Warren E. Burger: We will hear arguments next in Number 04, Reed against Reed. Mr. Derr, oh, excuse me, your friend is not quite here yet. You may proceed. Let me put a question to you at the outset. This is -- the statute under which this case comes here has now been superseded, is that correct, by a new statute?
Allen R. Derr: It has not yet been superseded. Earlier this year Mr. Chief Justice, the Idaho Supreme Court enacted a uniform probate act. Now this act does not contain this preference statute that we are talking about in this case. That act does not come into effect until July of next year.
Warren E. Burger: But as of July next year, 1972, the new legislation would washout this problem, is that correct?
Allen R. Derr: It does remove the distinction between (Voice Overlap)
Warren E. Burger: The plain discrimination.
Allen R. Derr: Yes.
Warren E. Burger: The alleged discrimination. I just want to be sure that I have that clearly in mind.
Allen R. Derr: Right.
William J. Brennan, Jr.: You have no contention that technical rules of the state (Inaudible)
Allen R. Derr: No. I believe that in respondent’s brief they raise the question, but I take the position that we had a State Supreme Court decision that we are here on that the law is still in effect and will be until July of next year.
William J. Brennan, Jr.: And this lady (Inaudible) statute in any way.
Allen R. Derr: No, she is out --
William J. Brennan, Jr.: (Inaudible)
Allen R. Derr: That is right, unless she can get relief here.
Harry A. Blackmun: Mr. Derr I take it that the new act was not prompted by this litigation?
Allen R. Derr: I do not think it is at all.
Harry A. Blackmun: Would you give us --
Allen R. Derr: I just thought --
Harry A. Blackmun: Would you give us some enlightenment as to the significance of this particular probate? There is an inference somewhere that it is a less than a thousand dollars inside, is this correct?
Allen R. Derr: We do not know for sure, Your Honor. The exact size of the estate, but I will have to concede that it must be a small estate.
Harry A. Blackmun: So that this is essentially a test (Inaudible)?
Allen R. Derr: Basically, except that it is also a matter of principle on behalf of Mrs. Reed.
Harry A. Blackmun: Well, someone paid for it?
Allen R. Derr: If they --
Harry A. Blackmun: Are the Reeds incidentally separated or not?
Allen R. Derr: The Reeds although, it does not appear in the record Your Honor, the Reeds have been divorced since 1958. Mr. Chief Justice, Your Honors, may it please the Court. We are here today to ask you to do something that this Court has never done since the Fourteenth Amendment was adopted in 1868 and that is to declare a state statute that distinguishes between -- that classifies between males and females as unconstitutional. We feel that the case could have us -- at least a significant, significant for women, somewhat it can to what ground as Board of Education had for the butter --
William O. Douglas: We had a case some years back involving in both cases a bartender in Michigan?
Allen R. Derr: If the Court please, that was the Goesaert case that you are talking about sir.
William O. Douglas: I forgot the name of it.
Allen R. Derr: That case was decided, Your Honor on a premise that we feel is no longer tenable. It allowed the wife or daughter of an owner to tend bar that no other women to tend bar. It seems that it had been felt by the Court that if the wife, the wife or daughter would be protected by the husband or father and that for other reason there was a rational relationship to a legitimate state purpose. And as rational relationship test that has followed through our law had given some indication that wherever there has been a classification on the basis of sex, anything goes, it is alright. And we admit they are different, but we do feel as a result of this rational relationship test is almost as they enter it is separate but equal test that (Inaudible) in holding that -- holding that women from being considered person and holding them back from their entitlement under the Fourteenth Amendment of the United States Constitution, the Equal Protection Clause. Now, a just brief run down on the facts of this case which might be helpful in our analyzing that --
Harry A. Blackmun: But there a mis-connection could -- the Idaho Court have appointed Mr. and Mrs. Reed as joint administrators?
Allen R. Derr: There is a serious question on my mind because of the mandatory provisions and our Supreme Court in the case we are appealing from is that that provision is mandatory.
Harry A. Blackmun: Well, what is the practical aspect in the day to day routine of the Idaho Probate Courts, do they do this?
Allen R. Derr: I have known them personally and in fact this has been so except by ascent and never in this type of equal relationship. I have had a brother and sister agree with each other. But it seems to me that any kind, a male contender appears under the statute, the language of the statute is clear. Males must be preferred to be, there is no discretion.
Harry A. Blackmun: So that at a Court in your view then may not appoint both even though it is inclined to do so and even though both agree?
Allen R. Derr: I would think that the interpretation that was given to this case is the interpretation that might be given by other Courts and that no, they would not appoint both.
Byron R. White: In your view does this statute take up whenever -- to a man and woman apply and they are just equally entitled in terms of the class they are in?M
Allen R. Derr: Yes, Your Honor.
Byron R. White: Is that where it picks up?
Allen R. Derr: That is where it picks up.
Byron R. White: Because it does equally entitle then you might say that before the statute makes the choice there would have to be a hearing as to what the respective qualifications are for these two people and it would only be when they are found to be absolutely equally qualified to act that the statute would make the choice, but I gather that is not the way it was?
Allen R. Derr: It is not the way I read it. Equally entitled, there is another section of that code that points out, for instance said, husbands and wives, in this case it is the ex husband, ex wife or if they were brothers or sisters (Voice Overlap)
Byron R. White: But people like (Voice Overlap)
Allen R. Derr: Degree of affinity to the receiver.
Byron R. White: But -- excuse me, let us assume now that two people applying there in the same category like as you suggest but then one of them claims that the other one is say, mentally defective.
Allen R. Derr: There would have to be a hearing on that subject.
Byron R. White: Well, let us assume there are two people in that category and one of them says I am better qualified than the other.
Allen R. Derr: That is the determination of Judge as well, except for this mandatory statute. That is really coming back Justice White to what we talking about, let the Court decide it.
Byron R. White: Well, I know but what about the mentally defective case then?
Allen R. Derr: Let the Court decided on the basis of the merits.
Byron R. White: Exactly. But -- let us assume one person says the other person is deaf and dumb -- just or he is paralyzed or something like that and he is unqualified to act as an administrator or an executor.
Allen R. Derr: I do not think that their assertion would be sufficient, it has to be proved.
Byron R. White: Well, what if the person happens to be a man? He claims here that the woman says the man is paralyzed and he says, well, I get the appointment anyway because I am in the same category as you.
Allen R. Derr: They do have to determine these factors.
Harry A. Blackmun: Well, then you are conceding that there is a determination of comparative attitude within the scope of the statute.
Allen R. Derr: No, Your Honor there is not.
Byron R. White: Except when somebody alleges the other fellow as disqualified?
Allen R. Derr: If they allege that --
Byron R. White: Pointing out that there was (Voice Overlap) or something.
Allen R. Derr: They would probably have to have a hearing and prove.
Harry A. Blackmun: Are you saying that a drunken husband has the absolute right over a able competent wife.
Allen R. Derr: Unless the wife is able to come in and convince the Court that he is --
Harry A. Blackmun: Well, does she got the right to do it? This is what we are asking?
Allen R. Derr: We have to read our statutes in --
Harry A. Blackmun: That was my question?
Allen R. Derr: -- to get her right.
Potter Stewart: But if there might be other statute that qualify anybody, man or woman, if he is a deaf, dumb and blind or if he is a 7 years old or if he is a multiple amputee or so on, but -- this -- we are dealing with this statute and we must take it as it is interpreted by the Supreme Court of the State and the State has interpreted the statute very clearly, has it not?
Allen R. Derr: Yes, Your Honor.
William J. Brennan, Jr.: But was that not -- I gather that there has not been any claim that of this lady or this gentleman, suffers any disability -- (Inaudible)
Allen R. Derr: The record shows no – what? There was no such claims --
William J. Brennan, Jr.: No such claims were made?
Allen R. Derr: No such claims --
William J. Brennan, Jr.: All that has happened here is that -- equally entitled I gather is that they are in the degree of consanguinity whatever it is which had made them equally entitled and the statute then operates to compel the appointment of the male, is that it?
Allen R. Derr: That is exactly what we are here for. Now, Sally Reed --
Harry A. Blackmun: But I wish to get your position entirely clear. You are saying in effect that I take that a hearing is not in order, that the statute is mandatory?
Allen R. Derr: The statute is mandatory, but I am not closing the door to someone being able to have a hearing but let me run down the only other disqualification in our statute, non-residence, minors, persons convicted of infamous crime and persons incompetent by reason of drunkenness, and providence or one of understanding her integrity, those are defined.
Byron R. White: One of understanding.
William J. Brennan, Jr.: If I think that has to be claimed, it has to be claimed?
Allen R. Derr: It has to be claimed.
William J. Brennan, Jr.: And it is not to be in this case?
Allen R. Derr: True.
Harry A. Blackmun: But did you make an attempt to claim on behalf of your client?
Allen R. Derr: No, we did not because we felt that our client was better, my client was better qualified to administer the estate for many reasons. None of these particular disqualifications came into play.
Harry A. Blackmun: But you made no attempt to display her qualifications otherwise?
Allen R. Derr: We had no opportunity to. We petitioned. The husband petitioned. The judge issued his order because of this law in Idaho, the man gets the job. We did not get that in the record. We did not get the chance to show our client was better educated, that she had bookkeeping experience, that she had secretarial experience.
Warren E. Burger: When you say you did not get --
Harry A. Blackmun: Did you make an offer of proof?
Allen R. Derr: No, Your Honor.
Warren E. Burger: Well could not -- I do not think I have got this clear yet, some confusion on the aspect. What was to prevent you from presenting the issue to the Court as an issue that the wife was better qualified, anything except the statute and its mandatory preference, in your way?
Allen R. Derr: The statute and its mandatory preference was imposed and as a matter of fact I do not think there would be a hearing at all with this.
Warren E. Burger: (Inaudible) was a hearing, before the Probate Court?
Allen R. Derr: That it was perfunctory and decision was based strictly on the statute.
Potter Stewart: The hearing just established that your client was a woman and that the defendant was man?
Allen R. Derr: This is correct.
Potter Stewart: And as the Supreme Court of the State says that you follow the areas where a choice must be made under the legislature by enacting the statute made the determination, that is the way your Supreme Court has construed your statute?
