Warren E. Burger: We’ll hear arguments next in 71-1369, Preiser against Rodriguez. Mrs. Cohen, you may proceed whenever you’re ready.
Lillian Zeisel Cohen: Mr. Chief Justice and may it please the Court. The question presented by these cases, is whether state prisoners complaining about the matter of their confinement should be able to obtain equitable relief under the Civil Rights Act given the applicability of the federal habeas corpus statute. When these actions were commenced, each of the respondents was confined in a state prison. Each was in custody pursuant to a valid state court judgment of conviction. Each have been deprived of good-conduct-time-credits by the Department of Correction as a result of a disciplinary action of each and each immediately proceeded to the Federal District Court with a combined petition for a writ of habeas corpus and civil rights complaint. In each case, the District Court held a hearing and granted relief on the merits rejecting the State’s argument that the actions were in the nature of habeas corpus applications. Each of the respondents was released from physical confinement as a result of the District Court’s decision. Individual panels of the Second Circuit heard appeals by the State taken in all three cases. The panels which reviewed Rodriguez and Katzoff reversed the District Court on the ground that the applications were in the nature of habeas corpus petitions and there had been a failure to exhaust state court remedies. Before Kritsky was decided, a motion to en banc Rodriguez and Katzoff was granted and Kritsky was ordered included in the en banc consideration. Counsel were directed to brief and be prepare to argue two specific questions unrelated to the merits of these cases. The first was the applicability of the doctrine of abstention and the second was the need to exhaust state court remedies. After this Court’s decision in Wilwording against Swenson, the Circuit Court reversed the panel decisions in Rodriguez and Katzoff and affirmed the District Court in all three cases. It is evident from the eight opinions that were written by the court below that until this Court decided Wilwording. The second Circuit was evenly divided in considering this case by vote of 66 on the question of whether the claims raised should first have been presented to the state courts. And what’s even more interesting is aside form the diverse opinion -- the division of opinion between the members of the Court is the fact that even among those who were very firm in their belief that the state should first have considered these claims. There was no agreement as to whether exhaustion of remedies was required under the habeas corpus statute or whether exhaustion of remedy should be required under the Civil Rights Act. Judges Friendly, Mansfield and Mulligan believe that these are all habeas corpus petitions and that the exhaustion requirement of Section 2254 is applicable. Judges Lumbard, Moore, and Hayes believe that these might be considered as civil right actions but that in any event, despite the earlier decisions of this Court exhaustion of state judicial remedies was an order. After Wilwording, a majority of the court below felt that they were bound to accept the inmate’s choice of remedy. And based upon these earlier decisions of this Court, held that exhaustion of state judicial remedies was not required in these cases. Petitioner seek reversal of the decision below on the ground that choice of remedy should not lay with the inmate as it presently does because any claim that he may raise regarding the legality of his custody is essentially in the nature of habeas corpus. Custody is at the heart of the habeas corpus statute. Section 2241 says, “The writ of habeas corpus shall not extend to a prisoner unless he is in custody in violation of the constitution.” Section 2254 says, “That a Federal Court shall not entertain an application for writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a state court conviction only on the ground that he is in custody in violation of the constitution. The decisions of this Court which we cite in our brief make it clear that custody as it is used in the statute refers not simply to the reason -- the inmate is being confined, but to all the incidents of confinement as well Wilwording against Swenson reaffirmed this in the context of the Eighth Amendment claims that were there raised. Actually, the respondents in this case do not deny the validity of this classification. So much as they fear the application of the exhaustion requirement of Section 2254 and the arguments which they raised in reply to the question which the state has presented to the court and which is really not so much the invention of the state in this case as it is the concern of the Circuit Court which en banc these cases relate to the exhaustion requirement and whether or not there is any detriment to the inmate. The reason which they emphasize the most and which I believe to be the least tenable was that there will be a delay to the state prisoner in reaching a federal form. The reason I feel that this is the least tenable is that delay in reaching a federal court for a state prisoner or for any citizen has relevance only in so far as there is no adequate state court remedy.
William H. Rehnquist: Mrs. Cohen, is this a question that should be decided by this Court just on the basis of competing policy considerations or it is basically statutory inquiry as to what congress has provide?
Lillian Zeisel Cohen: Well, I commenced my argument with the reading from the statute of sections that I am sure this bench is very familiar with. I think that initially, the proper classification of this case is determined by statute. In this case, you have a habeas corpus statute. The essence of that statute is custody and its custody in the context of a state court judgment of conviction and the sentence which follows. Therefore, I think that the jumping of point for any consideration of where state prisoner claim should be presented is the habeas corpus statute. Of course --
William H. Rehnquist: Even with a state prisoner isn’t attacking the judgment under which he is concluded?
Lillian Zeisel Cohen: Yes, I think that based upon the decisions of this Court, we have passed the point where conceptually the habeas corpus statute or legally the habeas corpus statute is devoted simply to a state court judgment of conviction in sentence. I think this Court made that clear as I said in Wilwording against Swenson in the context of Eighth Amendment claims it did so on the context of Johnson against Avery which raised the question about the constitutionality of the -- a state prison regulation. And as I say, I don’t believe that respondents really denied the appropriateness of this classification that if you -- they don’t claim that these cases are not properly habeas corpus. I suppose if you ask them which category they would prefer to the end, they would say that if they have to really choose one of the other -- their choice would lie with the Civil Rights Act, but that simply because the decisions of this Court today are that the exhaustion of state judicial remedies would not be required.
Speaker: Also, but also damages?
Lillian Zeisel Cohen: Well, in the beginning, I would point out that the cases before this Court do not raise damage claims.
Speaker: Well, I understand that, but if you had the choice to make and you want to -- you would like to retain your -- what other possibility there is to get damages?
Lillian Zeisel Cohen: Well, the position that taken by the State is not precluded damage action by the inmate.
Speaker: Under what?
Lillian Zeisel Cohen: The Civil Rights Act, habeas corpus is not a remedy for damage action and we are not arguing that. I don’t --
Speaker: Now, but you would you say that there had to be exhaustion of state remedies first or not on the damage question?
Lillian Zeisel Cohen: Not on the pure damage question and we did not argue that in our initial brief when we set forth the way in which we believe the damages could be handled.
Speaker: So, this is really -- so this isn’t -- the state’s position is that this is really in some respect to both its proper under both procedures?
Lillian Zeisel Cohen: Yes, but in one situation, what we are saying is that it’s the claim that in the nature of equitable claims which should be properly treated under the habeas corpus statute because of the custody considerations and because of other policy considerations as well. The pure damage action will commend in Civil Rights Act.
Speaker: As I understand -- do I misunderstand you when I understand this that your claim is that first of all it’s limited to cases involving prisoners in state custody. And secondly, that when the complaint is either of the custody of itself or of the conditions of the custody and when the -- and in so far as the relief is either release or correction of the conditions of those custodies, then habeas corpus is and must should be an exclusive remedy?
Lillian Zeisel Cohen: That’s a perfect summary of the position which we adopt and which is consistent with the decisions of this Court. This Court has made it clear that habeas corpus law is exactly for this kind of claim. Now, --
Speaker: And that questions of damages are -- can properly be left to the civil action [Voice Overlap].
Lillian Zeisel Cohen: That they can and not only that but the damages --
Speaker: And if they’re not appropriate in habeas corpus?
Lillian Zeisel Cohen: That’s right.
Speaker: Not kind of a relief that the habeas corpus petition can deal.
Lillian Zeisel Cohen: That’s why I believe that what we are asking the Court to hold in these cases is not always revolutionary as counsel for respondents would suggest. But also important given the nature of prison rights litigation is the fact that damages really play a very small part in prison rights litigation.
Speaker: Well, let me see then Mrs. Cohen, I gather am I right in my history the extension of habeas corpus to state prisoners came in about 1867, did it not?
Lillian Zeisel Cohen: Yes.
Speaker: And the predecessor of the 1983 which was what, old Section 1 of the old Ku Klux Klan likely?
Lillian Zeisel Cohen: Yes, that was about 1871, I think yes.
Speaker: Was that about 1870-1871. Is there anything in the legislative history of either to indicate that Congress -- that’s we’re dealing with two federal statutes, that Congress meant that the prisoner should have to take one and couldn’t go the other --
Lillian Zeisel Cohen: There is absolutely nothing in history of either statute to indicate that either statute was intended to reach these claims at all.
Speaker: Well, and then what basis do you suggest that we should say in the state prisoner that Congress said, that you have to go to a federal habeas in a situation, now, that you can’t and quote the remedy of 1983?
Lillian Zeisel Cohen: I don’t think -- I am not asking this Court to say that Congress said that the state prisoner should go to the habeas corpus statute. What I believe is that Congress did not create the situation, which exists right now. There is nothing in the history to show that either of these statutes should reach these prison rights claims. The fact is that it’s only within the last ten years that these claims are considered --
Speaker: Well then in what places are you suggesting that we should say to the state prisoner?
Lillian Zeisel Cohen: Because --
Speaker: We have Congress’ variety with two remedies but you must take the federal habeas, you may not invoke the 1983?
Lillian Zeisel Cohen: To begin with, it’s on the basis of decisions by this Court that both of these remedies have been held applicable to these claims. So, for that reason, I suggest that it lies with this Court to remedy the situation that is created. I would also point out that there is nothing in either of these statutes to preclude the consideration of challenges to conviction in sentence under the Civil Rights Act and yet I don’t think anyone would suggest that seriously nor with this Court consider seriously that the Civil Rights Act was available to challenge your custody in so far as your conviction may have [Voice Overlap] obtain.
Warren E. Burger: You want to limit 1983 to damage claims [Voice Overlap]. Do you think it should be?
