Warren E. Burger: We will resume arguments in United States v. New Mexico. Mr. Carlson.
John Undem Carlson: Mr. Chief Justice and may it please the Court. My name is John Carlson of Denver, Colorado. I am here on behalf of the Twin Lakes Reservoir and Canal Company, a Colorado mutual ditch company. We are an amicus in this case and the State of New Mexico has graciously allowed us to argue, because we represent the classic beneficiary for whom the National Forest was created. We have a large for Colorado, small for the National Forest perhaps, diversion project located on the very headwaters of the National Forest Rivers in Colorado. It is on the headwaters of the Colorado River, the Roaring Fork to be particular, some 17 miles above Aspen, Colorado, a watering spot some of you may know. That diversion project intersects and gathers water from scores of small streams. We do not have anything like the Patomic River out there. We have streams, some of them when they are in full state of flood, are much like suburban lawn sprinkler. We intercept all of these as they go across our canal, and deliver the water into a tunnel that carries forest water from the Whiter River National Forest, over in to the Arkansas River Valley. That system was constructed first in 1930, and it continuously has diverted water with the aid and encouragement of the forest service until very recent times. We think we are a representative of the class for which the National Forest were created, because Congress said when they passed the Organic Act in 1897, that the purpose of the forest was to secure favorable conditions of flows. Now, when they said favorable conditions of flows, they were not saying, “flows for flows sake,” they said “We want to provide water for the people of the district. We want to cause there to be an availability of water, so that the people who are settling in the west, can construct a civilization, we have done so. The forest service apparently does not like it today, but it exists and it is there, and we are trying to protect it. The importance of this case cannot be underestimated, when you recognize that in the State of Colorado, 98% of the water that arises in the whole state and flows through the streams of that state, arise on the public lands. Of that 98% of the water flowing on the public lands and through our streams, 95% of it comes from the National Forests, so there is not any water in Colorado, except what occurs on the National Forest. That statistic is contained in a Congressional document called The Study and Development Management and Use of Water Resources on Public Lands. It was prepared for the Public Land Law Review Commission. It is contained in table 5 of the weekly report.
William H. Rehnquist: I suppose that would probably be true of most of the other area of the states of the western to greater or lesser degrees since the forest themselves occur at the higher levels?
John Undem Carlson: That is absolutely right Your Honor. New Mexico’s particular statistic is 62%, Arizona’s, Nevada’s, and Utah’s are up in the 90% as I recall, but that illustrates the importance of the case because we do not have any water in our streams except what originates out of these snow pack that falls in the high mountain country. And when Congress passed this Act back in the 1890’s, they were not dummies. They knew that the west depended on snow packs in the high mountain country. If you retarded the rate of runoff in that high mountain country you would cause a greater sustained rate of delivery of the water. Now, they thought that it was important to deliver water to people for economic utilization. There is not one shred of evidence in the statute or in a legislative history or in 60 years of administrative construction that anyone thought that Organic Act of 1897 created a reserved water right for the purposes now claimed by the United States.
Potter Stewart: How about any purpose?
John Undem Carlson: You mean what purpose?
Potter Stewart: Your are going to get around, I suppose, to indicating whether there is any reserved right, and what you think the scope of it is?
John Undem Carlson: Your Honor, I will answer that question now if I may? We think that to the extent, the forest administrators have a bona fide need for water for something that falls within the 2 fundamental overwhelming purposes. They can have rights to divert water for those purposes.
Potter Stewart: What are those?
John Undem Carlson: Well, when they…
Potter Stewart: And how do you measure them?
John Undem Carlson: You measure them by what the quantification is to attain the purpose. For example, if they locate a district headquarters, and employ 5000 people in it, in order to run and administer the forest, and they located it on forest land, we would concede and grant them a water right to do that. That is their administrative need.
Potter Stewart: Would you say that the United States would have a right to any minimum industry in flow in the National Forest?
John Undem Carlson: None under the act of 1897.
Potter Stewart: So that your diversion project up above a forest could totally empty the stream in so far as water that was generated up above the forest in your view without infringing on the United States Reserved Water Right?
John Undem Carlson: That is true and the reason being that you must identify the purpose for which the forest was created. It was not created for wild life maintenance. It was not created for habitat ecosystem maintenance. It was created to grow trees. Now, in this
Thurgood Marshall: (Voice Overlap) prove the trees.
John Undem Carlson: Absolutely. If they could prove that they have a bona fide in need for water to protect from fire, they could get a right to divert water for that purpose.
Thurgood Marshall: How do you prove that, that there were fires?
John Undem Carlson: I beg your pardon?
Thurgood Marshall: How do you prove that, that there were fires?
John Undem Carlson: Your Honor, I think that is force marjorie too. If there is a fire, people will take the water and put out the fire and no one in West has ever objected to that. What they are claiming is a right to here now, and they did not offer any proof at the trial, but this is an afterthought by the United States on appeal, what they are seeking now is the right to maintain water in the streams in case there is a fire some day. Well, if there is a fire, they will tell everyone, “we need water to come down,” but you know the curious thing and the amazing thing is, I do not know of a national forest fire in the country that has ever been fought with diversions out of babbling brooks as a high mountain country. Up where our project is, for example, there are not even no trees to speak of, we are about 10,000 feet in altitude, but we would allow them an opportunity if they think that fire --
Thurgood Marshall: I thought a minute ago, you had said you would grant and now you would allow the Federal Government to use its water. I think it is very generous of you or am I wrong?
John Undem Carlson: I think you are wrong Your Honor. The United States has the power to obtain water for any purpose it needs. The question is, what did Congress intended to obtain in 1897.
Warren E. Burger: Mr. Carlson, you did not answer to my brother why a moments ago, you said, “You would restrict the doctrine of reserved rights for the National Forest to the two fundamental statutory purposes, and what are they, I did not get that?
John Undem Carlson: They are to grow trees, to furnish a continuous supply of timber. Second, to secure favorable conditions of flows, because when they created the forest, they had in mind using that watershed to maximize delivery of water to the private appropriators of the West and the Congressional history states that time and time again. They said, “You know, if we cut off the trees in the high mountain country, then the snows will melt sooner. They will come in a flood. The spring will run off and will come in as flood.
Warren E. Burger: So there is really no reserved rights for the benefit of the United States as proprietors, so to speak?
John Undem Carlson: No, that goes too far. There are administrative needs. If they could prove that erosion could be reduced by diversions of water, it could be reduced by forest (Voice Overlap)
Warren E. Burger: That goes to growing trees to preserving the vigor of the forest, right?
John Undem Carlson: Yes. Although the United States has never --
Speaker: You do not really know many diversions in the history, that they ever divert water out of streams to water trees in the forest.
John Undem Carlson: Yes, I do Your Honor. They have tree seedling farms throughout the National Forest and no one in Colorado has contested any of the diversions that they make for those purposes. They plant these little seedlings on the --
Speaker: But the forest themselves rely on, the planted trees rely on the moisture that falls on them?
John Undem Carlson: Absolutely and you know, the most remarkable thing about that --
Speaker: So what you are really saying is that there is no really any water right out of the stream in a practical sense for the forest?
John Undem Carlson: Absolutely. They are de minimis.
William H. Rehnquist: Well, that is not through phreatophytes though?
John Undem Carlson: But in the West, we do not have, in this high mountain forest, we do not have a big phreatophyte population, what we have is Ponderosa Pines and those tress, I think even the Forest Service would obtain a very significant portion of their moisture from the air and that is well-known fact.
William H. Rehnquist: With respect with to phreatophytes within a National Forest, would you concede the government reserve the right to the necessary underground flow for the maintenance of the phreatophytes?
John Undem Carlson: If that was to attain the end of furnishing a continuous supply of timber, yes, but I do not think that they can prove that and I would hasten to point out in this case, they offered no proof. They had the burden of going forward. They had the opportunity to come forward and state what their case was, and they never even thought they have a minimum stream flow right at that trial. The only time they raised it is on appeal when they asked this Court to receive evidence and consider this matter on the basis of their arguments. They had an opportunity to prove this. We are talking about facts that were never offered or submitted to the trial of fact.
Speaker: What about this water that put out the campfires? To dry up a stream running through the forest, there is just not any water around.
John Undem Carlson: Your Honor, who was camping there? If it is a Forest Service…
Speaker: No, this is a public, but the reason why they campfires put out is to protect the forest?
John Undem Carlson: If the reason they want to put out the campfires is because they have allowed the public to come on for a recreational purpose and if they need a water right for that recreational use, they --
Speaker: I did not say that. I did not say they want the water right to let them drink it or for recreational use, I just thought for defensive use. If they want water to put out campfires, there has to be some water in the stream.
John Undem Carlson: Your Honors, if there is a water requirement to put out a fire, they will take it. It is a de minimis use which everyone will recognize.
Speaker: (Voice Overlap) take it if it is not in the stream?
