|Schick v. Reed
[ Burger ]
[ Marshall ]
Schick v. Reed
CERTIORARI TO THE UNITED STATES COURT OF APPEAL FOR THE DISTRICT OF COLUMBIA CIRCUIT
MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN join, dissenting.
The Court today denies petitioner relief from the no-parole condition of his commuted death sentence, paying only lip service to our intervening decision in Furman v. Georgia, 408 U.S. 238 (1972). Because I believe the retrospective application of Furman requires us to vacate petitioner's sentence and substitute the only lawful alternative -- life with the opportunity for parole, I respectfully dissent.
The Court misconstrues petitioner's retroactivity argument. Schick does not dispute the constitutional validity of the death penalty in 1954 under then-existing case law. Nor does he contend that he was under sentence of death [n1] [p269] in 1972 when the decision issued in Furman, invalidating "the imposition and carrying out" of discretionary death sentences. Id. at 239. Rather, he argues that the retroactive application of Furman to his no-parole commutation is required because the imposition of the death sentence was the indispensable vehicle through which he became subject to his present sentence. In other words, the no-parole condition could not now exist had the court-martial before which Schick was tried not imposed the death penalty.
The relationship between the death sentence and the condition is clear. Article 118 of the Uniform Code of Military Justice (UCMJ) [n2] authorizes only two sentences for the crime of premeditated murder: death or life imprisonment which entails at least the possibility of parole. Confinement without possibility of parole is unknown to military law; [n3] it is not and has never been authorized for any UCMJ offense, 10 U.S.C. §§ 877-934; Manual for Courts-Martial, 34 Fed.Reg. 10502 (1969). In short, the penal restriction of the commutation was a creature of Presidential clemency made possible only [p270] through the court-martial's imposition of the death sentence.
The retroactivity of Furman is equally unclouded. The Court "[has] not hesitated" to give full retroactive effect to the Furman decision. Robinson v. Neil, 409 U.S. 505, 508 (1973). See Stewart v. Massachusetts, 408 U.S. 845 (1972); Marks v. Louisiana, 408 U.S. 933 (1972); Walker v. Georgia, 408 U.S. 936 (1972). The per curiam decision struck down both "the imposition and the carrying out" of discretionary death sentences as cruel and unusual punishment in violation of the Eighth Amendment. 408 U.S. at 239. The opinion specifically held that the "judgment . . . is . . . reversed insofar as it leaves undisturbed the death sentence imposed. . . ." Id. at 240. The retroactive application of Furman results in more than the simple enjoining of execution; it nullifies the very act of sentencing. In effect, a post-Furman court must ensure a prisoner the same treatment that he would have been afforded had the death penalty not been imposed initially. [n4]
The full retroactivity of a constitutional ruling is aimed at the eradication of all adverse consequences of prior violations of that rule. We have recognized the importance of erasing "root and branch" the adverse legal consequences, both direct and indirect, of prior constitutional violations. See, e.g., McConnell v. Rhay, 393 U.S. 2, 3 (1968); Linkletter v. Walker, 381 U.S. 618, 639 (1965). The effective operation of this procedure was demonstrated [p271] in the decisions on the right to counsel in state felony trials. See Pickelsimer v. Wainwright, 375 U.S. 2 (1963); Kitchens v. Smith, 401 U.S. 847 (1971); Burgett v. Texas, 389 U.S. 109 (1967); United States v. Tucker, 404 U.S. 443 (1972).
Since Furman is fully retroactive petitioner's case should be simple to resolve. The terms of Art. 118 of the UCMJ provide that a person convicted of premeditated murder "shall suffer death or imprisonment for life as a court-martial may direct." A death sentence was imposed by the court-martial and affirmed by the Board of Review and the United States Court of Military Appeals, 7 U.S.C.M.A. 419, 22 C.M.R. 209 (1956). The death sentence so imposed was declared unconstitutional by Furman and is therefore null and void as a matter of law. The only legal alternative -- simple life imprisonment -- must be substituted. Concomitantly, the adverse consequence of the death sentence -- the no-parole condition of petitioner's 1960 commutation -- must also be voided, as it exceeds the lawful alternative punishment that should have been imposed. Petitioner should now be subject to treatment as a person sentenced to life imprisonment on the date of his original sentence and eligible for parole. [n5] [p272]
The Court today suggests that petitioner cannot claim any benefit from Furman because no death penalty was pending against him at the time of the decision. The 1960 commutation is touted as the panacea for the constitutional defects of petitioner's original sentence. Unfortunately, such is not the case.
