Earl Warren: Number 77, John R. Jones, petitioner, versus W. K. Cunningham, Superintendent of Virginia State Penitentiary. Mr. Meador.
Daniel J. Meador: Mr. Chief Justice, may it please the Court. This is a habeas corpus case which has been dismissed by the Fourth Circuit as moot. The petitioner who is a state prisoner, had been placed on parole while his appeal was pending, and the court below considered that thereafter, he was not in custody within the meaning of the habeas corpus statute. The question presented is whether a prisoner who has been unconstitutionally convicted and who is now on parole is to be denied any remedy in the federal courts. In urging that he has a remedy, the petitioner relies on two propositions. The first is that a writ of habeas corpus is available to a paroled prisoner because he continues to be restrained of his liberty when he is transferred from the custody of the penitentiary superintendent to the custody of the State Parole Board and is compelled thereafter by the Board to live in a particular town, in a particular house, to work only at a designated job and generally to confine his activities to those things which the Board directs. The second proposition is that even if habeas corpus is held to be inappropriate, the action should not be dismissed but should be treated as a declaratory judgment action and the constitutional claim thereby adjudicated. Now, if it please the Court, I’ll leave the second part, the declaratory judgment issue to the brief and focus discussion here on the habeas corpus question. This action was commenced in the Federal District Court for Eastern Virginia in February 1961. At that time, petitioner was confined at the Virginia State Prison Farm under a 10-year recidivist sentence which is the same sentence under which he continues to be held now on parole. That sentence was based on three prior convictions, one of which was a larceny conviction, a conviction for larceny of an automobile in 1946. In the petition filed below, it’s alleged that at that larceny trial, the petitioner -- petitioner’s constitutional right to counsel was violated. It’s clear under the decisions in the Virginia and the federal courts that if this larceny conviction is constitutionally invalid, the recidivist sentence which is based on it is also invalid. Petitioner alleges that at the larceny trial in 1946, the petitioner was then 20 years old that he had no money, he had no lawyer, he was not told that he was entitled to counsel, he was not aware that counsel could be appointed for him and that he did not waive his right to counsel. The state in its return filed in the court below admitted that petitioner was not represented by a counsel at the larceny trial. However, the state put forward two grounds for dismissal of the petition. One was that the petitioner had already had a hearing on his constitutional claim in the state court and was not entitled to any further hearing in the federal court. The second was that the circumstances surrounding the larceny trial in 1946 did not constitutionally require the appointment of counsel under the line of cases stemming from Betts against Brady. The District Court relied on those two grounds in dismissing the petition without a hearing. Thereafter, the petitioner took steps to appeal his case, still representing himself, he never had a lawyer up to that point, and he appealed to the Fourth Circuit. The Fourth Circuit granted leave to proceed in forma pauperis, granted the certificate of probable cause and appointed counsel to present the appeal for the petitioner. The case was then put on the calendar for argument. Briefs were filed by both sides. The day before the case came on to argument, June 1961, the respondent filed a motion to dismiss the appeal on the ground that it was moot since the petitioner had been granted parole and within a few days, he would be released from the State Prison Farm on parole. Attached to this motion to dismiss was a copy of the parole order, the order issued by the Parole Board, granting parole and setting forth all the terms and conditions. That order is a key document in this case and if the Court please, I’d like to call its attention to it in the record at page 20. The order is backed up by Virginia statutes, one of them specifically requires a parolee to comply with all terms and conditions prescribed by the Parole Board. Now, the order is directed to the petitioner from the Parole Board, if the Court will notice on page 20, the second paragraph of the order, “you are placed under the custody and control of the Virginia Parole Board.” Now, there is a Virginia statute which also says the same thing in effect. It says the -- a parolee is in the custody of the State Parole Board and I mentioned at this point that the word ‘custody’ is the very word used of course in the federal habeas corpus statute. Then coming to the middle of page 20, the last long paragraph, there that 12 general conditions set out. They are very sweeping and broad, some of them. I call the Court’s attention particularly to condition (f), “Do not leave or remain away from the community where you reside without permission of your parole officer. You shall not change your residence without permission from your parole officer.” Condition (h), “You shall not own or operate a motor vehicle until you have received written permission.” At the top of page 21, the general condition there, condition (l), “Follow the parole officer’s instructions.” Then we have special conditions that direct the petitioner to live at the home of Mr. and Mrs. McKinney, his aunt and uncle in LaFayette, Georgia. I’m told that that’s the way to pronounce locally. He is directed also to work for his uncle, Mr. McKinney, a plumber and so on. For following the filing of this motion to dismiss, the case was argued in the Fourth Circuit on the merits of the constitutional claim and on the motion. And thereafter, three days later, the petitioner was placed on parole and proceeded to LaFayette, Georgia where he has remained ever since under the terms of the parole order.
Speaker: He’s still on parole?
Daniel J. Meador: Yes, sir. Petitioner’s court appointed counsel at that point promptly filed a motion to bring in the members of the Virginia Parole Board as parties to the case on the ground that they now had custody of the petitioner and not the penitentiary superintendent. In September 1961, the Court of Appeals dismissed the appeal as moot, explaining in an order that petitioner was no longer in the custody of the originally named respondent, Superintendent of the Penitentiary and that he --
Earl Warren: Did the court deny him permission to substitute the Parole Board?