John Undem Carlson: You Honor, our streams in the West dry up by nature. In Colorado for example, on the Roaring Fork system that we took, the Roaring Fork River was dry in whole reach last summer for three months. Nature dries them up. There is an incredible variation stream by stream. What we are talking about there too, what you are suggesting is really a right to divert water. They want a maintenance, and what you are saying is, maintain the flow of the stream so we can divert some water. If they have a priority for that purpose, let them divert it.
Speaker: Well, you are suggesting that you could dry up the water running through the White River National Forest. As far a reserved right is concerned, it would not be violated if you diverted all the water out of the streams running through the White River National Forest?
John Undem Carlson: I am asserting that and I submit to you, it is very much what Congress had in mind. When Congress wanted to stop a stream from being dried up, it knew how to do it, it passed Wild and Scenic Legislation. There is passed legislation to maintain stream flows. There is a whole Congressional pattern of action that maintains streams in their natural state. The most classic example I put to you is the national parks itself where they talked about maintaining this aesthetic sensibility. What the Court I think must consider is that the forest was created for purposes of economic utilization.
John Paul Stevens: Mr. Carlson, I am really am puzzled by your argument. Perhaps it just reveals my lack of understanding in water law, but I thought you conceded that there was some kind of reserve right in the United States for the two basic purposes. One, they maintain some kind of flow of the water, yet you also seem to say that not withstanding that reserved right, the State could authorize appropriation of 100% of the water upstream of the forest. Are you saying that?
John Undem Carlson: No, I do not think so. I am saying that whatever right the United States has by virtue of its reserved right, and that right must be quantified, then they can cause there to be remaining in the stream, that quantity of water so they can take it and use it and if that is an “inflow” right for some purpose, which they have not yet proved, that quantity will remain in the stream.
John Paul Stevens: But is it only a quantity to be measured by what they want to divert from the stream or do they have any right at all to have water to continue to flow through the forest?
John Undem Carlson: Just in the abstract until the passage of the Multiple Use Act of 1960, we contend they had no right for the purposes of wildlife maintenance or simply (Voice Overlap)
John Paul Stevens: I understand that, but for the basic purposes of maintaining water flow, one of your two basic purposes it seems to me assumed a need for a continuous flow of water down the river. I just do not quite (Voice Overlap)
John Undem Carlson: You Honor, I do not think either of our two basic purposes assume the need for water in the river. One, the purpose of sustaining forest --
John Paul Stevens: Forget the trees, the other purpose?
John Undem Carlson: Okay, securing favorable conditions of flow. I am not directly (Voice Overlap)
John Paul Stevens: Is the favorable conditions of flow be no-flow at all?
John Undem Carlson: Because the flow is for the use of the people of the district. There are, in Colorado some 4000 headgates located on the national forest. It is an (Inaudible) of an arrogant desert climate that you take the water out of the stream and consume it. The fact that it happens on the National Forest as opposed to one mile down from the national forest should not make not difference. Our rivers typically dry up.
John Paul Stevens: What right does the Federal Government get out of this purpose to preserve favorable conditions of flow?
John Undem Carlson: It was not designed to create a right in the Federal Government, it was a grant to the people of the West and the perfect confirmation of that, Your Honor, is the statute, the part of the Organic Act in which it says, “All waters,” not some waters, not 10% of the waters, not 90% of the waters, it says “all waters” arising on the national forest may be appropriated for domestic, milling, mining, and irrigation use. Now, I guess where I am from, when they say all, they mean all and here what the United States says is --
John Paul Stevens: Or where I am from, when they say they want to reserve something, they mean they want to reserve something too?
John Undem Carlson: That is right.
John Paul Stevens: I do not understand.
John Undem Carlson: But Your Honor, nowhere in the Forest Act do they say they wanted to reserve anything. What you have is an expressed grant before that --
John Paul Stevens: Because I understood, the doctrine was an implied doctrine and you do not have to expressly reserve?
John Undem Carlson: That is right, but here, in the Forest Act, you have an expressed grant. All waters arising on the National Forest may be appropriated whether under a national system or a state system. We have never had a national system. So, you have an expressed grant. Later, you have the theory of the implied reservation and what the United States is asking you to do is to stand the Act on its head and say that all means some or none. Now, let me address a point that I think really needs fundamental attention from this Court.
Speaker: What about the United States said, “Well, we open all these waters for appropriation, and now we are going to appropriate some of it?”
John Undem Carlson: Fine, let them. In Colorado, they have (Voice Overlap)
Speaker: Well, that is fine. Well, they did. They created some national forest.
John Undem Carlson: That was not an act of appropriation.
Speaker: I know that is what you say, but the Court has interpreted that in effect as an appropriation?
John Undem Carlson: No, Your Honors.
Speaker: This Court has not interpreted the creation of a national forest as an act of appropriation.
Speaker: What did they say? They said it is a reservation of a water right?
John Undem Carlson: Well, here they never addressed the question of how the forest and for what purposes they were created. In Arizona v. California, the special master said, (Voice Overlap)
Speaker: You seem to concede there is a reservation for something?
John Undem Carlson: Sure.
Speaker: Well, how do you describe it? Was it a reservation of a right or when you they created? What happened when they created the forest?
John Undem Carlson: When they created the forest, they said, “we are creating the forest for these two purposes and if there are water needs peculiar to United States, inherent in those needs, then they can have the water.
Warren E. Burger: Yes, is that it, and so what call it, an appropriation, a reservation, or what?
John Undem Carlson: United States calls it a reservation.
Speaker: What do you call it?
John Undem Carlson: I call it reservation. This Court has called it a reservation.
Speaker: So it is a water right?
John Undem Carlson: Yes, it is a water right.
Speaker: It is not inconsistent with the notion that the waters in the national forest are open to appropriation.
John Undem Carlson: It certainly is if they are claiming that they have (Voice Overlap)
Speaker: Why is it? This is the United States just sharing in the water that is available?
John Undem Carlson: Well, let them come in and share at the date that they conceive the notion for these (Voice Overlap)
Speaker: Well, I know. Let us just talk about that date for a minute.
John Undem Carlson: Yes.
Speaker: You said at the time the forest was created, there was a water right of some kind?
John Undem Carlson: It is small.
Speaker: All right. As small as it is, it is not inconsistent, I suggest to you with the notion of a grant of these waters for appropriation purposes?
John Undem Carlson: I agree.
Speaker: Do you agree with that?
John Undem Carlson: I do agree.
Speaker: So the only argument with here is the scope (Inaudible)
John Undem Carlson: Yes.
Speaker: Alright, that is a big issue, I grant you, but let us not say that it is —
John Undem Carlson: Well, you do not understand what I am saying about the inconsistency and I think I have made my self unclear on that point. What I have said and what we say and what New Mexico said was that Congress had the power to take all of the water it wanted as of that date that was inappropriate, it did not do so. So the question that we are facing here is exactly what we faced in paper. What quantity of water did Congress intend to keep to itself in 1897?
William H. Rehnquist: Really, what you are arguing is that it was inappropriate of right that was reserved, not a riparian type of right?
John Undem Carlson: Well, I do not think it is riparian doctrine. It is a strange and wonderful meld of many kinds of theories. The Court consistently calls it a reserved right. We prefer to think it of it an appropriation terms because that is the only system we have out there. There are unique functions of appropriation. I suppose if the United States says it is immune from requirements and that sort of thing, so they do not like the lingo. But conceptually, the notion is, in 1897, they were saving something for themselves and we are trying to identify what it is that they say.
Warren E. Burger: Mr. Carlson, your time has expired now.
John Undem Carlson: Thank you.
Warren E. Burger: Mr. Moorman?
James W. Moorman: Mr. Chief Justice, may it please the Court. Mr. Carlson started his argument by stating that the national forest supply, 95% of the water in his State, which I believe is true, but I want to point out to you that the Forest Service intends to use only one-half of 1% of that water from a consumptive use and I invite your attention to the appendix to our reply brief where there is a letter from Mr. McGuire. So that virtually all of that water will be available and is available for the economic uses of the West.
Speaker: Yes, but I suppose you will agree that there is not enough water to go around and that it may well be that your water claims, if they are sustained will mean that there is less water available for water rights that have already been appropriated or that have been appropriated?
James W. Moorman: Yes.
Speaker: I take it or otherwise, we would not have the amicus briefs from this gentleman’s clients or from others here that they think that their appropriated rights are going to be cut into?
James W. Moorman: There are two problems, your Honor. First of all, I think there is an inordinate fear.
Speaker: Well, first, is that not a fact?
James W. Moorman: Yes, Your Honor, but there is an inordinate fear of the size of the future needs of the national forest, which I think are laid to rest by the letter from the Chief of the Forest Service, which we have attachéd to our brief. The second thing is sort of an allocation thing. Mr. Carlson’s client is trans base inverter, and therefore, he wants to take the water very high on the stream and out of the river basin itself into another basin, so it is sort of an allocation question with regard to him. The water if it stays in the forest will be available for economic use. It may not be simply be available to his client.
Speaker: (Voice Overlap) consumptive views point though it does not really answer that your “instream flow” matter because if you are entitled to maintain a minimum stream flow, that is a whole lot different matter than consumptive use.
