# Rosenberg v. United States (346 U.S. 273)/Dissent Douglas

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United States Supreme Court
346 U.S. 273
Rosenberg v. United States (346 U.S. 273)
Mr. Justice DOUGLAS, dissenting.
When the motion for a stay was before me, I was deeply troubled by the legal question tendered. After twelve hours of research and study I concluded, as my opinion indicated, that the question was a substantial one, never presented to this Court and never decided by any court. So I issued the stay order.
Now I have had the benefit of an additional argument and additional study and reflection. Now I know that I am right on the law.
The Solicitor General says in oral argument that the Government would have been laughed out of court if the indictment in this case had been laid under the Atomic Energy Act of 1946. I agree. For a part of the crime alleged and proved antedated that Act. And obviously no criminal statute can have retroactive application. But the Solicitor General misses the legal point on which my stay order was based. It is this-whether or not the death penalty can be imposed without the recommendation of the jury for a crime involving the disclosure of atomic secrets where a part of that crime takes place after the effective date of the Atomic Energy Act.
The crime of the Rosenbergs was a conspiracy that started prior to the Atomic Energy Act and continued almost 4 years after the effective date of that Act. The overt acts alleged were acts which took place prior to the effective date of the new Act. But that is irrelevant for two reasons. First, acts in pursuance of the conspiracy were proved which took place after the new Act became the law. Second, under Singer v. United States, 323 U.S. 338, 65 S.Ct. 282, 89 L.Ed. 285, no overt acts were necessary; the crime was complete when the conspiracy was proved. And that conspiracy, as defined in the indictment itself, endured almost 4 years after the Atomic Energy Act became effective.
The crime therefore took place in substantial part after the new Act became effective, after Congress had written new penalties for conspiracies to disclose atomic secrets. One of the new requirements is that the death penalty for that kind of espionage can be imposed only if the jury recommends it. And here there was no such recommendation. To be sure, this espionage included more than atomic secrets. But there can be no doubt that the death penalty was imposed because of the Rosenbergs' disclosure of atomic secrets. The trial judge, in sentencing the Rosenbergs to death, emphasized that the heinous character of their crime was trafficking in atomic secrets. He said:
'I believe your conduct in putting into the hands of the Russians the Abomb years before our best scientists predicted Russia would perfect the bomb has already caused, in my opinion, the Communist aggression in Korea, with the resultant casualties exceeding 50,000 and who knows but that millions more of innocent people may pay the price of your treason. Indeed, by your betrayal you undoubtedly have altered the course of history to the disadvantage of our country.'
But the Congress in 1946 adopted new criminal sanctions for such crimes. Whether Congress was wise or unwise in doing so is no question for us. The cold truth is that the death sentence may not be imposed for what the Rosenbergs did unless the jury so recommends.
Some say, however, that since a part of the Rosenbergs' crime was committed under the old law, the penalties of the old law apply. But it is law too elemental for citation of authority that where two penal statutes may apply-one carrying death, the other imprisonment-the court has no choice but to impose the less harsh sentence.
A suggestion is made that the question comes too late, that since the Rosenbergs did not raise this question on appeal, they are barred from raising it now. But the question of an unlawful sentence is never barred. No man or woman should go to death under an unlawful sentence merely because his lawyer failed to raise the point. It is that function among others that the Great Writ serves. I adhere to the views stated by Chief Justice Hughes for a unanimous Court in Bowen v. Johnston, 306 U.S. 19, 26-27, 59 S.Ct. 442, 446, 83 L.Ed. 455:
'It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired. Ex parte Lange (18 Wall. 163, 21 L.Ed. 872). The rule requiring resort to appellate procedure when the trial court has determined its own jurisdiction of an offense is not a rule denying the power to issue a writ of habeas corpus when it appears that nevertheless the trial court was without jurisdiction. The rule is not one defining power but one which relates to the appropriate exercise of power.'
Here the trial court was without jurisdiction to impose the death penalty, since the jury had not recommended it.
Before the present argument I knew only that the question was serious and substantial. Now I am sure of the answer. I know deep in my heart that I am right on the law. Knowing that, my duty is clear.
APPENDIX TO THE OPINION OF MR. JUSTICE DOUGLAS
Mr. Justice DOUGLAS.
These are two applications for a stay of execution made to me after adjournment of the Court on June 15, 1953. The first raises questions concerning the fairness of the trial of the Rosenbergs. I have heard oral argument on that motion and considered the papers that have been filed. This application does not present points substantially different from those which the Court has already considered in its several decisions to deny review of the case, to deny a stay of execution, and to deny a petition for a writ of habeas corpus. While I differed with the Court and thought the case should have been reviewed, the Court has spoken and I bow to its decision. Although I have the power to grant a stay, I could not do so responsibly on grounds the Court has already rejected.