Daniel J. Meador: Yes, sir. It did not grant petitioner’s motion to bring in the Parole Board members and it held that he was not in the physical custody of the Parole Board.
William J. Brennan, Jr.: Was there a formal denial Mr. Meador of the motion to substitute?
Daniel J. Meador: It's only in the course of the opinion. There is no order denying that motion. It’s clear though from the opinion that it was being denied in the -- it wasn’t granted in any event. Thereafter, this Court granted a petition for certiorari, limited to the issue of mootness. Therefore, the merits of the right to counsel claim are not here today. Now, petitioner’s basic contention here is that the narrow view taken by the court below as to the availability of habeas corpus is simply out of line, out of harmony with the spirit and purpose of the writ and the historic usage of the writ for the last -- at least the last 200 years. The test of the availability of the writ, that is the test for the meaning of custody in this context which is really synonymous with restraint of liberty, the test is not close confinement or physical incarceration or imprisonment behind locked doors. The test is whether the petitioner is deprived of the freedom to go when and where he would otherwise have the right to go. That is whether on a realistic appraisal of the facts, the petitioner is subjected to special restraints on his liberty, on his mobility, restraints which are not imposed on society generally.
Arthur J. Goldberg: Mr. Meador, in that action, did he address himself to this comment on page 31 of the Supreme Court -- of the Court of Appeals where they said that really the custody and parole was not a real custody because anybody, any citizen who performs the acts that were specified of the parole order would be subject to arrest. Do you think the citizen would be subject to arrest if he didn’t keep good hours, he didn’t keep good company?
Daniel J. Meador: No, sir. That precisely is our point that the -- we have here a whole array of restraints to which the citizen generally is not subjected. A citizen generally is not told where to live, where to work, what hours to keep, persons to associate with, etcetera. Now, it’s true, one of the conditions here is that he obey the law. Everyone is subject to that, but there are many, many others here to which citizens generally are not subject to and even that condition, even the condition that he obey the law has consequences here that are not ordinarily present. Should he violate a municipal ordinance or any other statute, he is subject to rearrest and re-incarceration without any further trial which is something people generally do not live under. Now, our proposition is that restraints within the formula which seems historically supportive. Restraints may be imposed in a great variety of ways other than by locked doors and prison walls and the parole order in this case backed up by the Virginia statutes makes it plain that this man is circumscribed realistically by a great array of restraints. The Virginia statutes which are in the appendix in petitioner’s brief compel this man to obey the terms of the order or be subject to arrest. He may be arrested with or without a warrant for violation of any condition which includes any instructions the parole officer might care to give him. And upon being rearrested he may be re-incarcerated without an order. Petitioner really is in a twilight between the penitentiary and freedom. That’s what gives rise to the difficulty in this case. He is certainly not a free man. However, he is not confined in the penitentiary. It’s just halfway point which modern penology has evolved, gives rise to this difficulty. However, look at his position. His entire life is subject to official supervision. Every move he makes is merely by official grace and by official sufferance. People with whom he associates, the job he holds, the places he goes, where he lives, all of these things which we think of really as being of the essence of freedom. The absence of these things is what we associate with a totalitarian state, police state. Therefore, when a man in our society is deprived of these things, and is deprived of his freedom in these ways, I would say that freedom writ -- writ of habeas corpus is available to adjudicate and test the legality of those restraints. And there's nothing novel really in using the writ for this purpose and to test the legality of such restraints. In our brief, we have set out numerous examples from history, some modern, some old in which people have employed the writ. Persons illegally inducted into the army have brought habeas corpus to test the legality of the induction. Children in custody, the legality of that particular custody has been adjudicated by habeas corpus. These people are not physically incarcerated. They are not prisoners in jail, yet they're under restraints. The apprentice server in the 18th Century had available of the writ to test the legality of the indenture under which he was held. That’s an interesting historical incident because the parolee today is a direct descendant of the old indentured servant. The indentured servant is an ancestor of the parolee, the modern parolee. All of these people, parolees, indentured servants, people in the army, children in someone’s custody, all of them have in common the fact that they're in the control of someone else. And this element of control seems to be the key here, in the control of someone else under special restrictions on mobility and liberty which are applicable to society generally. And this is all custody means in the habeas corpus statute in this context and the writ is not tied to any one form of restraint. It’s not narrowly limited to prisoners in jail and with all due respect, it seems to me that the court below failed to take adequate account of this. All that was necessary to prevent this case from becoming moot was to bring in, enjoin or substitute the members of the Parole Board in place of the penitentiary superintendent. The Parole Board, the members of that Board and now the officials imposing the present restraint, they now have petitioner in their custody.
Potter Stewart: Do you explain a case like Weber against Squier as being based upon the fact that they had the wrong respondent, that there had been a substitution of the Parole Board in that case, the (Voice Overlap) --
Daniel J. Meador: Yes, I would say those are --
Potter Stewart: -- that there might have been a general position. In other words, you’d construe that case as not foreclosing or is not being a precedent against you?
Daniel J. Meador: Yes, I could say two or three things about it. It does not appear that there was any motion to substitute any other respondent neither does it appear that there was any other respondent who remained within the jurisdiction of the District Court where the habeas corpus action was commenced. I think that is important on the Ex parte Endo and other cases that if you have a respondent remaining within the district, even though the petitioner himself has been removed after the filing of the petition.
Speaker: In Weber, have you gone back to the -- to the order in that -- is it a fact that there was no other respondent within the jurisdiction or is it a fact that no motion was made, do you happen to know?