Allen R. Derr: Yes sir.
Harry A. Blackmun: So we should take this as though the parties had conceded that both parties are equally qualified?
Speaker: Even if incompetent otherwise.
Allen R. Derr: I would like to say, to use the language neither is incompetent otherwise.
Warren E. Burger: You may continue Mr. Derr. You have --
Allen R. Derr: Thank you.
Warren E. Burger: -- twenty minutes remaining.
Allen R. Derr: I thought a little more about some questions from over here during the noon hour (Inaudible) but when we have an automatic disqualification, we have one Section 15-312 that of course says that in this case the woman is equally entitled, that is what is at issue here, but when you have an automatic disqualification she is no longer equally entitled. Now, the Court does have permission if two people are actually equally entitled under the Idaho Law to appoint one or more --
Warren E. Burger: Is that statute perhaps not to be read as meaning in practical terms otherwise equally eligible?
Allen R. Derr: Otherwise.
Warren E. Burger: Otherwise equally eligible then the male is preferred over the female?
Allen R. Derr: That 15-314 with this preference just takes that right out from under on that one. Also as far as the size of the estate is concerned, it is not in the record but I think the Court should know that Cecil Reed was appointed March, 12, 1968 as the administrator pursuant to the Probate Court order and a bond of $1,000.00 was posted in the case.
Harry A. Blackmun: Has not an inventory been filed after three years?
Allen R. Derr: No Your Honor. This has been a litigation and I might point out that Probate Court order which is the subject of the first appeal and this has been through the appellate process ever since.
Harry A. Blackmun: Well, the fact an appeal is pending does not prevent or stall it by the fine of an inventory under your practice?
Allen R. Derr: I would think not, Your Honor but in our unique position we did not feel we had neither the -- we had neither the information or the right of going to the Probate Court to do that.
Harry A. Blackmun: In other words you have not looked at the file, Probate file?
Allen R. Derr: Yes and there was no --
Harry A. Blackmun: No inventory?
Allen R. Derr: No inventory. As a matter of fact, respondent’s brief admits that fact. We think, gentleman that what we are dealing with here is strictly a law with sex-based distinctions which disregards individual abilities and capacities and is not rationally related to the factor of sex, and therefore, we feel it involves invidious discrimination and is in violation of the Fourteenth Amendment.
William J. Brennan, Jr.: Well, that argument has not succeeded in other context in this Court, has it?
Allen R. Derr: You are absolutely correct, Your Honor.
William J. Brennan, Jr.: Right to vote, for example?
Allen R. Derr: The right to vote of course, they were talking about the early cases.
William J. Brennan, Jr.: Early cases (Inaudible)
Allen R. Derr: I believe that the circumstances that existed at that time have long since passed.
Potter Stewart: Also that case would not involve an attack under the equal protection clause of the Fourteenth Amendment?
Allen R. Derr: That is my understanding of it, Your Honor.
Potter Stewart: Privilege as an immunity?
Allen R. Derr: Right, and I think that was, if I am not mistaken through of – was that Brad Robert denied women even right to practice law before the turn of the century. Since the turn of the century, the cases that have come before this Court have ended up in decisions that I have felt have been either supposedly beneficial or protective as far as the women are concerned. Obviously I can see nothing beneficial in the Idaho law nor can I see anything protective in the Idaho law. It is just a law based discrimination against women and once that comes up, the door is locked on the women. She might as well go home, if that law is allowed to stand. Now, Idaho tried to justify this law on two points, one; biological and the other practical and I do not think either of those points would bear the strict scrutiny and justify the action that the State has taken here.
William J. Brennan, Jr.: Well, what was the basis of the biological justification point?
Allen R. Derr: That men are generally better qualified than women and that is basically what the Idaho Supreme Court said. Going back to the early cases, going back to Muller or even Goesaert and I think we have cited a great number of statistics to show that women comprised 40% of the labor market now, roughly equivalently educated in the labor market and in spite of all this and because of the sex-based discriminations we say their income is way below the income of a man.
Warren E. Burger: Well that does not get into this case, does it?
Allen R. Derr: It really does not, this is not an economic case except this does, Chief Justice bring up another point. The administrator does get paid and very little less than the attorney of an estate. Our briefs have extensively exhausted the relationship between sex-based distinctions and race-based distinctions. And as you know in alienage, in minority groups with respect to indigency in some cases and at least in Levee in respect to illegitimacy, the strict test has been applied and these classifications have been held not valid and with such a large segment of our population as women are, I certainly do not think it is valid to them. In other words, what I am saying is I think women are every bit as entitled to protection of the Fourteenth Amendment, they are persons. The action here is state action as aliens, minority groups, indigency, racial authorities.
William J. Brennan, Jr.: Would you say that the second justification --
Allen R. Derr: The second justification is the practical one in which the Court said by doing this we will avoid hearings. Again I do not think that is efficient to state interest to even the rational relationship, let alone the strict approach that would be taken under a suspect classification and number two, I do not think it is necessarily true. For instance the hypothetical, you have two or more men, you have two or more women. They all want to administer the estate. The men after a hearing cannot qualify because of these other disqualifications, so then the Court would have to turn around and hold another hearing as far as the women contenders are concerned. So that -- altogether I do not think it is number one, I do not think it is true, and number two, I do not think it is sufficient justification to deny Sally Reed the equal protection of the Fourteenth Amendment. California examined Goesaert very carefully not long ago and in that case they exhausted most of the authorities, it is a very recent case, a 1971 case.
Potter Stewart: But Goesaert could be explained in terms of the Twenty-first Amendment, could it not?
Allen R. Derr: I presume that is possible.
Potter Stewart: The amendment that repealed prohibition and it gave the States, certainly as construed by subsequent decisions of this Court, a great deal of autonomy in the area of dispensing of alcohol?
Allen R. Derr: And that is why it goes -- it probably is not supportive of the respondent's position in this case. There has been a great deal of progress too we might point out, I am sure the Court is well aware of the progress in Congress with the Civil Rights Act, the Equal Pay Acts and some other acts that have come up and it is a fang truth and a lot of cases are set forth in all briefs here that Lower Courts are disregarding the so called preachings of Muller, Goesaert and Hoyt and of course there is a great factual movement towards bringing women into our society as a person. I think the only satisfactory solution now is to treat any classification of women is suspect unless the classification involves physical characteristics you need to that sex. Anything else can get us off into a lot of other fields. I think that could solve the situation, could give guidelines to other -- to legislatures or the Courts in order to allow a woman to take her full place in our society, take advantage of the opportunities that are available and also take the responsibilities that always go with opportunity. And I do not think a suspect classification is a bad classification in a sense and it could be applied in this case, I am sure, that if the State wishes to disadvantage anyone, should not the State then -- should not the burden be on the oppressor instead of the oppressed? Is this not a fundamental principle of fairness?
Warren E. Burger: What if a State had a statute that provided that several persons claiming and otherwise equally eligible to administer, natural born children shall be preferred over adopted children?
Allen R. Derr: I do not see really anymore significant or rational basis for that and --
Warren E. Burger: Do you not think that would be bad if I try and follow you?
Allen R. Derr: Well, in the ways --
Warren E. Burger: Fourteenth Amendment forbid that?
Allen R. Derr: I think the way our State treats adopted children, the Fourteenth Amendment would forbid it because adopted children are given all the rights and privileges of naturally born children.
Warren E. Burger: Well, you mean the Fourteenth Amendment as aided by the statutes of Idaho would make it constitutional, is that your answer?
Allen R. Derr: To distinguish, I do not think so.
Harry A. Blackmun: Or going specifically to your statute in the equal in – well, I will read it, “of several persons claiming an equally entitled to administer, males must be preferred to females and relatives of the whole to those of the half-blood.” Would you make the same argument on behalf of the half-bloods as against those who are related to the whole blood?
Allen R. Derr: There may be some basis upon which a State could sustain the half-blood as to the whole blood relationship.
Harry A. Blackmun: What would that basis be?
Potter Stewart: As more closely related to the other, is that correct?
Allen R. Derr: Yes.
Warren E. Burger: Would that not be equally true with adopted children, (Inaudible) back into it then?
Allen R. Derr: Well, yes, adopted children are the same as --
Potter Stewart: But is not true as between a mother and a father?
Allen R. Derr: True.
Potter Stewart: Which is what this case is about?
Allen R. Derr: Our statute also prefers in the line of the fact to administer estates brothers or sisters. We think this is just bad as -- it is a male over female classification. I want to summarize I think coming into the eighth decade of the 20th Century that we do have to reexamine the situation as far as sexual classifications are concerned. We have to discard those canards or canards, how we pronounce it, that are not based upon fact. In Digg, for instance they were trying to rely on -- way back in the early 1800’s, the ideas that Holmes set back at ease and I think what he said is pretty interesting. It is revolting to have no better reason for a rule of law than it was --
Speaker: (Inaudible)
Allen R. Derr: Then that -- it was laid down at the time of Henry Ford, but it is still more revolting if the grounds upon which it was laid down, a vanished long sense and the rule simply persists from blind imitation of the facts. We think if the Idaho rule in this case is about to persist that it will be from blind imitations of past and not based upon our current understanding of the Fourteenth Amendment or the facts of today’s society.
Harry A. Blackmun: Mr. Derr, last term we had a case here involving a Maine criminal statute. It described the crime of escape and the penalties imposed were that if it were a woman, eleven months, if it were a man, three years. Do you think this is equally susceptible to your equal protection argument?
Allen R. Derr: Based on the -- I think it is, Your Honor based on those --
Harry A. Blackmun: In reverse.
Allen R. Derr: I agree that the laws have to be applied equally both ways.
Potter Stewart: Those would cut the cross, presumably all sorts of imaginable things, alimony, criminal laws about rape and prostitution perhaps?
Allen R. Derr: Yes. It might be (Voice Overlap)
Potter Stewart: And all sorts of --
Allen R. Derr: It depends on how you define rape.
Potter Stewart: And all sorts of purported social welfare laws limiting the working conditions of women in contrary to man, such as in Muller against Oregon?
Allen R. Derr: Yes. We have a law in Idaho in the mining country that requires furnish women with chairs, but not men. I think it is should be both or neither.
William J. Brennan, Jr.: What would you say about selective service?