James W. Moorman: Yes, but if we maintain --
Speaker: And that certainly would prevent people from taking out too much water above the forest?
James W. Moorman: Above the forest, that is correct. But the water will be eventually available as it leaves the forest for economic use and development, and therefore, from the standpoint of the total amount of water available for the development of the West, the effect will be de minimis. It will have an effect on where certain points of diversion can be and where it can be used, but that it seems to me is not a significant effect as the fact that the actual amount available will be virtually all the water from the national forest, all but half of 1%.
Speaker: I take it that there would not be any problem here if there was enough unappropriated water to satisfy your needs and satisfy other appropriated rights too?
James W. Moorman: I think that is correct, but I do think that the effect of the forest service right on most appropriated use in the West is de minimis. When you find unusual situations like the Twin Lakes people, if you want to take water across a divide, it can have a serious effect.
Speaker: I think that reasonable men and men of goodwill could differ with you, and they must be differing with you and have a different view if they are going to take the rather strong and earnest positions that they take in this case?
James W. Moorman: That is quite possible that they do disagree with me. I do not disagree with that, Your Honor. I would like to make another point if I may in brief time, which is that New Mexico and the amicus have suggested that the sole reason of the State Courts denied rights to “instream flows” was because we failed to prove any need for those rights, and we believe this misreads the State rulings. The State Courts did not deny the US minimum “instream flows” because of any failure of proof. Quite to the contrary, they stated this flatly and unequivocally as could be done that we were not entitled to any minimum “instream flow” as a matter of law. The state district court wrote that the United States does not have reserved rights to minimum “instream flows” based upon the purposes for which the Gila forest lands were or could have been withdrawn from the public domain and the Supreme Court affirms stating that “instream flows” were not contemplated by the Organic Act and I refer the Court to Appendix 231 and page 241 and as a last word, I will simply say that we requested permission to present additional evidence after the state objected to the in-stream after the evidence closed and we were denied that right.
William H. Rehnquist: Mr. Moorman, does not any part of the objection to your position is kind of a springing use character of the claim that the government makes that it is 0.5% now, but under your theory, it could be 20% by 1990?
James W. Moorman: I think that is the origin of the theory, Your Honor, that we have a right to future needs, but what is happening, I think we will lay that to rest because the Chief’s letter, which we attach encompasses the total present and foreseeable national forest water needs. So the 0.5% includes all present and future needs and in water adjudications, we are quantifying not only our present, but our futures needs in cases like this. So, the fact of the matter is, the 0.5% is the future needs of the forest as can be --
William H. Rehnquist: Can chief this bind the future chief?
James W. Moorman: No, but the Courts that adjudicate these rights and --
Speaker: Adjudication will (Inaudible)
James W. Moorman: Adjudication will and we are going to present these rights for our future needs and in my opinion, in a decade, the adjudications will be over virtually in the West, in a decade-and-a-half, thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted.


Warren E. Burger: We will hear arguments next in Ralston against Robinson. Mr. Strauss, I think you may proceed whenever you are ready.
David A. Strauss: Mr. Chief Justice, and may it please the Court, the issue in this case is whether a Federal prisoner serving a sentence under the Youth Corrections Act, who commits a crime and is sentenced to a consecutive term of imprisonment as an adult, must continue to be treated as a Youth Corrections Act offender for the remainder of his Youth Corrections Act term. In 1974, the Respondent in this case, Mr. Robinson, was convicted of second degree murder in the District of Columbia. The maximum punishment for that offense is life imprisonment. The Respondent was sentenced to ten years under the Federal Youth Corrections Act, or YCA. The YCA permits a Judge as an alternative to imposing an adult sentence to commit an offender under the age of 22 to the Bureau of Prisons for a program of treatment designed to correct his antisocial tendencies and restore him to a normal, productive, and law-abiding life.
Speaker: Not to fit in with a group of hardened criminals.
David A. Strauss: That's right. There is no suggestion that Congress intended it for that reason. Congress intended also that the YCA be modeled on the English Borstal system, and provided as one aspect of YCA treatment that YCA offenders be segregated insofar as practical from other classes of offenders. In 1975, while he was serving his YCA sentence, the Respondent was convicted of assaulting a Federal correctional officer with a deadly weapon. The Judge before whom he was convicted expressly declined to sentence him under the YCA, found that the Respondent would not benefit further from YCA treatment, and sentenced him as an adult to a five and a half year term of imprisonment. The Judge specified that this sentence was to run consecutively to the YCA term, and recommended that the Respondent be moved from the youth facility where he had been being confined to a more secure institution. Two years later, in 1977, the Respondent was again convicted of assaulting a Federal prison guard, and although he was not yet 22, he was again sentenced to an adult term of imprisonment. This time the sentence was one year and a day. The Judge specified that this sentence was to run consecutively to his other two sentences. When the Respondent received his adult sentences, he acquired a dual status; although he was still serving a YCA term, he was also under an adult sentence. At this point, the Bureau of Prisons, following an established policy for dealing with dual status offenders, began treating the Respondent in prison as an adult offender. The effect of this was that the Respondent was given access to those treatment programs designed for adults as opposed to those programs designed for youthful offenders. In doing this, the Bureau was exercising a power that is possessed by correctional authorities under the Borstal system, the English Borstal system, which as I said was the model for the YCA. In that system, the authorities could transfer an offender from a youth institution to an adult prison in a case like this.
Speaker: Mr. Strauss, just on that analogy, in the Borstal system they could do that even without a second conviction, couldn't they?
David A. Strauss: That's right. They could do it.
Speaker: Do you take the position that the Bureau of Prisons could do that under the YCA if this man had just been a very unruly inmate, and caused a lot of trouble, but never actually was convicted of a second felony?
David A. Strauss: That is not a necessary part of our argument here, because he has been convicted twice.
Speaker: Well, what is your view on that question?
David A. Strauss: Our view is that the Bureau should have considerably more latitude in doing that than--
Speaker: But what is your view on the question I asked you? Does the Bureau have the power to do that without a second conviction?
David A. Strauss: --The Bureau does have the power to... Given the practicalities of the situation, the Bureau should have the power to place him in an adult institution.
Speaker: You really don't need to rely on the second conviction then to sustain your position.
David A. Strauss: That is our position, but we do have the second conviction in this case. In 1978, the Respondent brought this action to challenge the Bureau's policy by filing a pro se document in the United States District Court, in which he sought to be segregated from adult offenders, and to be treated according to the provisions of the YCA. The District Court ordered relief, ordering that Respondent be moved to an institution where he would be segregated and would receive YCA treatment. At the time the District Court granted relief, the Respondent, because of his two adult convictions, and because he had compiled an extensive disciplinary record in prison, including several violent incidents, was in the control unit of the United States Penetentiary at Marion, Illinois. That is the most secure unit of the most secure facility in the Federal prison system.
Speaker: And as of January, this all will be moot.
David A. Strauss: That's right, Justice Marshall. As of January, he begins his first adult sentence. The Seventh Circuit affirmed the District court's order, and on our petition this Court granted certiorari. The Respondent relies on the provisions of the YCA, which prescribe segregation and treatment for YCA offenders. The segregation requirement, as Respondent virtually concedes, and as, in any event, this Court has said and the legislative history demonstrates beyond any reasonable doubt, was intended to allow the Bureau to insulate YCA offenders from the corrupting influence of more hardened, experienced adult offenders. The Respondent is precisely the sort of offender from whom YCA offenders are supposed to be segregated. He is under two adult sentences. He has been in prison since he was 17, and his terms will not expire until he is 31. He has committed three violent felonies, and he has an extensive disciplinary record. This is just the sort of offender Congress had in mind when it decided that YCA offenders should, insofar as practical--
Speaker: But I gather, Mr. Strauss, that there is nothing in the legislative history to show that Congress ever contemplated this situation, is there?
David A. Strauss: --That's right. In fact, it seems reasonably clear that Congress did not contemplate this situation.
Speaker: On the face of the statute, it might appear that he is entitled to YCA treatment.
David A. Strauss: Well, the language--
Speaker: On the face of the statute it seems that way, doesn't it?
David A. Strauss: --It is essentially unenlightening. We do not suggest that it supports our position directly.
Speaker: It is rather explicit, it seems to me. But in any event, in any event, I gather your argument is that we can forget what the statute says, and just in contemplation of what Congress had in mind, this is not the kind of chap who is supposed to get YCA treatment.
David A. Strauss: Well, when the language of the statute is essentially not addressed to this problem, and leaves us where we started, then we have to--
Speaker: Your argument seems to be that it would defeat the purposes of the statute as explicitly declared by Congress, if they were to put him with other young youth offenders.
David A. Strauss: --That is exactly right.
Speaker: And there is no provision in the Federal institutions for hardened YCA people and unhardened ones. There is only one level.
David A. Strauss: Well, there are different levels of security for different types of YCA offenders and types of adult offenders.
Speaker: There are?