Daniel J. Meador: On the first point that there was no other respondent. The appropriate respondent there, apparently, would’ve been the Attorney General of the United States because by virtue of statute he has custody of a parolee. It would be my impression if he would not be within the territorial jurisdiction of the District Court, that case came out of the Ninth Circuit. I don’t know the district, but I would assume he was not within the reach of the District Court’s process. I have not been able to find any motion to substitute was made. Moreover, I would add this about Weber and Squier. It was a denial of certiorari on a stated ground. It would appear that by having granted certiorari in this case, the Court considers the question not necessarily foreclosed by Weber and indeed, this is the first time the question has been before the Court for plenary consideration. So all in all I would consider the question open. The Parole Board meets another requisite for a habeas corpus respondent and that is that it has power to produce petitioner in the Federal District Court in response to the writ. In conclusion, I would simply point out two features about this case, one is this. The Parole Board itself expressly says that it has custody of the petitioner. The Virginia legislature also expressly says that the petitioner is in the custody of the Parole Board. So, it seems that the state is hardly in a position here to say that the Board does not have custody. The state can hardly deny that which its own Board and its own legislature say is so. Now, there is another point which the state has never denied in this case and cannot deny and that is that the petitioner still today remains a prisoner of the State of Virginia. And he is a prisoner under an unexpired sentence imposed, so he asserts and with considerable merit I think, in violation of his constitutional right to counsel. It seems to me clear from this Court, in Congress, and our legal tradition generally that a man in that position is not to be left wholly without any remedy.
Potter Stewart: Is there a jurisdiction on your -- the question here, rather one of the jurisdiction. What district was this, what district was this?
Daniel J. Meador: Eastern District of Virginia.
Potter Stewart: That’s where the penitentiary was, (Voice Overlap) --
Daniel J. Meador: Yes sir.
Potter Stewart: That’s where the warden, the --
Daniel J. Meador: Yes.
Potter Stewart: -- respondent warden was. Is that where -- also where that Parole Board is?
Daniel J. Meador: Yes sir.
Potter Stewart: And the Parole Board of statewide --
Daniel J. Meador: It’s composed of three members all of whom are in Richmond in the Eastern District of Virginia.
Potter Stewart: In the Eastern -- so there's no problem there?
Daniel J. Meador: No problem.
Potter Stewart: The petitioner himself is in Georgia?
Daniel J. Meador: Yes sir, now.
Potter Stewart: You think that his geographical location has nothing to do with the jurisdiction?
Daniel J. Meador: Yes, sir. Undertaking the Ahrens case together with Ex parte Endo, he was in the Eastern District of Virginia, detained there when he commenced the proceeding. He was there until it got to the Court of Appeals.
Potter Stewart: And in any event the respondent is -- would be the custodian (Voice Overlap) --
Daniel J. Meador: Yes, sir.
Potter Stewart: -- other than the --
Daniel J. Meador: They are there. The old and the new are all in the Eastern District of Virginia. Thank you, sir.
Earl Warren: Mr. Harp.
Reno S. Harp, III: Mr. Chief Justice, may it please the Court. I think that the facts as outlined by counsel for the petitioner in the case at bar are roughly correct. It would seem to me, however, that there is one constitutional infirmity in the petitioner’s conviction which has not been discussed by Professor Meador and that is the fact that under the decision of this Court in Chewning versus Cunningham, his recidivist sentence is invalid because he was not represented by counsel at that time, but that I think is immaterial. The -- this case hinges on the scope of the writ of habeas corpus. That is the whole point that I think that we have before this Honorable Court. Beginning on page 5 of our brief, we have outlined, succinctly we hope, our understanding of the writ of habeas corpus, the fact that an order for it to lie, the man must be a prisoner. And we rely on McNally versus Hill, we have cited some language in that case on page 7 of our brief and I would like to read to you that a portion thereof which I think is particularly pertinent. This Court said the writ in its historic form like that now in use in the federal courts was directed to the disposition of the custody of the prisoner. It commanded the officer to have the body of him taking in our prison under your custody together with the day and cause of his being taken and detained. Now, under what wild stretch of whose imagination can a superintendent of the Virginia State Penitentiary produce this man before the United States District Court for the Eastern District of Virginia. Let us assume for purposes of argument that the Court should hold that the writ does lie, that the case would go back to the District Court and the Court should hold that he is entitled to his immediate release. That Mr. Cunningham would then be served by United States marshal with the order to release John R. Jones. The best Mr. Cunningham could do with that order is witness files because Mr. Jones is not long -- is no longer in the custody of the superintendent and has not been in the custody of superintendent being in the state penitentiary since June 26, 1961.
Arthur J. Goldberg: Mr. Harp --
Reno S. Harp, III: Yes, sir.
Arthur J. Goldberg: I thought you have an arrangement with Georgia [Inaudible] a violation of the law?
Reno S. Harp, III: Yes, sir. But I -- may I reach that in just a second, sir?
Arthur J. Goldberg: That’s alright. Go ahead.
Reno S. Harp, III: Thank you, sir. So, that is the situation with the present respondent. There's nothing that W. K. Cunningham, Jr., the Superintendent of our State Penitentiary can do relative to John R. Jones.
Earl Warren: Did the state --
Reno S. Harp, III: Now, in answer to --
Earl Warren: Did the state oppose the motion for substitution of the parties?