Lillian Zeisel Cohen: For prisoners, for state prisoners, yes because I think that the state prisoner can get the kind of relief that he needs and he can get a justice sufficiently if not more efficiently given the nature of the habeas corpus remedy --
Potter Stewart: Well for state prisoner who’s the gravamen of whose complaint is the custody or the conditions of the custody?
Lillian Zeisel Cohen: Yes and necessarily --
Potter Stewart: You wouldn’t limit it to -- you wouldn’t say they can’t bring the civil right suits and other context just because they’re prisoners?
Lillian Zeisel Cohen: No, I have to vote -- as I express the question initially I am saying that in the context of claims that relate to the legality of their custody.
Potter Stewart: Right or --
Lillian Zeisel Cohen: Or the incidence of their custody in any context.
Potter Stewart: Right.
Lillian Zeisel Cohen: And as I say, you are not depriving the inmate of anything by saying that he is restricted to what is really the appropriate statute. The argument that’s relied upon by respondent as I indicated before is the alleged delay in reaching the federal form. But, given adequate state remedies, the delay is not a source of prejudice to the inmate. In the case where you have --
Potter Stewart: But of course if they are not adequate he doesn’t need to exhaust him?
Lillian Zeisel Cohen: Not at all, exactly. That’s exactly the standard for the operation of Section 2254. For example in Wilwording against Swenson in this Court held that Missouri provided no remedies to state prisoners for the presentation of this type of claim. Presumably, if since the Wilwording decision, Missouri has not created any new remedies or any remedies at all. Every state prisoner in Missouri could come directly to a federal court and present his claims by way of habeas corpus. There is not a question of any delay. On the other hand, whereas you have state like New York which has remedies, we believe that the interest of a state and its responsibility for these cases require that the application of the Section 2254 requirement apply. You have --
Potter Stewart: Administrative remedies?
Lillian Zeisel Cohen: I am referring to both remedies here.
Potter Stewart: Well, does he have to pursue if their alternative, does he have to pursue both?
Lillian Zeisel Cohen: Well, administrative remedies would not apply in every situation in any event. I think that if you had a situation where an inmate was challenging the constitutionality of a regulation, you would not --
Potter Stewart: He’d go to a court?
Lillian Zeisel Cohen: He would go directly to a court because it would not lie within the power of the administrator to review it. So, in that context, the administrative exhaustion would not result in any delay either. On the other hand, if he is going to be suing the Department of Correction on the ground that a regulation was improperly applied to him, it seems to me that the claim is not right until the Department of Correction has taken some action with respect to it. Now, --
Potter Stewart: I will and that would then involve in exhaustion of the administrative process including judicial state -- judicial review if any?
Lillian Zeisel Cohen: That’s right.
Thurgood Marshall: So, that if he is complaining about problems in the prison, he had to go for habeas corpus?
Lillian Zeisel Cohen: Exactly, well, that’s the remedy this Court is already recognized as applicable to this case.
Thurgood Marshall: So that if he served life imprisonment and he has complained about the fact that they hit him over the head with a club, his relief is to be released?
Lillian Zeisel Cohen: Oh no, because the one thing that the decisions of this Court have made clear in expanding the custody concept for the habeas corpus statute is that release is not the sole relief that can be granted under the habeas corpus statute. The habeas corpus statute says, “The court shall deal with the situation as law and justice require.” And that means that he would be relieved to the illegal restraint under this remedy. He need not be release from physical confinement, it’s in the statute.
Thurgood Marshall: -- if the prison has the standard rule and all the prisons of New York that redhead people shall not eat, habeas corpus?
Lillian Zeisel Cohen: Yes, because this is an incident of custody and in this case what you have is a restraint that goes beyond the legal limits of the sentence that have been imposed by state court.
Thurgood Marshall: You don’t think the Civil Rights Act will reach that one.
Lillian Zeisel Cohen: The Civil Rights Act could not reach unless there was a basis for it a tenable damage claim in which case the inmate could come to the federal court to [Voice Overlap].
Thurgood Marshall: Well, 1983 is limited to damages.
Lillian Zeisel Cohen: No, it’s not. On the other hand --
Thurgood Marshall: It’s also equitable.
Lillian Zeisel Cohen: On the other hand, you are dealing with a situation --
Thurgood Marshall: And he wouldn’t have a right to get an injunction to say, follow the Constitution and stop violating that?
Lillian Zeisel Cohen: The -- well, the view we take is that habeas corpus is actually a better remedy than the injunctive proceeding because presumably the inmate would come in and seek a preliminary injunction under the Civil Rights Act so that he would get his food. But, the habeas corpus statute would provide him with just as expeditious review and it would give him a final determination expeditiously.
Thurgood Marshall: They were providing the food?
Lillian Zeisel Cohen: Oh yes! Because the statute --
Thurgood Marshall: As soon as he filed it?
Lillian Zeisel Cohen: Excuse me?
Thurgood Marshall: As soon as he filed this habeas corpus, he would get his food?
Lillian Zeisel Cohen: Well, there is -- it depends why are you talking his -- about filing his habeas corpus. For example in New York, New York has an injunctive remedy. If this inmate who is not getting his food in New York went into court, under the injunctive remedy specifically applicable to constitutional claims raised by state prisoners, he could get his injunctive relief right under that statute. It’s designed to reach that kind of claim.
Thurgood Marshall: The state statute?
Lillian Zeisel Cohen: Yes, and that’s --
Thurgood Marshall: Which I am not and restate here. Is there any action in habeas corpus that similar to TRO?
Lillian Zeisel Cohen: Well, my point is that there is no need for it.
Thurgood Marshall: Is there?
Lillian Zeisel Cohen: No.
Thurgood Marshall: And there’s nothing like a preliminary habeas corpus, isn’t it?
Lillian Zeisel Cohen: No, there’s a final habeas corpus.
Thurgood Marshall: So if you want some immediate relief, how can you get it in habeas corpus as swiftly as you can by temporary restraining order?
Lillian Zeisel Cohen: Because when he comes into federal court on a habeas corpus petition, the statute -- the habeas corpus statute requires that that application be expeditiously decided. Unlike the Civil Rights Act where there is no legal injunctions in the statute that the action has to be specifically decided.
Speaker: But typically, if your petition is that before coming to the habeas corpus court, they must go to the state court?
Lillian Zeisel Cohen: But that only assumes that state remedies are inadequate and what I’ve been referring to now is an injunction proceeding that’s available by statutes specifically to this type of claim.
Speaker: In the state court?
Lillian Zeisel Cohen: Yes, it is. It was enacted as a matter --
Speaker: And it would be a habeas corpus in there, it would or already taken to kind it would be a specific equitable action provided for by the state law?
Lillian Zeisel Cohen: But provided for a state law enacted.
Speaker: Except that he could -- he’d have to first to exhaust that’s what you told us in the state of administrative remedies?
Lillian Zeisel Cohen: Well, he would have to and but in that respect it wouldn’t be any different than if he were a federal prisoner before he can come in to a court, any court or federal court and seek and any relief from his confinement must pursue his administrative remedies.
Speaker: But what about of the 1983 suit?
Lillian Zeisel Cohen: He can’t come in under 1983 because if he is suing a federal administrator if there is no state action.
Speaker: Let’s assume -- let’s assume it were a 1983 suit against State, you don’t have to exhaust the administrative remedies.
Lillian Zeisel Cohen: Yes, we are saying that if there are administrative remedies available, that the inmate who was being deprived of food. Suppose you have a situation of a very vindictive warden as Mr. Justice Marshall suggested that he will give food to redheads. There’s nothing to prevent the correction of that by the Commissioner of the Department of Correction upon an appropriate appeal. The case meant never reach a federal court based upon that assumption. But in any event and as I say, if this were a federal prisoner who had the same grievance against his warden, he would have to pursue that remedy before he could come to a federal court for an injunctive relief and that is a disparity which respondents have never answered except to say that Section 1983 doesn’t apply to the federal prisoner. Why is it so much more onerous for a state prisoner to have to exhaust available administrative remedies which really go to the rightness of the claim? And that is --
Thurgood Marshall: But if decided that they don’t have to do it in 1983.
Lillian Zeisel Cohen: Well, that’s what I am asking this Court to reconsider in this case because to the extent that 1983 has been extended to state prisoners for purposes of equitable relief. That seems to me that that’s an inappropriate extension and that it should be withdrawing. Now, the respondents cite figures that our contention --
Thurgood Marshall: And your reason is?
Lillian Zeisel Cohen: That habeas corpus is the appropriate statute. It deals with custody and it deals with state prisoner’s custody.
Thurgood Marshall: So, that the state prisoner whatever happens to him is so relief in the federal court by habeas corpus?
Lillian Zeisel Cohen: That’s right and you’re not depriving him of anything, you are giving him an expeditious remedy. A remedy which I think we have demonstrated works more quickly for him in terms of getting him relief and places less of a burden on the [voice overlap] --
Thurgood Marshall: How is it more -- how does it quicker than a preliminary injunction?
Lillian Zeisel Cohen: Well, the preliminary injunction, one disadvantage that I see --
Thurgood Marshall: You have preliminary injunction in three days?
Lillian Zeisel Cohen: But that assumes a sophistication on the part of the inmate to seek a preliminary injunction based upon my experience if I may refer to that. I have yet to see a pro se application for preliminary injunction. They initially will follow, there maybe in cases where counsel is representing the petitioner. But in pro se cases, they will file a civil rights complaint. They will ask for their relief. It will be treated the way any other civil complaint is treated.
Thurgood Marshall: Now take my case here, the finest criminal lawyer in the world?
Lillian Zeisel Cohen: The disadvantage that I see is that you get bifurcated decision. If you do this under the Civil Rights Act, you go and then you get a preliminary injunction under the Civil Rights Act and then --
Thurgood Marshall: And then he eat? And he’s got to eat?
Lillian Zeisel Cohen: Yes, and then you have to get it in underlying a final determination as to whether or not this validity to the claim.