David A. Strauss: That's right.
Speaker: Why couldn't you put this guy in that one?
David A. Strauss: Well, there are several problems. One problem is that--
Speaker: I thought you only had one. Well, excuse me. There are different levels. Is this by regulation or is this by the statute?
David A. Strauss: --This is not by the statute. This is by Bureau of Prisons policy.
Speaker: By regulation.
David A. Strauss: That's right. The statute authorizes it, but the Bureau of Prisons has established it. One problem, Justice Marshall, to answer your question, is that in several lower Court decisions constraints have been put on the Bureau's power to place troublesome YCA offenders in maximum security institutions, and given those constraints, they have to place this sort of offender, for whom the Act is so clearly not designed, in a YCA institution--
Speaker: Like a maximum security YCA institution.
David A. Strauss: --There are no maximum security YCA institutions. There are YCA offenders in maximum security custody.
Speaker: Where are they? In the regular institutions?
David A. Strauss: That's right.
Speaker: So in the YCA institutions you don't have any separation.
David A. Strauss: There are YCA offenders in separate units. Actually, this is a difficult matter to talk about, because the policy is in flux.
Speaker: I think you are not addressing my question. In the same YCA institution, do you or do you not have two levels of security, in the same YCA institution?
David A. Strauss: There are... The YCA units consist only of offenders at a single level of security in any institution.
Speaker: That is what I thought.
David A. Strauss: There are YCA units within institutions, and the institution is at a security level.
Speaker: The man involved here, if put in a YCA institution by a Court, would be right beside the guy that was doing just fine. He might very well. That's right. We have something of a practical problem with this case, too, don't we, because if the case is argued now and the opinion doesn't come down before he begins serving his adult sentence, there will be an issue of mootness which we have traditionally dealt with by the Munsingwear case.
David A. Strauss: That's right. Yes. We regret the practical problem. We agree the proper disposition would be a Munsingwear order should the Court--
Speaker: So whatever this Court does, it isn't going to have much effect on this particular Respondent.
David A. Strauss: --Well, it will only affect a couple of months of his custody, but of course, that is enough to save it from mootness, and as we explained when we asked the Court to expedite consideration of this case, it is a pressing issue for several other reasons. There is a severe conflict in the Circuits.
Speaker: I want to be sure, because I think... I want to be sure about your colloquy with Justice Marshall. There is no such thing as a YCA institution as such.
David A. Strauss: At this time, there is not. There is a plan in the works for establishing two and possibly three institutions consisting exclusively of YCA offenders.
Speaker: Does that depend on the outcome of this case?
David A. Strauss: No, it does not. It depends on the outcome of separate litigation.
Speaker: And the budget.
David A. Strauss: No doubt, the budget.
Speaker: Mr. Strauss, may I ask you a question? Under the Youth Corrections Act, I suppose it is possible that the youth offender will serve a longer period of time in custody than if he were an adult, for example.
David A. Strauss: That is right.
Speaker: That is possible, right?
David A. Strauss: That is right. Under a different provision of the Act from the one under which the Respondent here is sentenced.
Speaker: Right, and if that is the case, and the theory of upholding that kind of a provision was that the youth offender would be getting special treatment, so there is a quid pro quo, in effect, is that not right?
David A. Strauss: That is the theory that some Courts have used. Yes.
Speaker: Then, if the Bureau of Prisons can transfer someone in the middle of a youth offender sentence to an adult facility, then you lose that quid pro quo, don't you?
David A. Strauss: Well, that seems to be right, Justice O'Connor. The quick answer to that concern is that Mr. Robinson, the Respondent here, was not sentenced to a longer term than an adult could have received. An adult could have received life imprisonment. He was sentenced to ten years. So, whatever those concerns are, they are not present in this case.
Speaker: But wouldn't our holding here cause major concerns in future cases if that happened to be the situation?
David A. Strauss: Well, that would, of course, depend on the contours of the holding. As for the other cases, I would point out that the argument is by no means decisive, because what offenders in YCA custody are entitled to is what Congress gave them, and if we can establish that Congress did not intend that this program would survive beyond the point where is served any purpose, then it can't be said that they are being denied or deprived of something that Congress intended them to have.
Speaker: May I follow up with that? Is it your view that the second trial judge at the time of the second offense could have imposed a concurrent sentence instead of a consecutive sentence, which would then have authorized the Bureau to treat him as an adult rather than a YCA offender?
David A. Strauss: Yes, if the second judge... you mean the judge who sentenced him to his first adult sentence?
Speaker: Yes.
David A. Strauss: If he had imposed a concurrent sentence, I would think there would be no question.
Speaker: Couldn't the Department of Justice pretty much take care of the problem by asking for concurrent sentences whenever a YCA offender commits another felony?
David A. Strauss: Well, it could. Of course, that actually points out a paradox in the situation, that an offender whose crime was not sufficiently serious--
Speaker: It can't get the benefit of the longer YCA sentence that Justice O'Connor adverted to it it did that, of course.
David A. Strauss: --That's right. Also, he wouldn't get the benefit--
Speaker: What he wants to do is get the benefit of the length of the YCA sentence but not the quid pro quo.
David A. Strauss: --Well, he wants to impose a consecutive sentence essentially, the adult sentence to go on top of it. The paradox is that consecutive sentences ordinarily denote a more serious offense, and the lower Court's decision--
Speaker: So they want the additional time, and they also want to change the character of the first sentence.
David A. Strauss: --Well, the Judge decided the additional time was necessary, and that makes it necessary also to change the character of the first sentence.
Speaker: Well, it doesn't make it necessary. Under the Department's policy it is desirable to change the character of the first sentence.
David A. Strauss: Well, that's right. It is not necessary. It is not something we are required to do. In our view, it is necessary in order to maintain Congress' intention in enacting the statute. The other point about the segregation requirement is that, as Justice Rehnquist pointed out, and as Justice Blackmun, in three months' time, the Respondent will begin his adult sentence, and at that time it is beyond dispute that he will be an adult offender, and no one would contend that at that time he can claim a right to be segregated from adults or placed as a YCA offender, but there is no basis for thinking that he is somehow less of a corrupting influence now than he will be three months from now, or that he is more fit to be placed with YCA offenders now than he will be in three months.
Speaker: Well, any decision the Court is going to make is going to apply to someone who might have nine years left, or a longer period.
David A. Strauss: That is right, but I think the same point still holds, that there is no basis for believing that at the earlier point, after he has committed a crime and sentenced as an adult, that somehow he will not become a corrupting influence until that sentence begins to run. The other provision of the YCA on which the Respondent relies is the treatment provision, and again, the Courts below have applied this provision to the kind of offenders for whom Congress did not intend it. YCA treatment in Congress' view was designed, as Justice Rehnquist suggested in an earlier question, to return offenders to productive lives in the community, and to that end an integral part of the treatment Congress envisioned was a gradual phased, supervised reintegration of an offender into society. At the end of his YCA term however, the Respondent, of course, will not be returned to a productive life in society. Instead, he will begin two adult prison terms, and for that same reason it will be impossible gradually to reintegrate him into society. So, an integral part of YCA treatment as Congress saw it will not be capable of being afforded to this Respondent. Nothing in the Act suggests that YCA treatment is preparation for a life in prison, and nothing in the Act suggests that the custodial phase of YCA treatment followed by an adult prison term will do anyone any good, society or the offender. It is at least plausible that a custodial treatment program designed to culminate in an offender's return to society when followed not by a return to society but by an adult prison sentence will do even the offender more harm than good. So, if anything, it thwarts Congress' intention to attempt to provide Respondent with YCA treatment. Certainly, there is no basis in the YCA for requiring the Bureau of Prisons to provide treatment to an offender such as this.
Speaker: I think you have answered this, but there would be no question if either one of these two Judges had said YCA, would there?
David A. Strauss: If the Judge had imposed YCA sentences, he would be a YCA offender. That is right.
Speaker: And there would be no problem.
David A. Strauss: He would still be a YCA offender. There would be no basis for claiming he is an adult offender. I would point out that, as Justice Stevens suggested earlier, if his prison record were very bad, it might be necessary to take some steps that would require confining him in conditions comparable to those of an adult offender, but the Bureau would still regard him as a YCA offender.
Speaker: It is up to the Judge, not to the Department of Justice.
David A. Strauss: To decide whether someone is a YCA offender or an adult offender.
Speaker: Right.
David A. Strauss: That is right, although the treatment conditions have to be in the control of the Bureau, and the confinement conditions more generally.
Speaker: I still don't understand why it isn't sufficient to achieve the Department's end to just leave it to the Bureau if he is a youth offender to deal with him as an adult, or confine him as an adult, or confine him like they would an adult, if he gets out of hand.
David A. Strauss: Well, it may be sufficient if we could do that. One problem with that is that constraints have been put on the Bureau by the lower Courts. The other problem--
Speaker: So you really think what this case is really about is the validity of the existing policy of the Bureau.
David A. Strauss: --Well, the case is about the validity of the existing policy.