Allen R. Derr: I think that women should be in selected service. As a matter of fact in 1957 --
William J. Brennan, Jr.: Would a male under your view today have a equal protection claim?
Allen R. Derr: An equal protection claim because --
William J. Brennan, Jr.: Not to be inducted because women are not?
Allen R. Derr: I do not know that he could avoid the service himself on that basis, but he might be effective in getting it extended to cover women as well as --
Byron R. White: But what remedy would he have though?
Allen R. Derr: Sir?
Byron R. White: If he is being discriminated against, what other remedy would he have?
Allen R. Derr: He would not have much --
Byron R. White: No, it is not --
Warren E. Burger: They neither have to be given the same treatments or else your argument just tolled?
Potter Stewart: But it would not be the equal protection clause as such because that clause is not applicable to the Federal Government?
Allen R. Derr: Some other --
Potter Stewart: Fourteenth Amendment?
Warren E. Burger: Very well, Mr. Derr. Mr. Stout.
Charles S. Stout: Mr. Chief Justice and may it please the Court. The respondent in this case is an employee of the State Highway Department is a man of moderate -- the man is a mechanic and he is about ready to retire. Some aspersions have been cast on this character in the argument that sounded like to me and also in the brief. He is a man of good character. This matter was determined in the Probate Court of Idaho on adversary petitions. A hearing was had before the Probate Judge and the matter was open for all the testimony as to the qualifications of each of the applicants. Now, the Probate Judge determined that the scales of justice were even on the mater as far as his qualifications were concerned then under the statute and in view of the interpretation to the law as interpreted by our Supreme Court on this preference statutes, the interpretation that has been made for a period of a hundred and twenty five years over that time, he awarded the administration to the male applicant. He observed in his opinion that the woman was protected by the order and that it qualified by giving a (Inaudible) then she is protected then as in all Probate proceedings, all of the (Inaudible) are protected. In this case --
Potter Stewart: The decedent was an adopted child?
Charles S. Stout: what was that?
Potter Stewart: Was the decedent an adopted child (Voice Overlap) --
Charles S. Stout: That was an adopted child. Yes, Your Honor.
Potter Stewart: -- Mr. Stout and the litigants in this case are divorced, are they?
Charles S. Stout: They are what?
Potter Stewart: They are divorced, are they?
Charles S. Stout: They were divorced in 1958.
Potter Stewart: How old was the decedent at the time of his death?
Charles S. Stout: How old was the child?
Potter Stewart: Yes. The -- was the decedent --
Charles S. Stout: Sixteen years old.
Potter Stewart: Sixteen years old.
Charles S. Stout: Yes.
Potter Stewart: And in whose custody was the -- so the child was a minor and in whose custody --
Charles S. Stout: The woman filed a divorce suit against her husband. The District Court awarded the divorce to the husband. The Court awarded the child which is at tendered years to the woman. The Probate Court obeyed culminated, took it from her custody and put it in a children’s home for a time and then gave it to the father and the child was in custody of the father at the time of his death. Those were the facts. I might say here that the Probate Court in Idaho at the time this was decided was a Constitutional Court. It has held in the Court of Record by the Supreme Court. However, no report or transcript is ordinarily made unless the attorneys get a reporter up there and make it at their own expense, the practice is not to make one. At the beginning of this year as the jurisdiction was transferred to the District Court under a new judicial code we have there of which is the Court of General Jurisdiction which is merely background and had really nothing to do with the case except that is the history of the matter. In our brief we have raised two questions, one of which is to whether or not there is a substantial federal question involved in this case. The second one assuming that the Court hold that there is, it is our position that this particular statute is not unconstitutional as violating the equal protection clause of the Fourteenth Amendment of the constitution.
Thurgood Marshall: (Inaudible)
Charles S. Stout: What was that sir?
Thurgood Marshall: The Idaho statute does not say that only the male, a man (Inaudible)?
Charles S. Stout: I do not believe it would Your Honor because we are talking about a matter of procedure that is always -- that is only incidental to the distribution of property. It has always been a matter that has been legislated on by the States, The Federal legislation sure has never legislated in this field and I do not believe it would of course --
Thurgood Marshall: But I believe that the (Inaudible)
Charles S. Stout: What was that?
Thurgood Marshall: The Equal protection Clause of the Fourteenth Amendment is in the Constitution and it binds Idaho, is that right?
Charles S. Stout: That is true, Your Honor.
Thurgood Marshall: Does not that provision in the State of Idaho (Inaudible)
Warren E. Burger: While you are thinking on that, then let us take the more interesting question. What if the Idaho legislature provided that only females could be administrators or representatives in the estate of decedents or that they would be preferred?
Charles S. Stout: I think that is the same law -- I think the same rule would be applicable. To that I --
Warren E. Burger: You simply say that is not an equal protection problem?
Charles S. Stout: No, I do not.
Warren E. Burger: It is a State question?
Charles S. Stout: I do not feel that would make a protection problem. In our brief, however, we considered that first question first and we say if this new Idaho statute which was adopted in 1971, in the last session of the legislature, it is at Chapter 111 of the Idaho Section Laws of 1971, it has got a lengthy title. It is lengthy law. I have studied it thoroughly in respect to the issues in this case. It is an act relating to the appearance of decedents including non-probate transfers at death of missing persons, protected persons, minors, incapacitated persons in constituting the Uniformed Probate Code. Now, that statute enacts an entirely new probate law for Idaho. The controversy was not over the statutes that we are arguing about here. It was over the time and expense involved at probate proceedings and the design of the statute is to avoid the proceedings as much as possible. The statute does enact a new probate law and thus repeal effective next at July 1. The statutes in controversy here. Now, we do not claim that that makes this case quickly moot, but it just show the apparent present intent and add it to the Idaho legislature.
Harry A. Blackmun: Mr. Stout I asked Mr. Derr whether this new statute was the result of this litigation. He did not know, do you know whether it is?
Charles S. Stout: What?
Harry A. Blackmun: Whether this litigation had prompted the adoption of a new code in Idaho?
Charles S. Stout: No. I think it had nothing to do with it. I --
Harry A. Blackmun: It is a uniform code?
Charles S. Stout: Yes. I think it had nothing to do with it. It has been under consideration for several years there and I did not know it was until I got investigating it in this matter here and found that it has.
Harry A. Blackmun: While I have you interrupted are you counsel for Mr. Reed as administrator?
Charles S. Stout: I am counsel for him, yes, and I represented him in Probate Court and at the time of the hearing, original hearing in this case.
Harry A. Blackmun: Do you have a requirement in your present code that an inventory be filed by a certain date?
Charles S. Stout: Yes.
Harry A. Blackmun: And has it been filed?
Charles S. Stout: It has not because I thought that the appeals suspended the procedure in appropriate court and I was not authorized to file one.
Harry A. Blackmun: Is that true in your practice?
Charles S. Stout: That is what I understand it to be.
Harry A. Blackmun: So an appeal just dumps everything?
Charles S. Stout: Yes. I figure that stops us right there when the appeal was taken.
Byron R. White: So the creditors get to file claims or anything?
Charles S. Stout: I am not sure about that. The notice to creditors was published and I did not consider that. No claims were filed. However, I did not figure that we were justified in proceeding in the matter in view of the appeal status of the case.
Warren E. Burger: If this had been a large estate, substantial investments, could you have had a special representative appointed in the interim to deal with problems pending the resolution of the appeal?
Charles S. Stout: Those under the Idaho statutes are only appointed where the -- where there is some reason for it like property that is liable to depreciate, or some purpose. No, I do not think there would have been. There was really no reason for up here. There was nothing that would depreciate this alleged bank account that is referred to in Sally Reed’s petition and also personal clothings and small amount of personal properties that a minor boy of that age would have. The second point that we raised under that is the -- is the holdings of this Court -- holding of the matter of probate procedure. It is a matter for the States to determine and the Federal Courts have never as such probated the States and do not probate States. We have also pointed out in our brief that this particular statute was enacted in 1864, by the first territorial legislature in Idaho that has been in effect ever since that time. During that time the women for the past 75 years has had the right to vote and could have changed it. It would have been changed no doubt if there has been enough interest in it. We had a similar statute in Idaho that disqualified married women. It was enacted in the same law -- statute as this, 1964. It was deleted 50 years ago. In our briefs we have cited cases upholding the statute. These preference statutes have been upheld by the Courts every time they have come before the Courts back as far as 1845 in New York. There is a number New York cases. There is a California case. There is two Montana cases. The recent Idaho case and the constitutionality has never been questioned before this particular matter here. So far as women of being qualified to act as administrator in Idaho, they are qualified. There is no disqualification there except this one statute that and the one before that makes these classifications and that were -- when other things are equal whether there is this preference.
Thurgood Marshall: And your position is that men are just more equal, right?
Charles S. Stout: What?
Thurgood Marshall: Your position is that men just happened to be more equal?
Charles S. Stout: Excuse me --
Thurgood Marshall: Well, you said that if they are equally qualified, the men get the job as administrator?
Charles S. Stout: Yes. That would be right.
Thurgood Marshall: Does that not make the men more equal?