Another motion for stay, together with a petition for writ of habeas corpus challenges the power of the District Court to impose the death sentence on the Rosenbergs. The Espionage Act, 50 U.S.C. § 32(a) provides:
"Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to, or aids or induces another to, communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by imprisonment for not more than twenty years: Provided, That whoever shall violate the provisions of subsection (a) of this section in time of war shall be punished by death or by imprisonment for not more than thirty years * * *." (Italics added.) Section 34 provides:
"If two or more persons conspire to violate the provisions of sections two or three of this title and one or more of such persons does any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be punished as in said sections provided in the case of the doing of the act the accomplishment of which is the object of such conspiracy. Except as above provided conspiracies to commit offenses under this title shall be punished as provided by section thirty-seven of the Act to codify, revise, and amend the penal laws of the United States approved March fourth, nineteen hundred and nine."
The indictment, which was returned in 1951, charged a conspiracy to violate § 32(a) with an intent to communicate information that would be used to the advantage of a foreign nature, viz., Soviet Russia. The conspiracy was alleged to have continued from June 6, 1944 to and including June 16, 1950. The overt acts of the Rosenbergs which were alleged took place in 1944 and 1945.
On August 1, 1946, the Atomic Energy Act, 42 U.S.C.A. § 1801 et seq., became effective. Section 10(b)(2) and (3) provide:
"(2) Whoever, lawfully or unlawfully, having possession of, access to, control over, or being entrusted with, any document, writing, sketch, photograph, plan, model, instrument, appliance, note or information involving or incorporating restricted data-
"(A) communicates, transmits, or discloses the same to any individual or person, or attempts or conspires to do any of the foregoing, with intent to injure the United States or with intent to secure an advantage to any foreign nation, upon conviction thereof, shall be punished by death or imprisonment for life (but the penalty of death or imprisonment for life may be imposed only upon recommendation of the jury and only in cases where the offense was committed with intent to injure the United States); or by a fine of not more than $20,000 or imprisonment for not more than twenty years, or both; " (Italics added.)
"(B) communicates, transmits, or discloses the same to any individual or person, or attempts or conspires to do any of the foregoing, with reason to believe such data will be utilized to injure the United States or to secure an advantage to any foreign nation, shall, upon conviction, be punished by a fine of not more than $10,000 or imprisonment for not more than ten years, or both.
"(3) Whoever, with intent to injure the United States or with intent to secure an advantage to any foreign nation, acquires, or attempts or conspires to acquire any document, writing, sketch, photograph, plan, model, instrument, appliance, note or information involving or incorporating restricted data shall, upon conviction thereof, be punished by death or imprisonment for life (but the penalty of death or imprisonment for life may be imposed only upon recommendation of the jury and only in cases where the offense was committed with intent to injure the United States imprisonment for not more than twenty years, or both." (Italics added.)
It is apparent from the face of this new law that the District Court is without power to impose the death penalty except
and
-where the offense was committed with an intent to injure the United States.
Neither of those conditions is satisfied in this case as the jury did not recommend the death penalty nor did the indictment charge that the offense was committed with an intent to injure the United States. If the Atomic Energy Act of 1946 is applicable to the prosecution of the Rosenbergs, the District Court unlawfully imposed the death sentence.
The Department of Justice maintains that the Espionage Act is applicable to the indictment because all of the over acts alleged took place before the passage of the Atomic Energy Act of 1946. Petitioner maintains that since the indictment was returned subsequent to the Atomic Energy Act and since the conspiracy alleged, though starting prior to that time, continued thereafter, the lighter penalties of the new Act apply.
Curiously, this point has never been raised or presented to this Court in any of the earlier petitions or applications. The first reaction is that if it was not raised previously, it must have no substance to it. But on reflection I think it presents a considerable question. One purpose of the Atomic Energy Act was to ameliorate the penalties imposed for disclosing atomic secrets. As S.Rep. No. 1211, 79th Cong., 2d Sess., p. 23, stated, the problem in drafting § 10 was to protect the "common defense and security" and yet assure "sufficient freedom of interchange between scientists to assure the Nation of continued scientific progress."
The Rosenbergs obviously were not engaged in an exchange of scientific information in the interests of science. But Congress lowered the level of penalties to protect all those who might be charged with the unlawful disclosure of atomic data. And if the Rosenbergs are the beneficiaries, it is merely the result of the application of the new law with an even hand. In any event, Congress prescribed the precise conditions under which the death penalty could be imposed. And all violators-Communists as well as non-Communists-are entitled to that protection.