Thurgood Marshall: But the meantime, he is eating?
Lillian Zeisel Cohen: He is eating.
Thurgood Marshall: And if he goes the other way, he won’t be --
Lillian Zeisel Cohen: No, my point is --
Thurgood Marshall: -- until the habeas corpus is decided.
Lillian Zeisel Cohen: But there is not reason why habeas corpus can’t result in the speedy decision and in fact I think it does. Given the emergency situation which [Voice Overlap].
Thurgood Marshall: How much time do you have to reply to the habeas corpus petitions?
Lillian Zeisel Cohen: Twenty days, but I will say --
Thurgood Marshall: That’s 20 days of not eating?
Lillian Zeisel Cohen: No --
Thurgood Marshall: Right? Right?
Lillian Zeisel Cohen: -- now habeas corpus is an emergency remedy that’ the concept that [Voice Overlap].
Thurgood Marshall: All I know it says it takes precedence and I also notice that the dockets in our precedence in some court means that you get one year instead four.
Lillian Zeisel Cohen: As a practical matter, these are civil rights actions and these are extensively the actions before this Court now where emergency actions too and yet there was no decision in these cases for and one of these case for 10 months with passed by a long shot the time in which the man involved plaintiff is entitled to be release. So, that’s not so clear that under the Civil Rights Act is going to be a more expeditious remedy.
Thurgood Marshall: I would think that there was a possibility that you could get a preliminary injunction sooner than you could get a final decision in any case?
Lillian Zeisel Cohen: Suppose we were to take the preliminary injunction hypothetical in the context of good time basis.
Thurgood Marshall: Well, when I take a TRO while you have it?
Lillian Zeisel Cohen: A temporary restraining order, yes.
Thurgood Marshall: Which can be given in three seconds.
Lillian Zeisel Cohen: There’s nothing to preclude the operation of the habeas corpus statute in that way. There is nothing that says that the judge has to wait for a response from the State and in fact in upstate New York, typically that state is not putting any opposition in these cases. They are decided right off the cuff by the judge to whom the petition is proceeded.
Thurgood Marshall: Well, I can’t put my thinking on what happens in upstate New York or upstate (Inaudible) talking about the general difference between habeas corpus and temporary restraint orders and preliminary injunctions. And I know you can get a TRO without any notice in not in (Inaudible). And I’ve never heard of writ of habeas corpus being issued without giving the other side an opportunity to open its mouth.
Lillian Zeisel Cohen: And based upon the experience that I have seen in my office and virtually every habeas corpus application upstate and probably the reason we windup with so many appeals in the Second Circuit is the fact that we never put in a response upstate. Those judges get the petitions and they decide them without any response from the state. So, there is no uniform [voice overlap].
Thurgood Marshall: And has soon do they decide?
Lillian Zeisel Cohen: Well, the very study that was cited --
Thurgood Marshall: I think we are so far out of the record in this case, I don’t mind going that one step further.
Lillian Zeisel Cohen: I don’t have specific figures except that the study that cited by respondent indicates that in some cases the averages of four months but that doesn’t mean that it can’t be sooner and it doesn’t mean that it can be later. The average in the ordinary civil rights action has no comparison, it’s much slower. The reason that petitioners are urging this Court to hold that an exhaustion requirement is applicable is because it is -- it places the responsibility with the state which is where I belong. It’s the state court which placed these people in custody. It’s the state which should decide the limits and the incidence of the sentences it imposes. The good-conduct-cases are perfect example of this because as we heard in the prior case considered by this Court today, things like good time parole eligibility, all enter into the sentencing process. There is a direct relationship there between sentences has imposed by state court and how sentence is carried out. It’s in that situation that we think that the state court have the responsibility to decide on these cases first. Another example, our case is involving the place of confinement where a man is claiming that, “I should not be in a state prison, I should be in a hospital or I should be in the narcotics addiction control center.” Here, you are talking about the very justification for sentence and you are talking about something where the responsibility lies with the state courts which impose these sentences. And similarly, the reason -- another reason for requiring this is that the state is regulating virtually every aspect of the inmate’s confinement. Unlike, any comparable situation for the ordinary citizen you have the state, a situation where virtually every action which is taken with respect to the inmate is state action and lends itself to litigation. If there is no exhaustion requirement, it seems to me that the federal courts are going to have to bear the burden of these cases and there are going to have to become involved in this very complex regulatory scheme. The need to have some guidelines for considering these cases, I think was expressed with great urgency by the court below. And I think that they are asking this Court for guidance and we believe that the answer to their problem lies in the habeas corpus statute not with Congress, but with the statute which is already on the books and which is applicable and that cases challenging conditions of confinement no less than cases challenging conviction share a common denominator which is custody and that they belong under the habeas corpus statute.
Warren E. Burger: Thank you Mrs. Cohen. Mr. Schwartz.
Herman Schwartz: Mr. Chief Justice and may it please the Court. I should first like if I may to take a minute or two, to give some of the facts underlying these cases. Because although the only issue before this Court is the jurisdictional issue, the only issue on which cert was granted. The lower court, the Court of Appeals and its en banc decision affirmed all three cases on the merits. And the merits were argued in several bound. But the first two cases, Kritsky and Rodriguez involved very serious disciplinary due process issues in which men were denied good time on cases which the District Court and affirmed by the Circuit Court found were grossly deficient procedures. Mr. Katzoff who received relief very quickly by the way was punished with 60 days good time loss and 60 days in a solitary confinement for writing two mildly with derogatory comments, “creep and cigar-smoking S. O. B.” in diaries which he did not circulate and which as the Court of Appeals and District Court found every institution in which he had been permitted him to keep. Those are the merits, now, and each of those three cases, the Circuit Court affirmed on the merits after discussion and consideration of both. Now, what the State is asking in this case is really very simple. It is asking the Court to repudiate a long line of well-established principles most reasonably reaffirmed last term in two cases in Wilwording and in the footnote in Humphrey and Cady footnote 18, to the effect that a state prisoner can challenged the conditions of confinement under 1983. We are not urging this Court to reclassify every case of 1983. We do not deny that habeas corpus may be available, this Court set so last term and that’s not the issue in this case. The issue in this case is whether every habeas corpus case shall every prisoner’s rights case, every 1983 case shall be carved out of the jurisdiction of 1983 and construe not the way this Court, not the way untold the lower court have construed this namely as 1983 cases. But you can construe them as habeas corpus cases requiring an exhaustion requirement. And we say as Mr. Justice Brennan pointed out, the statute was enacted in 1871. It was obviously no thought at that time, I am quite sure to deal with prisoner’s cases. They obviously were dealing with problems of friction between federal and state courts as it was pointed in Mitchum and Foster quite clearly. And it was very clear that they gave a federal form and what was then and almost revolutionary change in the federal jurisdiction. A federal forth of federal rights and without having to go all the way through the state system and in 1961, in Monroe and Pape and in every case since then including three prisoner cases Houghton and Shafer, Wilwording and Humphrey and Cady which raised the related problems about the proper place of confinement for someone committed under the -- was Wisconsin Sexually Deviant Act and every one of these case, this Court has said flatly there is no requirement of exhaustion of either administrative or judicial remedies.
William H. Rehnquist: Mr. Schwartz, do you think in the 1983 action would lie to challenge a judgment under which a man was being held to state court judgment depends on constitutional?
Herman Schwartz: No, Your Honor, that’s very clearly habeas corpus position not because of the nature of the classification, but because of the policy involved in the exhaustion doctrine. The policy in the exhaustion doctrine is very clear, it’s to avoid friction between the judgment of a state court which it has entered or which has its holding somebody in custody and the judgment of a federal court. That was the basis to correct Ex parte Royal and that’s what involved and that’s why several court have said that when an attempt was made to challenge a conviction under 1983, that was really in attempt to evade and we would say, we quite agree. An attempt to evade simply should not be permitted because then it’s time to evade the exhaustion requirement. But what we are dealing with here and this is the essence of it. We are dealing with administrative action which of course in a variety of settings with the variety of consequences and with the variety of remedies. The question about damages was absolutely on point in terms of what’s at stake here because these are damage actions as well as equitable actions. It depends on whether the thing is monetary, but whatever benefits are sought to be gained from an exhaustion requirement would immediately be defeated by that and not because it’s a question of evading it but because according to the state’s own argument both remedies are available, always both forms are available and every 1983, every challenge to conditions can obviously be a challenge for monetary damages. The fact is that the state in its brief go somewhat far did they went in oral argument because what they said is if there is a damage claim, one has to go in to the state court to get the merits decided and then into federal court to get damages. Now, the claim is like this is habeas corpus because it’s custody.
Speaker: But I take it, even if that was so if the state court determination were adverse to the claim and than to be res judicata, the 1983 wouldn’t?
Herman Schwartz: Yes, it would Your Honor. I take it that’s the clear implication. I can’t see any reason why wouldn’t be.
William H. Rehnquist: I don’t understand that that’s the state’s contention that in short exhaustion of state remedies is necessary before of 1983 [Voice Overlap].
Herman Schwartz: Your Honor on page 40 in their brief they say, on the contrary if an inmate obtains relief from the state courts by demonstrating a violation of the constitutional right --
Potter Stewart: If he does?
Herman Schwartz: Yes, but there is no --
Potter Stewart: Let’s say he has to go to the state courts, quite a different point.
Herman Schwartz: I am sorry Your Honor.
Potter Stewart: Quite a different point?
Herman Schwartz: Well, if the exhaustion philosophy that they are urging --
Potter Stewart: That’s the whole point, they can see that their need not be exhaustion before civil rights action is brought. That’s the whole point of the argument.