Reno S. Harp, III: We filed no responsive pleading thereto sir.
Earl Warren: Do you -- are you depending whether it should have been granted?
Reno S. Harp, III: Well, I'm of this opinion Mr. Chief Justice. If I had been advised of the contents of the rules of the Fourth Circuit or the contents of the rule of this Court relative to disturbing the custody of a prisoner, 49(1), I believe it is of the rules of this Court, sir. I would’ve -- alright, I didn’t know anything about it. I'm frank to say this. At the time that the -- I was advised of the parole which was about 10 or 12 days before the case was to come up for argument. I would’ve then said to counsel for the petitioner, “You must elect your remedy because we will not parole him and we have not paroled anybody since this time,” but that rule was not called to my attention at the time of the argument of the motion to dismiss in the Fourth Circuit. It did not come to my attention into a memorandum were filed at a later date and consequently, I was not advised of it. And since that date, we have not paroled anybody who has a petition for writ of habeas corpus pending in the federal system or on certiorari from our Supreme Court of Appeals pending the outcome of this case, sir. Because our -- I’ll reach that point in a moment --
Earl Warren: But --
Reno S. Harp, III: But if we had -- assume for the purposes of argument sir that the motion had been granted and the Board of our -- Virginia Board of Parole had been substituted as a party respondent to the proceedings, then -- and in the meantime now, the man would’ve been released on parole when he was delivered into the custody of the Superintendent of the Virginia State Penit -- of the -- from this custody of the Superintendent of the penitentiary into the custody of the Parole Board in conformity with Section 53-264 of the Code of Virginia. Then he was released by the Parole Board. So even if they had made the Parole Board a party respondent and substituted him in place of the superintendent, I don’t think that it would have made any susceptible difference in the case insofar as our view is concerned because the man has been released by the Parole Board and that’s what is -- it’s an order of release. That’s what he has sir.
Earl Warren: Released by the Parole Board?
Reno S. Harp, III: Yes, sir. He’s been released by the Parole Board. He’s delivered into the custody of the Parole Board and that he was released into -- to go to Georgia under the Uniform Act.
Earl Warren: Well, can the -- the Parole Board has no custody over him in prison, has it?
Reno S. Harp, III: No, sir. They have --
Earl Warren: What --
Reno S. Harp, III: What (Voice Overlap) --
Earl Warren: You -- by release -- by release you meant when they permitted him to go to Georgia, they released him, is that what you mean?
Reno S. Harp, III: Well, under the statute sir, the Director of the Department of Welfare and Institution who runs our whole penal suits, the overall overseer in general and handles other matters too --
Earl Warren: Yes.
Reno S. Harp, III: -- must under Virginia law when directed by the Parole Board release any prisoner confined in the penal system to the Parole Board and then the Parole Board releases him. He releases him from custody.
Hugo L. Black: Are you referring to the order that appears on page 20 where he is released from the custody, but is to remain under supervision until he receives the final order of discharge in the Parole Board?
Reno S. Harp, III: Yes, sir. That is the order.
Hugo L. Black: That you call a release from custody?
Reno S. Harp, III: Yes, sir.
Hugo L. Black: But it does subject him to all of these orders that are in that -- outlined there, does it not?
Reno S. Harp, III: Yes sir, it does.
Hugo L. Black: And --
Reno S. Harp, III: It -- its --
Hugo L. Black: -- he has to obey them of -- not to -- the Board can call him back, put him in custody?
Reno S. Harp, III: Yes, sir. They can put him -- call him back in the penal system, give him a hearing and then if they determine to revoke his parole, then he is turned back over the superintendent.
Hugo L. Black: Granted a conditional release on jail custody upon the condition that he follows certain rules that were outlined for him and with the knowledge that if he does not, he’ll be recalled to custody?
Reno S. Harp, III: I wouldn’t call it conditional, sir in the sense I think that you're using the word. I would say that he’s been released --
Hugo L. Black: Subject to what?
Reno S. Harp, III: Subject to certain conditions with the hope and idea that he won't come back. That’s the whole principle of parole, sir. Now, in answer to your question, Mr. Justice Goldberg, now that we've gotten over into the parole aspect of this situation, yes, the Parole Board can reach down into Georgia and bring this man back into Virginia and give him a hearing. Let’s assume that they find him with a -- let’s assume that he commits a breach of his parole conditions and the Parole Board in -- on reading the reports from the Georgia authority say, “We don’t know, but this looks like a right bad situation” and the parole authorities in the State of Georgia recommend that he be -- that his parole be revoked. So, we send a warrant, we have sent out -- sent a warrant out for him, bring him back and then he is granted a hearing before the Parole Board. And the Parole Board then reaches the determination as to whether or not his parole should be revoked. And quite often, they decide that the parole should not be revoked and then in other times, of course they reach the opposite conclusion. But there's no way under in a -- in further answer to the Chief Justice’s question, there's no way that I know of that this man can be brought back by the Parole Board if they had been substituted as party res -- parties respondent for a habeas corpus hearing.
Arthur J. Goldberg: Well, to go right back to such a point that I’m in, wasn’t it that the man was sent to Georgia under the Uniform Act, that’s correct, isn’t it?
Reno S. Harp, III: Yes, sir.
Arthur J. Goldberg: Now, looking at the language of the Uniform Act which is cited on page 34 of the brief for the petitioner --
Reno S. Harp, III: Yes, sir.
