Warren E. Burger: We'll hear arguments next in 72-5881, Marshall against the United States. Mr. Hewitt, you may proceed whenever you’re ready.
James F. Hewitt: Thank you, Your Honor. Mr. Chief Justice and may it please the Court. I would like to beg the Court’s indulgence to briefly discuss some of the relevant facts to put this case in its proper perspective. Approximately four years ago, Robert Marshall robbed a bank. He did not use a gun and he did this for the purpose of obtaining money to buy heroine for his narcotics addiction. He was arrested and prosecuted for bank robbery. It appears that he had two or rather three prior felony convictions in the courts of the State of California. And about that time, the District of Columbia Circuit en banc decided the Watson case holding the two prior felony exclusion unconstitutional under the due process clause as denying equal protections to a narcotic addict under Title II. And a request was made to the United States attorney in the light of Mr. Marshall’s obvious addiction to charge him with a crime not one of violence, so that at least he could invoke in the District Court, the Watson’s decision. That was done. Marshall was charged with entering a bank with intent to commit larceny while it carries the same penalty as armed bank robbery, it is not robbery under the statute, and therefore, he was not barred by that provision of the Narcotics Act. Marshall pleaded guilty and submitted to the District Court that he should be eligible for consideration under Title II for prison commitment as a narcotic addict and for treatment and that the two prior felony exclusion was on unconstitutional discriminatory classification. The judge felt that -- the prior judge felt that this was not the law in the Ninth Circuit. He declined to follow the Watson’s decision and sentenced Marshall to 10 years under 18 U.S.C. 4208 (a) (2) providing for parole at anytime, the same maximum sentence for which he could be held under Title II commitment 10 years, recommended in his commitment that he be given treatment for his narcotics addiction in Federal Prison. Marshall had received no treatment to date. I talked to his case worker before leaving San Francisco on Friday. It was determined at the time to wait until a little later and see what had developed with respect to this particular line of authority and Marshall filed a 2255 application I felt prematurely because I was waiting for some other decisions to come down, but at the time his 2255 petition was heard by the District Court, Watson was the only significant case still on the books and Judge Peckham following that decision, declined to set aside the conviction on the grounds that the discriminatory classification prevented him from committing him under the Title II of Narcotics Act. An appeal was taken to the Ninth Circuit and the Ninth Circuit agreed with the District Court that the classification was not an arbitrary one. In the interim, the District of Columbia Circuit had decided Hamilton which clarified the situation by pointing out that any two prior felony convictions whether narcotic related or not, would be discriminatory classification and then while the petition for cert was before this Court, the First Circuit followed the Watson decision and Hamilton decision and held the discriminatory classification a violation of due process by denying equal protections. So we have at the present time the first in the District of Columbia Circuit's holding that statute unconstitutional as it improperly discriminates, the Fifth and Ninth Circuit holding that the classification is a reasonable one.
Harry A. Blackmun: Mr. Hewitt, what do you think is the applicable standard here?
James F. Hewitt: I knew that one of Your Honors would ask that question. I’d like to say, I would like to say that the trend of cases after Jackson versus Indiana and a number of District Court cases, some of which were cited by this Court in Jackson, perhaps are leading to a conclusion that treatment for an ill person and if we assume the premise that a drug addict is an ill person, it may very well be a fundamental interest that the State or the Government must provide. I would use an example of it. If we are going to commit a prisoner to the Medical Center at Springfield as mentally ill, I don’t think he can be sent there and then not treated for his mental illness. And I certainly don’t think that you can deprive him of treatment for his mental illness on the grounds that he might have a bad criminal record. I would like to say that this is a fundamental interest that we’re talking about, but I realize that the Court has not gone that far and I would have to say that perhaps, we’re talking about an interest more in the social welfare economic realm than in a fundamental interest area.
Warren E. Burger: Would you [Inaudible] that point saying that a district judge in sentencing would not be permitted to take into account prior criminal offender?
James F. Hewitt: Oh no! No. In fact, the crux of our argument is this. We say Marshall had a right to be considered by the District Court. Now, if the District Court looked at his record and said, well, he’s a dangerous person. His crimes of violence are recent. He has crimes of violence. He has a violent background. He’s not likely to respond the treatment. The District Court can exercise its discretion and not commit him under Title II, but Marshall never got that chance. And he never got the chance because the two prior felony exclusion in Title II operates as a conclusive presumption that he is not likely to be rehabilitated and that is the irrational classification of which we complain. Now, I would like to point out to you, Your Honor --[Voice Overlap]
Harry A. Blackmun: [Voice Overlap] the lack of treatment that you agree that the applicable standard is rationality?
James F. Hewitt: Yes, Your Honor.
Harry A. Blackmun: Then I think both sides are in agreement as to the --
James F. Hewitt: Yes, Your Honor.
Harry A. Blackmun: Alright.