Herman Schwartz: Well, if that’s the case then the entire policy of what they are urging which is the burden on the courts, friction, all of the rest goes out the window and there is no point to it at all. After all classifications whether or not one is going to carve out an exception and again I would say Your Honors that the statute gives the right to a state prisoner under 1983. They are going to carve out an exception and the exception is in order to avoid federal state friction, in order to somehow avoid the burdens on these courts.
William H. Rehnquist: But you said the statute gives the right to the prisoner under 1983, if you read 1983 literally without regard to the habeas corpus provision, you could use it to challenge the state judgment of conviction, couldn’t you?
Herman Schwartz: That’s quite true Your Honor and it’s at that point that the fundamental policy involved in Ex parte Royal comes into the picture such a policy does not apply here. What we are dealing with is administrative action. After all in 1948 when Judge Parker try to get the habeas corpus statute amended a more -- the problem that he raised was that of a federal district judge sitting in judgment on the Supreme Court of the State. What the State is urging would produce precisely that because it would require that there be a state recourse, state judicial remedies in fact they go further. They make prisoners do a double job contrary to what this Court said in Wilwording that state prisoners are not held to a higher standard. They would make it doubly higher. First, the administrative jump which is difficult to see it from their argument as to habeas corpus and then the judicial job. And what would then happen is that a Federal District Court would be sitting in judgment on a state Supreme Court’s ruling on whether or not there was a violation of the federal constitution. Now that, will -- if anything exacerbate the federal state relations because that’s precisely the kind of problem that some of the movements for amendment of the habeas corpus act produced --
Warren E. Burger: You mean the state courts should rather be bypass complete than the second guessed, is that your argument?
Herman Schwartz: Well, we are dealing with state administrative of action here and most of the state courts have frankly said that because many of the state courts still retain the hands off doctrine. And many of the state courts still say that this is a matter for the executive and Your Honors, prisons are really not that unique. The same argument --
Byron R. White: Well, you don’t deny that these prisoners wouldn’t have remedy in the state court rule?
Herman Schwartz: They -- it depends on the particular state. In New York they would have --
Byron R. White: Well, why talk about New York?
Herman Schwartz: They would have an action for equitable relief under Section 79 (c). Yes of the New York Civil Rights so --
Byron R. White: Well, so that what they argue is of the New York laws to [voice overlap] -- and court, do you think the New York courts refer to be bypassed (Inaudible)?
Herman Schwartz: It’s hard for me to answer what a whole group of courts would prefer to do a whole group of individuals -
Byron R. White: As representative of the State would merely say the State would prefer to be bypassed?
Herman Schwartz: I would take it then they would not prefer to be bypassed. I would take the Attorney General’s representation on that, but of course the whole premise of the Civil Rights Act as clearly laid out in Monroe and Pape and Mitchum and Foster is that when we are dealing with the federal rights assuror has the right to a federal form and he has the right without exhaustion and cases are legion to that effect just last year on the administrative issue in --
Byron R. White: Still can – we still believe that the 1983 statute must be accommodated in the federal habeas corpus statute and when you do get into the area of counting a judgment at least then you [Voice Overlap].
Herman Schwartz: Yes, that’s right.
Byron R. White: At least then you make the 1983 although literally on its face reads on this situation.
Herman Schwartz: Yes.
Byron R. White: It nevertheless does not cover?
Herman Schwartz: That’s right Your Honor and that’s include --
Byron R. White: And you could also say, I suppose that if you are not challenging a judgment but you are claiming release from custody for failure to give good time or what, would you --?
Herman Schwartz: No, no, on the good time --
Byron R. White: Do you say it’s a 1983?
Herman Schwartz: Yes, Your Honor because the good time factor is clearly fortuitous because to make the issue turn or whether or not good time is involved makes it turn on whether the action of the state that’s challenged involves the sanction, involving the rules of good time and that --
Byron R. White: Historically, federal agent purpose would reach something even before judgment?
Herman Schwartz: Yes, initially it was available --
William H. Rehnquist: [Voice Overlap] historically it would reach something only before judgment?
Herman Schwartz: That’s right but essential what we are dealing with is still action by a state court. That’s the problem of the friction, that’s what gave rise to Ex Parte Rom -- Ex Parte Royal deals with the prejudgment situation. It deals with the lawyer who is confined before the trial, but and in so far as we are dealing with review of state court action as the state court accrue the exhaustion doctrine applied. But if we are dealing with good time, a simple hypothetical will illustrate it. Suppose the state has a rule that prohibits black and white prisoners from mingling together and two such prisoners, two white prisoners or black prisoners do. One man is deprived of good time and the other man will say, loses a good job and those things happen all the time. The first man challenging exactly the same conduct, we’ll have to exhaust and go through the entire state system. The second man will not if one makes to turn a good time and if somebody else chooses to sue damages for this kind of thing, again the very same state interest, the very same state action simply puts a different remedy he will then have to go in and sue -- he will then be permitted to --
Byron R. White: Am I understanding now that you are arguing a habeas corpus would not be available?
Herman Schwartz: Habeas corpus -- well, this Court has said that habeas corpus lies to challenge the conditions of confinement as well.
Byron R. White: Are you saying there is a choice between habeas corpus and [Voice Overlap] is that --
Herman Schwartz: I am saying that this Court said precisely that.
Byron R. White: What’s your position?
Herman Schwartz: My position is that this case raises the question of whether 1983 is available. If I had to choose, I probably would say, these were essentially challenges to administrative action, official state action. Therefore, 1983 would be more appropriate. On the other hand --
Byron R. White: Exclusive?
Herman Schwartz: If I well, that’s a choice if you are forcing me say that it be, if you are asking me to say the choices are either an exclusive 1983 or habeas corpus then clearly I choose an exclusive 1983. Because that’s precisely what the 1871 statute was established for.
Speaker: But you also I gather, don’t you imply that a view that if maybe that both remedies are available and it up to the prisoner to choose which?
Herman Schwartz: I am saying that that’s what this Court has said, that’s precisely what in the Wilwording -- part two of the Wilwording decision opens precisely with that line. Part two says, moreover although cognizable in federal habeas corpus see Johnson and Avery, petitioners pleading may also be read to plea cause of action in the Civil Rights Act. And I am saying that this Court has given them that right. This case does not raise that issue of whether he has a habeas corpus right, in this case, what --
Speaker: You mean to agree with the state here, are you suggesting we have to overrule Wilwording?
Herman Schwartz: Absolutely.
Speaker: Or just a valid at least to that sentence?
Herman Schwartz: Absolutely, not only that, but you would have to move directly backward from what you did and what courts have done in Wilwording and another cases. What courts have done frequently is to say that we will construe the habeas corpus as 1983, what the State to say construe 1983 as habeas corpus. Now, there are claims that the federal courts were being overburdened and that is obviously a very appealing and important argument. If the federal court is overburdened with one kind of case, it means justice is denied to every one. But the problem with argument is first of all the 1871 statute or any statute has never been construed to allow a carve out because of that problem. Secondly, the whole question of burden is something that we agree we don’t know. The statistics in the ABA brief and as you know the ABA filed an amicus brief in support of the respondent’s position. The ABA points out that some like 3.4% of the civil cases are prisoner’s Civil Rights Act cases. The statistic show that takes up very little time, well, be that as it may the fact is that these complicated questions of burdensomeness of appropriate remedy or appropriately for Congress. These involves studies, they are about studies of what is a proper alternative in some cases as the ABA points out properly, the Congress has decided to introduce an exhaustion requirement such as with, you would say utility regulation. In other cases, there maybe many other devices to handle these problems, but certainly as we discovered in the mid 60’s in connection with habeas corpus, the burden was not what it seemed and over time it even doubt and flattened out and that would be true here as well. The most -- in some ways the most interesting aspect of the state’s argument is the request for an exhaustion of administrative remedies. If this is habeas corpus, where does that come from? What this Court is really asking what the stage is really asking this Court to do, is to overrule the long line of decisions in 1983 cases and the line of recent prisoner decisions in 1983 where the exact same issues were raised. The exact same arguments were presented and dismissed in pre curiam. They are asking this Court to repute. In Houghton-Shafer, the Attorney General of Pennsylvania said, present cases are unique and this will produce multitude in this litigation. This Court rejected that argument unanimously and pre curiam. In McNeese, the Attorney General argued that education is unique and therefore we have to have special exhaustion requirements this Court rejected. Now, I think I have probably said enough to respond to most of the points that seem to me to be worth mentioning on this. I would say only with respect to one other thing and that’s this. Our prisons today are in a mess. Nobody has made that point more clear than the Chief Justice and the President. And there are signs of change and those signs of change as Maurice Sigler, Chairman of the Federal Parole Board said, are in part of result of the action of the federal courts doing what the 1871 Act said they should do. And, that is to make the constitutional apply to areas where the States are not fulfilling constitutional mandate. For this Court now to repudiate this long line of cases, let’s say 1983 is not available is to say to the prisoner not merely that you are second class citizen which all society says anyway. But to say to him that you are second class with respect to access to federal courts and with respect to federal rights. And it seems to me that that would be a devastating thing to say at this time in our history when they are beginning of signs for some improvement and this is change. I --
Warren E. Burger: Would you say that the prisoners are second class citizen with respect to access to federal court because he has to exhaust in a habeas corpus challenged to a judgment?
Herman Schwartz: Yes -- no, not to a judgment because who else is there who challenges judgments except prisoners of one kind or another.
Warren E. Burger: Well, who challenges prison regulations besides the prisoners?
Herman Schwartz: Oh! I am talking about the whole range of federal rights and education else whereas it happens, other can challenge regulation except prisoners. I guess their families can, if they are suing for the damages and there was harm to them. But essentially that I quite agree with that in so far as by second class I mean as opposed to other litigants seeking to affirm federal rights. And I would yield the balance of my time unless the Court has questions on this issue.
Byron R. White: Now, today if you -- the 1983 approach would be subject to the normal rules of res judicata, I take it?