This question is presented to me for the first time on the eve of the execution of the Rosenbergs without the benefit of briefs or any extended research. I cannot agree that it is a frivolous point or without substance. I may be that not every death penalty imposed for divulging atomic secrets need follow the procedure prescribed in § 10 of the Atomic Energy Act. If the crime was complete prior to the passage of that Act, possibly the old Espionage Act would apply. But this case is different in three respects: First, the offense charged was a conspiracy commencing before but continuing after the date of the new Act. Second, although the overt acts alleged were committed in 1944 and in 1945, the Government's case showed acts of the Rosenbergs in pursuance of the conspiracy long after the new Act became effective. Third, the overt acts of the coconspirator, Sobell, were alleged to have taken place between January, 1946, and May, 1948. But the proof against Sobell, as against the Rosenbergs, extended well beyond the effective date of the new Act. In short, a substantial portion of the case against the Rosenbergs related to acts in pursuance of the conspiracy which occurred after August 1, 1946.
I do not decide that the death penalty could have been imposed on the Rosenbergs only if the provisions of § 10 of the Atomic Energy Act of 1946 were satisfied. I merely decide that the question is a substantial one which should be decided after full argument and deliberation.
It is important that the country be protected against the nefarious plans of spies who would destroy us.
It is also important that before we allow human lives to be snuffed out we be sure-emphatically sure-that we act within the law. If we are not sure, there will be lingering doubts to plague the conscience after the event.
I have serious doubts whether this death sentence may be imposed for this offense except and unless a jury recommends it. The Rosenbergs should have an opportunity to litigate that issue.
I will not issue the writ of habeas corpus. But I will grant a stay effective until the question of the applicability of the penal provisions of § 10 of the Atomic Energy Act to this case can be determined by the District Court and the Court of Appeals, after which the question of a further stay will be open to the Court of Appeals or to a member of this Court in the usual order.
So ordered.
Application for stay of execution granted.

## Notes

* ↑ It would seem that the secrets involved in this case were "restricted data" within the meaning of the Act. Section 10(b)(1) defines that term as meaning "all data concerning the manufacture or utilization of atomic weapons, the production of fissionable material, or the use of fissionable material in the production of power, but shall not include any data which the Commission from time to time determines may be published without adversely affecting the common defense and security."
* ↑ Thus the Government's brief filed July 25, 1952 in opposition to the petitions of the Rosenbergs and of Sobell for certiorari stated:
* ↑ The Government's brief dated July 25, 1952, in opposition to the petitions for certiorari filed by the Rosenbergs and by Sobell summarized some of Sobell's activities as follows:
"In June 1948, (Max) Elitcher decided to leave the Bureau of Ordnance to take a job in New York (R. 256). When he informed Sobell of his plans, the latter urged him not to do anything until he discussed the matter with Rosenberg (R. 256). * Pursuant to arrangements made by Sobell, Elitcher met Rosenberg and Sobell in midtown New York (R. 256-257). When Rosenberg was told about Elitcher's plans, he tried to persuade Elitcher to remain in Washington, stating that he needed a source of information in the Navy Department (R. 257). Rosenberg further stated that he had already made plans for Elitcher to meet a contact in Washington (R. 257). During this conversation, Sobell also attempted to persuade Elitcher to stay at the Bureau of Ordnance; he told Elitcher 'Well, Rosenberg is right, Julie is right; you should do that' (R. 257).
"Sobell then left and Elitcher had dinner with Rosenberg (R. 257). During the course of dinner, Rosenberg said that money could be made available for the purpose of sending Elitcher to school to improve his technical status (R. 258). Elitcher asked Rosenberg how he had got 'started in this venture' (R. 258). Rosenberg replied that a long time ago he had decided that this was what he wanted to do; that he made it a point to get close to people in the Communist Party and kept getting from one person to another until he finally succeeded in approaching a Russian 'who would listen to his proposition concerning this matter of getting information to Russia' (R. 258).
"A month later, in July 1948, Elitcher drove with his family from Washington, D.C., to New York City, preparatory to changing his job (R. 259). On the way, he noticed that he was being followed (R. 259-260). Upon his arrival in New York, he proceeded to Sobell's home, where he planned to stay overnight (R. 259). When Elitcher told Sobell of his fear that he had been followed, Sobell became angry and said that Elitcher should not have come to his house; that he had some valuable information in the house that he should have given Rosenberg some time ago, information that was 'too valuable to be destroyed and yet too dangerous to keep around' (R. 260-261). Over Elitcher's protests, Sobell insisted the information be delivered to Rosenberg that night. Sobell then took at 35 millimeter film can from his house, and, accompanied by Elitcher, drove to Manhattan. While Elitcher waited in the car, Sobell left to deliver the can to Rosenberg. When Sobell returned, Elitcher asked him what Rosenberg though about his being followed (R. 261). Sobell replied that Rosenberg said that he had 'once talked to Elizabeth Bentley on the phone but he was pretty sure she didn't know who he was and therefore everything was all right' (R. 261). The two then returned to Sobell's house (R. 261)."
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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