from 1984
    (by Edward Hasbrouck, 3 November 2020; see also To vote, or not to vote?)
  • Let’s run Selective Service up the flagpole and see if anyone salutes
    (Letters to the editor of the Boston Globe by Edward Hasbrouck, Stuart Wax, and others, 26 June 2021)
  • Posters from the prosecutions of draft resisters in the 1980s
  • National Resistance Committee archives and Edward Hasbrouck papers
    (Swarthmore College Peace Collection)
  • Stanford Against Conscription records, 1979-1985
    (Stanford University Archives)
  • Paul Jacob papers, 1979-1991
    (Hoover Institution Archives, Stanford University)
• FAQ about Selective Service registration compliance and enforcement

[This page was originally compiled by Edward Hasbrouck for the National Resistance Committee, and published in each issue of Resistance News. I’ve only linked to e-mail addresses that were already on the Web, but I’m in touch with some others of the indicted nonregistrants listed above. At least five of the twenty nonregistrants who were prosecuted in the 1980s attended public hearings and events held by the National Commission on Military, National, and Public Service in 2018 and 2019, including Dan Rutt, Paul Jacob, and Edward Hasbrouck, who all testified that they are still proud of their decision to resist, and would do it again.]

[Above left: Edward Hasbrouck in front of the Federal courthouse in Boston before being sentenced for refusing to register for the draft, 14 January 1983. Photo © Ellen Shub. All rights reserved. Above right: At a conference in Brussels, Belgium, 25 January 2017. Photo by Wendy M. Grossman. Below: Testifying before the National Commission on Military, National, and Pubic Service, Washington, DC, 25 April 2019. Photo from C-SPAN video.]