Herman Schwartz: Yes, Your Honor, it would be. I see no reason to think that it would not be.
Byron R. White: Well, assume -- assume we agree with you but a prisoner resorts to the state courts first?
Herman Schwartz: Yes.
Byron R. White: And then comes the federal court with the 1983 action.
Herman Schwartz: I would assume that it is res judicata as just as it is with any other litigant --
Speaker: Even if his action in the state court is habeas corpus?
Herman Schwartz: Yes because well, to be perfectly honest I would think that --
Speaker: Well, how did we ever get to that contrary position in part to Wilwording?
Herman Schwartz: Well, the issue in Wilwording on that particular issue was that there were some question as -- I am sorry are you talking between the state habeas and the federal?
Speaker: Well, under your position that if you brought a state habeas corpus action first?
Herman Schwartz: Yes.
Speaker: And then when turned down then you purport to bring a 1983 action the federal courts res judicata?
Herman Schwartz: Yes, except he was dismissed on jurisdictional grounds in the state court. Missouri said that there was no remedy that was available or this isn’t the right remedy and I would think res judicata would never apply on that context.
Speaker: Yes.
Herman Schwartz: Missouri I think, in that case, did not consider the issue on the merits.
Speaker: But if they had?
Herman Schwartz: I think if they had, I think that he suffers the burden of any other litigant which is that if he’s had one day in court, he’s had one day in court assuming that was a full and fair hearing and that there were no infirmities.
Speaker: But if you were purporting to bring a federal habeas corpus action says that should be available as a matter of choice? Then he must if he chose the wrong remedy in the first place in the state court, he should be sent back to get the right whenever it’s available?
Herman Schwartz: Well, that’s a matter of habeas corpus law and [Voice Overlap]
Speaker: Well, I agree with you but isn’t that right?
Herman Schwartz: If it’s an available statute -- yes it’s available remedy yes which would mean of course that his attempt to get his federal right would be prolonged in further in a situation when he may be as Mr. Justice Marshall says not eating.
Lillian Zeisel Cohen: I believe I have --
Warren E. Burger: Mrs. Cohen you have about three minutes left.
Lillian Zeisel Cohen: Okay, that’s fine. There are two points that I would like to reply to. First, contrary to what counsel has suggested, we are not asking this Court to overrule the Wilwording decision. The specific holding of Wilwording is entirely consistent with our position. The claims there were habeas corpus claims, the question was whether or not the exhaustion requirement applied and this Court held that the claims were recognizable as habeas corpus claims and in fact that the exhaustion requirement applied. It is the dictum in Wilwording that we are asking this Court to reconsider and just as a point of interest, I would like to tell the Court that in the Wilwording, on the remand despite the dictum of this Court, the parties and the Court are still considering these cases as habeas corpus petitions because of the res judicata problem. The second point I would like to reply to is the figures that were cited by counsel with regard to the numbers of cases that are being brought in the federal courts right now. The fact is that the figures cited in the American Bar Association Study seem to show a drop in the rate of increase of prisoner’s civil rights actions. And to me that suggests a real -- a substantial reply to the concern of counsel for respondents that these claims are not being reviewed. Prison conditions have not changed overnight, the prison population has not decreased overnight and yet there are less of these claims coming in to the federal courts in the last two years. Then must be being decided some place and it seems to me that what is happening is that in line with the change that has been reflected in recent decisions, it’s not only the federal courts but also of the state courts. You are getting prison conditions corrected by state administrators and or by state courts and I think that’s a response to the exhaustion object that’s being raised today.
Warren E. Burger: Well, Mrs. Cohen, do you think that the numbers of cases is ever relevant to a constitutional question if there is a constitutional question?
Lillian Zeisel Cohen: Not at all. And I don’t believe that in any point in these cases we have argued that the numbers of cases is illegal justification for action. At most, we have suggested that as a consequence of the approach which we suggest, there maybe a reduction in the numbers of cases brought. But that strictly fall out. That’s not a legal argument.
Warren E. Burger: Thank you --
Speaker: Is this a constitutional question we have here?
Lillian Zeisel Cohen: I think very clearly, it has the right -- at yes, I think that the --
Speaker: Or is it a matter, which one of the statues is applicable or both?
Lillian Zeisel Cohen: Well, I think it has to be considered a mixed question because you are talking about constitutional rights and the right to [Voice Overlap].
Speaker: Well, certainly the underlying claims are constitutional claims [Voice Overlap]?
Lillian Zeisel Cohen: And you are talking about the right to present these claims and obtain review and I think that that’s a constitutional question.
William H. Rehnquist: Well, but if neither 1983 nor the habeas corpus statute were on the book, could these prisoners go into the United States District Court and obtain the relief they sought?
Lillian Zeisel Cohen: Only if they were able to meet the $10,000 jurisdictional requirement for general litigants.
Potter Stewart: Well, let’s say there was not that statute either.
Lillian Zeisel Cohen: They wouldn’t have any recourse --
Potter Stewart: No, this is a statutory problem, isn’t it? Not constitutional?
Lillian Zeisel Cohen: Yes.
Speaker: Mrs. Cohen, couldn’t Congress tomorrow amend 1983 to support your position --
Lillian Zeisel Cohen: They could.
Speaker: -- or amend of the Habeas Corpus Act?
Lillian Zeisel Cohen: I don’t see that it has to amend the Habeas Corpus Act.
Speaker: No, no, I know but Congress could change this whole picture.
Lillian Zeisel Cohen: Yes, but as I think I indicated earlier --
Speaker: I don’t see how it’s a constitutional question.
Lillian Zeisel Cohen: Congress has not brought us to the point that we are at, it’s the decisions of this Court that have and I think that that’s what lies with this Court to resolve the problem and give guidance to the fact why federal courts have to handle these cases.
Speaker: Supposedly, they -- our past decisions have proceeded on the basis of that we were even then interpreting the statutes and purporting to apply the congressional will on their own.
Lillian Zeisel Cohen: I think that activity would require a further action by the state in light of the arguments that we’ve made today.
Warren E. Burger: Well, take the other alternative is that we’re construing to alternative statutes so you’re arguing two alternatives statutes.
Lillian Zeisel Cohen: Yes.
Warren E. Burger: Do the numbers of cases become relevant in how we construe the statute?
Lillian Zeisel Cohen: Well, I think what they have done is emphasized the relevance of how the statute should be construed. I say that not to avoid this question.
Warren E. Burger: My question is, may judges take that into account?
Lillian Zeisel Cohen: I don’t think it’s a legal justification, no. No.
Warren E. Burger: Thank you Mrs. Cohen. Thank you Mr. Schwartz. The case is submitted.


Warren E. Burger: Mr. Moyer I think you may now proceed whenever you're ready.
Homer E. Moyer, Jr.: Mr. Chief Justice and may it please the Court. The ultimate question in this case is a very narrow one. It is whether the petitioner can ever be considered for parole. The relief we seek is not his release from prison, only that he'll be given the opportunity to come before the parole court. The facts in this case were simple and undisputed. Maurice Schick, a man of some 52 years of age, has been incarcerated just under 21 years. The terms of his present sentence require that he remain in prison for the rest of his life but no possibility of parole release. In March 1954, he was tried by an army general court-martial convened just outside Tokyo, Japan for the murder of the daughter of an army colonel assigned to that post. Following a six-day trial at which the sole disputed issue was the legal sanity of the accused at the time of the offense. Petitioner was convicted and sentenced to death. Although, at various times during the course of the trial and appellate proceedings, eight prominent civilian psychiatrists concluded that he lacked direct the requisite mental responsibility at the time of the offense. His conviction and sentence were nonetheless approved by all military appellate reviewing authorities. And in 1957, his case was forwarded as it's required by statute to the President for his review.
Warren E. Burger: There was a conflict in the testimony on his capacity, was there not?
Homer E. Moyer, Jr.: That's correct, Mr. Chief Justice. Four army psychiatrists testified that he did not lack the requisite mental responsibility at the time --
Warren E. Burger: And with their four defendants' psychiatrists --
Homer E. Moyer, Jr.: At the time of trial, there were two civilian Japanese psychiatrists. He did not have the opportunity to return to the United States during the course of the appellate proceedings. Opinions were submitted by Dr. Karl Menninger, three other psychiatrists from the Menninger Clinic, the psychiatrist to Saint Elizabeth's, the psychiatrist for the Baltimore court system. All of the civilian psychiatrists prepond that he lack the requisite mental responsibility. In 1960, the President commuted petitioner sentence to life imprisonment unconditioned that he never be considered for parole. At issue here is the validity of that "no-parole provision." We maintain that it is constitutionally invalid on two separate and independently dispositive grounds. First, it is invalid under the retrospective application of Furman against Georgia. And second, it is invalid because in imposing a commuted punishment of life imprisonment with no possibility of parole. The President exceeded his constitutional ground of authority under Article II, Section 2. I should like first to discuss the Furman point which is the narrower ground for decision here. Petitioner and respondents agree on a number of factors that bear on the Furman point. There's first of all the no disagreement, that the sentence of life imprisonment with no possibility of parole could not have been a judge to trial. The only sentencing options for the court-martial were death or life imprisonment without or with the usual parole possibility. Second, there is no disagreement about the inextricable relationship between the death penalty and petitioner's present, "no-parole life sentence." Petitioner could never have become subject to its present sentence, had he not first been sentenced to death. Third, there is no disagreement that Furman against Georgia invalidated the imposition and as well as the carrying out of the dearth penalty. Lower courts implementing Furman have vacated death sentence isn't substituted alternative punishments provided by statute. And finally, there is no disagreement here that Furman against Georgia has been applied retrospectively. Given this undisputed facts, the "no-parole provision" of petitioner sentence is necessarily invalid for it could not now exist but for the prior imposition of the death penalty. Had the death penalty never been imposed petitioner would now be eligible for parole. Moreover, if the Court were to uphold the petitioner's present sentence, it would sanction the following situation. All prisoners sentenced to death but not executed at the time of Furman now are serving sentences of life imprisonment with eligibility of parole. All, except the petitioner and one other prisoner whose situation is identical. Schick, who is singled out for executive clemency, is now serving a more severe sentence than prisoners who have been sentenced to death but not executed and not singled out for executive clemency.