Speaker: I mean, whether they may confine a youth offender as an adult if he gets out of hand.
David A. Strauss: The obstacles that have been put in the way of implementation of that policy give this case its practical importance. Our view is that the proper interpretation of the statute remains, that Congress did not intend YCA treatment for someone who is going off to an adult--
Speaker: Mr. Strauss, are you suggesting to my brother White that without a second conviction, just because of misbehavior, the policy of the Department would permit their treating him as an adult, even though he had been sentenced as a youth offender?
David A. Strauss: --There may be some circumstances, in our view, under which a YCA offender is such a problem, the only practical way to deal with him is to place him in an adult penitentiary.
Speaker: Well, that is the Bureau's presently published policy, isn't it?
David A. Strauss: That is the Bureau's present policy, and it is one that--
Speaker: Well, its validity is not involved in this case.
David A. Strauss: --That's right. Its validity is not necessarily involved in this case, because he would--
Speaker: Not necessarily. It is not involved. You put in another word. You put in another word, not necessarily.
David A. Strauss: --Well, if the Court were to hold that the Bureau has complete discretion to place an unruly offender in adult conditions whether or not he has a YCA... has an adult sentence, then a--
Speaker: Well, if we were to do that, we would be answering a question that this case doesn't present.
David A. Strauss: --That's right.
Speaker: Ordinarily, isn't it the case that if you take a person 23 years old off the street and try him for a crime and the Judge sentences him to 20 years, he begins serving that sentence as soon as the Trial Judge directs, or as soon as his appeals are exhausted?
David A. Strauss: That is my understanding.
Speaker: And here, of course, he begins serving the adult sentence after the YCA sentence expires.
David A. Strauss: That's right.
Speaker: If there was a ten-year YCA sentence, as there was here in 1974, and say in the first trial, the first offense was in 1975, and the Trial Judge gave him one year, as he did the last time, it is your view that that one-year adult sentence would entitle the Bureau to give him ten years of adult treatment, isn't it?
David A. Strauss: That one-year adult sentence, in our view, would make him an adult offender, yes.
Speaker: And then the whole ten-year sentence could be treated as an adult sentence.
David A. Strauss: That's right.
Speaker: Mr. Strauss, would the government regard an affirmance here as invalidating the policy? The present policy.
David A. Strauss: The policy of treating YCA offenders with adult convictions as--
Speaker: Yes.
David A. Strauss: --I assume.
Speaker: The present policy you told us, without regard to an adult conviction, that they can treat him as an adult if he gets too far out of hand. I thought you just told me that. That is the policy.
David A. Strauss: The policy of treating a straight YCA--
Speaker: A YCA offender may be treated as an adult if he gets too far out of hand. That is the present Bureau policy, isn't it?
David A. Strauss: --That's right, essentially.
Speaker: And if we affirm here, are you suggesting that that would invalidate that policy?
David A. Strauss: Well, that would be a difficult question. It would depend on the nature of the affirmance. It would be difficult--
Speaker: Well, I am just talking about an affirmance.
David A. Strauss: --Well, this offender has two adult sentences for serious crimes in prison. It is hard to see how someone could be more unruly than that. So to that extent it would be a problem.
Speaker: That is true, but you think an affirmance here would prevent the Bureau under its present policy from confining him as an adult?
David A. Strauss: Again--
Speaker: If we affirmed.
David A. Strauss: --Simply, if you simply entered an order of affirmance, I suppose it would be possible to carry out the other policy, but as I said, it is difficult to see how this offender can be... can assert a right to continue the YCA treatment unless any unruly YCA offender could.
Speaker: The argument is, that is what the Act says.
David A. Strauss: Well, in our view, that is not what the Act says or intends. I should also point out that the Bureau's policy that we have been talking about of placing unruly YCA offenders in adult conditions applies only to segregation. The YCA forms of treatment, the characteristic forms of education and counseling made available to youths would still be available to them. Essentially the problem is that he would have to be put in some place like the control unit at Marion, where he is under very close supervision all the time, and as a practical matter in those conditions we cannot talk of segregation from adult offenders.
Speaker: Mr. Strauss, if you know the policy, or if you know the background, has the Bureau of Prisons had any occasion to take an unruly youth offender who is in custody, who is thought to be subject to some emotional problems, and sent him off to a Federal psychiatric institution for analysis and treatment? Have they done that, do you know? If you know?
David A. Strauss: I would suspect they have. I don't know of any particular cases, but I would suspect it has been done.
Speaker: That is common, or at least it is not uncommon with respect to other prisoners in other Federal institutions, isn't it?
David A. Strauss: No, it is common, and in fact my understanding is that at the Federal psychiatric prison institution at Butner, there are YCA offenders. That is a mixed institution specializing in psychiatric treatment. The Respondent also happens to be there, but he is there as an adult.
Speaker: Of course, Burner is a very special institution.
David A. Strauss: That is right. It specializes in psychiatric treatment. If there are no further questions, I will save the rest of my time.
Warren E. Burger: Mr. Solovy?
Jerold S. Solovy: Mr. Chief Justice, may it please the Court, I would like first to address Justice Blackmun's question of mootness, because Mr. Robinson and I sort of feel like the baseball player who came up from the minors to the big leagues, and then a baseball strike is called, and Mr. Robinson having struggled this long to get his YCA-mandated treatment as directed by Congress, I hate to see him lose it. Number one, the mootness argument presumes that this Court will not act expeditiously. I will not indulge in that presumption. But if one were to indulge that presumption, I would like to point out that in January 1982, Mr. Robinson will only be conditionally released from this YCA sentence. At that point he will start serving his adult sentence, and should he be paroled within two years, he would still be subject to the YCA sentence and could be called back into the YCA system. Now, a lot of questions have been asked by the Court--
Speaker: You mean in a sense for what would amount to violations of parole, the equivalent of parole.
Jerold S. Solovy: --That is correct, Mr. Chief Justice.
Speaker: Well, what do you have to say about the proposition, laying aside the statute for just a moment, that this man is now demonstrably on this record precisely the kind of person that Congress said should not be mixed in with youth offenders?
Jerold S. Solovy: Quite to the contrary, with all respect, Mr. Chief Justice.
Speaker: What do these two convictions mean?
Jerold S. Solovy: All right. Well, let's take... the government says that Mr. Robinson is a hardened criminal, and he must be kept in the most maximum confinement possible, namely Marion, but yet when Mr. Robinson wound his way up to the Seventh Circuit, the Bureau of Prisons started thinking about its obligations, and they transferred him to the Memphis facility, which is a minimum... a medium security, and then to Butner, which is an administrative facility. Now, at Butner we lodged with the Court his current report, where they say he requires a minimum of supervision, his attitude is positive, he interacts well, he does his job well, he has completed courses, and that is what Congress wanted to do when they passed the YCA. Under the YCA, a person could get a 20-year sentence. That means that the Trial Judge thinks that this person is a hard core case. He takes a long time to be rehabilitated. The whole purpose--
Speaker: What would you say if a man was up for youth correction, YCA treatment, and the record showed he had three felony convictions for violent crimes. Do you think he would be a good subject?
Jerold S. Solovy: --That, Justice Marshall, of course, is what Congress gave to the Trial Court. Each time that that defendant came before the Trial Judge, so long as he--
Speaker: I am not talking about this man.
Jerold S. Solovy: --Yes, I am talking about any person--
Speaker: I am talking about a man who is brought before a Court, and this is his third conviction for violent felony. Do you think the Court would be obliged to give him YCA treatment?
Jerold S. Solovy: --Oh, no, the Court is never under--
Speaker: To the contrary. You would think he was not, wouldn't you? Now, wouldn't you?
Jerold S. Solovy: --Justice Marshall, this Court--
Speaker: I say three violent felonies.
Jerold S. Solovy: --This Court has mandated the answer in Dorszynski. So long as the person is under the age of 22, the Trial Judge must make a specific no benefit finding. You take, for example--
Speaker: I am saying he makes the finding. Which finding do you think he would make?
Jerold S. Solovy: --Well, if I were the Trial Judge, I would make the finding of no benefit.
Speaker: And then I am going to ask you what is the significance of this case.
Jerold S. Solovy: There is a world of difference, because Mr. Robinson was judged by the Trial Court in this case to require ten years of rehabilitative treatment to straighten himself out, and I have to back away from the question that when you read the government's brief, the Court and I, until I start reading the cases, are sitting in a never-never land. The Bureau of Prisons says, listen to our expertise, and it is impractical to mix these people together, but this system doesn't exist. There is no YCA treatment. There is no YCA system.
Speaker: Well, in this case, you are not attacking the action of the Judges under later convictions.
Jerold S. Solovy: Not at all, Your Honor.
Speaker: They sentenced him as an adult. You don't complain about that.
Jerold S. Solovy: Not at all, Your Honor.
Speaker: All you complain about... and the Judge himself didn't attempt to terminate his prior youth condition.
Jerold S. Solovy: I couldn't agree with that more.