Arthur J. Goldberg: -- the authority of the -- your state under this, the whole section is not quoted, but I presume this is a fair quotation, the authority of your state as I read it is just -- is not confined to a violation, it indicates that your officers may go in and take this man and he has waived the taking as has Georgia as the party to this statute, they have the same statute and you may -- he may be produced apparently from this reading for any purpose. Do you dispute that under this language?
Reno S. Harp, III: I wouldn’t want to have to try the habeas corpus case in the State of Georgia sir on behalf of the Commonwealth of Virginia because I think I’d lose. I don’t think that you can just -- I don’t think under the Act as I read it that this means that if we decide that this man should wear green ties and he won't wear them, we can get down there and pick him up to bring him back.
Arthur J. Goldberg: What is the meaning of the language then in the statute that says the decision of the sending state to retake a person on probation or parole shall be conclusive upon and not reviewable within the receiving state? Doesn’t this indicate that this is your man and whatever your reason is for retaking him is not to be questioned in the other state?
Reno S. Harp, III: I'm trying to -- that the whole act is printed sir in our appendix and I've been trying to find the section. If you look on page 3 of the blue -- rather on page 6 of the blue brief, you’ll see the entire section. And that’s what I wanted to check. It’s on page 6 of our appendix sir and it’s the third paragraph. I think that -- that means this sir that if we have to go in there with a justifiable reason, we can retake him. I think that if you wanted to assume that we were arbitrary and capricious, yes sir, I think so. And we could go in under the statute and just pick him up and bring him back, but I don’t think we can assume that, sir.
Arthur J. Goldberg: Isn't the whole the purpose of this statute to permit some flexibility in terms of sending people out and to leave with the committing state the decision as to why they revoked it as though he were within the committing state? You would not deny that if he were in the committing state, Virginia that the State Parole Board could respond to a habeas corpus petition, that couldn’t be denied, could it, if he were in Virginia? If he were subject to the authority of the Parole Board in Virginia, could they not respond to the petition and say we need you to respond to the habeas corpus and we’re here?
Reno S. Harp, III: I don’t think so, sir.
Arthur J. Goldberg: In other words, you're saying whether in --
Reno S. Harp, III: Oh, I don’t --
Arthur J. Goldberg: -- Virginia or in Georgia it would’ve been the same.
Reno S. Harp, III: It wouldn’t make any difference. He is not in custody, sir.
Earl Warren: We’ll recess now. [Recess] Mr. Harp, you may continue your argument.
Reno S. Harp, III: Thank you, Mr. Chief Justice. If you will recall in answer to the question from Mr. Justice Goldberg at the -- just before the luncheon recess, I pointed out that even if the Virginia Parole Board had been substituted as parties respondent in a habeas corpus action pending in a state court and that this man was in fact a parolee within the jurisdiction of the state court in Virginia, that habeas corpus would not lie if our understanding of our habeas corpus statutes are correct. Now, passing on then --
Arthur J. Goldberg: Is there [Inaudible]
Reno S. Harp, III: That is correct, sir.
Arthur J. Goldberg: [Inaudible]
Reno S. Harp, III: That is correct. Now, if we may turn just for a moment to the conditions of parole and take a look at the situation, I think that is important. The picture I think painted by -- in the petitioner’s brief is a very dark one of Mr. Jones’ situation. Granted he is required to remain within the general community area of this town wherein he has chosen to go. He wasn’t told to go there. This is where he wanted to go. He is not supposed to have firearms, well this is a reasonable regulation I think for a parolee. He’s not supposed to violate the law, well neither is anybody else, but the Parole Board is not going to pick him up and have him locked in jail just on some odd thought at an odd moment.
Potter Stewart: How about -- he’s not allowed to own or operate a motor vehicle?
Reno S. Harp, III: Without the permission of his parole officer, sir. The reason behind that being that the fabulous 36-month time payment plans that are available for the purchase of motor vehicles and the possibility of his getting in financial difficulty because of that sir.
Potter Stewart: And he’s required to permit his parole officer to visit his home or place of employment at any time?
Reno S. Harp, III: Yes, sir.
Potter Stewart: If the parole officer wants to presumably come in there are in midnight some night --
Reno S. Harp, III: That is -- yes, sir.
Potter Stewart: -- to see what he’s doing (Voice Overlap) --
Reno S. Harp, III: But that is not logical nor -- I mean the parole officer is not going to come around midnight looking for him.
Potter Stewart: Well, who knows?
Reno S. Harp, III: The -- we have to take I think a reasonable view of these regulations sir and assume that they are going to be reasonably applied.
Potter Stewart: Certainly, you wouldn’t -- you wouldn’t quarrel as this state -- the statement that it’s fair to say that this fellow was subject to considerably more control and considerably more restrictions than are placed by society on the average member of society.
Reno S. Harp, III: I'm not sure (Voice Overlap) --
Potter Stewart: To be sure, we all are suppose to obey them all but the --
Reno S. Harp, III: I understand. I'm not sure -- for instance, you take a counsel standing before this bar. I'm under right severe restrictions. I have to appear in this Court today, I have to appear another court tomorrow. I will be in three courts before the next Monday in different sections of the Commonwealth.
Speaker: [Inaudible]
Reno S. Harp, III: Sometime the traveling is sir. It’s a long way from Richmond to Marion where I'm going next Sunday.