Harry A. Blackmun: I suppose he is still eligible for further executive clemency, is he not Mr. Moyer?
Homer E. Moyer, Jr.: Presumably he could petition regularly for additional executive clemency. A petition was submitted, Mr. Justice Blackmun, in 1968 and denied in early 1969.
William H. Rehnquist: This presumably better off in that class of people, who didn't get or sentenced to death didn't get executive clemency and were executed?
Homer E. Moyer, Jr.: He certainly was not executed. We don't believe that the Government's argument draw as much strength from the fact that the Government was here precluded from carrying out what we now know to be a constitutionally cruel and unusual punishment.
William H. Rehnquist: Do you know that the death penalty --
Homer E. Moyer, Jr.: I'm sorry sir.
William H. Rehnquist: You know that the death penalty is cruel and unusual in the military situations?
Homer E. Moyer, Jr.: Well, the Government has raised that point here. The answer to that is we submit clearly that it is constitutionally cruel and unusual. I shall address that in some detail momentarily.
Harry A. Blackmun: Now that I've interrupted you, as I looked at your brief and your reply brief, I think you didn't cite Warden against Marrero of last term. Thus the Government has relied upon somewhere in your argument, would you touch upon that and let us have the benefit of your comments, when do you get to it?
Homer E. Moyer, Jr.: Warden against Marrero involved primarily, Mr. Justice Blackmun, a statutory question about parole applicability for the petitioner there and the effect of a 1970 statute dealing exclusively with drug traffickers and whether someone who was ineligible for parole under prior statute was -- should be considered eligible for parole subsequent to the 1970 statute. The question we present here or that is involved here is not under our Furman point of statutory question. Our point here is that retrospective application of the constitutional rule of Furman must necessarily invalidate the "no-parole provision." There was in this case, no statutory basis for the "no-parole provision" and that point, I shall elaborate on. The result in this case that the petitioner is serving the most severe sentence of anyone in the Federal Prison System, because he was a subject of executive clemency is simply a pervasive result. The result -- this result is clearly contrary to the purpose and the spirit of executive clemency and we submit under Furman against Georgia cannot be permitted to stand. And then asking the Court to invalidate this provision, we're asking simply that it rule exactly the same way as the Supreme Court of California en banc ruled when it was faced with precisely the same issue. That case is In re Walker and is discussed in our brief. In responding to the Furman point, the Government has abandoned some arguments that are earlier advanced including I might note the argument that the majority of the Court of Appeals below adopted its rationale of decision, namely that death sentence was never imposed in petitioner's case because it had never been ordered executed. Now, the Government's primary defense to the Furman point appears to rest on the contention raised for the first time and its brief under merits that Furman against Georgia does not apply to the military at all. This contention on the factual assertions that rest upon are wholly unsupportable. On our reply brief, we have cited extensive authority which contradicts this new argument and I shall not repeat that case law here. Let me say only in summary that that proposition is directly contradicted by opinions of members of this Court in Furman against Georgia itself which expressly contemplate applicability to the military. It is also inconsistent with precedents of military courts and civilian courts including this Court applying the Eighth Amendment ban on cruel and unusual punishments to the military. But it must be emphasized that the proposition that the Government puts forward here is fundamentally inconsistent with the entire pattern of development of military law since the enactment of the Uniform Code of Military Justice in 1950 because that pattern of growth which has been shaped by civilian court opinions, military court opinions, and by congressional enactments has consistently minimized the differences between military and civilian criminal procedures. Now, the Government offers two factual justifications, why Furman should not apply to the military. It should first be observed that whether or not these are true, these assertions would not serve to override contrary Bank of Preston cited in our brief. Moreover, by seeking a factual evaluation, the Government asks this Court to open the door to jurisdiction by jurisdiction review of the applicability of the Furman rationale to the particular experience of a given jurisdiction. But most important, the factual assertions that the Government seeks to rest its argument on are demonstrably false. The Government argues first that military discipline and special military circumstances require the use of the death penalty. Restated this argument is that military discipline is dependent upon capital punishment or more precisely dependent up on constitutionally cruel and unusual punishments. This is simply the baseless. The short answer is provided by the military itself or the death penalty and the military has fallen into destitude. It is simply not used. When it has been used by the military, it has been used not to further disciplinary purposes but the punish servicemen for committing civilian type offenses. The fact that the United States Marine Corps has gone for more than a century and a quarter without so much as it judging the death penalty at trial is itself conclusive evidence that the Government's claim is simply unsupportable. The Government also argues that the military appellate structure assures that the use of the death penalty in the military will not be random or discriminatory. This is first of all precisely the type of argument that this Court refused to hear in the petitions for rehearing submitted by the States of Pennsylvania and Georgia. Secondly, this is demonstrably untrue. We address this point at some length in our brief and I shall not repeat that. Let me say only, that we know that the use of the death penalty in the military is random in the extremes. We know that it is used so and frequently that it cannot possibly serve any legislative or social purpose. We know that it is discriminatory among the services for it's confined almost exclusively to the Army. We know that this impact is racially discriminatory of the eight servicemen executed since 1950, whose race we know, all were black. And furthermore, we know rather dramatically that in the military, the use of the death penalty does not necessarily correlate with the severity of the crime. By no stretch of the imagination can it be asserted with the use of the death penalty in the military is less discriminatory or less random or less irrational. There is in short no basis whatever for the factual assertions. The Government puts forward and on the basis of which the Government will have this Court override a substantial bank of contrary precedence. Our second point, in the broader constitutional point is that imposing the sentence of life imprisonment with no possibility of parole. The President exceeded his constitutional ground of authority under Article II, Section 2. I would like in this connection to begin by noting what is not in dispute on this point. It is undisputed first, that the President possesses the constitutional power to commute sentences. It is secondly undisputed that he possess is absolute discretion in deciding when to exercise that constitutional power. But it is also undisputed that there are some limits to that constitutional power. There are admittedly some lesser punishments that the President cannot substitute in the act of commutation.
Harry A. Blackmun: Was any objection made at the time of the commutation?
Homer E. Moyer, Jr.: No, Mr. Justice Blackmun. The consent or the acceptance of the petitioner was not requested and he, of course, was a man who was facing execution and was offered some form of executive clemency and was not in a very strong bargaining position. The narrow issue here is what types of lesser punishments may be substituted by the President. What are the limits to the constitutional power to commute the sentences?
Warren E. Burger: On your theory Mr. Moyer, if a military -- if a man in military were sentenced to, let us say, 30 years and that was commuted down to 20 or 10 on condition of no-parole, that would be equally unconstitutional, I take it.
Homer E. Moyer, Jr.: Well, the first point to notice that a 30-year sentence would never come before the President in the course of ordinary military appellate review if one's --
Warren E. Burger: Only death sentences?
Homer E. Moyer, Jr.: That's correct. Death sentences and cases involving flight officers go before the President as the ordinary course. But if the particular prisoner military or civilian petitioned directly from the penitentiary for executive clemency in his case, the President certainly would have the constitutional authority to hear that case. Whether or not the President could commute to a punishment of 20 years without possibility of parole would depend on whether there is any legislative authority for that punishment. But the basic point is that the President may not make up any punishment that he chooses to substitute as a lesser punishment.
Byron R. White: Suppose Mr. Moyer the statute imposed a flat 30-year penalty, could the President commute that to 10 years?
Homer E. Moyer, Jr.: We certainly would say that he could, Mr. Justice White.
Byron R. White: Why, the statute doesn't authorize him so to do?
Homer E. Moyer, Jr.: Well, the question, the rule in the Wells case and Biddle against Perovich which require -- the rule requires that there'd be some legislative basis is as stated in those cases a broad rule. That requisite legislative basis has never been spelled out precisely by this Court. Presumably, it could be present in one of the three forms If the commuted punishment were an alternative punishment for the particular sense, there clearly would be no question that the requisite legislative basis was present.
Harry A. Blackmun: I'm assuming there is no an alternative?
Homer E. Moyer, Jr.: There is none in this case. And in the hypothetical you posit, a second reading of the legislative basis rule in Wells might will be that legislative basis exists where the commuted punishment is one of common usage found throughout the code. And in that case, confinement certainly is the most common punishment. And under the hypothetical you posit, the President certainly would be able to commute in that situation and we do not contend otherwise in this case. This rule obviously flows from the basic separation of powers that the defining of criminal punishments is a uniquely legislative option, that a ruling by this Court to the President need not look to legislatively sanctioned punishments, would confer up on the President, the authority to device punishments that he sees fit. Now, the Government appears not to take serious issue with the general proposition that there must be some legislative basis of commuted punishment. Indeed, the Solicitor General in Biddle against Perovich argued that very point rather the area of primary dispute here, this whether there exists the requisite legislative basis. We maintain that no such basis here exists for the following reasons. First, the commuted punishment of life imprisonment with no possibility of parole is a punishment completely foreign under military law and foreign to the Uniform Code of Military Justice. Not only as it's not a punishment for the offense of which petitioner was convicted but it is provided nowhere in the UCMJ. If death sentence were imposed at a military trial, it would simply be an illegal sentence. Moreover, that punishment was nowhere to be found among the civilian federal criminal statutes. When the President in Schick's case commuted his punishment, he could point to no statute that authorized the punishment of life imprisonment with no possibility of parole. Thus, in Schick's case the President not only substituted the commuted punishment but he devised it. And so doing, we maintain that he exercised a uniquely legislative function, a function reserved by the Constitution to the legislature. So, in final response to your question, Mr. Justice Blackmun, under any reading of the rule suggested in the earlier cases Wells and Perovich by this case, the President's action here would not be sustainable. Indeed, when one looks at the legislative scheme not only is there no authorization for the lesser punishment to which petitioner sentence was commuted but the legislative scheme reflects a direct con -- directly contrary policy for the parole statute which has been a part of federal law since 1910. It reflects a congressional commitment to offender rehabilitation as a matter of federal correctional policy. I would like to conclude reserving remainder of my time for rebuttal.