Charles S. Stout: As the Court -- the Court inquired about the basis on which the Supreme Court decision was made and I will quote from some of the provisions there. This Court had before said that the priorities established by the Code 15-312 are mandatory, leaving no room for discretion by the Court in the appointment of administrators, citing an Idaho case. Similarly the preference given to male by the Code 15-314 is also mandatory. The statute itself says that males must be preferred to females. Other Courts construing similar provisions have also held that the preference is mandatory. The respondent however contends that Idaho Code 15-314 violates the Fourteenth Amendment, the equal protection clause. It is well settled that the Equal Protection Clause of the Fourteenth Amendment does not preclude the legislature from making classification and drawing distinction between classes. It merely prohibits classifications which are arbitrary and capricious. It is for the Court to determine in each instance whether a particular classification rests upon rational ground for as in effect without justification and arbitrary. It is equally well settled that legislative enactments are entitled to a presumption of validity and that a classification will not be held unconstitutional absent a clear showing that is arbitrary and without justification. By Idaho Code 15-314 the legislature eliminated two areas or controversy. If both a man and woman of the same class seek administration, the male would be entitled over the female. The same as relative of the whole blood is entitled over relative of the same class but of only the half blood. The provision of the statute is neither illogical nor arbitrary method devised by the legislature to resolve an issue that would otherwise require a hearing as to the realty of merits as to which of the two or more petitioning relatives should be appointed. Philosophically, it can be argued with some degree of logic that the provisions of Idaho Code 15-314 discriminates against women on the basis of sex. However, nature itself has established distinction and this statute is not designed to discriminate, but it is only designed to alleviate the problem of holding hearings by the Courts to determine eligibility to administer. This is one of those areas where a trust must be made in a legislature about enacting Idaho Code 15-314, make a determination. Legislature when enacted this statute evidently concluded that in general men are better qualified to act as an administrator than are women. A classification having some reasonable basis does not offend against that clause of equal protection, merely because it is not made with mathematical necessity or because in practice it results in some inequality. On even scale of the classification, such a law must carry the burden of showing that it does not rest upon an unreasonable basis but it is essentially arbitrary. And they go on to say that while a classification may not be entirely accurate and there are doubtless instances in which it is incorrect. They are not prepared to say it is so completely out of basis of fact as to be irrational or arbitrary. Then they go on to show what other classifications on the basis of sex have been made. It is our opinion, the State has a legitimate interest in promoting the prompt administration of the estates and that the statute in question promotes this interest by curtailing litigation over the appointment of administrators in addition to the support by the presumption of constitutionality. Appellant in its brief has criticized the decision of the Supreme Court and in his words, misquotes to say declaring that nature itself has established the distinction, the Idaho Supreme Court seemly justified the discrimination challenged here by finding it rationally -- rational to assume the mental inferiority of women to men. Well, they rolled in the mental. There is no statement in the Supreme Court decision like that and a Court does not think that.
Byron R. White: Well, Mr. Stout, I take it from the passages you read in your Court opinion --
Charles S. Stout: Yes.
Byron R. White: -- that you would agree that under the Idaho law since the purpose of the statute is to avoid hearings about relative qualification.
Charles S. Stout: In some absences, yes. It does not --
Byron R. White: That it would not do a woman any good to petition for a hearing on the grounds that, I have just had a lot of experience in business and I am just better qualified than the man who has had no experience in business. It would not do her any good to try to get hearing on it?
Charles S. Stout: I think that is correct, in the absence of some disqualification on the part of the man.
Byron R. White: Statutory disposal?
Charles S. Stout: We urge that this statute has been in effect for over 125 years. It has been in effect over a hundred years in Idaho. It has been applied by the Courts. The attorneys have followed it and applied it. I am a general practitioner. My business is to advice clients as to what the law is, what to expect. And by reason of the decisions heretofore made on this law, it was reasonable to me to assume that I was justified in going ahead on the basis I did. Now, the legislature show that same intention to comply and to enact a statute here that more adequately, possibly reflects modern thought. Now, that will give the attorney some basis to go ahead on and the people some basis to proceed on.
Byron R. White: But under the old statute which is now been superseded, the man would receive the appointment even if the woman were better qualified to have it?
Charles S. Stout: I think there is a presumption there that --
Byron R. White: Because she would not ever have the chance to show she was better qualified?
Charles S. Stout: No, I think that is correct, yes. I think there is presumption there based on the general experience which existed more at the time the statute was enacted in 1964 than it does now, that men as a rule are better qualified than women and on that basis the Court did not held a hearing on that particular phase of it. As I say the length of the time the statutes had been in effect and had been followed, it seems to me, it should take a very strong case under this uncertain and elusive provision of the Fourteenth Amendment to declare it unconstitutional. It has been acted on. The attorneys have acted on it. It has been useful. I do not say that it is any better classification than there is in this new law, maybe it is not as good if attorneys will follow the new law. In this case, I just want to point out one more thing and that is that the respondent had been quite disadvantaged in this case by lack of funds and not anything involved in the estate and he will receive -- received the bill for pending the appendix, almost three hundred dollars which was up three times of what it cost Cecil. And extensive briefs have been filed in our position to respondent. We do not urge that as a matter of law here, but we do point out and as a matter of law we do think that the Court should dismiss this case or affirm the decision of the Idaho Supreme Court.
Warren E. Burger: Thank Mr. Stout. You have two minutes left Mr. Derr.
Allen R. Derr: Thank you, Your Honor. Just a few things in response to Mr. Stout’s argument. Probate court order that was entered in here and we find the grounds recited in 2 (a) of the jurisdictional statement, recited only that the statute violated 15-314 of the preference statute in support, in over the facts in support of it. Another thing that should be pointing out to the Court that under Idaho law each of the parents in this case, the child died without a will, are entitled to 1/2 of the estate. So Sally Reed is interested here in the protection of her own property whatever that be to.
Warren E. Burger: And of course by now the estate is long since been consumed by the cost of litigation, although I suppose that is not relevant?
Allen R. Derr: We -- my client has not seen any of it, Your Honor. I think -- that quietly argument of the long acquiescence was certainly put to bed with Brown, it is more recently pronounced in Brown versus Williams. I do not think that it has any merit. We do not deny that probate is a state matter that when it -- when portions of it or law in connection therewith contravenes the constitution of the United States, it then becomes a substantial federal question that must be resolved. The statute in this case is simple. The actual wording of the Fourteenth Amendment is very simple, but the case itself presents a large and I think significant problem.
Potter Stewart: Mr. Derr, I seem to remember a case of this Court involving the constitutional claim of women, young women to attend a State, Military Academy or ROTC or something, it rings a faint bell and I cannot find that case in the brief anywhere. Are you familiar with any such case?
Allen R. Derr: I am not familiar with the case that the women wanting to attend a Military School, but I am familiar with the case, a recent case that allowed a State to maintain one women’s school.
Speaker: Well, that is the University of Virginia, that is in the District Court. How about the other one? But I am thinking about an older case in this Court and I simply cannot find it in the brief or anywhere else.
Allen R. Derr: I did not (Inaudible). Thank you.
Warren E. Burger: Thank you Mr. Derr. Thank your Mr. Stout. The case is submitted.


Warren E. Burger: We'll hear arguments next in United States against Difrancesco. I think you may proceed whenever you are ready, Mr. Frey.
Mr. Andrew L. Frey: Thank you, Mr. Chief Justice. May it please the Court: One of the criticisms most frequently leveled against the operation of the federal criminal justice system concerns the manner in which sentences are meted out to persons convicted of crime. These criticisms focus on the nearly unbridled discretion that is currently afforded a single individual, the district judge. As an almost inevitable result of this discretion, gross disparities may frequently occur in the sentences handed out to similarly situated offenders for comparable criminal conduct. These disparities adversely affect the public perception of the fairness of the administration of criminal justice and they also engender understandable bitterness on the part of those defendants who receive harsh sentences when they look at others similarly situated who have received much more lenient ones. There is, in sum, a widespread feeling that something should be done to deal with this problem of unequal sentencing. Now, one obvious means of accomplishing this goal is a system of appellate review of sentences. In fact, the adoption of such a system is one of the principal reforms proposed in the pending Criminal Code revision.
William J. Brennan, Jr.: Where does that stand now, Mr. Frey?
Mr. Andrew L. Frey: Well, I believe it's passed the Senate and I'm not sure that it's passed the House. I am told that it may or may not get passed during the lame duck session after the election.
Potter Stewart: So you are sure that it hasn't passed the House.
Mr. Andrew L. Frey: Well, I am sure that if it passes the House and the Senate that Conference will be required--
Speaker: But it hasn't passed the House at this point?
Mr. Andrew L. Frey: --I believe it hasn't passed the House yet. Now, under the Senate version of the bill, there would be a sentencing commission. And this commission would establish ranges of sentences for various offenses. And when the district court went to sentence it would have the unfettered discretion to sentence within those guidelines. But if it imposed a sentence above the guideline, the defendant would have a right to appeal and if it imposed a sentence below the guideline, the Government would have a right to appeal. And in either case the judge would have to make a statement of reasons for departing from the guidelines, and those reasons would be subject to review for abuse of discretion.
Harry A. Blackmun: Are you bringing this material up because you feel that an affirmance here would jeopardize the whole concept of appellate review of sentencing?
Mr. Andrew L. Frey: Absolutely. Certainly an affirmance based on the decision of the Second Circuit would cast in serious doubt the validity of the proposed approach.
Harry A. Blackmun: Incidentally, is this the first Government appeal under 3576?
Mr. Andrew L. Frey: It is the first appeal of a sentence itself as distinct from the determination of the Court not to treat a particular defendant as a dangerous special offender.
William J. Brennan, Jr.: And when was 3576 adopted? In what year?
Mr. Andrew L. Frey: I think it was 1970.
William J. Brennan, Jr.: Was it that far back?
Mr. Andrew L. Frey: I believe so. Now, I think... it is my view that the constitutional power of Congress to adopt this kind of reform is likely to depend on the disposition of this case. Now, it's true that an affirmance of the Court of Appeals would not prevent Congress from allowing defendants to appeal sentences that are considered excessive, but I think it's apparent that this will not solve the problems created by a perception of irrational sentencing discrepancies because those are equally a product of undue leniency as of undue severity.
Potter Stewart: One problem that bothers me is, Mr. Frey, is all of the procedures that... some of them perhaps have never been held to be constitutionally required; others at least implicitly have... that attend the original sentencing, such as allocutions and probation reports and so on, none of those apparently is available in the appellate court.
Mr. Andrew L. Frey: Well, I'm not sure the statute does not speak to that, but of course what we are talking about in the Court of Appeals under this statute is not a de novo sentencing proceeding but an appellate review.
Potter Stewart: No, but it's an increased sentence, and--
Mr. Andrew L. Frey: Well, my view--
Potter Stewart: --what everyone calls it, and I... let's accept your statement that it's not a de novo sentencing proceeding but it could be an increase from ten years to 30 years and it's--
Mr. Andrew L. Frey: --Yes. In my view, Mr. Justice Stewart, I--
Potter Stewart: --When one thinks that a sentence generally has been surrounded by all sorts of procedures in the trial courts such as presentence investigation, allocution, the demeanor of the defendant during the trial, and all those various things--
Mr. Andrew L. Frey: --Well, there are elements--
Potter Stewart: --and Rule 11, which incorporates some of these things. None of these is available in the Court of Appeals, is it?