James F. Hewitt: I would like to point out that we’re talking in the Narcotics Rehabilitation Act about two titles. Title I is the Civil Commitment in lieu of prosecution and the thrust of the legislative history aimed towards this Title I is talking about escaping punishment and so forth. And I certainly have no quarrel with these classifications as they may relate to Title I. But Title II is a prison type commitment. It is a commitment to a Federal Prison where the drug rehabilitation program is made available within a prison sentence. He is under the supervision on after care of the Board of Paroles as any other prisoner and he is certainly is not in any sense of the word escaping punishment, if punishment is a valid objective. So, there are distinct differences between Title I and II. The felony convictions that title two talks about, and of course the debarring of provisions apply to Title I with equal force, need not be violent felonies. They need not be current. They could have been 20 years ago. They could have been two convictions, one for mail theft and one for forgery. There’s no showing that -- no necessity that they even had been drug-related. They may be in one jurisdiction misdemeanors and then another jurisdiction felonies. They may be subject to expungement in California, but perhaps not subject to expungement in the District of Columbia since there’s no provision in our Federal Court for expunging a criminal record. If it’s expunged, it doesn’t count. So, it’s obvious that the two prior felony provision is arbitrary even as it’s applied. Now, the question that we would like this Court to consider is whether or not, that classification of two prior felonies is reasonably related to affect the legislative purpose of the Narcotic Addict Rehabilitation Act and we submit to the Court that it is not. There absolutely is no rational connection between two prior felony convictions and whether or not the addict needs treatment. And I think a common sense approach shows that it operates in effect as a conclusive presumption without a rational nexus. I think if we ask the man on the street a very common sense series of questions; what do you think of the fact that perhaps 50% of the drug addicts or 50% of the street crimes are committed by drug addicts. He would probably say, “I agree with you. That is probably correct.”
William J. Brennan, Jr.: Why is that you (Inaudible). In the same institution, same penal institution, federal penal institution, there is provision for treatment for drug addicts and that drug addicts not precluded under Title II go to that institution and they get treatment for their addiction. But this fellow, because he’s had two prior felony convictions, goes to the same institution and gets the treatment.
James F. Hewitt: That’s correct, Your Honor.
William J. Brennan, Jr.: That is how it works?
James F. Hewitt: That’s right.
Warren E. Burger: What is that that precludes him from getting the treatment, the availability of the facilities or are you suggesting he is absolutely barred from getting --
James F. Hewitt: At the present time, he is simply not committed under the Narcotic Addict Rehabilitation Act.
Warren E. Burger: That’s not -- that’s not quite my question. Is -- are you suggesting that is a bar, some kind of an absolute bar to his being treated for his narcotics addiction while he is prison, in his present sentence
James F. Hewitt: Oh no, Your Honor. If he is in an institution that has a drug program, and if he is within a year or year-and-a-half of parole, they may put him into a drug program, but it’s discretionary with the prison officials. Our point is that he should have an opportunity as any other member of the class could be considered by the District Court for commitment as a drug addict, where he is guaranteed drug rehabilitative treatment. Now I’m not qualified to discuss whether or not, treatment at the end are the parole period is better or worse than treatment at the beginning of the prison period. It would seem to me that a person whose antisocial behavior is the product of drug addiction would be better off to get into a prison program that’s oriented to drug rehabilitation from the beginning, so that the whole rehabilitation program can be key to the root cause of the problem which would be held on addiction in this particular case.
Warren E. Burger: Well, I’m sure no one would challenge that as a matter of common sense or good sound policy, but the question is whether that rises to constitutional level, isn’t that it?
James F. Hewitt: Yes it is, Your Honor. And it does, I think, when the classification of having been convicted of two prior felonies, bars him from consideration with other members of the class similarly situated because it’s our position and the position of the District of Columbia Circuit and the First Circuit that there’s just no rational relationship between two prior felonies and likelihood to be rehabilitated which is the prime purpose of the Narcotic Rehabilitation Act. Now, the Government seems to justify this classification on the basis that there’s an effort to limit resources available toward the program. Now, there are some comments in the legislative history concerning available resources and I think the care for the perusal of the legislative history will show that most of the Congressmen and Senators were talking about Title I and the facilities that might have to be built under the Public Health Service in order to handle the intake that would be created by opening Title I, the commitment in lower prosecution. Title II, however, or commitments to the Federal Prisons ostensibly at least, the convicted prisoner and it’s almost always a felony that convicted felon will go to a Federal Prison anyhow.
William J. Brennan, Jr.: Well, in Title I he wouldn’t go to the same prison as Title II?
James F. Hewitt: In Title he is committed to go the surgeon general. They’re not committed to prison. They’re not sentenced. It’s not a sentencing provision. That’s the commitment in lieu of prosecution. That was the area, I think where the legislative history indicates there may have been some concern about available resources, certainly not as to Title II. No prisons had to be built, because the person is going to be imprisoned anyhow. It’s just a question of whether or not, while in prison he’s going to get drug rehabilitation treatment or whether he’s going to get straight prison treatment. There may or may not be drug-oriented depending upon the whim of the prison at a particular time. The Government seeks to justify on the grounds that available resources is a secondary purpose and I don’t think the legislative history supports it. The statute hasn’t built an escape provision. If at any time, the Attorney General finds that facilities are not available or limited, he may certify and not take any drug addicts into the Title II program. So, the availability of funds is always subject to this escape valve built into the statute. If the rationale --
Warren E. Burger: I’m sorry, we’ll pick up with that part first thing in the morning, Mr. Hewitt.
James F. Hewitt: Thank you, Your Honor.