Speaker: And it is the Bureau of Prisons that said, because he has been convicted as an adult, we will terminate, treat him as an adult.
Jerold S. Solovy: That is exactly the--
Speaker: You are not suggesting that any later Judge is bound to sentence him for a later felony as a youth offender?
Jerold S. Solovy: --Not at all.
Speaker: What is the longest sentence that you are aware of under the Youth Corrections Act?
Jerold S. Solovy: Twenty-five years under the YCA.
Speaker: How many sentences over ten years under the YCA are made, do you know?
Jerold S. Solovy: The government sets it forth in its brief, and there are quite a number of them. I don't remember the exact figures, but there are quite a number of long--
Speaker: But percentagewise, it is a small percentage of cases, is it not?
Jerold S. Solovy: --Percentagewise, I would say the long sentences are about 15 to 20 percent, and of course the answer that Congress gave to these difficult prisoners, and Congress envisioned this, is found right in the statute, at Section 5011. It says "Classes of committed youth offenders shall be segregated according to their needs of treatment. " So Congress knew that when you gave a youth offender 20, 25 years' worth correction sentence that there might be problems, and it said that you could house those youth offenders according to their needs for treatment.
Speaker: Like sending them to Marion.
David A. Strauss: No, you can't send them to Marion--
Speaker: Why not?
Jerold S. Solovy: --because Marion is a penitentiary, and Marion does not afford what Congress mandated should be afforded, which was rehabilitative treatment. Now, the Bureau of Prisons says that the Youth Corrections Act is passe, and therefore we won't enforce it. The Bureau of Prisons likes to mix the adult offenders with the youthful offenders, and they think that prevents violence, but that is exactly contrary to what Congress said.
Speaker: Has the Bureau ever made any announcement of any such policy, or is that your inference?
Jerold S. Solovy: That is the direct testimony of the Bureau of Prisons in Watts versus Hadden, Bell versus Johnson, Brown versus Carlson, and as they say, that the Bureau of Prisons are much more direct in their testimony in the litigation than they are in the briefs filed with the Court. In Watts versus Hadden, the District Judge held as follows, and this is 469 Federal Supplement 234. I think this is a rather astounding statement. There is an incredible irony in reading the Supreme Court's careful articulation of the policy, purposes, and procedures of the YCA in the directions given to sentencing Judges in Dorszynski with the knowledge that the entire system therein simply does not exist.
Speaker: Well, that is not the only incredible irony in this case, is it? In a sense, you are urging that your client be continued to be confined under the sentence, whereas the government is urging that he be released from that sentence and start serving another sentence.
Jerold S. Solovy: I agree, Justice Rehnquist, that that is a complete irony, and that when people come before the Courts, they do not want to be sentenced under the Youth Corrections Act, because the Youth Corrections Act is not a picnic. It gives them a longer sentence than they might normally get, and it gives them in many ways different types of treatment. This was not supposed to be a picnic. The Borstal system was hard work. Now, they want to take... What the government, though, has done, Justice Rehnquist, is try to put Mr. Robinson in a penal never-never land. Bear in mind that one year after his ten-year YCA sentence he got a consecutive adult sentence.
Speaker: For doing what?
Jerold S. Solovy: For assaulting a prison guard.
Speaker: Does that seem unreasonable to you?
Jerold S. Solovy: No, the sentence doesn't seem unreasonable.
Speaker: Suppose the government paroles him from the YCA Act today. Is this case moot?
Jerold S. Solovy: Yes, except for the--
Speaker: He will stay right where he is, won't he?
Jerold S. Solovy: --Except for the possibility--
Speaker: And you couldn't say a mumbling word. Right?
Jerold S. Solovy: --Well, except... No, that isn't correct, because there are cases like that, Mickless, for example, Mickless versus United States, because they could then parole him the next day from the adult sentence, and since he would still be subject to being called back for a parole violation, I think the Court would have the right to render a decision as to the conditions of confinement. But meanwhile, Justice Marshall, they haven't paroled him, and he is still there, and he is still in the wrong place, and they are still not giving him treatment.
Speaker: Mr. Solovy, on your initial point, I want to be sure I understood you.
Jerold S. Solovy: Yes.
Speaker: You contend that because of the two-year parole at the end of his eight-year time in custody, this case will not be moot next January.
Jerold S. Solovy: That is correct.
Speaker: Technically, because there is a possibility of the other sentences being paroled--
Jerold S. Solovy: That is correct.
Speaker: --within the two-year period.
Jerold S. Solovy: That is correct, but I want to make sure that the Court understands my position. I am not quarreling with the legality of the second... of the first consecutive sentence. The irony is that the second consecutive sentence is an illegal sentence, as this Court determined in Dorszynski, because there was no no benefit finding. The government's position would result in strange anomalies. Take, for example, a misdemeanor who could only get a six-month sentence. He gets an indeterminate YCA sentence. That means he is there for a potential four to six years. He then gets in trouble, and he gets a one-year consecutive adult sentence. That means he is going to end up serving five to seven years for an offense that if he were sentenced as an adult he could only be imprisoned six months, and that would be an anomalous result. Under the Congressional scheme, it doesn't matter what pattern of sentences occur. If a youth at the age of 18 commits a robbery and gets a one-year adult sentence, then gets in trouble again before the age of 22, he can get a YCA sentence. This Court has mandated that a Judge make a no benefit finding. But the question of what the Bureau of Prisons could do, whether they could yank a man in and out of his status as a YCA offender, Mr. Strauss referred to the Borstal system. Well, the Borstal system was plainly explained to Congress, including the power to take a person from a youth facility and put him in a penal institution. Congress did not adopt that suggestion. They explicitly left it out. When the initial Act was proposed in 1943, the American Law Institute proposed that the Bureau of Prisons be given the authority to determine YCA status. All the Judges in America screamed about that. That was rejected. Then they proposed that the Judges and the Bureau of Prisons share these powers. And what you had was a system in which only the Trial Court could impose a YCA sentence. Now, bear in mind, in Dorszynski, this Court held that that determination of the Trial Judge is not reviewable by this Court. Now, what the Bureau of Prisons is saying is that either they can countermand the judgment of the initial Trial Judge or that the second Trial Judge could do that. Now, if this Court could not review a YCA sentence, then certainly the Bureau of Prisons could not do it, nor could the second Trial Judge, nor did the second Trial Judge in this case intend or pretend to countermand the Youth Corrections sentence.
Speaker: I suppose your position would be the same if the sentence were concurrent.
Jerold S. Solovy: No, Your Honor.
Speaker: Why not?
Jerold S. Solovy: That is a good question. I am not surprised you asked.
Speaker: Well, I have been waiting for you to get to it.
Jerold S. Solovy: Well, that is because it is probably one of the most difficult questions in the case, and we have agonized over what the correct answer is, and correct not in the manner of espousing our position but intellectually and legally correct.
Speaker: The question is, the question in this case is whether the later conviction automatically terminates the youth sentence, wholly aside from any discretion of the Bureau of Prisons. That is the question I want an answer to.
Jerold S. Solovy: Exactly.
Speaker: Does it automatically terminate it when there is a concurrent sentence? Or does it give some discretion to the Bureau to do it?
Jerold S. Solovy: The Bureau can have no discretion, and bear in mind when I give this answer, and I may be sailing away the rights of some poor indigent someplace--
Speaker: But not yours.
Jerold S. Solovy: --Not mine. I don't represent him. We believe that in this case the concurrent sentence would take precedence over the Youth Corrections sentence, because otherwise you would be having the discretion of two Trial Judges in conflict. When the Trial Judge gives a YCA and the second Judge gives a consecutive sentence, there is no tension whatsoever. The first Judge in effect is deferring to the discretion... the second Judge defers to the discretion of the initial Judge. But when you have a concurrent--
Speaker: Well, there is a conflict in the sense that in order to sentence him as an adult, he has to make a no benefit finding, which is contrary to what the first Judge found.
Jerold S. Solovy: --Under different circumstances for a different time and a different--
Speaker: I know, but he nevertheless says at this very moment he will not benefit from being treated as a youth, and yet your argument is that he must be treated as a youth.
Jerold S. Solovy: --Justice White, I don't think those sentences are in conflict, because his no benefit finding takes effect only upon the expiration of the youth offender sentence.
Speaker: Well, that is your argument.
Jerold S. Solovy: Well, that is the clear--
Speaker: You go ahead on your concurrent sentence--
Jerold S. Solovy: --All right, but that is the clear answer under the Congressional Act. However, as to the concurrent sentence, now you have two Courts of equal jurisdiction, and the second Court says, for this offense, I wish to impose a concurrent adult sentence Now, I might point out the Bureau--
Speaker: --And he says no benefit.
