Warren E. Burger: -- you may proceed whenever you are ready.
Robert H. Friebert: Mr. Chief Justice and If it please the Court. My name Robert Friebert and I represent the petitioner Douglas Raymond Dorszynski. The respondent is United States of America. This case involves a petition for certiorari to the Court of Appeals for the Seventh Circuit and this case originally arose out of an appeal from the United States District Court for the Eastern District of Wisconsin, the Honorable Myron L. Gordon presiding. The issue involves an interpretation of the Federal Youth Corrections Act and in particular, the issue involves the procedural requirements which must be met before a youth offender can be sentenced as an adult. The Act and the particular point in question states as follows and this is Title 18 5010 (d). “If the court shall find that the youth offender will not derive benefit from treatment under the “Act” then the court may sentence the youth offender under any other applicable penalty provision.” Synthesized further then, the issue before the Court here is whether a sentencing court, sentencing a youth offender who is a defendant under the age of 22 must articulate its findings of no benefit on the record and further whether the sentencing court must support that finding with reasons. The facts are as follows. Petitioner Douglas Dorszynski was convicted of possession of LSD in violation of 21 U.S.(c). 844 (a) at a time when he was 19 years old. He was no longer juvenile, but he was subject to the provisions of the Federal Youth Corrections Act. The particular charge involved was a misdemeanor, subjecting him to a maximum penalty were he simply an adult to one year in jail or a prison. The petitioner pled guilty. The trial court sentenced the petitioner to a split sentence of 90 days in jail to be followed by a probationary period outside of jail for two years. At the time of his arraignment and his plea of guilty, he was not told that he could be sentenced under the Federal Youth Corrections Act for period of control or in essence of about six years with four years in prison. At the sentencing proceeding, the trial court never mentioned the Federal Youth Corrections Act when it imposed its sentence as an adult. Post trial motions were filed which challenged the adult’s sentence and challenged it in particular on the grounds that the trial court had made no findings on his reasons why he rejected a sentence under the Federal Youth Corrections Act. At the time of the post trial motions, the sentencing court stated that the Act was not applicable and he further stated that he, when he sentenced the youth offender as an adult that there was implied finding on his behalf and he said no more. The Court of Appeals agreed that the Trial Judge did not have to explain his reasons in any way as to why he did not sentence under the Federal Youth Corrections Act, or why he made a finding of no benefit under the Act and affirmed this aspect of the case.
Warren E. Burger: I have the impression that somewhere in the record, the United States Attorney had referred to the youth -- the Act was at the arraignment?
Robert H. Friebert: Yes, the Act was referred to twice at the arraignment. It was under the provisions of the code. The defendant stated that he was going to plead guilty and the pre-sentence investigation was done before he came into courts so the proceedings at the arraignment was also a sentencing proceeding with benefit of a pre-sentence report. The United States Attorney in court stated that the defendant was a youth offender and subject to the Youth Offender’s Act, but he did not state that the Youth Offender’s Act subjected the petitioner to potential four years incarceration. This was followed by the same Assistant United States Attorney stating that the penalty maximum was one year which was an incorrect statement of the law under the circumstances because the maximum penalty was six years in actuality. Then the judge made that statement and further emphasized the one year maximum to the petitioner. After the plea of guilty was entered, the court recessed to consider the pre-sentence investigation report which had been previously prepared. Upon reconvening, the Federal Youth Corrections Act was mentioned the second time, and that was by the petitioner’s counsel at that time who asked that probation be given to the petitioner and that this probation be under the Federal Youth Corrections Act. The trial court then imposed the split sentence of 90 days in custody to be followed by two years probation without in any way commenting upon the Federal Youth Corrections Act. The only time the trial court commented on the Act was in the post conviction hearings when he said that a finding that the Act was inapplicable could be implied from the record in the case and he stated no reasons in the post trial, post conviction hearing’s either.
Warren E. Burger: But you’ve already said or at least I thought I heard you say that if you’ve been sentence the Youth Corrections Act, he might have got as much as six years?
Robert H. Friebert: Correct. That’s correct, which leads --
Lewis F. Powell, Jr.: Mr. Friebert, before you carry on, suppose the court had stated either on the record or in it is order that if found that the youth offender would not benefit from the remedies provided by the Act, but stated no reasons for his findings, what would your position be?
Robert H. Friebert: Mr. Justice Powell, I would still be here saying that that was an insufficient record that you would have to support his findings with appropriate reasons. The record in this case demonstrates perhaps what --
Speaker: (Inaudible)
Robert H. Friebert: He has to gain the potential created by Congress in 5021 of Title 18 and upon an early discharge from probation that his conviction will be wiped from his record and that (Voice Overlap)
William J. Brennan, Jr.: Suppose it goes back for re-sentencing under the Youth Corrections Act?
Robert H. Friebert: Yes.
William J. Brennan, Jr.: What kind of sentence may the judge impose?
Robert H. Friebert: On this record, I don’t think in the light of North Carolina versus Pearce, and everything else that he’d be able to do anything, but probation, unless he could support that with intervening circumstances. So, probation would be the only thing in the picture under the particular facts -- (Voice Overlap)
William J. Brennan, Jr.: Suppose he had -- I gather, your position isn’t merely because of his age that he District Judge had first to determine that the Youth Corrections Act was inapplicable, you don’t say that, do you?
Robert H. Friebert: No -- yes, I say --
William J. Brennan, Jr.: You do?
Robert H. Friebert: -- that the word inapplicable is -- (Voice Overlap)
William J. Brennan, Jr.: What you say then is that on the plea being entered, the judge had initially to determine whether he should apply the Youth Corrections Act.
Robert H. Friebert: Correct.
Speaker: And if he had decided that he should, then what sentence could the judge have imposed?
Robert H. Friebert: He could impose probation under the Act. He could commit him as a youth offender under the Act and it's that commitment potential which puts him in the position (Voice Overlap) yes.
William J. Brennan, Jr.: And that’s the six years you are talking about?
Robert H. Friebert: That’s correct, but probation is available under the Federal Youth Corrections Act.
William J. Brennan, Jr.: Well, then I gather the argument of counsel would have been, had the judge considered and decided to sentence under the Youth Corrections Act? Counsel would what, have argued at nothing but probation for this --
Robert H. Friebert: Correct, that’s what counsel argued probation under the Act. The confusion I think in this record demonstrates a serious question whether the Federal Youth Corrections Act was really considered by the Trial Judge. That the petitioner is not properly advised as to the potential penalties which he faced, which leads to a postulation at least that there might have been confusion among the Defense Attorney and everybody.
William J. Brennan, Jr.: It’s up to the District Judge to decide whether he should sentence under the Youth Corrections Act after making a determination of benefit and so forth if he does and I gather that the defendant having pleaded guilty, he cannot control what the judge does in that respect, can he?
Robert H. Friebert: I think that the Federal Youth Corrections Act creates a policy by Congress that when a youth offender is convicted, that the options available to a sentencing judge are circumscribed by the Act. He must start out by favoring a sentence under the Act. And because that is a favored position that the youth offender is in by reason of his very age.
William J. Brennan, Jr.: And so that if he decides that it would be benefit of the defendant by sentencing under the Act, then he must sentence under the Act, he has no option then to sentence as an adult?
Robert H. Friebert: I would change the language slightly. If he makes no finding or if he has doubts, or if he does not even consider it, the sentence must be under the Act that the only time an adult sentence can be given is if makes a specific finding of no benefit.
William J. Brennan, Jr.: With reasons?
Robert H. Friebert: With reasons, that’s correct. So, I would -- he does not in my --
William J. Brennan, Jr.: Does the legislative history of the Act indicate that’s what the Congress intended?
Robert H. Friebert: I don’t believe the legislative history demonstrates that this issue was considered at all. What the legislative -- (Voice Overlap)
Warren E. Burger: What did Judge Phillips testify to and several other federal judges including the Chairman of the Committee of the Judicial Conference?
Robert H. Friebert: Those judges and those gentlemen at the time Mr. Chief Justice indicated that this would not -- that the Federal Youth Corrections Act would not have any change in the traditional sentencing patterns given to a sentencing judge. I don’t believe that those statements demonstrate any consideration of the issue involved in this case. That’s the principal position of the government that somehow a statement of -- that this doesn’t change traditional sentencing alternatives of a sentencing judge, magically changes its form into a statement that a Trial Judge is not required under this Act to state reasons. In fact, the traditional sentencing prerogatives of a court at no time gave a Trial Judge unfettered discretion without any review of his discretion.
William H. Rehnquist: Is your position then that if the legislative history, you don’t feel as compelling that we must abide just the actual language of the statute?
Robert H. Friebert: Yes, the actual language of -- (Voice Overlap)
William H. Rehnquist: Where in the actual language of the statute do you find the requirement that the Trial Judge give reasons?
Robert H. Friebert: In the word of art shall find. I think the phrase in the word find is a legal word of art, which is not in any way confusing to anyone. It means findings and supported by reasons because that’s the way I believe that Lawyers communicate which other. If the court shall find that the youth offender will not derive benefit means just that, he shall make a finding and support it with the reasons.
William H. Rehnquist: Well, supposing an analogous provisions of the rules of civil procedure where it says that a court must make findings of fact and conclusions of law, assume a judge who makes a finding of fact that a particular, when a court at a particular time isn’t required in addition to give you the reasons why he reached that finding?
Robert H. Friebert: I think it’s implicit in the record that might be before the court as to whether his findings conform with the evidence which was before him. And if you have a sentencing proceeding, you have nothing but a most barren record. All you have is a charge, a pre-sentence report, and a judge not saying anything.
Byron R. White: There are a lot of pre-sentence reports that are not so barren?
Robert H. Friebert: Yes Your Honor, Mr. Justice White, but it doesn’t even indicate that the Trial Judge relied upon the pre-sentence report. He said nothing.
Byron R. White: As Mr. Justice Rehnquist says that strictly a finding of fact in an ordinary trial doesn’t necessarily have to refer to any evidence or even just as has no reasons?
Robert H. Friebert: I believe then it’s our position that one statement that court shall find with a barren record as we have here that it must support its findings and that position -- (Voice Overlap).
William J. Brennan, Jr.: Oh, I gather though Mr. Friebert, this is because and I now understand you, you derive this out of a paragraph (d). Your position is that there must be a sentence under the Youth Corrections Act unless a finding that the offender will not derive benefit under (d) is made, is that it?
Robert H. Friebert: Correct, that’s my -- (Voice Overlap)
William J. Brennan, Jr.: And so your basic proposition is that there must be a sentence under Youth Correction, unless this finding is made and there must be a record in a form of a finding supported by reasons?
Robert H. Friebert: Correct.
William J. Brennan, Jr.: In order that on judicial review, if the sentence is under some other penalty provision, it can be said whether the sentencing judge erred on that, is that right?
Robert H. Friebert: That’s correct. I might state that the government does not seem to fervently argue that this should not be a record. In fact, they state that -- at pages 48 and 49 of their brief that they would not oppose a requirement for an express finding that the youth offender would not benefit under the Act. And this Court -- (Voice Overlap)
Warren E. Burger: (Inaudible) by Congress.
Robert H. Friebert: I am sorry.
Warren E. Burger: By Congress?
Robert H. Friebert: That the finding?
Warren E. Burger: No the requirements?
Robert H. Friebert: The requirement of a finding? I first start with the proposition that the word find is a legal word of art and that’s a statement of Congress.
Warren E. Burger: I am directing it to something else, I am directing it at your statement that they have conceded that they would not object to such a requirement. Could you to construe to mean they wouldn’t object if Congress wrote a statute that way or a court construed it that way or what?
Robert H. Friebert: I think in the context of their position is at if this Court were to establish such a policy, they would not oppose --
Warren E. Burger: No, but we don’t establish policies, we construe statutes?
Robert H. Friebert: And this Court also establishes policies in the light of North Carolina versus Pearce to effectuate an increased penalty. There must be a record with findings to support an increased penalty after a defendant has been re-convicted after reversal of his original conviction. That enforces a policy, a constitutional policy. Spectre versus Morsee which is another sentencing proceeding in which a Colorado Sex Crimes Act was imposed as a sentence after a conviction. This Court said that that type of commitment namely as a sex offender required an additional finding and that therefore, the sentencing judge cannot just commit as a sex offender. Even though he had been convicted of a crime but he must make the move finding, he must support the new finding after notice and a hearing and he must state his reasons on the record as to why he made that finding so that it would be subjected properly to appellant review.
Warren E. Burger: Did I understand you to say before that if this case went back, if you prevail and the case went back that he could not now be sentenced under the Youth Corrections Act to any greater or different sentence from the one that was impose, that’s 90 days plus probation?
Robert H. Friebert: Yes I think of then the Trial Judge runs across North Carolina versus Pearce, it’s an increase penalty.
Warren E. Burger: Then the Youth Corrections Act would be frustrated, wouldn’t it?
Robert H. Friebert: No, I don’t think the Youth Corrections Act would be frustrating.
Warren E. Burger: Oh, could you give him the six years?
Robert H. Friebert: No, the man has served in fact his 90 days. After -- he is now presently on probation. We’ve not sought any stay pending a review by this Court. The judge what we would ask him to do is to sentence him under 5010 (a) to probation under the Federal Youth Corrections Act. And that would be the sentence which we would be seeking which would not in any way frustrate any of the policies enunciated previously and is probably the most appropriate sentence under this facts of the case.
William J. Brennan, Jr.: But what different position would he be and then he is now that’s what all we have.
Robert H. Friebert: He would be able to have his conviction right from the record where the discharge from probation prior to his completion of his probation period is substantial benefit.
William J. Brennan, Jr.: And he had been if depends?
Thurgood Marshall: (Voice Overlap) be automatic?
Robert H. Friebert: I am sorry and excuse me.
Thurgood Marshall: That wouldn’t be automatic.
Robert H. Friebert: No, it would be automatic if he were released from probation prior to the completion of his probation period.
Byron R. White: That will be 5021 I believe (b).
Byron R. White: And he would be in different hands during probation?
Robert H. Friebert: He would be in the hands of the probation department, the same probation department that would take him whether he is on probation under the Act or not.
Byron R. White: Same Act and same people?
Robert H. Friebert: Yes.
Byron R. White: Same standards?
Robert H. Friebert: I believed so. I don’t know of any standards that differ. It would be with the probation department of the Eastern District of Wisconsin. So that's the substantial -- the substantial benefit in this case is the ability to obtain the ending of the encumbrance of his previous conviction and that’s the substantial benefit which the Act provides. One of the substantial benefits that happens to be in this particular case, the substantial benefit which brings us to this Court and that being a substantial benefit, being a substantial congressionally mandated benefit is in fact a right that he has unless the court makes a finding of no benefit. And there was no such finding and since the finding of no benefit is the equivalent of taking away a substantial congressionally created right, then it is our position that both the statute -- (Voice Overlap)
William J. Brennan, Jr.: If you prevail and this case goes back, what's to stop the District Judge then from considering whether he derived benefit and arriving at conclusions with reasons or that he wouldn't and then things stay just as they are, don’t they?
Robert H. Friebert: Then we would be able to have a determination as to whether those were appropriate reasons under the Act.
William J. Brennan, Jr.: So you then have another review?
Robert H. Friebert: Perhaps.
Byron R. White: But you also insist on a hearing in connection with the determination?
Robert H. Friebert: Yes, the hearing, I don’t mean to overstate that prospect, the hearing --
Byron R. White: You think there is something involve here other than an ordinary sentencing procedure?
Robert H. Friebert: Yes.
Byron R. White: That you should be there and have a chance to cross examining, might as well represent some evidence?
Robert H. Friebert: Perhaps present evidence, I am not so sure about cross examining witnesses. In fact, the --
Byron R. White: But you wouldn't -- you would think he would not be permitted to rely on an un-cross examined pre-sentence report?
Robert H. Friebert: I don’t think there is -- as a practical matter this pre-sentence report is not a part of this record. There is nothing that would affect that in this --
Byron R. White: (Voice Overlap) but if there were, I can imagine what's your --
Robert H. Friebert: Yes, if the Trial Judge is going to rely upon a statement in the pre-sentence report with -- of involving a witness or another person with which we disagree with, I think, we would have the right and the prerogative to challenge that. And I don’t think that Williams versus New York touches on that issue whatsoever. Williams is the case apparently, principally relied upon by the government. In Williams, the only challenge was that a sentencing judge who would impose the death sentence instead of life imprisonment after a jury came in with a recommendation of life imprisonment, whether the defense had a right to totally cross examine and be confronted by the witnesses on evidence or statements which appeared in the pre-sentence report.
Thurgood Marshall: I have another problem. What -- you are going to use beyond a reasonable doubt and what’s you going to use as your standard?
Robert H. Friebert: I think the court --
Thurgood Marshall: I personally don’t see why findings means hearing. I think you make findings without a hearing.
Robert H. Friebert: Well it's going to have be I would believe Mr. Justice Marshall some kind of record.
Thurgood Marshall: Well I would say a pre-sentence report which shows that in the 30 years of this man adult life he had been jailed 29 years and a half. I don’t think I would have to need a hearing to make findings, do you?
Robert H. Friebert: Perhaps, it depends. The first, it would have between two years.
Thurgood Marshall: Do you?
Robert H. Friebert: There might be, there might be some basis for challenging the validity of the statement and in the pre-sentence report that -- and a challenge of the Act would see of it. The District of Columbia Court of appeals --
Thurgood Marshall: I don’t have any -- I am saying that this is a pre-sentence report and it says what I said, 29 and a half of his 30 years, he has been in jail. And you say that is not enough by itself standing as it is alone for the judge to make a finding that this man is unfit?
Robert H. Friebert: That‘s correct. I would challenge that in several reasons, why? Perhaps, the def --
Thurgood Marshall: (Inaudible) perhaps with it?
Robert H. Friebert: Well, perhaps as Furman challenge is, the statement is that not being a fact.
Thurgood Marshall: I said there was nothing else there but that?
Robert H. Friebert: And the defendant it is not true. He has been in prison 29 and a half out of 30 years. He is entitled I would think to a hearing.
Thurgood Marshall: And what would the hearing be?
Robert H. Friebert: To determine whether that’s true or not.
Thurgood Marshall: Well, what would the hearing be?
Robert H. Friebert: The hearing might be to if there was been a mistake in the report or there has been the male identification problem, the fingerprints Your Honor.
Thurgood Marshall: And then all you can do would be to attack the finding?
Robert H. Friebert: Attack the fact, the factual basis of the finding.
Thurgood Marshall: The finding is a fact?
Robert H. Friebert: Of 29 and half years?
Thurgood Marshall: Right.
Robert H. Friebert: Yes, he attacks that finding by the probation department is not being true or correct.
Thurgood Marshall: Do you have burden in that, wouldn’t it?
Robert H. Friebert: Perhaps. I don’t know whose burden it would be.
Thurgood Marshall: I give up, you will agree on something one of these days without perhaps --
Robert H. Friebert: Well, I think I -- excuse me.
Byron R. White: Can I interrupt for a moment. Just on its face, Subsection (d) seems to be triggered namely the necessity for a finding. It seems to be triggered only if the court proceeds under (b) or (c)?
Robert H. Friebert: No, I think the way I read the entire file -- (Voice Overlap)
Byron R. White: This this defendant was put on probation?
Robert H. Friebert: Correct, without any statement.
Byron R. White: Oh, I know but what’s the reference to (b) and (c)? There is an (a) here that speaks about probation.
Robert H. Friebert: Correct.
Byron R. White: And (b) or (c) -- doesn't seem to -- (d) speaks only on (b) or (c)?
Robert H. Friebert: Correct. But it is the triggering device for bringing a youth offender into a sentence as an adult.
William H. Rehnquist: (Inaudible) quite independently, if the court is of the opinion that the youth offender does not need commitment, it may suspend the imposition or execution of sentence. Now, (d) which you rely on has no reference whatever to (a)?
Robert H. Friebert: Yes that would -- that raises an issue which I raised in Seventh Circuit and which has been uniformly rejected by every Circuit Court that’s seen it to date as far as I know and that’s that there is only one kind of probation under the Act, and namely that the youth offender is placed on probation he is automatically under the Act. I point that out at page 21 of my brief and the footnote that that issue has been rejected. If that’s a correct interpretation, then he is on probation and under the Act now in which case the issue which I bring to you is not here. But --
Byron R. White: But it requires some other lawsuit but not this one?
Robert H. Friebert: But the general least consensus is of which I disagree is that you can make a finding of no benefit and go to an adult sentencing proceeding and put the defendant on probation.
William J. Brennan, Jr.: As a matter of fact, unless it is only earlier as you now see it, (d), initially the trial judge has to sentence under the Act?
Robert H. Friebert: Correct.
William J. Brennan, Jr.: Unless he makes the finding called for by (d)?
Robert H. Friebert: Correct, and that sentencing under the Act is either an (a), (b), or (c) sentence; either probation, commitment, or which is (c) which is not applicable which would extended commitment and without the finding under (d), that’s his option and nothing more.
Byron R. White: Oh yes, but the thing the (d) speaks about is treatment?
Robert H. Friebert: Yes.
Byron R. White: And treatments under (b) or (c) and you don’t ordinarily think of this probationary period under the same probation officers as an adult would be as a youth offender treatment.
Robert H. Friebert: It is a youth --
Byron R. White: That’s why (d), it seems to me speaks of treatment and speaks of (b) or (c). This probation is under the same probation officers as an adult would be under?
Robert H. Friebert: Correct.
Byron R. White: Under the same conditions, and so and it is not a probation that’s tailored to anything special about the Youth Offender Act.
Robert H. Friebert: It is probation law that is tailored with an end result.(Voice overlap)
Byron R. White: Yes, but it is a treatment.
Robert H. Friebert: Well, I believe probation is treatment.
Byron R. White: Well I know but it is not use offender treatment.
Robert H. Friebert: It is, since it is not a serious offense, the sentencing judge who believes the youth offender should be given probation would seem to me should be by congressional mandate entitled to have his conviction light.
Byron R. White: Well, I know but it seems to me that early terminates like it -- I just don’t understand why that -- you call that treatment?
Potter Stewart: (Inaudible) because that’s the word the statute uses?
Robert H. Friebert: That’s correct. My time is up.
Warren E. Burger: Mr. Norton?
Gerald P. Norton: Mr. Chief Justice and may it please the Court. I think at the outset, it would be useful to focus on what the issues before the Court are today. There has been a lot of discussion about the nature of the hearing that must be held if this matter goes back for re-sentencing whether the judge would reach the same result after making the finding and statement of reasons whether that would be subject to appellant review. The original issue raised by the petitioner in the District Court is whether he could have been sentenced under provisions other than the Youth Corrections Act where the Trial Judge had not made an explicit finding to the effect that he would not derive benefit from treatment under Section 5010 (b) or (c) of the Youth Corrections Act.
William J. Brennan, Jr.: Do we know Mr. Norton under what -- the Trial Judge at anytime say I am not going to sentence under the Youth Corrections Act?
Gerald P. Norton: The sequence was this. The US Attorney mentioned at the commencement of the arraignment that the case was one to which the Act might be applicable. Petitioner’s original attorney requested that he would be sentence under the Act and asked for probation under the Act. The judge, when he impose the split sentence involving probation under Section 3651 of Title 18 did not make any reference at that time to the Act.
William J. Brennan, Jr.: So we -- and well --
Gerald P. Norton: At later point, when the --
William J. Brennan, Jr.: So at the time of sentence in any event, he did not say I am sentencing under the Act or I am not sentencing him?
Gerald P. Norton: That’s correct.
William J. Brennan, Jr.: Right.
Gerald P. Norton: And then at the later point when the sentence was challenge, he ruled that he disagreed with the District of Columbia cases that said that there had to be an explicit finding and his determination that petitioner should not be sentence under the Act was essentially implicit in his sentencing him as an adult under probation.
William J. Brennan, Jr.: So he referred to what he did at the time of sentence as an interpretation -- as a sentence outside of the Act?
Gerald P. Norton: That’s right. And the Court of Appeals held that it was not necessary under the Act for an explicit finding in the words of 5010 (d) that he will not derive benefit from treatment to be made.
Warren E. Burger: Did I understand you are trying to say that the sentencing hearing and the preliminary hearing were at the same time, that this was a telescope preceding?
Gerald P. Norton: Yes sir, as the recess, but I think --
Warren E. Burger: But the Rule 10 hearing is when he was actually attempted to sentence him. That did not go from preliminary hearing to arraignment and then to sentencing hearing?
Gerald P. Norton: No, no. This was case in which the information was presented at the time of arraignment and it was previously --
Warren E. Burger: And that’s where the discussion of the Youth Correction Act occurred by the United States Attorney?
Gerald P. Norton: That’s correct.
Warren E. Burger: So that --
Gerald P. Norton: And also by the petitioner’s own Attorney.
Warren E. Burger: Yes, but there is no question that the subject matter of the Youth Corrections Act was brought to the attention of the judge at that time?
Gerald P. Norton: That’s correct, no dispute. Alright, the petitioner has referred to the fact that he was not advised by the judge at the time of sentencing about the possibility that if he had been sentenced to treatment under 5010 (b), he might be subject to commitment for up to four to six years. Now, if he had in fact received such treatment, he might have an issue, but he did not and that is not an issue that he is protruded in this case.
Warren E. Burger: There is one case in the District of Columbia Circuit where on a guilty plea, a sentence was imposed under the Youth Corrections Act and it was reversed on appeal because it had not been dispose to him that there was a six-year potential under that Act?
Gerald P. Norton: Yes, in the Carter case--
Warren E. Burger: Is that Carter?
Gerald P. Norton: I’m aware of that and the question there was really twofold. One question was whether the defendant had been informed about possibility and the court found that the record was not clear and they sent it back for further determination. The other issue was it is rather a typical case in that art of a litigation under the Youth Act until very recently presented a defendant who was sentenced under the Youth Act complaining about it, saying that “I should have been sentence under the adult provisions because it might have been a misdemeanor as in this case subject to six months or three months or one year maximum and then, they were subjected to a longer period.” On the question of whether an explicit finding must be made, let me correct the statement of what the government's position is. We do not in our brief concede that it would be appropriate for the court to impose an explicit -- a requirement of an explicit finding as petitioner seeks that the defendant will not derive benefit under the full treatment under the Act. What we have said is that, if the court were to require that there'd be some indication in the record that the Act has been considered as there is in this case, then that is sufficient and we would not oppose that, but we do not agree that there should necessarily be any requirement of a formal finding in the words of the statute or in any other particular manner. It maybe sufficient if the pre-sentence report indicates that possibility or if it is referred to by counsel or the judge made some reference to it.
Thurgood Marshall: Is there any showing in the record that on the day of sentence, the judge did or did not consider this on that day?
Gerald P. Norton: Well, yes. It was -- the preceding occurred and that was taken on the same day, the arraignment and --
Thurgood Marshall: What time spent was in there?
Gerald P. Norton: I am not sure. There was a recess while he studied the pre-sentence report and I am just not sure how.
Thurgood Marshall: I still have great problem as to whether he -- I mean, apart the one we assume he did, but wouldn’t it be better if the record showed that I have considered this in and are find that this man does not qualified for it and therefore, I am not going to give it to him. Just one little sentence. You don’t want to agree to that much?
Gerald P. Norton: Well, we say that there are reasons that such a requirement might be desirable but on the other hand, some courts have noted that there are reasons why it maybe undesirable for the court to state --
Thurgood Marshall: How do you show that he made this finding? How do you show that?
Gerald P. Norton: Well, just as show in many other instances that a finding has been made where is a precondition to further action --
Thurgood Marshall: Like what?
Gerald P. Norton: It is implicit in the alternative action taken by the court. Judges no less than governmental agencies are entitled to a presumption of regularity and if the statute would have be construed as --
Thurgood Marshall: If we overdo that presumption of the regularity in criminal cases brought up in Fifth Amendment. We look at it everyday and examine it as to whether what it's right or wrong. Why do you object to the requirement of Judges to say, I find that this man is not entitled to it. Why do you object to that requirement?
Gerald P. Norton: Well, our position is not one of objection to such a requirement necessarily. The position that we have asserted here is that --
Thurgood Marshall: Would you object to it or not?
William H. Rehnquist: Well, I think -- but I take it that you're not here to state whether you object to something or not, you are here to present the government's case and to answer arguments about what the government’s position is?
Thurgood Marshall: Well what is the government position as to whether or not the judge should make a “finding?”
Gerald P. Norton: Well, the statute provides that the judge has four options under the Act, and it is our position that Congress intended and this is amply demonstrated by the legislative history of the judges who proposed the Act that the judge would have complete discretion in determining how to sentence a youth offender, and that the use of the word find, it is not finding incidentally, it is find. If the court shall find that the defendant will not derive benefit from treatment under the Act was not meant to circumscribe in any rigid fashion the discretion of the sentencing judge that he had the same discretion that he has or had prior to the Act to sentence the defendant. The legislative history, we think makes that abundantly clear and we have set forth in our brief at some length, the various comments of the sponsors.
Thurgood Marshall: So your answer is not required to make a finding?
Gerald P. Norton: That’s right, but I was speaking only to the statement that we had made a concession. Our position is that the Act does not require any explicit finding on the record, but we would not strongly oppose some procedural requirement to indicate for sure just as a prophylactic measure that the Act has been considered, but that isn’t the heart of this case.
Thurgood Marshall: What chances do I get? You said that you did not think he had to make a finding and now you say he should?
Gerald P. Norton: Well, we are saying that in some cases, it might be necessary to spell it out and another there maybe other indications in the record that would make an explicit finding unnecessary.
Warren E. Burger: Mr. Norton, does this record show, I will go back to the question I put to you before, does this record show that on the day of the hearing which was both hearing under Rule 10 or an arraignment and a sentencing hearing that before the judgment out to read the pre-sentence report, both the prosecutor and the defense counsel had discussed and called to the court’s attention the existence of the Youth Corrections Act?
Gerald P. Norton: The prosecutor had definitely -- I am not sure whether defense counsel’s reference to a came before or after the recess.
Warren E. Burger: (Voice Overlap) before the judge pronounced the sentence, both counsel --
Gerald P. Norton: That is correct.
Warren E. Burger: -- had called this attention to this in oral argument?
Gerald P. Norton: That’s correct.
Lewis F. Powell, Jr.: In connection with that question from the Chief Justice, on page 13 of the appendix as I read it, I wish you to whether this is right or not, following the recess and after the parties have come back into the court, counsel for the defendant and the very last thing he said to the court after stating the extenuating circumstances including the hedge and family situation of the defendant concluded by saying and I would ask that he be placed under probation on probation under the Youth Corrections Act and the court then proceeded with the formal sentence.
Gerald P. Norton: That is correct and that was after the recess, the recess is indicated on --
Lewis F. Powell, Jr.: Prior to the recess, the United States Attorney said to the judge and this is on page six that you may also be subject to the Federal Youth Corrections Act?
Gerald P. Norton: That is correct.
Warren E. Burger: Page six?
Gerald P. Norton: Six and the recess is indicated at page 11 and then the sentencing followed immediately thereafter.
Potter Stewart: Did not we hear earlier that there was some misstatement that the Youth Corrections Act had a maximum sentence of one year?
Gerald P. Norton: Well, the statement was that the petitioner was asked if he was aware of the maximum penalty for the offense and he stated yes, it was one year and that is true. The maximum penalty provided under Section 844 for this offense is one year. He contended at a later point that his guilty plea should be set aside because he was not then informed that under the Youth Corrections Act had he been sentenced under it and moved imprisonment for one year under that penalty provision, he might have been subject to treatment for up to anywhere from four to six years where -- maybe a short of period of time but that is the outer limits. That attack on his plea is since been abandoned. Now, I like to turn to the threshold question which is “does the Youth Corrections Act limit or restrict the discretion of sentencing judges?” As I indicated earlier, the legislative history of this Act which was drafted by judges and supported in Congress by judges make perfectly clear that no intention to restrict the ordinary sentencing the discretion of judges was intended. Judge Laws had stated for example that it would be purely optional, not an absolute mandate, the judges do not have to use it if they do not want to. Judge Phillips likewise that it was purely optional and the judge would have absolute discretion in sentencing. Similar comments abound and we have set them forth in our brief at pages 16 to 24.
William J. Brennan, Jr.: (Inaudible) Mr. Norton or is this the government’s position that you never get to any of these issues under (d) or anything else under the Youth Offenders Statute until the judge decides that he is going to sentence him under that statute. In other words, what you have been saying to us is that the proponents of this legislation had no intention of stripping the judges of authority to sentence under some other penalty provisions that they did not care to use this Act.
Gerald P. Norton: That is correct and that is what subjection (d) does, it provides (voice overlap)
William J. Brennan, Jr.: Really, it seems to me when you parse the statute down, (a) which permits probation, the judge decides “well, I am going to sentence under this Act.” Well, I do not want to sentence under (a), I don't want to give him probation. I think he ought to be incarcerated for treatment. And so I will sentence him under either (b) or (c). And then (d) comes into effect, when he decides that maybe he would not derive on the benefit from treatment under (b) and (c) and therefore, I can sentence under any other applicable penalty provision which would be under some other statute or I might go back to (a) for the probation.
Gerald P. Norton: That is true; we do not think that --
William J. Brennan, Jr.: If that’s so Mr. Norton [Attempt to Laughter], it just strikes me that if the judge has the option to use the statute or not, you do not get any of these questions until he decides he is going to use the statute?
Gerald P. Norton: Well, we do not see that you have to get into any of these questions at all. The way that the procedure of issues raised in this case have come up is because some courts, notably the District of Columbia’s Circuit have read the Act differently than we read it. They say that as petitioner claims here that it constitutes a binding mandate to the district judges in sentencing youth offenders.
William J. Brennan, Jr.: Right now, and if we do not agree with that position and agree with yours that the judge was free to use this or not and that on this record, he decided that he would not use the statute, why is it not the end of the case without ever giving of the question whether there have to be findings under (d) or not?
Gerald P. Norton: Well, that is our position basically that the case is -- the question presented is one of whether such explicit findings are required and whether it must be a company by statement of reasons. The legislative history again and indeed the statute itself provides absolutely no support for the argument that this statute when enacted by Congress in 1950 was intended to impose on sentencing judges any kind of procedural requirements at all. The use of the word find in subsections (b), (c), and (d) is not equivalent to the use of the word findings in statute pretending to administrative agency or even in the provisions of the rules of procedure that say a judge must make findings of fact. It is essentially the same as saying “if the judge concludes that he is of the opinion or believes that such and such is the case then it may do this.” And again the use of the word “may” is crucial here. All of the options outlined in Section 5010 have the word “may” in them. The judge may do this, he may do that, he may do a third thing. It is not like some sentencing statutes which have a clearly mandatory requirement. For example in the narcotics addicts rehabilitation statute which this Court considered in the Marshall Case; there if the judge first takes the discretionary step of having a defendant who believes maybe an addict committed for treatment and gets a report on whether he might be subject to rehabilitation then if the court determines that he is an addict and he might benefit from treatment for rehabilitation, then he shall sentence him for treatment. He has no discretion. It is sharp contrast to this statute which leaves all of these options open to the judges’ discretion. As I say the DC Circuit has gone off on a different premise and from that premise has said that all of these procedural requirements of explicit findings, statement of reasons, and appellate review are essentially --
William J. Brennan, Jr.: (Inaudible) case where on the record that appeared, I haven’t read that decision that it appeared then in fact the sentencing was under the statute?
Gerald P. Norton: No the DC. Circuit cases have all -- the recent ones have all involved adult sentences. Most of them have been robbery or murder cases. The defendant was sentenced as an adult and appealed either maybe on a guilty plea so the sentence may have been only issue before the court and the court in the series of decisions has elaborated a series of rules which now require that before a youth offender, that's anyone under 22 maybe sentenced as an adult or under any other applicable penalty provisions, the District Judge has to make an explicit finding that the will not derive benefit from treatment under the Act.
William J. Brennan, Jr.: (Voice Overlap) is that been under an interpretation of this statute as the statute which must if applicable be used in the sentencing a youth offender?
Gerald P. Norton: That is right. They have read the statue as a mandating preferential sentencing under the Youth Offender Statute.
Warren E. Burger: Is that not the conflict on which the certiorari was sought whether it governed our decision or not? That was the conflict raised in petition for cert?
Gerald P. Norton: That is the basic conflict between the court below and the DC Circuit. They do not -- the DC Circuit which is recently joined by on a perspective basis only be the Second Circuit, they do not suggest that the procedural requirements are called for by the statute itself. There is simply no language that they could base any argument like that on.
Warren E. Burger: Has the Campbell Case in the Superior Court of the District of Columbia been reviewed by the Local Court of Appeals?
Gerald P. Norton: I do not know their current status. It probably would not have been decided by now since in January only. But what the Court of Appeals and the District has said is that you cannot sentence someone other than under the Act unless you find that he is so incorrigible that he will not derive benefit and then, in order to implement that mandate, they say that these other procedures follow. Now, the drafters of the statute in 1950, I am sure nothing could have been further from their mind than that in enacting the Youth Corrections Act, they were imposing on sentencing judges an elaborate structure of required findings and statements of reasons and now appellate review which in the District of Columbia has become very substantial. It is very difficult for an adult conviction to withstand the kind of analysis that --
William J. Brennan, Jr.: (Inaudible) Now on the District of Columbia Court of Appeals rather than the United States of Columbia?
Gerald P. Norton: Now, this is in the US Court of Appeals. Recently, the District of Columbia Court of Appeals decided that in the Reed case in December, Chief Judge Green said that they would no longer adhere of the DC Circuits rule as to appellate review. So, that is only in the US Court of Appeals, but the Second Circuit has joined the --
Byron R. White: But how about requiring a finding?
Gerald P. Norton: Well in that same case --
Byron R. White: (Voice overlap) haven’t they said they will require finding?
Gerald P. Norton: In the same case, the Reed case that Judge Riley’s opinion said that in some cases, it may not be necessary for the judge to make an explicit finding. If for example, he is called for a discretionary report concerning how to treat the defendant or how to dispose off the case and if that report under 5010 (e) recommends an adult sentence because the defendant would not benefit, then in the case like that, it is not necessary for the judge to reiterate that and he express some reasons why it might be detrimental if that were required. He pointed out that by not sentencing under the Youth Act, the judge does not turn his back on rehabilitation. That is a goal of all correctional institutions. It is a particular emphasis in the Youth Corrections System but it is also a goal in other institution, so that you would deserve the potential for rehabilitation if you were to at the time of sentencing in effect hit the defendant over the head with the judicial pronouncement that you will not derive any benefit from rehabilitative treatment. So that they have to a limited extent departed in that respect from the DC Circuit rule.
Warren E. Burger: This -- the decision which the judge makes at that time, the choice of options basically different in anyway from the decision to place the defendant, a convicted person on probation or not to place him on probation?
Gerald P. Norton: Essentially no and that this is a fundamental distinction between this case and say the Spectre case. In any sentencing situation, the judge has to consider the potential for rehabilitation of the defendant because probation unless it is a case where there are limitations, but in the main probation is one possibility, early release, early parole. The elements that the judge takes into account are very similar so that you are not in this statutory scheme calling upon the judge to consider factors that he would not ordinarily consider in sentencing an adult.
Warren E. Burger: When he sentences the defendant after reviewing the pre-sentence reports and hearing and reading emaciation exercise, he imposes the sentence of for two to six years, by implication he has rejected probation, is that not so?
Gerald P. Norton: That is certainly true. Let me point out something else that stems from the DC Circuit reading of the statute which petitioner supports. If the statute were to be construed as giving the judge discretion to choose between the Youth Act and other applicable provisions, only in the case where he finds the defendant is incorrigible and will not derive benefit then on one hand you have an absurd result because only if you have someone who is incorrigible, there is a judge have to choice to as between Youth Act Treatment and the other possibilities. But in addition, you unduly limit the judges' flexibility because there maybe other provisions which would be even more beneficial to the defendant than Youth Act Treatment and this may well be such a case. This may be precisely what the judge had in mind. Youth Act Treatment involves a possibility of commitment and restriction on liberty for up to six years. This defendant the petitioner received a 90-day commitment to a jail type institution.
Byron R. White: He never was committed to the Attorney General for that purpose?
Gerald P. Norton: For that purpose, no and --
Byron R. White: He was just put in the jail?
Gerald P. Norton: That is right. The sentence was explicit. This is under 3651 Title 18 followed by probation which had in received the Youth Act Sentence, he would not have had the same assurance and the judge would not have had the same assurance that after a dose of custody, he would be free.
Byron R. White: Is this what the pre-sentence report recommended or do you know?
Gerald P. Norton: I do not know.
Byron R. White: You do not know whether the pre-sentence report recommended treatment as an adult?
Gerald P. Norton: I am not able to answer. I have not seen it. And let me mention one other alternative that is particular application in this case. Under 844 Title 21, the statute under which the petitioner was convicted, the judge has the discretion. This is a case of a simple possession, a first time offender for controlled substance. The judge has the discretion to sentence the defendant to probation for up to one year and if the defendant satisfactorily completes that probation, then he is automatically entitled to have the proceeding set aside and completely expunged for all purposes, a far and more comprehensive relief then is available under the Youth Corrections Act and it is mandatory. In the present case, let us take petitioner’s scenario. If this Court were to reverse and send it back for re-sentencing, if he was sentenced under the Youth Corrections Act, and if he received probation and we do not necessarily agree that that is the only alternative on remand, but if he did receive such probation, he would not be entitled to have his conviction set aside upon the completion of that probation. The only time he can have it set aside is if the judge in the court and its discretion decides to discharge him from probation prior to the term set. It is only for premature or early release that this remedy is available. So, it is not mandatory as it would have been under 844. Yet under the petitioner's own argument, the District Court would have been disabled from sentencing him under 844 unless he first concluded that he was incorrigible or will not derive benefit from treatment under (b) or (c). Now, he might well have thought that maybe he will derive some benefit but it is not worth subjecting him to the added risks of extended incarceration that would be involved.
William J. Brennan, Jr.: In case to Mr. Norton, this was a young college student, wasn’t he, second year in college?
Gerald P. Norton: That is correct.
William J. Brennan, Jr.: Only time he have ever had any difficulty in his life, is that right?
Gerald P. Norton: I am not sure about the prior (Voice overlap)
Potter Stewart: How does the record show?
William J. Brennan, Jr.: And I would suppose the judge would decide I will give him -- I have to give him something but I will be as lenient as I can be and so he gave him 90 days plus probation.
Gerald P. Norton: That would be my reading of the situation.
William J. Brennan, Jr.: That this was not the kind of offender who ought to be or who needed to be sent to the custody of the Attorney General for treatment for four to six years?
Gerald P. Norton: That is right and two more years of probation, he would -- after two years of probation, he would be out college and so.
Thurgood Marshall: What do you do about the expunging his record?
Gerald P. Norton: Well, it is -- first of all, he would not be entitled to expungement as such under the provisions of the Youth Act unless he were discharged from probation or released from commitment prior to the term that's set. So, it really matter of speculation whether that situation would over arise were he sentenced under the Act.
Potter Stewart: But it cannot be expunge to under this present sentence sort of a presidential pardon I guess, can he?
Gerald P. Norton: Well, I think -- that is a question to which I am not prepared to answer. The words of Section 5021 which provide for expungement are simply refer to youth offender who has been on probation. And the structure of the Act, it appears to refer to probation under 5010 (a). Explicitly, it is not limited to that and whether it would refer to probation under 3651 which the petitioner received is an open question which are not this Court certainly has not resolved.
Thurgood Marshall: You have no of any case where it was done, I am sure?
Gerald P. Norton: But I am not sure that there is any case that what has been sought and denied. I think some cases have assumed that 5010 -- that adult probation in not subject to the expungement provision, but I am not sure that there is any clear ruling on that one.
Thurgood Marshall: There are whole lot of cases on that?
Warren E. Burger: Thank you gentlemen. The case is submitted. Mr. Friebert, you appeared here at our request and by our appointment and I want to thank you in behalf on the court for your assistance to Court and to your client.
Robert H. Friebert: Thank you.