Potter Stewart: Well, we’re all under economic --
Reno S. Harp, III: Yes, sir.
Potter Stewart: -- involvement.
Reno S. Harp, III: Yes, sir. He didn’t have to take his parole.
Tom C. Clark: [Inaudible]
Reno S. Harp, III: That’s right.
Tom C. Clark: [Inaudible] to your principal view?
Reno S. Harp, III: No sir, I would not. I have a right hard time commuting it but he may move his residence. All he has to do is ask his parole officer. He’s changed jobs. We’ve noted that in his brief and the latest parole report indicates that he’s now married. So, it’s just a question of asking his parole officer, “May I do these things?”
Arthur J. Goldberg: [Inaudible]
Reno S. Harp, III: Sir?
Arthur J. Goldberg: [Inaudible]
Reno S. Harp, III: Yes, sir.
William J. Brennan, Jr.: That’s why we call him to stand.
Reno S. Harp, III: Well, there --
Speaker: [Inaudible]
Reno S. Harp, III: -- may be some merit in it.
Earl Warren: I just don’t understand [Inaudible] argue the issue of restraint without the issue of asserting it.
Reno S. Harp, III: That’s correct, sir.
Earl Warren: So far as the rules of probation as I understand it is reasonable or not, are the restraints that are under this part in custody of the -- under Georgia law? And in the hearing, he says that the order didn’t give a direction of the Parole Board that you are hereby [Inaudible]
Reno S. Harp, III: That is correct. My disagreement with Mr. Meador is I think that the tenor of approach which he takes is sort of painting a black picture of the situation and I think the answer to it -- to this man’s present situation is contained in the order of release and we've quoted a portion of it on page 12 of our brief and I should read it to the Court because I think it is the situation. “The Parole Board has released you on parole because it believes that you will be sincere in your efforts to live up to the above conditions and thus benefit yourself as well as the community.” I call you attention to the fact that he has been released. He is not custody in the contemplation of the Parole Board.
Arthur J. Goldberg: Mr. Harp, well in reference to the question put by the Chief Justice, if you look on page 20 of the record, but doesn’t it also say you are placed under the custody and control of the Parole Board. What -- how do you interpret that?
Reno S. Harp, III: That is -- that is done because that’s what the statute says must be done in order to get him out of the custody of the superintendent of the Virginia State Penitentiary.
Arthur J. Goldberg: Well, isn’t that very significant then if the statute says --
Reno S. Harp, III: No, sir. It's --
Hugo L. Black: Why?
Reno S. Harp, III: -- purely a bookkeeping transaction when you get down. In other words, we take this man off of our headcount if you want to use the vernacular of the penal authorities. He’s removed from the headcount. He’s turned over to the Parole Board who then released him and he’s wiped off the books of the penal system as such. He’s no longer in the penal system. He is now without the confines of the penal system and he has been released by the Parole Board under their --
Arthur J. Goldberg: Well, is it --
Reno S. Harp, III: -- supervision.
Arthur J. Goldberg: Is it your contention Mr. Harp that he has been released from the supervision of the Parole Board?
Reno S. Harp, III: No, sir. Alright, he’s released to --
Arthur J. Goldberg: He’s under supervision.
Reno S. Harp, III: -- the supervision of the Parole Board.
Arthur J. Goldberg: Yes and isn’t -- since he is under supervision, isn’t he in custody of the Parole Board?
Reno S. Harp, III: No, sir. He is not.
Arthur J. Goldberg: Isn't that what statute says then?
Reno S. Harp, III: That’s -- no, sir. It does not say that. The statute releases him under the custody of the Parole Board and the Parole Board by its own order, a portion to which I have just read to this Honorable Court releases him. Now, if we may turn then for a moment --
Potter Stewart: Well, he releases him to the custody or supervision of a parole officer, isn’t that it?
Reno S. Harp, III: He releases him from behind the bars if you want to take it that far from --
Potter Stewart: First to the Parole Board?
Reno S. Harp, III: Yes, sir.
Potter Stewart: And then the Parole Board sets up certain conditions and releases him under those conditions to the supervision of a parole officer?
Reno S. Harp, III: Yes, sir, but he is released in the vernacular of the prisoners to the street. In other words, he is out.
Speaker: Isn't the real nub of the issue between you and Mr. Meador that you say that custody means confinement in the habeas corpus sense and he says, it means restraint and not with technical (Inaudible) --
Reno S. Harp, III: Yes and no. I think that is one point that I’d like to come to the second point if I may sir and that is this, and under the provisions of Rule 49(1) of this Court, the custody of a prisoner is not supposed to be disturbed because if the custody is disturbed it becomes moot and that’s what’s happening in this case as far I'm concerned if my understanding of this rule be correct. Now I may be wrong but this situation has arisen and it’s a confusing one to us and we need the advice of the courts certainly regardless of the decision in this case because we are faced with this situation. There are pending at the present time approximately 117 habeas corpus cases involving Virginia prisoners, roughly as of the first of last month or the middle of last month. A number, a portion of these cases are on certiorari to this Court. Are there over -- a few of them are in the federal system, on the federal side completely.
Potter Stewart: 49(1).