Jerold S. Solovy: --No benefit. The Bureau of Prisons, according to their statistics, they say they have in the youth corrections facilities 175 persons who have consecutive and concurrent sentences so although the Bureau of Prisons... it doesn't make any difference to them because they mix adult and youth offenders up all together, so it makes no difference, but they treat them as a youth offender. I think the answer is that that person can be immediately incarcerated as an adult offender, because the second Judge has exercised his discretion that this person should be immediately incarcerated as an adult, and I think the question is not without its difficulty, because the first Judge made a determination that the offender would benefit, but the second Judge says no. They are both Judges of concurrent jurisdiction. The first Judge cannot veto the power of the second Judge; as in this case, the second Judge could not countermand the sentence of the first Judge.
Speaker: Well, he didn't even try to.
Jerold S. Solovy: He didn't, Justice White. That is exactly correct. The government quotes in its brief the language that he would not benefit further, but they omit the rest of it in which he says, "and I decline to sentence him under the Act. " which is exactly what he was required to do under Dorszynski.
Speaker: Let me give you an easier one.
Jerold S. Solovy: Yes, I wish you would, Justice Marshall. You have been giving me awful hard ones.
Speaker: Suppose this man had been acquitted originally, and then knifed somebody. Where would he go?
Jerold S. Solovy: Well, he would go back before the sentencing Judge and that sentencing Judge under Dorszynski would exercise his discretion--
Speaker: No, he was acquitted.
Jerold S. Solovy: --No, but I mean, under the second--
Speaker: He was acquitted--
Jerold S. Solovy: --Yes.
Speaker: --and he knifed somebody.
Jerold S. Solovy: Correct.
Speaker: He would go to an adult jail, wouldn't he?
Jerold S. Solovy: Depending... if he were under 22, the Trial Judge is mandated by law and by this Court's decision--
Speaker: Right.
Jerold S. Solovy: --to make a no benefit finding.
Speaker: And if he found that he was entitled to adult treatment, where would he go?
Jerold S. Solovy: He would go to an adult--
Speaker: So the only difference here that is instead of being acquitted, he was convicted.
Jerold S. Solovy: --The difference is, Justice Marshall--
Speaker: Is that right?
Jerold S. Solovy: --that the first Judge made a judicial determination that Mr. Robinson would benefit from treatment under the Youth Corrections Act for a ten-year period. No other Court--
Speaker: Regardless of how many crimes he committed?
Jerold S. Solovy: --Well, the theory of--
Speaker: Suppose he shot 18 people in six days?
Jerold S. Solovy: --Well, then I assume they would electrocute him, you know, fairly, promptly, but the theory of the Youth Corrections Act, and Mr.--
Speaker: Could they do that under your theory? Could they electrocute him under your theory?
Jerold S. Solovy: --Well, if he keeps shooting people, either... it depends upon your theory of penology. I might veer more towards the Bureau of Prisons in that case, but-- 0 [Generallaughter.]
Speaker: I thought you would.
Jerold S. Solovy: Well, even lawyers like some protection.
Speaker: What would happen... Suppose a Youth Corrections Act, as it was here, was pronounced, sentence was pronounced, and then the Judge said, however, I am going to put you on probation. That will be hanging over you. And then he goes out and commits a murder or something else. Do you think the Youth Corrections Act sentence must be served first before the second conviction, sentence must be served?
Jerold S. Solovy: Well, I think that is a situation that could quite frequently happen, and I think that the Judges normally in those situations will determine whether under the second offense the Judge is going to sentence him as an adult, and whether--
Speaker: I am assuming that the second sentence then for murder--
Jerold S. Solovy: --Is as an adult?
Speaker: --is as an adult. Is the Youth Corrections Act sentence going to be a barrier?
Jerold S. Solovy: Normally, the Trial Court Judges exercise good sense, so if he has a second Judge who has given this gentleman, let's say, ten years, and as as an adult, he would not reinstitute the Youth Act sentence. If he did, then he would have to determine which really was in progress, and I guess the answer might be that he might have to serve his Youth Corrections Act sentence, but of course, in this case, Mr. Robinson--
Speaker: Do you think that is what Congress had in mind in this Act?
Jerold S. Solovy: --What Congress had in mind, it is very clear that if someone had the time, as I had, to read the Act and the legislative history from beginning to end, what Congress had in mind was that there was going to be a big surge of youth coming back from the war, because this Act started being considered in the early forties, and because it got tied up with an adult indeterminate sentence that the Trial Judges didn't like, it got kicked off to 1949, and they said that the percentage of crime committed by youth far exceeded their percentage of the total population, so that what Congress was trying to do was to stop hard core criminals, and we are penalizing Mr. Robinson in a way. We are saying he is a hardened criminal, and a failure of the system, when the system really didn't exist. Now, when he finally gets to Butner a year ago, and they finally give him the treatment that Judge Moultry said in 1974 that he should get, which was intensive individual therapy, he has reacted wonderfully. He has completed courses in real estate, basic math. He is a member of the band. He does his job. He interacts positively. That is what Congress wanted to do. They wanted to take the youth of America and save them from being repeater criminals. This wasn't, as they said, a molly-coddling feel sorry for the underprivileged.
Speaker: But any time a Judge, when he finds a youth offender is convicted of another crime, any time a Judge goes to sentence, if he thinks the status of the youth offender should be terminated and he should start serving an adult sentence, he can affect that by just sentencing him concurrently.
Jerold S. Solovy: Exactly, Justice White.
Speaker: And so that option is always available in such cases like this.
Jerold S. Solovy: That is correct.
Speaker: Do you know if the government asked the Judge to do that in this case?
Jerold S. Solovy: We, unfortunately, of course, were not appointed until we got to the Seventh--
Speaker: Of course, the government's position is that you should say that automatically the youth offender status ends with the second conviction--
Jerold S. Solovy: --That is correct.
Speaker: --and wouldn't want to leave it just to the Judge.
Jerold S. Solovy: That is correct, but--
Speaker: But the Judge could control it. You agree with that?
Jerold S. Solovy: --Yes, no question, Justice White, that if he wanted to terminate a Youth Corrections Act sentence, the second Judge would enter a concurrent sentence.
Speaker: Is a YCA defendant entitled to the good time credits and the two-thirds maximum?
Jerold S. Solovy: None whatsoever, Justice Rehnquist.
Speaker: So those are strictly for adult offenders?
Jerold S. Solovy: Poor Mr. Robinson, as I say, at the end of the first year of his ten-year YCA sentence, he gets this adult sentence. The Bureau of Prisons says, it is all over, Mr. Robinson. No more Youth Corrections treatment, which you never got in the first place, but you are not going to get it. And you are going to... they concede his YCA sentence is going, so therefore you will serve your full eight years before you get your conditional discharge, but as for your adult sentence, you get no credit whatsoever, and that is why the government and the Bureau of Prisons is so nervous about this case, because really you cannot say that it makes penological sense to keep Mr. Robinson incarcerated for eight years under the Youth Corrections Act and not give him the treatment that Congress mandated, and at the same time house him in Marion as an adult offender with the hardest of criminals in the nation, and say, you don't get your good time credits, you don't get your time off, nothing.
Speaker: But as soon as he starts serving his adult sentence, he will receive those.
Jerold S. Solovy: No, not retroactively.
Speaker: Not retroactively, but--
Jerold S. Solovy: He won't start receiving them until January of 1982.
Speaker: --Which will be the date he commences his adult sentence.
Jerold S. Solovy: Correct.
Speaker: Do you think the Judges across the country are aware of the fact that a concurrent sentence will terminate the youth offender sentence?
Jerold S. Solovy: I think the Trial Judges are aware of that. What they are not aware of, Justice White, is that the Judge found in Watts versus Hadden that the Youth Corrections Act is a myth, and that this system does not exist, because if you ask the Trial Court Judges what is going to happen to their youth offenders when they are sent to the facility, they think they will be segregated from adult offenders, they think that they will receive rehabilitative treatment. They don't think they are going to be mixed with adult offenders who are going to enforce peace and quiet, because that isn't the intention of the Judges. And I am surprised that the Bureau of Prisons, with the state of litigation that is going on, in Brown versus Carlson, Watts versus Hadden, Johnson versus Bell, where they are being told continuously to bring your performance within the Congressional mandate... I mean, it is 32 years later... that they would have the temerity to bring this case before the Court and say, defer to our expertise, and it would be impractical to operate the Act as Congress has mandated, when they have never tried.
Speaker: Well, the cases you have referred to are not from this Court, are they?
Jerold S. Solovy: No, but Dorszynzki--
Speaker: Right.
Jerold S. Solovy: --mandates segregation, rehabilitation. It is all set out in this Court's opinion.
Speaker: And it also makes the finding on review.
Jerold S. Solovy: Correct.
Speaker: You still keep talking about poor Mr. Robinson, and all he did was stab a prison guard.
Jerold S. Solovy: But poor Mr. Robinson is someone--
Speaker: Poor Mr. Robinson wants youth treatment. Isn't that rather adult action to stab a guard?
Jerold S. Solovy: --Justice Marshall, his first offense could not have been more adult. It was a murder committed in the course of a robbery. I don't think that any human being should be written off.
Speaker: I just object to your using the word "poor".
Jerold S. Solovy: All right. Well, let us say--
Speaker: I mean, don't make me cry about it.