Mr. Andrew L. Frey: --I think it's generally true that a hearing on a suppression motion also has many protections which are not available when the Court of Appeals reviews it, but there is an allocation of function to the extent a sentence may properly be based on the demeanor, on the statements of the defendant at allocution. I think those would, those considerations--
Potter Stewart: --would be in the record.
Mr. Andrew L. Frey: --would essentially... No, but to the extent it's based on things that the Court of Appeals doesn't have before it, I think those factors would be unreviewable. But if the Court of Appeals finds that there is a legal error... let us say, for example that the District Court decides that hearsay is not to be considered and therefore it says, I would have sentenced you to 25 years had I considered this information about your organized crime connections, but I don't believe I can consider it, and therefore I will only sentence you to five, then that would be--
Potter Stewart: And that would be a legal error.
Mr. Andrew L. Frey: --a pure legal error. Or if a judge said, normally I would give you a very severe sentence, but because you're a woman I don't think women should be dealt with this severely.
Potter Stewart: And that would be a legal error. It might be an unconstitutional legal error.
Mr. Andrew L. Frey: It would be an abuse of discretion, a legal error, however, that I think could perfectly well be reviewed by an appellate court.
Potter Stewart: Or, normally, I would have given you a very light sentence, but since you pleaded "not guilty" and insisted on a trial I'll give you a lot heavier one.
Mr. Andrew L. Frey: Well, then it wouldn't be a Government appeal. Now, it's not my job today to persuade this Court that prosecution appeals of sentences are a good policy, because that decision in the case of the dangerous special offender statute has been made by the Congress after careful study of the problem, and what this Court has to decide is whether the Double Jeopardy Clause bars Congress from implementing such a policy even though Congress has determined it to be in the public interest. In the present case, respondent was convicted of violation of the Rico statute as a result of his role in an arson-for-hire ring. Because of his extensive criminal record and his major role in the ring, the Government invoked the provisions of the dangerous special offender statute, and after a hearing before the district court, findings were entered which included the following, and I read from page 43 of the appendix: "This criminal history of the respondent, based upon proven facts, reveals a pattern of habitual and knowing criminal conduct of the most violent and dangerous nature against the lives and property of the citizens of this community. " "It further shows the defendant's complete and utter disregard for the public safety. " "Defendant by virtue of his own criminal record has shown himself to be a hardened, habitual criminal from whom the public must be protected for as long a period as possible. "
Thurgood Marshall: Mr. Frey, on this record in this appendix, is there anything else in there but what's in this appendix?
Mr. Andrew L. Frey: In the record below? I imagine there is, but I can't tell you what it--
Thurgood Marshall: All I find in there is the indictment and the transcript.
Mr. Andrew L. Frey: --Well, there's nothing in here from the trial. This is the transcript of the dangerous special offender's sentencing hearing.
Thurgood Marshall: This transcript says that the transcript of the trial itself was introduced, and the indictment.
Mr. Andrew L. Frey: I have not examined those things and I'm not sure that they would be material to the issue that's before the Court today.
Thurgood Marshall: Well, it would be material to me, sir. I want... This is material. What is there at the hearing on the new charge that wasn't in the original?
Mr. Andrew L. Frey: You mean at the sentencing hearing?
Thurgood Marshall: The sentencing hearing; yes, sir.
Mr. Andrew L. Frey: Well, there is information relating to other offenses in which respondent was involved.
Thurgood Marshall: Would you point that out, please? I think you'll find it was in the original record. I mean, I don't see any witnesses at all.
Mr. Andrew L. Frey: No, there are not witnesses.
Thurgood Marshall: That's right.
Mr. Andrew L. Frey: And there was no... but this was in essence stipulated to, and his status as a special offender was predicated as the statute permits.
Thurgood Marshall: Is there anything in the sentencing hearing that could not have been put into the original trial in the original sentence?
Mr. Andrew L. Frey: Yes. Well, the original trial before a jury, it would be prejudicial to put in.
Thurgood Marshall: Well, the original sentencing was before the same judge.
Mr. Andrew L. Frey: No, no; no, no. There was no previous sentencing of this defendant prior, on these charges prior to the dangerous special offender. He was tried before Judge Pratt in connection with--
Thurgood Marshall: How come he gave him ten years?
Mr. Andrew L. Frey: --He was tried before Judge Pratt in connection with the so-called Columbus Day Bombings in Rochester. He was convicted by Judge Pratt and he was given nine years for the offenses related to that.
Thurgood Marshall: That's what I thought.
Mr. Andrew L. Frey: He was tried before Judge Burke on the racketeering charges involving the arson-for-hire ring. He was convicted. Then this hearing was held before the Court under the dangerous special offender statute, which was a special sentencing--
Thurgood Marshall: That's what I thought; after that trial.
Mr. Andrew L. Frey: --After that trial.
Thurgood Marshall: At which time he could put all of this in. And at that trial he could have gotten 40 years, couldn't he?
Mr. Andrew L. Frey: He could have gotten... well, there is a question.
Thurgood Marshall: Well, isn't it... you could have gotten 40?
Mr. Andrew L. Frey: Well, that would depend on the answer to the question whether the Rico conspiracy and the Rico substantive offense are separate offenses where the enterprise that's alleged is an association in fact. I'm not certain that he could have gotten 40 years. But in any event--
Warren E. Burger: What was the maximum he could have gotten? Thirty?
Mr. Andrew L. Frey: --Well, he could have gotten 20 years clearly on this count. And it is possible Judge--
Warren E. Burger: If they had not been made concurrent?
Mr. Andrew L. Frey: --Excuse me?
Warren E. Burger: Was it the concurrence of the sentences--
Mr. Andrew L. Frey: If the sentences were concurrent... well, both the Rico conspiracy and the Rico substantive offense carry 20-year penalties. If those are two separate offense under the Jeffers/Whalen line of cases, then he could have by making the sentences consecutive has gotten 40 years, and this was the--
Potter Stewart: --At least he could have gotten 20; that's clear.
Mr. Andrew L. Frey: --At least he could have gotten 20. In fact, what he got was ten years concurrent with the sentences in the bombing charges, so in effect what he got as a result--
Potter Stewart: --was one year--
Mr. Andrew L. Frey: --of the arson ring was one year in addition to sentences he already was required to serve.
John Paul Stevens: --Mr. Frey, under your understanding of the appeal procedure, if the trial judge makes an error of law that the Court of Appeals wants to reverse and does reverse, may the Court of Appeals remand for a second sentencing hearing?
Mr. Andrew L. Frey: The statute authorizes it; yes.
John Paul Stevens: Does that create any... well--
Mr. Andrew L. Frey: Well, I don't believe that would create a constitutional problem because I don't believe... I think it is clear, for instance, that if you had a post-trial suppression hearing which... and the evidence was suppressed as in Ceccolini and the Government appealed and the appellate court concluded that further hearings were required and a remand to clarify certain points, I think the Court of Appeals could do that and a further hearing could be held. Now, it is true that in the present case we are not challenging any finding of fact, we are not asking for any further hearing. We are seeking purely an appellate-type proceeding and not a second trial if you are going to equate the sentencing with the trial. So this case is stronger for us, although I believe that a remand hearing would be permissible under the Double Jeopardy Clause. We'll try to get to these arguments.
Byron R. White: --But the statute permits the appellate court on the Government's appeal to impose a different sentence?
Mr. Andrew L. Frey: It permits the appellate court on either the Government's or the defendant's appeal to impose a different sentence.
Byron R. White: Or to remand?
Mr. Andrew L. Frey: Or to remand for further proceedings.
Byron R. White: And, just in a word, why do you think another sentencing proceeding doesn't infringe on the Double Jeopardy?
Mr. Andrew L. Frey: Because I think what the Double Jeopardy Clause prevents the defendant from being required to do is to be tried again after he's been acquitted.
Byron R. White: I guess then it's for the same reason that would permit the Government appeal in the first place?
Mr. Andrew L. Frey: I think it's not--
Warren E. Burger: --the sentence is not final--
Mr. Andrew L. Frey: --The sentence is not final.
Warren E. Burger: --until the Court of Appeals--
Mr. Andrew L. Frey: This is a kind of... if jeopardy is involved at this point, if it hasn't terminated with the verdict of guilty, this is a kind of continuing jeopardy theory.
Warren E. Burger: --The sentence of the district court, then, is not final until the time to appeal has expired or until the Court of Appeals has reviewed it.
Mr. Andrew L. Frey: That is correct.
Potter Stewart: Now that you've been interrupted, Mr. Frey, I notice that the bracketed material on the bottom of the second paragraph of what you read to us on page 43 of the appendix, you say that that phrase was printed in the findings but a line had been drawn through it by hand.
Mr. Andrew L. Frey: I take it it's fair to conclude that there was some inconsistency in Judge Burke's findings and his sentencing. Indeed, that would be the part of what the Court of Appeals would have to consider in the event we--
Potter Stewart: In your submission the bracketed material ineluctably followed from what he said.
Mr. Andrew L. Frey: --That would be our position, and that his findings were amply supported by--
Potter Stewart: And since on the other hand he ultimately determined not to give a longer sentence, he or somebody under his direction, presumably, scratched that out.
Mr. Andrew L. Frey: --But we would, under the statute, we would have a right to appeal if he's determined that respondent was not a dangerous special offender.
William J. Brennan, Jr.: Yes.
Mr. Andrew L. Frey: We would have a right to appeal the question, whether that determination was supported.
Potter Stewart: So it's... here it's sort of ambiguous. He seemed to have determined it but he didn't with the obvious... he scratched out the inevitable conclusion from that determination.
Mr. Andrew L. Frey: I do believe that the consequences of all that would be a problem for the Court of Appeals if it has jurisdiction to entertain our appeal, and not a problem that should delay this Court in its consideration of the case.
Potter Stewart: And you're... it's your point that the only question before us is, did the Court of Appeals have jurisdiction to entertain the appeal?
Mr. Andrew L. Frey: To entertain the appeal; that's correct.
Potter Stewart: Nothing as to the merits of the appeal?