Reno S. Harp, III: Now, does this mean that while a man has a petition for writ of habeas corpus grinding its way through the judicial processes that he -- that we can’t parole him. I don’t know, but I have advised our Parole Board that I don’t believe that they can parole him because of this rule of court, rule of this Court as well as the rule of Fourth Circuit without permission. And I think that the situation then is this insofar as we are concerned, we feel and I’d always thought that he could go ahead and -- if he had a petition or a writ of habeas corpus going, in process, if he -- if the Parole Board wanted to grant him parole, certainly he was entitled to be turned loose. If we had adopted any other procedure in this case, this man would still be in the penal system. He would not -- he was been out for about 18 months. He would not be working in Georgia. He would not be married and he would’ve suffered so far as I'm concerned, a great detriment.
Arthur J. Goldberg: Well, is he --
Reno S. Harp, III: -- because he was not out. So, if the situation then we asked is this, may we parole him out? We may parole him and I don’t believe so under this rule of Court.
Potter Stewart: If you just go to Court and get an order though under that rule, would it not?
Reno S. Harp, III: Yes sir. If the Court would give us an order releasing, permitting us to release him but we think that --
Potter Stewart: Can you imagine the court would not?
Reno S. Harp, III: I would think that they would, sir. But my question is this, can we not require him to elect his remedies? I mean, this is what I say is carrying water on both shoulders, to use a vernacular. He is taking all of the benefits that the Commonwealth of Virginia will give him, every benefit possible. We think he’s been rehabilitated. We think he should be released. We put time and money into this man, time and money, trying to rehabilitate.
Arthur J. Goldberg: Should you -- Mr. Harp, should you require a man to make an election that would forgo a constitutional right? All this rule seems to indicate, I'm looking at it, 49 is that you go to Court so that the Court can make an appropriate substitution order, is that the --
Reno S. Harp, III: If you get somebody to substitute.
Arthur J. Goldberg: Yes. Well, then take your case, you have a Parole Board that could be substituted.
Reno S. Harp, III: I don’t think they could. I mean, we would -- if let us assume that -- well, this is what happened in the Fourth Circuit very recently. The man had a petition for writ of habeas corpus going and it turned out that he could be released on parole and I told the man’s attorney this. I said, “If you want to turn him loose on parole, it’s perfectly alright with us but we’re not going to release him as long as he’s got this matter pending in the Fourth Circuit because I think this rule means that we can’t turn him loose.” And the -- that Judge Sobeloff of that court said, “Well of course, if he is paroled, it becomes moot, but we’ll let you -- we’ll dismiss the action then he can be paroled,” which is what, happened. But --
Arthur J. Goldberg: That’s on Judge Sobeloff and the court’s reading of prior decisions of this Court which you're now arguing, isn’t that correct?
Reno S. Harp, III: Yes. But this matter came up within the past couple -- came up as a matter of fact the end of September, early part of October, sir, but this rule I think makes the proceeding moot in and of itself. Moreover as I've said before, I think that the court -- I think rather that the petitioner should be required to elect his remedies. Now, I'm not saying it should be denied, the right to parole. All I'm saying is that he must do one thing or the other, to use a vernacular, fish or cut bait. He’s either got a constitutional question or he’s got an opportunity for release and I think he can weigh them and decide which one he wants. This may seem harsh, but I don’t think that it is because I think that we have to look at these things from a practical standpoint, from a standpoint for the benefit of the man.
Earl Warren: Wherein does the State of Virginia apply this -- in time that case prosecuted to a conclusion. Is it just because the man is on probation instead of being a prisoner? Why is that a hardship on the state and should there be any distinction insofar as the man being able to wipe out an unconstitutional conviction based upon whether he is in jail or out of jail?
Reno S. Harp, III: He has ultimate remedies to wipe out an unconstitutional conviction. He has ultimate remedies, sir. If he has an unconstitutional conviction which is clearly unconstitutional on its face, all he has to do is apply to the Governor of Virginia for a pardon and then get one, and they give one very swiftly.
Earl Warren: Well, that’s a -- that’s in entirely -- that’s not a legal right.
Reno S. Harp, III: No, it's --
Earl Warren: It’s not a legal right. That’s a very highly discretionary --
Reno S. Harp, III: I understand that, Mr. Chief Justice. But --
Earl Warren: It’s the Governor’s obligation to give anybody a pardon.
Reno S. Harp, III: That is correct, but I've never seen him turn one down yet, the present Governor or the past two Governors under whom I had served, sir.
Hugo L. Black: [Inaudible]
Reno S. Harp, III: It would depend upon the decision of this Court in Gideon versus Cochran, sir, which is now pending before this Court. He was tried without an attorney in the Circuit Court of Chesterfield County, sir and the question is whether or not he waived his constitutional rights. Since 1950, we have required the appointment of counsel on all cases, but if this Court were to hold that a man has to got to be represented by counsel in every case which is what he have required for over 10 years whether he wants to be or not and we've had some that did not want to be that we've appointed attorneys for them and if he applied for pardon, he’d get one. Now, in answer to the Chief Justice’s question is the Commonwealth prejudiced, yes, I think we are. I think there's -- I think we’re entitled to have an end to litigation --
Earl Warren: This man, he’s on probation, is it?
Reno S. Harp, III: It's -- I think his situation is -- he’s on parole, he’s out.
Earl Warren: Well, but I understand here that the -- from this order, that “you are placed under the custody and control of the Virginia Parole Board. The Parole Board may at any time extend your period of parole.”
Reno S. Harp, III: That’s correct.
Earl Warren: Then later, March 10, of 1964 that the Board obtained the right to extend it indefinite.
Reno S. Harp, III: That’s under Section 53-255, Your Honor.
Earl Warren: And you don’t think that’s any restraint upon the man to give a -- to have a --
Reno S. Harp, III: It is a -- it is a restraint, yes. I've never said that the man is under no restraint, sir. All I'm saying is this, that under the writ, in order for the great writ of habeas corpus to lie, the man must be in custody and we assert --
Hugo L. Black: [Inaudible]
Reno S. Harp, III: Sir?
Hugo L. Black: [Inaudible]
Reno S. Harp, III: That is correct, sir. He’s -- that’s the purpose of the writ, to produce the body.
Earl Warren: Have you read the brief of the other side?
Reno S. Harp, III: Yes, sir. I've read it and I've read every case that they cited in there sir. Every -- 113 of them.
Earl Warren: Every one of them are people in jail?
Reno S. Harp, III: No sir, they're not all people in jail but they couldn’t find anybody who was on parole except in a few cases where the statute says --
Earl Warren: They didn’t have parole in the old days?
Reno S. Harp, III: That -- yes, sir. But they have located, if the court please, and we have discussed those cases commencing on page 13 of our brief. They have located some cases where it has been held that the man on parole was entitled to the writ but that’s where the statute says that the parolee shall -- the statute says the parolee shall remain in the custody of the superintendent or the warden or the Attorney General of the United States and that’s a different situation.
Earl Warren: Your statute says, he shall remain on the custody of the (Voice Overlap) --
Reno S. Harp, III: No, sir. It says he shall be released to the custody over the Parole Board and the Parole Board releases him. And it’s a -- I mean, its -- that’s my interpretation of my statute and I may be wrong.
Earl Warren: How does the -- how does the Parole Board interpret it?
Reno S. Harp, III: The Parole Board interprets it as having released him.
Earl Warren: The Parole Board says at page 20 of the transcript, you are placed under the custody and control of the Virginia Parole Board.
Reno S. Harp, III: Yes, sir and I thought I had explained that sir and I may not have been as succinct and clear as I attempted to be, Mr. Chief Justice, but this is an order that’s directed not only to John R. Jones but to the Superintendent of the Penitentiary.
Earl Warren: This says, this is in the record (Voice Overlap) --
Reno S. Harp, III: That’s right. And it goes --
Earl Warren: [Inaudible]
Reno S. Harp, III: That’s right. Well, I can -- you will find sir that this is the method by which as I explained before we turn him loose from the penal system and that he is not in custody.
Earl Warren: You mean, they took -- they take him out of jail?
Reno S. Harp, III: We turn him loose in the penal system, yes sir that the Parole Board is not under the control of the penal system. It’s a separate body entirely. It’s a three-man board appointed by the Governor and they have no -- they're not controlled in any way by the penal system. Now, we have pointed to the Parker versus Ellis and the cases cited therein where this Court has held that when a man is released from custody that the writ does not lie. We've also pointed to the fact that the respondent must be in the jurisdiction, this respondent is not in the jurisdiction of the District Court. The man is not in the jurisdiction of the District Court which is a necessary prerequisite to the granting of the petition.
Earl Warren: I thought you said that it would make no particular indifference if he was in the jurisdiction?
Reno S. Harp, III: No sir, I did not.
Earl Warren: What -- I'm sorry. If he was in Virginia, would he then be in custody?
Reno S. Harp, III: No, sir. He would not be in custody and the writ would not lie, sir.
Earl Warren: Yes, that’s what I thought.
Reno S. Harp, III: That -- that’s my understanding of it, sir. I see my time has expired.
Earl Warren: You have -- you have a few moments if you want to sum up. I took a lot of your time, you may do it --
Reno S. Harp, III: If I might --
Earl Warren: -- about two or three --
Reno S. Harp, III: Oh, I thank you, sir. In summation then, we would say this, that in the first instance, the writ only lies when he is in custody. Secondly, even if he were to or rather certainly, under the present situation with W.K. Cunningham, the Superintendent as the respondent, the writ does not lie because he’s not under custody of this respondent. If the court below was in error in failing to grant the motion to substitute the Parole Board and if this Court should grant that motion then even if the Parole Board is there, the man is not within the jurisdiction of the Eastern District of Virginia. In other decisions of this Court, the writ does not lie. Now, that is briefly our position insofar as the cited cases are concerned. Moreover, we take the position that under the rules of this Court and the rules of the Fourth Circuit when he is released from custody and he is released from the custody of the respondent and nobody can argue with that and we can get into it -- to a differentiation of opinion perhaps, the difference of opinion as to what the Virginia statutes mean, but the -- under the rules of the court when he is released, he is released and he is released from custody. The matter becomes moot under Rule 49(1) of this Court and that is briefly our position and the premises. Thank you, sir.
Earl Warren: Mr. Meador.
Daniel J. Meador: May it please the Court. I would have nothing to add unless there are questions on the bench.
Earl Warren: Very well.
Daniel J. Meador: Thank you, sir.
Earl Warren: Mr. Meador, before you leave, I would like to express the appreciation of the Court for you having accepted this assignment to represent this indigent defendant. Obviously, you and your associate, worked very diligently on it. We appreciate your help. Mr. Harp, we also appreciate the earnest and the way that you represented the state.
Reno S. Harp, III: Thank you, Mr. Chief Justice.