Jerold S. Solovy: --Let us say that it is my position that Congress has mandated, whatever adjective we ascribe to Mr. Robinson, that he was to receive certain treatment, and that was rehabilitation and correction so that he would not be a threat to society.
Speaker: And that comes under the Act of Congress.
Jerold S. Solovy: Yes, it comes under the Act of Congress. We feel that if the government does not like the way this Act operates, if they want to run the Youth Corrections Act the way they want to run it as against the way Congress said it should be run, if they think that it is proper to mix adult offenders with youthful offenders, then we believe that that question should be put before Congress, and it should not be put before this Court, as this Court stated in Dorszynski. If the Court should hold that this second sentence somehow revoked Mr. Robinson's youth offender status, then, as we set forth in our brief, you have serious constitutional issues of equal protection, double jeopardy, and due process. We do not believe that the Act has to be interpreted in a manner which raises those issues. We believe that the Seventh Circuit was clearly correct that the Third Circuit, which had issued these wonderful decisions in this area up to Thompson versus Carlson, was incorrect in its ultimate premise. In Thompson versus Carlson, the Third Circuit clearly said to the Bureau of Prisons, you cannot unilaterally revoke this man's status. You do not have it within your power. As much as the Bureau of Prisons would like to have that power, they do not have it. The Courts have uniformly held that, other than the Fourth Circuit's decision in Outing. That is the only decision, and an early decision in Abernathy, which I do not think adequately addressed the issues, but all the other Courts have said, including Thompson versus Carlson, you do not have that power. Thompson versus Carlson said, though, that the second Judge in imposing the sentence terminated the first youth corrections sentence, and we believe the Seventh Circuit was clearly correct in holding that that was not the effect of the second sentence. Indeed, the consecutive adult sentence may have been imposed in Mr. Robinson's case, as the Seventh Circuit pointed out, precisely because he was serving then a youth corrections sentence, and the Court might have imposed a youth corrections sentence otherwise. Thank you.
Warren E. Burger: Do you have anything further, Mr. Strauss?
David A. Strauss: Mr. Chief Justice, one or two points. Justice White, the reason that the Judge's sentencing an offender to a concurrent adult sentence doesn't solve the problem is, of course, the Judge might think, as he evidently did in this case, that the offense was sufficiently serious that the additional punishment of a consecutive sentence was necessary.
Speaker: I understand. You would rather have an automatic rule than have to convince the Judge. I can understand that.
David A. Strauss: Well, the Judge in this case didn't take any convincing. He thought a consecutive sentence... well, we don't know if he took convincing or not, but in any event he thought a consecutive sentence was necessary.
Speaker: Well, I know, but if a concurrent sentence automatically terminates a youth offender, all a Judge has to say is, he could say, ten years as an adult, and the sentence to begin immediately, the youth offender status is terminated.
David A. Strauss: Well, the Judge could--
Speaker: That is equivalent to a concurrent sentence.
David A. Strauss: --That's right. Of course, that would prohibit the Judge from sentencing a consecutive sentence, a consecutive maximum sentence under the--
Speaker: I agree with you. But in this case, exactly what did the Judge say? Your position is that you want an automatic rule to prevent the Judge from putting on a consecutive sentence.
David A. Strauss: --We think the Judge puts on a consecutive sentence, that it would be grossly--
Speaker: That the sentence should start right now.
David A. Strauss: --It should permit the Bureau not to have to treat him as a YCA offender anymore, now that YCA treatment is inappropriate for him.
Speaker: Exactly what did the second Judge say with respect, if anything, to no benefit?
David A. Strauss: He said that the offender will not benefit any further under the provisions of the YCA, and sentenced him to an adult term, and also recommended that the offender be transferred from the Federal Youth Center where he had been confined to a more secure institution.
Speaker: What page is that?
David A. Strauss: We paraphrased at Page 6 of our, brief. It is also in the judgment and commitment order which we have lodged with the Court.
Speaker: Well, that is just practically the same as saying, I hereby terminate the--
David A. Strauss: Well, we don't rely on the Judge's statements. What we rely on is the fact that an adult sentence was imposed, and under the Act it now makes no sense to--
Speaker: --You want an automatic rule.
David A. Strauss: --as a YCA offender.
Speaker: May I ask why you don't rely on the Judge's statement?
David A. Strauss: Well, we think even if the Judge hadn't made the statements that it would make no sense to take an offender who is an adult offender in the contemplation of the YCA and continue to treat him as if he were a YCA offender.
Speaker: So you want the authority to be put in the Bureau of Prisons--
David A. Strauss: We think--
Speaker: --to revoke the YCA status?
David A. Strauss: --No, it is not... to treat him as an adult offender.
Speaker: Do you or don't you?
David A. Strauss: We do want the Bureau to be able to say in cases like this, we are going to treat this person as an adult.
Speaker: Where do they get that authority to overrule a Judge?
David A. Strauss: I think that is a misconception that the Respondent has been repeating. This isn't a matter of--
Speaker: Well, isn't it true?
David A. Strauss: --Well, it is not a matter of revoking or overruling or countermanding a sentence. The question is, what is the sentence.
Speaker: Well, the Judge says Youth Corrections Act.
David A. Strauss: That's right.
Speaker: And the Bureau of Prisons says no more.
David A. Strauss: After the second adult--
Speaker: That isn't counteracted?
David A. Strauss: --That is right, because the question is, what does the Youth Corrections Act--
Speaker: Well, where do you get that authority?
David A. Strauss: --The authority is already implicit in the Youth Corrections Act sentence. It is sour view that Congress never intended a Youth Corrections Act sentence to be so inalienable that even--
Speaker: Did the Judges know that?
David A. Strauss: --The first sentencing Judge may very well have known that.
Speaker: May. Do they?
David A. Strauss: We just don't know what the first sentencing Judge thought.
Speaker: Well, where does the Bureau of Prisons get the right to overrule a Federal District Judge?
David A. Strauss: The Bureau of Prisons is not overruling a Federal District Judge.
Speaker: It is just changing it.
David A. Strauss: It is not even changing it. The Federal District Judge gave him a YCA sentence. Our problem is, what does that entail? Specifically, does it entail continuing to treat him as a YCA offender when it makes no sense, and our view is, it does not entail that.
Speaker: What you are saying, in effect, is that the second sentencing Judge is the one who has revoked or taken the action which terminates the YCA sentence.
David A. Strauss: We think the second sentencing Judge's decision was what made it no longer appropriate to treat him as a YCA offender.
Speaker: I thought you abandoned that.
David A. Strauss: His decision to sentence him as an adult.
Speaker: Well, did you abandon it or not?
David A. Strauss: Did I abandon what, Justice Marshall?
Speaker: Relying on the Judge's action.
David A. Strauss: We are relying on the adult sentence, not on the Judge's statements that went with the sentence.
Speaker: Do you rely on the Judge, the statement that the Youth Corrections Act is no longer in force? Do you rely on that or not?
David A. Strauss: The Judge sentenced him to an adult sentence, found that he would not benefit from YCA treatment. That is--
Speaker: Do you rely on the Judge's statement?
David A. Strauss: --The Judge made a statement that the offender would--
Speaker: Do you rely on it or not?
David A. Strauss: --We rely on his sentence, on the imposition of the adult sentence.
Speaker: And what he said.
David A. Strauss: In order to impose that sentence, he had to make a certain finding.
Speaker: And you rely on that.
David A. Strauss: Well, we rely on the sentence which includes the finding, but it is the sentence we rely on, not his extra statements.
Speaker: I am a little puzzled. The language you quoted was in 1975 or 1977?
David A. Strauss: 1975.
Speaker: 1975. So you say he did make the equivalent of a no benefit finding in 1975.
David A. Strauss: Yes, he made a no benefit finding explicitly.
Speaker: Yes.
David A. Strauss: The 1977, there is no--
Speaker: In 1977 he did not do it.
David A. Strauss: --There is none in the judgment and commitment order, but the Respondent concedes he is no raising that here, so for purposes of this case that has to be regarded as a valid adult sentence.
John Paul Stevens: Can you tell me in 1975 what was the maximum sentence which the Trial Judge could have imposed for the crime he was found guilty of?
David A. Strauss: Ten years.
Speaker: So if he had given a concurrent sentence of ten years--
David A. Strauss: That's right.
Speaker: --that would have solved the problem.
David A. Strauss: Well, not quite, I suppose because he had more than four and a half years left on his YCA sentence at that point.
Speaker: Well, pretty close to solving it.
David A. Strauss: Pretty close to solving it. Of course, that would have required the Judge to jiggle around his sentences in order to take care of the problem.
Speaker: Well, the Bureau immediately treated him as an adult.
David A. Strauss: That's right.
Speaker: And apparently said, ten years is enough.
David A. Strauss: Ten years--
Speaker: As an adult.
David A. Strauss: --Yes, the Bureau thought that his YCA sentence plus the consecutive sentence--
Speaker: So it did not solve the problem.
David A. Strauss: --Thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted.