Draft Loophole?

As soon as a young man turns 18, he is required to register for the draft. But what if he does not do so within the five-day grace period provided by law? Although few people realize it, the Government has no official system for detecting the 18-year-olds who fail to register. Last week, a five-man majority of the Supreme Court decided that if the Government does not discover and prosecute a non-registrant for his dereliction within five years after the grace period ends, he cannot he prosecuted at all. The three dissenting Justices complained that even though a man is supposed to be subject to the draft until the age of 26, the decision would render some draft dodgers exempt at the age of 23.

The case involved a young man who at 17 went into business manufacturing children's clothes and became a millionaire by the age of 23. Robert I. Toussie did not register, he said later, because his pacifist convictions prevented any contact with the military system --even applying for status as a conscientious objector. His default went unnoticed until he was 25, when an anonymous tipster informed his draft board. In appealing his subsequent conviction, Toussie argued that the Government had lost its chance to prosecute him when the federal statute of limitations ran out five years after he had committed his crime.

Grave Offense. Had Toussie really stopped breaking the law the day after the grace period ended? Or had he continued to violate it every day that he failed to register? The concept of "continuing violation" is found throughout the law. For example, when conspirators plan to commit a crime, the statute of limitations does not start running at the moment they begin to carry out their agreement. Their scheme is a continuing offense until it is completed or abandoned.

In Toussie's case, the Court declared that although failing to sign up is a grave offense, the language of the draft law does not make it a continuing one. "We feel that the threat of criminal punishment and the five-year statute of limitations is a sufficient incentive to encourage compliance," Justice Hugo Black noted for the majority. He suggested that if Congress had intended failure to register to be a continuing crime, it should have said so explicitly.

Real Threat. "Completely illogical." said Justice Byron White in a stinging dissent joined by Chief Justice Warren Burger and Justice John Harlan. Pointing out that a Selective Service regulation makes it a continuing duty to register, they argued that the crime of not registering is also continuing. Wrote White: "The majority holds that when dawn breaks on the unregistered male. six days after his 18th birthday, his crime is complete and ended: though the Act specifically declares that he is still liable for induction, he has no obligation to take the step which makes that induction possible. I for one cannot ascribe such inconsistent intent to Congress."

The Court reminded Congress that it has full power to toughen the law. But even if it does not, many legal experts feel that the ruling will not encourage wholesale new draft dodging. For one thing, the decision does not affect the status of a man who flees to Canada to avoid either registration or induction; he can be prosecuted whenever he returns. And few U.S. males are likely to regard the threat of criminal prosecution as any less real because it is limited to five, instead of 13 years. Concludes U.C.L.A. Law Professor Michael Tigar, "It's simply too great a risk for a young man not to register."

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