Harry A. Blackmun: Of course, the statute in Marrero isn't quite in line on what you've just said. Now, there were some of us who didn't agree with the Court's holding in Marrero and I guess I'm struggling but still --
Homer E. Moyer, Jr.: Well, the statute that issue there, Mr. Blackmun, I think the --
Harry A. Blackmun: But it was a statute.
Homer E. Moyer, Jr.: That's correct Mr. Justice --
Harry A. Blackmun: The events in congressional policy at least.
Homer E. Moyer, Jr.: That's right. That statute, however, did not exist at that time or a statue authorizing life imprisonment with no possibility of parole did not exist at the time that the President acted in Schick's case. The statutory authority that the Government has cited in their brief as justification for the President's action here was not enacted until 1970. There was in 1960 at the time of the commutation, no legislative authorization for that punishment and it's our position that the action taken by the President without any legislative basis in imposing a lesser punishment could not later be ratified by the adoption of that punishment.
Harry A. Blackmun: Well, then are you suggesting that if possibly it could be done today constitutionally?
Homer E. Moyer, Jr.: The question of whether the President -- of what punishments the President could commute to today would depend upon what punishments today are authorized by the legislature. To hold otherwise is to allow the President to devise himself punishments for the punishment of crimes.
Harry A. Blackmun: But at least today we have the example of the Marrero statute.
Homer E. Moyer, Jr.: We do today have a statute which imposes life imprisonment without possibility of parole. Now, that statute it should be noted as narrowly confined. It is combined to drug traffickers and the legislative history of statutes dealing with trafficking and drugs indicates that the congressional intention was to confine those no-parole imprisonment situations to that narrow category of crimes.
Harry A. Blackmun: Is that because it is more offensive crime than murder, do you think?
Homer E. Moyer, Jr.: No, the congressional reports there stated that the purposes of rehabilitation in the context of drug traffickers could be carried out only by keeping such offenders within prisons, that the parole policy was uniquely inapplicable to that situation. I should like to conclude with just a word about the balance of interest in this case. On the one side, there are important considerations favoring invalidation of the no-parole provision. In addition to the constitutional rules at stake, a no-parole provision in this case is directly contrary to national penal and correctional policy. The no-parole provision is anti-rehabilitative in the extreme. And finally, the no-parole provision in this case discriminates against the petitioner by placing him in a special uniquely disadvantaged category where he is serving a more severe sentence than anyone else in the federal prison system. On the other hand, there are no countervailing Government interests here at stake for all we asked in this case is that petitioner be given the opportunity to be considered for parole. This balance or imbalance of interest here are the strongly we suggest for invalidation of the no-parole provision. I just like to reserve the remainder of my time.
Warren E. Burger: Mr. Claiborne?
Louis F. Claiborne: Mr. Chief Justice, may it please the Court. I should like to begin with the last point touched upon by my opponent which is to say, the propriety of the no-parole condition which is attached by the President when he commuted such in Schick's death sentence. As Mr. Justice Blackmun, I think has narrowed the point, my opponent is not clear whether he is saying that one must look to the penalties or punishments provided by the murder statute in your Article 118 of the Code on whether one simply looks to the federal criminal law or the criminal law as a whole to determine the issue which he puts which is can the President invent a new novel penalty punishment alien to American Law. For the purpose of this case, we may assume, though the Court has never so held and it's arguable that only other constitutional limitations applies such as cruel and unusual punishment. We may assume that the President enjoys no power to create a totally novel or bizarre penalty which is elsewhere unknown in the criminal laws of the United States. But that is simply not this case. To be sure, Article 118, the murder statute in the military case provides only two alternatives, death or life imprisonment with normally, eligibility for parole, but other laws in the Untied States including a specific federal statute, do envisage life imprisonment without a parole. So we're not in the area of a novel invention, the creation of a new penalty which arguably might present a difficult constitutional question. We're dealing with a condition which is only recently affirmed by Congress as a proper punishment in the federal system as Mr. Justice Blackmun has pointed out. We're also dealing with the provision which is common in the laws of 20 States and many times for murder, often for all life sentences, the eligibility for parole which is otherwise available is denied in the case of life sentence. Nothing therefore extraordinary in this provision and therefore, nothing beyond the power of the President unless he is confined to the same alternatives the judge would be, and of course he is not. One need take only the example of a judge who sentences to the statutory minimum, the result would be that the President cannot exercise his power of mercy --
Thurgood Marshall: You don't have the facts this has been done?
Louis F. Claiborne: Mr. Justice Marshall, so far as our research indicates, President Eisenhower on five occasions, include -- five occasions in addition to this one, commuted death sentences with the condition of no parole. One other case it was life, the other case is it was periods of 55 or 45 years with no-parole eligibility. The Attorney General Brownell, who wrote an opinion for President Eisenhower with respect to these cases, indicates that President Wilson had on two occasions done the same thing. Of course, there was no occasion to do so before 1913 because parole in the case of a life sentence was not the rule. In fact, it was unavailable generally before 1910 in the case of life sentences before 1913. So, we don't expect to find a long backward history of this except as I say Mr. Justice throughout the experience of 20 States in which life sentences are --
Thurgood Marshall: How many is it in Federal Government?
Louis F. Claiborne: Well, we do have of course, as Mr. Justice Blackmun, pointed out the narcotic statute which does expressly as a matter of congressional decision did not grow.
Thurgood Marshall: In narcotics, convictions received any clemency?
Louis F. Claiborne: Not --
Thurgood Marshall: This is no?
Louis F. Claiborne: Not that I'm --
Thurgood Marshall: Right.
Louis F. Claiborne: Undoubtedly --
Thurgood Marshall: So, that had nothing to do with my point is how many times that we had clemency without a parole by the President of the United States?
Louis F. Claiborne: Well, so far as I'm aware, Mr. Justice Marshall, six instances by President Eisenhower and two by President Wilson. The decisions of the President in commutation matters are not published and whether research were thorough would produce other instances I don't know. So far as I'm able to say those are the only instances.
William H. Rehnquist: Do you have any idea how many sense is in total President Eisenhower commuted?
Louis F. Claiborne: Of military death sentence --
William H. Rehnquist: Yes.
Louis F. Claiborne: Of sentences of --
William H. Rehnquist: No, military sentences.
Louis F. Claiborne: Military death sentences during President Eisenhower's period in office would at a guess and it's really a guess because the figures are divided in ways that don't show it too clearly of something in the order of 20. Now, let me say finally on this point that there is no statutory bar even assuming that a statutory bar to this sort of condition attached to a presidential pardon were constitutionally relevant. The very statute involved here under the Uniform Military Code specifically authorizes the President to commute a sentence to such lesser punishment as he sees fit leaving him a full sway, full of discretion. The general parole statute as we indicate in our brief initially had a provision which specifically says this is in no way meant to control or fetter the discretion of the President when exercising its constitutional power of pardon. Now, let me say that the relevance of this issue is important if the Court should hold that the mandatory death sentence passes constitutional muster because in that event it will indeed be important to recognize in the President a power to commute or in governors of states the power to commute any mandatory death sentence. But in at least the most shocking cases, once cannot expect that a power of clemency to be exercised if the alternative use here is unavailable. And yet the result would be if the alternative were available to encourage the commutation of death sentences when the chief executive, whether the United States Service is in a position to assure that there will be no automatic eligibility for parole in 15 years, which does not deprive him of a later opportunity or of his successor of an opportunity to reconsider the matter at a later time nor indeed does it in this case. Now, leaving that question and turning to Furman versus Georgia. It is said that Furman versus Georgia has been held by this Court to be fully retroactive. And it is true that in two cases in Michigan versus Payne and in Robinson versus Neil, this Court so characterized its prior holdings with respect to Furman and Georgia. I don't want to quibble that terminology but it is at least arguable that all the Court has ever held with respect to Furman is that it will prevent the present execution of any death sentence no matter when imposed. The Court has not had occasion to hold and has not held that Furman versus Georgia is fully retroactive in the same sense as it's held Gideon versus Wainwright fully retroactive. For instance, I don't suppose the Court has had before it but I'm not sure that the Court has foreclosed itself from ruling if a criminal at the prison now should come before the Court and say, "I plead guilty out of fear of a death penalty which this Court has now ruled was unconstitutional and therefore, I want to withdraw my plea and have a trial." That would be fully retroactive application of Furman. If the Court were to force such a prisoner a reopening of his conviction on a plea of guilty and it's not an unreal hypothesis. There may indeed also be civil consequences that flow from a full retroactive application of Furman. (audio abruptly cut 00:35:34-00:35:40)I'm not sure what they would be. Well, they deal with life insurance policies or other matters. But this Court hasn't left that question open. Now, let's say that the Court has not closed the door. Of course, this is not to indicate how you don't want to decide it now that the question may be presented. We analyze it this way. We say the basis of the decision in Furman, when one puts together the opinions of the members of the Court who constituted majority. It seemed to turn on two findings. The first is that the public attitudes of today with strong emphasis on the very recent past indicate a rejection of the death penalty as unnecessarily cruel. Also, the experience of the recent past in the civilian context in the United States, indicates that the administration of a death penalty has been so random, so freakish, so discriminatory, so haphazard that it is unusual and cruel to impose it or carry it out today. To effectuate those policies, it is not necessarily required to go back 20 years to invalidate a death sentence which has already been commuted 14 years ago and to look to the collateral consequences of the death sentence. It seems to us that the approach followed in Michigan versus Payne is appropriate here. And it's true that in Michigan versus Payne, the Court declined to make any retrospective application. Eventhough, all that was at stake was sentenced just as here. Now here the Court has gone somewhat further, it has said, "We will require resentencing whether it's still a realistic alternative." But it need not necessarily go over further step of undoing the commutation which was premised on a death sentence which was imposed at a time when this Court might not have found imposition freakish or contrary to prevalent attitudes. Now finally, we get to the question of whether at all events, Furman should be applied in military context. I owe the Court an apology for raising this issue so late in the day. Part of the explanation is that in the District Court, Furman had not yet been decided when the case is in the District Court. This Court had not yet decided Furman. In the briefs in the Court of Appeal, my friend invoked Furman only by analogy, that is to suggest that the no-parole condition for the reasons given by majority in Furman violated the Cruel and Unusual Punishment Clause. An argument no longer pressed here nor indeed put by the petition of certiorari only if the oral argument in the Court of Appeal was it suggested that Furman had any direct application to this case.