Mr. Andrew L. Frey: Nothing as to the merits. We are not asking--
Warren E. Burger: Is there any doubt whatever that on the record in this case the bracketed material is fully supported?
Mr. Andrew L. Frey: --I don't think it's any help in this Court. I think it will be helpful to us in the Court of Appeals.
Warren E. Burger: Is there any doubt that that is... any doubt on the record?
Mr. Andrew L. Frey: Well, I guess my colleague will probably... may wish to argue the contrary, but our position is that it's amply supported by the record that shows an extended career of serious--
Potter Stewart: But your first position is, as I understand it, that that's not a matter for us to determine.
Mr. Andrew L. Frey: --It's not a matter for you to determine; absolutely.
Warren E. Burger: We don't have to reach a--
Mr. Andrew L. Frey: Now, before I begin with my main legal argument, I'd like to point out that there are three articles that have either just come out or about to come out that the Court may find helpful, dealing specifically with the Difrancesco case. Two of them appear in the December, 1980, edition of the American Criminal Law Review. The first one, which is by Ron Stern, starts at Volume 18, page 51. That has just come out, and that one supports the Government's case.
Speaker: --By Ronald Stern, did you say?
Mr. Andrew L. Frey: Ronald Stern, your former law clerk.
Speaker: My former law clerk?
Mr. Andrew L. Frey: The second one supports the Court of appeals. Mr. Stern's agrees with our position. And then there is a--
Potter Stewart: He works for the Department of Justice, doesn't he? He did.
Mr. Andrew L. Frey: --No, he did but he is in private practice now. There is also an article by Professor Weston in the June, 1980. Michigan Law Review, a preprint of which was sent both to myself and to opposing counsel and to the Court, and I understand it will be out in several weeks. It's a fairly lengthy treatment of this problem. Now, we're dealing here with the constitutionality of an Act of Congress. And, of course, it's our position that the burden is on those who attack the statute to demonstrate how it offends the policies of the Double Jeopardy Clause. It seems to me that there are three possible objections. The first is that the appeal itself constitute an impermissible second jeopardy. The second is that the Double Jeopardy Clause vests the defendant with the right to have his sentence treated with the same kind of finality as an acquittal would be treated. And the third is the argument that an increase of the sentence on appeal constitutes a form of multiple punishment that's prohibited by Double Jeopardy concepts. Of course, we believe that none of these objections to Government sentence appeals is well-founded. The first objection relates, I think, to the notion that the defendant should be spared the expense and anxiety and uncertainty of a proceeding that may result in an increase of his sentence, a second proceeding after the original sentencing proceeding. Of course, as I have mentioned, in this case at least the second proceeding is not at all like that but it is on appeal argued by lawyers which the defendant does not even attend and which is limited to a review of the record made in the district court. The second difficulty with this argument that the appeal itself is something which a defendant has protection from by the Double Jeopardy Clause is that it's well settled by the decisions of this Court as Wilson and Scott that the Double Jeopardy Clause doesn't protect against appeals as such. In both Wilson and Scott the defendant had won a dismissal of the charges which would have made him a free man, and in each case the appeal threatened to jeopardize that and cause the reinstatement of a conviction or possibly even a second trial. The appeal entailed, it seems to me, precisely the same degree of ordeal and anxiety and expense as the appeal that would be entailed in this case, and yet the Double Jeopardy Clause was not offended. What is offended by an appeal, if anything, is the relief that the Government requests. That is, let's say, a new trial following an acquittal. Of course, if the Government is requesting relief that it is not entitled to have, then there would be no case or controversy before the appellate court. But it is the relief itself and not the appeal. The appeal is not a second jeopardy that the Constitution bars. Now, before I talk about the finality question as to whether a sentence is like an acquittal, let me briefly turn to the question of multiple punishment. I have--
John Paul Stevens: Mr. Frey, before you leave the first point on the anxiety interest and so forth on the appeal thing, it just ran through my mind, taking the language of the Double Jeopardy Clause, jeopardy of life or limb and so forth... rather strong language, am I correct in assuming that if we accept your argument we would also... because it's a constitutional provision applicable to the states, probably be holding that in order to achieve uniformity in the death area, it would be permissible in a state case, capital case from one of the states that has capital punishment, to permit the prosecution... if the appropriate statute were enacted, of course... to appeal the refusal of the trial court to impose the death sentence? Is that interest involved, would you say?
Mr. Andrew L. Frey: --As far as the Double Jeopardy Clause is concerned, leaving aside due process considerations of double jeopardy--
John Paul Stevens: Right, just on double jeopardy.
Mr. Andrew L. Frey: --I think there may be special fairness problems that are involved with the death penalty. I think the kinds of problems that Justice Stewart adverted to earlier might be a particular problem where you're dealing with the death penalty, but I think as far as the Double Jeopardy Clause is concerned, if you're talking about legal error, I think it would be our position that it would not bar the appeal.
John Paul Stevens: The interest in avoiding disparity has been identified in those cases as well as here.
Mr. Andrew L. Frey: Well, I think it would be... yes, it has, certainly, and of course that was what was involved in the Stroud case.
Potter Stewart: Well, there are other provisions of the Constitution in addition to the Double Jeopardy Clause.
Mr. Andrew L. Frey: Excuse me. Excuse me?
Potter Stewart: Your answer is confined to the effect of the Double Jeopardy Clause.
Mr. Andrew L. Frey: Right. I'm not saying that the Constitution otherwise would permit--
Potter Stewart: The appeal might violate the Eighth Amendment or the Due Process Clause. Or some other provision of the Constitution.
Mr. Andrew L. Frey: --I haven't thought about that. Now, the proposition that allowing a Government appeal of a sentence which may increase a sentence constitutes multiple punishment is one that I have thought about in preparing my argument. And I have to admit that I simply don't understand it. The Government appeal in this case raises the question of the proper single punishment for respondent's offense. The issue is not at all like the issue in cases like Whalen or Jeffers where the defendant received two sentences and the claim was that there was only one offense. It's not at all like the seminal case of Ex parte Lange where the defendant received two sentences when only one was permitted by the statute, and in addition the problem that was involved in the companion case in North Carolina against Pearce, he received one five-day sentence and one one-year sentence, although the statute only allowed one year. Now, there is, of course, the dictum in the United States against Benz, and I am not sure how to explain that except to say that the dictum is clearly based on Ex parte Lange; it contains no independent explanation of the source of its conclusion. We have no difficulty with the conclusion that there is a multiple punishment problem in Ex parte Lange. And, of course, neither Benz nor Ex parte Lange dealt with the question of Government appeals of sentences, but they both dealt with the question of the trial court calling the defendant back and changing the sentence. Now, there might be a problem with the trial court having imposed the sentence and a few weeks later saying, I've changed my mind, I'm calling you back, but that is not the issue that we have. And another peculiarity of the Benz issue is that it apparently applies only if the defendant has begun serving his sentence. But if the defendant is on bail, apparently under this rule his sentence can be increased. Now, that doesn't make very much sense to me, and particularly in light of the requirement that he be given credit for time served. And of course, on the Government's appeal, any sentence that's imposed by the Court of Appeals would have to under Simpson against Rice give credit for the time served. It doesn't make any sense to say that it turns on whether or not the defendant has begun serving his sentence. I think that matter was a judge-made nonconstitutional rule dealing with the power of the district court to call somebody back for resentencing. And of course Congress would have the power to overrule any such principle as long as it's not of constitutional dimensions. Now then, we have the third and what to my mind is probably the only substantial argument that can be made in support of the decision of the Court of Appeals and that's the contention that the imposition of a sentence constitutes in effect an implied acquittal of any higher sentencing. Therefore the defendant's interest in the finality of that sentence would be comparable to his interest in an acquittal. I think the best statement of this position is Justice Harlan's dissent in North Carolina against Pearce on this point, but I note that the Court did not accept that position and I further note that the position would not necessarily apply to Government appeals. There was nothing wrong with the first sentence in North Carolina against Pearce and therefore an argument could have been made and was made by Justices Harlan and Douglas that there was no adequate justification for depriving the defendant of what he had acquired at the first trial, which was a ceiling on his sentence. Now here we are talking about a case in which it's the Government's contention that there's something legally wrong with the sentence that was initially imposed and that the Government should be entitled to correct it. The Court of Appeals' contrary decision rests on a mistaken impression, as I've said before, about the relationship of the Double Jeopardy Clause to the defendant's finality interests. Those finality interests are not generally protected against the Government appeal but are protected only where the relief that the Government seeks is to set aside an acquittal and have a retrial. This point can be made clear by comparing Pearce with Green. In Green there was an implied acquittal of a greater offense and the prosecution was barred from retrying the defendant for that offense. In Pearce there was arguably an implied acquittal of a greater sentence and the prosecution was not barred. Similarly, in Bozza against the United States, the Court held that the correction of an illegal sentence to increase it to minimum legal requirements was permissible under the Double Jeopardy Clause, but an illegal dismissal or acquittal entered by the judge in Fong Foo before the Government had barely begun the presentation of its evidence was held not reviewable. Now, what this suggests is that there is for Double Jeopardy purposes a recognized and substantial difference between the finality interest that a defendant has in an acquittal and the finality interest that a defendant has in his sentence, just as there are differences for Due Process purposes between the kinds of procedures that must be afforded to a defendant at trial and to a defendant in connection with sentencing. I think I should reserve the balance of my time.
Warren E. Burger: Mr. Nemoyer.
Edgar C. NeMoyer: Mr. Chief Justice, and may it please the Court: I represent the respondent, Eugene Difrancesco, who is serving ten years in this matter in Atlanta. First I might in response to the remarks of Mr. Frey point out that the Federal Parole Board now has a severity index scale which they apply nationwide, which I submit is a much better way to even sentences out. Now--
Warren E. Burger: But how is that relevant to our problem?
Edgar C. NeMoyer: --Well, his first point, as I understood it, Mr. Chief Justice, was that there's a disparity in sentences. He said the public is complaining about it, it's one of--
Warren E. Burger: Well, that's not. He was just mentioning that that's the genesis of congressional concern that led to the passage of the statute. That's nothing more than that.
Edgar C. NeMoyer: --I misunderstood him then, Mr. Chief Justice. In any respect, I think there is now a procedure to even out sentences without an appellate review which has a lot of problems in it.
Warren E. Burger: But the Parole Board's power doesn't include any power to enlarge a sentence, does it?
Edgar C. NeMoyer: No, that's true, Judge.
Byron R. White: And is it a procedure or just some guidelines?
Edgar C. NeMoyer: It's a regular scale, Justice White, and they take the offense plus other factors, recidivism, and come out with a scale--
Byron R. White: What are you... to what are you referring?
Edgar C. NeMoyer: --The United States Parole Board nationwide has a system by which they address sentences of all people in the federal parole system, Justice White. Justice White, I might mention--
Byron R. White: But that isn't binding on the district judges or--
Edgar C. NeMoyer: --No. No, this is what happens to a prisoner after he is incarcerated and it's a leveling nationwide. What they seek would only be a leveling circuitwide. Now, Mr. Frey has made reference to the Senate version--
Byron R. White: --But it also, however, might lead to some uniform application of this special offender statute.
Edgar C. NeMoyer: --That's true.
Byron R. White: That's what they're talking about, isn't it?
Edgar C. NeMoyer: No, I believe that they're talking--
Byron R. White: Well, it's part of what they're talking about.
Edgar C. NeMoyer: --Part of... yes, Judge. No question about it. But I think what they're complaining about, I think, Judge, in the final analysis is they're complaining, occasionally there's too lenient a sentence imposed by some judge and they want the right to appeal it.
Byron R. White: A judge's ignoring the statute; that's what the claim is.
Edgar C. NeMoyer: Ignoring the statute or they say... for example, they think Judge Burke ignored Mr. Difrancesco's background.
William H. Rehnquist: When you say "they", you refer to Congress, I take it?
Edgar C. NeMoyer: No, I'm referring to the Department of Justice.
William H. Rehnquist: Well, wasn't it Congress that authorized these appeals?
Edgar C. NeMoyer: That's true, that's true. And in that respect, in the first... yes, you're right, Mr. Rehnquist.
Byron R. White: But it's the Department that decides whether to appeal.
Edgar C. NeMoyer: Right.
Byron R. White: And their claim is that the judge is misapplying the statute.
Edgar C. NeMoyer: It... I don't want to... you're probably right and it's just going by me. I think they're claiming that in the particular instance they think the defendant got too lenient a sentence.
Byron R. White: Under the statute?
Edgar C. NeMoyer: Under the statute. For example... well, two things. One, earlier, Mr. Justice White, you asked about the present status in the House. As I understand it the House version is contrary to what the Department of Justice seeks; the Senate version does favor them, and maybe that's what Mr. Frey meant when he said there will be a conference.
Byron R. White: Well, it isn't... no assurance it's going to be passed in this Congress.
Edgar C. NeMoyer: No; none at all. Now, he also read at length, sir, from the findings he said that Judge Burke made. What those are, Justice White, were their findings they submitted to Judge Burke. He signed them, striking the last four lines out. So when he reads that he's reading, in effect, what they prepared below, which Judge Burke signed, striking out, I think, the most significant thing, namely, that the defendant should be incarcerated for a longer period than provided for by the underlying felony.
Warren E. Burger: However, from page 36 of the appendix on up to 42 and 3, they recite that this fellow has committed everything except possibly rape and bank robberies. He's got murder, arson, arson-for-hire, bombing, mail fraud, extortion, and loan sharking. Now, those are all part of the judge's recitals, are they not?
Edgar C. NeMoyer: No, they're not. They're theirs. They submitted those to Judge Burke and he signed them.
Warren E. Burger: Well, you don't suggest that the judge just rubberstamped those statements about his past record?
Edgar C. NeMoyer: Judge, the transcript of the hearing might be more illuminating, in which they went into all of that stuff, and I think Judge Marshall was alluding to it. Judge Burke said there's nothing new here that I have learned today except the defendant's birthday. And the part about the murder, Your Honor, which is the only one involving physical violence, Mr. Shanahan... and it's the only thing he said at the hearing, was that that was dismissed; not only reversed, it was dismissed because it was based on perjured testimony. The hearing below, Mr. Chief Justice, consisted strictly of Mr. Baldwin making statements. There was no testimony, as Justice Marshall pointed out. There were no witnesses and the defendant said very little... or the defendant's lawyer, Mr. Shanahan, because I submit, Mr. Chief Justice, Judge Burke gave a very good indication of his feeling when he interrupted and said, about the only thing new that I have learned here today is the defendant's birthday.
Warren E. Burger: How does that help you very much? I'm a little at a loss to understand how you think that helps, to erase all of this record. For example, by way of summary, he says, "A review of the defendant's criminal record shows four other convictions in state and federal courts for crimes committed since 1970 in the Rochester area. " "The same review reveals a history of virtually continuous criminal conduct over the past eight years, interrupted only by relatively brief periods of imprisonment in '75, '76, and '77. " Now, are you suggesting the judge didn't know what he was signing when he signed that?
Edgar C. NeMoyer: I'm suggesting to the Judge that... one, the judge knew Mr. Difrancesco very well, Mr. Chief Justice. He had him in front of him several years before, in which he sentenced him, and again it was to less than the maximum. He well knew... for example, the Columbus Day Bombings, which really sound horrendous here, were nothing more... well, I don't want to make it that light but they were explosives placed outside of buildings that did very little damage, no one was hurt. In all the arsons that they allude to, Judge, no one was hurt. The only time that anyone was--
Warren E. Burger: Arson isn't usually directed at hurting people, is it?
Edgar C. NeMoyer: --No, Judge. But I only mention that in passing.
Warren E. Burger: The judge read the whole document closely enough to run a line through 2-1/2 lines, I think it is, or--
Edgar C. NeMoyer: The last four lines, Judge.
William H. Rehnquist: --Is it on 43, Mr. Nemoyer, and only 43, that there is the bracketed material is included, just at the very end there?
Edgar C. NeMoyer: Yes, Judge. Yes, Justice Rehnquist. It was just at the very end. What I submit... and it's hard to tell at this point, but I think all these were, I know that they were the submitted findings from the Department to Judge Burke. What I submit to this Court is that Judge Burke, who is in his 80s and does not have a clerk, looked at those findings, placated the Government by signing them, struck out the only part that really mattered... namely, that "the defendant has to be incarcerated for a longer period than required by the underlying felony. " In fact, Justice Rehnquist, I don't know, it might be like a medical report where you don't read it all, you read the last paragraph, because that sets it out. And I submit that Judge Burke well could have found, as he indicated at the hearing, that he knows Mr. Difrancesco, he knew the community, he heard the witnesses, he was well aware of the extent of the criminal activity, and that he struck out--
Warren E. Burger: About eight lines later he did not strike out the statement or alter in any way that at the time of the commission of the most recent felonies and "is a dangerous special offender within the meaning of section 3575. " and so forth. Anything ambiguous about that?
Edgar C. NeMoyer: --I think it might not, taken out of context, Mr. Chief Justice. And if he thoughtfully... and we knew that he thoughtfully considered that, that is one thing. But I submit two things: one, he struck out the last part of the findings; and two, I think the clearest evidence of Judge Burke's disposition was this sentence that he imposed, which was clearly less than provided for the underlying felonies.
Potter Stewart: Well, none of this really has anything to do with the question presented in the petitioner's brief, does it?
Edgar C. NeMoyer: Well; okay.
Potter Stewart: Well, just... not "okay". Yes or no?
Edgar C. NeMoyer: I'm sorry, Judge, I'm just trying to reflect that, Justice Stewart and... forgive me. But I think, two, I think it does two ways. One, it does for Mr. Difrancesco because, first, Justice Stewart, we claim that we shouldn't be here. We claim that we were never properly adjudged a special dangerous offender as required by the statute.
Potter Stewart: And therefore, that the question is not presented by this case--
Edgar C. NeMoyer: Right.
Potter Stewart: --and therefore, I suppose it would follow that the petition for certiorari ought to be dismissed as improperly granted?
Edgar C. NeMoyer: Right. That's our first position. And I might say, in the same vein, Justice Stewart, our second position was that the underlying felonies carry at least 20 years, 25 years under 3575, and 40 years under, I think, the general consensus, which was an ample sentence if Judge Burke chose to impose it, and he didn't. And if there was 40 years provided below, that this 3575 and 3576 had no office to perform, as Judge Haight pointed out in his concurring opinion below.
Potter Stewart: Well, that would be the merits, wouldn't it?
Edgar C. NeMoyer: Right.
Potter Stewart: And that really has nothing to do with the question at least as presented in the petitioner's brief.
Edgar C. NeMoyer: It was our position, first, that we lost the--
Potter Stewart: That would be an argument that you should make to the Court of Appeals if we disagree with the Court of Appeals that this whole provision of 3576 violates the Double Jeopardy Clause.
Edgar C. NeMoyer: --Well, Justice Stewart, you're correct that if I am not prevailing on either of those arguments, then I have to go to the merits, and the merits are then, first of all, the double jeopardy argument. Now, it's our position, flatly, that the Fifth Amendment prohibits a person from being twice placed in jeopardy. It's our position that from the commencement of the trial up until the time of sentencing that the defendant is in jeopardy. In fact, Justice Stewart, it's my position, that jeopardy is most acute at the time of sentencing. That's when he faces the judge and he is going to be told what the outcome is, that it's the climax of jeopardy, if you would.
William H. Rehnquist: Do you think that after a bench trial and a finding of guilty and the judge who tried the case from the bench dies, it would be a violation of Double Jeopardy for another judge to come in and impose sentence?
Edgar C. NeMoyer: No, I don't, Justice Rehnquist. But that's extraordinary circumstances, and I think, by and large, you're entitled to have your matter tried and finished by one tribunal, absent a circumstance of death or ill health; or something of that. But under that circumstance, no, sir, I would not.
Byron R. White: Did you argue to the Court of Appeals that the statute didn't apply here?
Edgar C. NeMoyer: Judge, I didn't argue to the Court of Appeals, and I'm not sure what my partner argued. I don't think so.
Byron R. White: You've raised in your brief, you've posed the question in your brief question one in your brief, you've got, "Whether respondent was properly determined to be 18 U.S.C. 3575. "
Edgar C. NeMoyer: I don't know. I believe my partner did not argue that, Judge. It was in the brief but I don't know that he argued it.