Harry A. Blackmun: This is Court of Appeals.
Louis F. Claiborne: Court of Appeals.
Harry A. Blackmun: Other place where as Court of Appeals --
Louis F. Claiborne: I have been too far away, it was just meant. Now, even so we should raise the point in our brief in our position in this Court. We were slow in seeing it. It is, however, it seems to us an important point if they ought not be decided backhandedly in this case. My opponent spends a very great deal of time in his reply brief proving that the cruel and unusual punishment concept applies to the military. Without quibbling, this Court has indeed never held that the Cruel and Unusual Punishment Clause of the Constitution applies to military, there are four votes for that proposition in Travis versus Dallas and only one Court of Appeal has directly so held. But for the purpose of this case, we may assume that Article 55 of the code enacts the same standard for the military and I'm willing to treat it under that same extent. But it does not follow that what is cruel and unusual in this civilian context is ipso facto cruel and unusual in the military system. Cruelty is relative, war is cruel and the reasons underlying this Court's decision in Furman for finding the death penalty cruel and unusual mainly not be applicable in the military context. There may be a special need for deterrent in military conditions and there, it may be more important to look to the imposition of the death sentence in the area on the battlefield which may have a very real deterrent whatever happens on review. On the other hand, the freakish and haphazard imposition of the death penalty which persuaded this Court to hold such discretionary penalties unconstitutional in civilian context is not so likely in the military. If only because there are so many levels of review of sentence, something unknown to the civil system. First of all, the convening authority must make a decision when referring a case whether to refer it as a capital case or not, a first screen. If the court-martial having had the case referred to it as capital sentences the prisoner to the death penalty, it must be approved by the convening authority. After that the case goes to the Court of Military Review which has a gained power to reduce so vary -- to commute the death sentence. Then, the case goes to the Court of Military Appeals which has no power to vary the sentence but reviews to conviction in line of death sentence. But finally, in every death sentence case at a single level, the level of the President, we have a review of the death sentences imposed. So, it's reasonable to suppose that with a centralized system and these levels of review, we're going to come out with a patent that is less freakish to use Mr. Justice Stewart's terminology than we find in so many disparate jurisdictions all over the country and indeed in the federal civilian system.
Potter Stewart: If one can accept the thesis of how it came about that the one corporal or sergeant in World War II was executed for desertion? Sergeant, what was his name?
Louis F. Claiborne: Slovik, I believe. Slovik --
Potter Stewart: Slovik, Slovik. The fact that so many different people with responsibility and each one passing about to the other would lead to almost a more freakish situation, wouldn't it?
Louis F. Claiborne: Well, I'm not sure --
Potter Stewart: That's at least the thesis of what happened in that case is to Corporal Slovik or Sergeant Slovik.
Louis F. Claiborne: Mr. Justice Stewart, in the particular case of Sergeant Slovik, I cannot --
Potter Stewart: I don't know the facts but really --
Louis F. Claiborne: Of course, there were many death sentences imposed and executed in World War II.
Potter Stewart: But only one for --
Louis F. Claiborne: Only one for desertion.
Potter Stewart: Desertion.
Louis F. Claiborne: Those that were imposed for murder one doesn't know whether it was the murder of the commanding officer or an officer one for desertion, Mr. Justice Marshall.
Thurgood Marshall: You have to carry out with more than one imposed.
Louis F. Claiborne: And they were, they were something --
Potter Stewart: Many, many, many imposed and only one carried out.
Louis F. Claiborne: Yes. Well, Mr. Justice Marshall, you speak from closer experience than I do. I do know from what few figures we have, that there were indeed several imposed then only one carried out for desertion. There were many for other crimes, now, I must say, the other crimes mostly rape than murder.
Potter Stewart: Murder.
Louis F. Claiborne: Murder one doesn't know whether that was military or not, it could have been. But I'm not suggesting that this Court has a basis on which to make a decision as to whether Furman or to apply to military. I am suggesting that they're all sufficient differences so that the Court order hold its hand and if it reaches that issue which it reaches only if it first holds that Furman would if -- would retroactively apply to the situation. Then, you have to decide whether it applies to the military at all. In that event, we think the record far too bear the facts, figures or other indications as to the deterrent value, as to the actual experience are not explored in this record. And the Court ought had more to go on before reaching that very important step. Accordingly, should the Court go so far in the case within the appropriate cause would have to be a remand to the District Court with an opportunity for presentation of evidence and of statistics which would furnish that Court, the Court of Appeal and have ultimately this Court with a concrete record on which to make that important decision. Now, we've recognized that this is a hard case. We do want to emphasize that it is not our position that the President once imposes this sort of condition that's so irrevocably. It is as Attorney General Brownell made clear in his advice to President Eisenhower open to that President to any of the successes to vary the condition and it will be that the circumstances would justify in this case.
Warren E. Burger: In other words, in that view the President is a continuing de facto parole.
Louis F. Claiborne: Exactly, Mr. Chief Justice and it is open to the prisoner. Perhaps, especially so in the military context in which the President serves also as Commander-In-Chief to appeal to him and perhaps that procedure in the military doesn't require going through the pardon court, I really can't speak too authoritatively about that. But --
William J. Brennan, Jr.: But Mr. Moyer say that there had been an effort --
Louis F. Claiborne: Well, I frankly was unaware. He tells -- I think he said 1968.
William J. Brennan, Jr.: Yes.
Louis F. Claiborne: It is -- I'm not for a moment suggesting that I have any basis on which to encourage the hope that such an application would be successful. On the other hand, six years had been gone by. There's no reason not to reapply.
Warren E. Burger: Thank you, Mr. Claiborne. Mr. Moyer, do you have anything further? You have about six minutes left.
Homer E. Moyer, Jr.: Mr. Chief Justice I have only two brief points in rebuttal. The first is, that in asking this Court to hold that the retroactivity of Furman does not reach petitioner's sentence, the Government is asking this Court to create a new strand to the doctrine of retroactivity, a strand that would hold that some retroactive constitutional rulings are retroactive for some purposes but not for others.
Warren E. Burger: Well, but your proposition is based on the assumption that we've decided this issue in broad enough scope to embrace military?
Homer E. Moyer, Jr.: That's correct, Mr. Chief Justice.
Warren E. Burger: And that's your starting point.
Homer E. Moyer, Jr.: That's right and that's the second point that I would like to address. Respondent suggest the appropriateness of a remand in an evidentiary hearing in this case. We would suggest that that is uniquely inappropriate. First, whatever facts might be adduced at an evidentiary hearing, they would not suffice to overturn the contrary precedents in military and civilian courts. But moreover, we know from the facts before this Court now, that there are no facts that could be adduced that would justify the position or the propositions that the Government puts forward. Let me deal quite briefly in the specifics of the use of the death penalty. First, the idea that the death penalty is a deterrent must necessarily rest upon the reasonable expectation that that penalty will be used. In the military, there is no basis for that form of expectation and certainly not in the case where military discipline is at stake. There were a 102 servicemen executed during World War II, 101 of those 102 were convicted of civilian type offenses, rape and murder. Only one was executed for having committed a military type offense. All 12 of the servicemen executed since 1950 committed civilian type offenses. But even if you accept the Government's hypothesis, that there is some deterrent value to the imposition of the death penalty without it as ever being executed. We know that doesn't sustain their position here because the marine corps is not even adjudged the death sentence before -- since before 1849. The navy has adjudged it five times in that century and a quarter.
Warren E. Burger: Well, I suppose it would be arguable that that demonstrates equally or perhaps no more than that the discipline in the marine corps is much better and that the quality and caliber of the people is higher as they traditionally claim.
Homer E. Moyer, Jr.: I suppose, Mr. Chief Justice in the same way, it could be argued that the more random and the more freakish the imposition of the death penalty is, the more that shows that the deterrent effect is created by the death penalty.
Thurgood Marshall: How --
Homer E. Moyer, Jr.: We --
Thurgood Marshall: How many death penalties you say when?
Homer E. Moyer, Jr.: 102 were executed during World War II. All but one were -- the servicemen who had been convicted of murder or rape.
Thurgood Marshall: You mean carried out.
Homer E. Moyer, Jr.: That's correct. We do not --
Thurgood Marshall: Because I know of one is with 51 were sentenced to death but they didn't die.
Homer E. Moyer, Jr.: That's correct. That my figures--
Thurgood Marshall: So, there were more that were imposed.
Homer E. Moyer, Jr.: Oh, yes indeed. No question about that. Thank you.
Warren E. Burger: Thank you gentlemen. The case is submitted.