Byron R. White: Well, did the Court of Appeals decide that there had been, he had been properly determined to be dangerous or he hadn't? They didn't even decide it, they--
Edgar C. NeMoyer: They didn't.
Byron R. White: --They went to the constitutional question.
Edgar C. NeMoyer: That's correct. They went directly to the constitutional issue and never passed on that.
Potter Stewart: But the dissenting opinion said that the statute was inapplicable.
Edgar C. NeMoyer: Yes, Justice Stewart. The concurring opinion of Judge Haight.
Potter Stewart: Or concurring opinion; right. Separate opinion.
Edgar C. NeMoyer: Right. Said that it had no office to perform because the defendant could have received 40 years below.
Potter Stewart: Which is really your question three in your brief.
Edgar C. NeMoyer: Right; that's true. But, Justice White, I think the issue was never... the court never addressed itself to that issue.
Potter Stewart: All right.
Edgar C. NeMoyer: Now, Justice Stewart's point about the right of allocution and appeal to the 2nd Circuit, I think, is a real problem with this statute. The defendant under Federal Rule 32(a)(1) has a right to speak at sentence. It directs that the court address him personally and give him a right to speak. I don't see how under this statute you could... you could get around that by... I don't see the analogy to an argument, a legal argument on appeal. This is, I submit, a sentence is a mixed question of fact and law, that there's a question of credibility, a question of rehabilitation, many questions, and that a cold record to an appellate court is not as enlightening as the trial court sitting, seeing the defendant, hearing the witnesses, knowing the extent of the damage; and in sentencing he might have received dozens of letters. He'd know the nature of the person that sent him the letter, whether it should be given great consideration or no consideration. None of these things, I submit, would be by and large available to the circuit court.
Potter Stewart: Of course, Mr. Nemoyer, one of the things that 3576 authorizes an appellate court to do on the Government's appeal is to remand for further sentencing proceedings and imposition of sentence by the trial court. And none of the arguments you are making would question the validity of that provision of the statute, would it?
Edgar C. NeMoyer: No, Judge Stewart, no. I'm arguing against the circuit court itself--
Potter Stewart: --itself extending the sentence.
Edgar C. NeMoyer: --modifying by increasing; true. Now, Congress... as, Justice Rehnquist, you pointed out... has made a decision in this area and they say, or they have spoken. But Congress, I submit, sir, changes every two years. Our Constitution has been in force for 189 years, and it should be more consistent.
William H. Rehnquist: Our double jeopardy rules change every two years too.
Edgar C. NeMoyer: Well--
Potter Stewart: Almost every week around here.
Edgar C. NeMoyer: --In a hundred and... this is the first time ever that--
Byron R. White: Even though the same Justices are sitting.
Edgar C. NeMoyer: --Well, this is the first time ever that the Department of Justice has sought to increase a sentence on appeal. It's never been done before. This Fifth Amendment's been in effect 189 years--
Thurgood Marshall: Did you say it was the first time they've tried it?
Edgar C. NeMoyer: --Yes, Judge. This is the first time--
Thurgood Marshall: Well, you ought to get your information updated.
Edgar C. NeMoyer: --Well, as far as--
Thurgood Marshall: It doesn't mean any... doesn't mean anything in this case, does it?
Edgar C. NeMoyer: --No. Well, yes, it does. I think that the provision of... I think it's a clear... I think the Fifth Amendment is clear in this area, that they're not permitted to go and appeal sentence, to twice put the defendant in jeopardy. And I think it's dead clear, and I submit that's why it has never been attempted.
Potter Stewart: Well, if there's never been any case, then surely there's no controlling precedent, is there?
Edgar C. NeMoyer: I think there is no controlling precedent right on point, Judge Stewart. I think that's correct. I think what's on point is the Fifth Amendment itself. But I don't... as far as our position, and I think their position is, there is no case. Mr. Frey has cited many cases, Judge, but none of them stand for the proposition he is urging this Court to sanction, namely the right of the Government to seek increased sentence on appeal.
Potter Stewart: Well, you've just told us it's never arisen before.
Edgar C. NeMoyer: That's true; that's true. And he cited a lot of cases, but none of them, Judge, stand for what he's asking here. Another problem I see with it is if you permit an appellate review of a district court judge's sentencing, you undercut the authority and stature of the district court judge. As it is now, when he sentences it has a degree of finality to it. But if every district court judge in imposing sentence then has his sentence subject to review by an appellate court, I think it somewhat demeans his authority and stature.
Warren E. Burger: Well, do you suppose... are you suggesting Congress wasn't aware of all these considerations?
Edgar C. NeMoyer: Judge, they well might have been, and when Congress enacted this section they were well aware, Mr. Chief Justice, that it had constitutional problems, and that was discussed when it was enacted. And I'm saying that this Court I would like to consider these factors. Congress well might have considered them, but their viewpoint and this Court's viewpoint might not necessarily be the same, for some of the reasons we've stated. In addition, I submit that permitting in... this section requires the Court of Appeals to put in writing, the Act of Congress requires the Court of Appeals to put in writing the reason for their disposition of sentencing. I submit, Judge, I'm troubled with an Act of Congress directing the court to do, to make certain written findings, appellate court. But in any event, Judge, I submit that it would create an awesome burden to our appellate courts to, one, make them review sentences at the behest of the Government; make written findings; review lengthy presentence reports; maybe make some provision for the defendant to have the right of allocution; review maybe dozens of letters sent on his behalf and other sort of testaments. I think, logistically, it would be a tremendous burden to impose on our circuit courts.
Warren E. Burger: How many appeals has the Government taken since this statute was passed? Do you know?
Edgar C. NeMoyer: This is the first one that I'm aware of Judge.
Warren E. Burger: It doesn't suggest that there was a flood tide.
Edgar C. NeMoyer: No, but, Judge, this... Mr. Chief Justice, this is limited very narrowly to a special dangerous offender section. Their legislation, Mr. Frey indicated, that's pending now would give them this right across the board.
Warren E. Burger: That's not before us now, is it? No question of that kind is here now. Congress hasn't even acted yet.
Edgar C. NeMoyer: I think Mr. Justice Stevens was correct in that it would even apply in murder cases. And I think that's what the final analysis is going to be here, Judge. In forcing district court judges to articulate their reasons for sentencing, I think you would be limiting their discretion. And I submit that if their sentencing, district court judges, would be reviewed by an appellate court, they would be required to find their findings, to put their findings in writing, or there would be no other practical way for a Court of Appeals to review it. And in so doing I think you would limit their discretion. They are now permitted to consider many factors, even factors outside of a presentence report. For example, the defendant's demeanor in a courtroom, maybe his demeanor on the stand, the type of witnesses he presents; many factors. By permitting the Government to appeal sentences you would force the district court judge to put in writing the reasons for his findings, which I submit would limit his discretion, which I don't think would be a good thing.
William J. Brennan, Jr.: Is that the new bill, the pending bill... require it?
Edgar C. NeMoyer: No. Just... I think that would be the outcome of permitting--
William J. Brennan, Jr.: Do you know whether the pending bill requires that every sentence be accompanied by a statement of reasons?
Edgar C. NeMoyer: --No, I don't know that, Judge, Justice Brennan. I do know this though, Justice Brennan, that this legislation, the second last sentence of 3576, requires the Court of Appeals to put in writing the reason for their disposition of sentence. My position, Justice Brennan, would be that the district court judge, if he knew his sentence was going to be reviewed by an appellate court, would have to put his reasons in writing because there'd be no other way that you could have a practical review. If it wasn't in writing the appellate court would not know the reasons. Now, Mr. Chief Justice, you asked the question of the Government whether this was a final sentence. I think it is a final sentence. The statute does not talk about tentative sentences. The statute says, "shall sentence".
Warren E. Burger: Well, there's one thing, if you're talking about finality in terms of appeal, and another if you're talking about final in the double jeopardy sense.
Edgar C. NeMoyer: Well, I think in all senses this sentence was final. The statute says, "The court shall sentence the defendant to imprisonment for an appropriate term. " Mr. Difrancesco was sentenced and he is serving, pursuant to that sentence, at this time. Our position is, very strongly, sir, that it is a final sentence. Because the Department of Justice very much has said in their argument that if this was a tentative sentence, then it's not double jeopardy. And the 2nd Circuit said, that well may be but that's not the statute before us. The statute before us is what we consider, and in this statute it's not a tentative sentence, it's a final sentence. And they well might come up with some other statute that this Court will have to consider, which may not be unconstitutional, but I submit, sir, this one is. Because it is a final sentence, subject to review and a sentence again. Well, in closing, two things. The Government has pointed out an article that favors their position in the American Criminal Law Journal. There's an article immediately following it, United States-Difrancesco, which they have not made reference to in their brief. It very much favors our position. It's Mr. George Freeman. I believe he's Justice Black's... former Justice Black's clerk. In summary, I think this would be a tremendous price to pay, namely, giving the Government the right to appeal sentences. It would subject all defendants to an apprehension regarding their sentences. They well might have pled guilty to avoid that apprehension, or they might not have the funds to go on appeal. It would subject all trial judges, their decisions regarding sentencing, to review. It would subject the circuit courts to making findings. And if somebody disagreed with those findings, there's only one place they could come, and I don't believe that this Court should be doing, reviewing the sentences. And I think that the only thing it really prevents is an occasional too lenient a sentence of a defendant and I submit that it's an extremely large price to pay for that small mischief; that the Bill of Rights should protect the defendant.
Warren E. Burger: Do you have anything further, Mr. Frey? You have only one minute left.
Mr. Andrew L. Frey: All right. I just wanted to answer Justice Brennan's inquiry. There would not be a requirement for findings under the proposed bill unless the sentence were below or above the guidelines. But if it was within the guidelines there... no findings would be required and it would be unreviewable. We're talking here only about the existence of a legal error. If there's no legal error, there is no change in the sentence and therefore no Double Jeopardy problem. So only the correction of erroneous sentences is what's at stake and we believe the Double Jeopardy Clause does not preclude that for the reasons given.
Warren E. Burger: Thank you, gentlemen. The case is submitted.
Speaker: The Honorable Court is now adjourned until tomorrow at 10:00.