The imposition of the death sentence was the indispensable vehicle through which petitioner became subject to his present sentence. The commutation of the sentence did not cure the constitutional disabilities of the punishment. A noted expert on the subject of Presidential clemency states:
Unlike a pardon, a commutation does not absolve the beneficiary from most of the legal consequences of an offense. [n6]
Although petitioner is not under direct threat of the death sentence,
The full retrospective application of Furman requires the eradication of this vestige of the prior constitutional violation. If petitioner had been granted stays of execution until Furman was decided, there is no doubt that his sentence would have to be vacated and a life sentence imposed instead. The situation should be no different simply because the Chief Executive commuted his sentence -- in effect granting a permanent stay of execution. Nullification of the no-parole provision would relieve petitioner of this unconstitutional burden and clear the way for lawful resentencing with eligibility for parole.
Since the majority devotes its opinion to a discussion of the scope of Presidential power, I am compelled to comment. I have no quarrel with the proposition that the source of the President's commutation power is found in Art. II, § 2, cl. 1, of the Constitution, which authorizes the President to grant reprieves and pardons for offenses against the United States except for cases of impeachment. Biddle v. Perovich, 274 U.S. 480 (1927). Commutation is defined as the substitution of a lesser type of punishment for the punishment actually imposed at trial. [n8] [p274]
The issue here is whether the President's expansion of an unencumbered life term by addition of a condition proscribing Schick's eligibility for parole went beyond the authority conferred by Art. II. Article 118 of the UCMJ and the implementing court-martial regulations prescribe mandatory adjudication of either death or life imprisonment for the crime of premeditated murder. 10 U.S.C. § 918; 34 Fed.Reg. 10704. I take issue with the Court's conclusion that annexation of the "no-parole condition . . . does not offend the Constitution." Ante at 267. In my view, the President's action exceeded the limits of the Art. II pardon power. In commuting a sentence under Art. II, the Chief Executive is not imbued with the constitutional power to create unauthorized punishments.
The congressionally prescribed limits of punishment mark the boundaries within which the Executive must exercise his authority. [n9] By virtue of the pardon power, the Executive may abstain from enforcing a judgment by judicial authorities; he may not, under the aegis of that power, engage in lawmaking or adjudication. Cf. United States v. Benz, 282 U.S. 304, 311 (1931) (an act of clemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter it qua judgment); United States ex rel. Brazier v. Commissioner of Immigration, 5 F.2d 162 (CA2 1924) (pardon power does not embrace right to bar congressionally prescribed deportation of prisoners).
While the clemency function of the Executive in the [p275] federal criminal justice system [n10] is consistent with the separation of powers, the attachment of punitive conditions to grants of clemency is not. Prescribing punishment is a prerogative reserved for the lawmaking branch of government, the legislature. As a consequence, President Eisenhower's addition to Schick's commutation of a condition that did not coincide with punishment prescribed by the legislature for any military crime, [n11] much less this specific offense, was a usurpation of a legislative function. While the exercise of the pardon power was proper, the imposition of this penal condition was not embraced by that power. [n12] [p276]
The Court today advances the antecedent English pardon power and prior holdings of this Court in support of the legality of the no-parole condition. Neither body of law has established an Executive right to define extra-legislative punishments. [n13] Nor does the historical status of the pardon power in England or analysis of prior nonpenal conditions supply any relevance here.
The English annals offer dubious support to the Court. The majority opinion recounts in copious detail the historical evolution of the pardon power in England. Ante at 260-262. See also Ex parte Wells, 18 How. 307, 309-313 (1856). The references to English statutes and cases are no more than dictum; as the Court itself admonishes, "the [pardon] power flows from the Constitution alone." Ante at 266. Accordingly, the primary resource for analyzing the scope of Art. II is our own republican system of government. See Grosjean v. American Press Co., 297 U.S. 233, 248-249 (1936). The separation of powers doctrine does not vest the Chief Executive with an unrestrained clemency power, supra at 274-275, but views his functions as distinct from the other coordinate branches. Ante at 262-264. The references to the early American experience are not dispositive. [n14] [p277]
Indeed, history recounts that even the pardon power of the King to "annex [a condition] to his bounty" was subject to statutory limitation. 4 W. Blackstone, Commentaries *401. As noted in the Wells case:
The sovereign of England, with all the prerogatives of the crown, in granting a conditional pardon, cannot substitute a punishment which the law does not authorize.
18 How. at 323 (McLean, J., dissenting). Even the authority quoted by Blackstone in support of the proposition, 2 W. Hawkins, Pleas of the Crown 547 (8th ed. 1824), does not actually support the suggestion of unlimited power in the King. In fact, the conditions discussed were either imposed pursuant to statute or of a nonpunitive nature. See Coles Case, Moore K.B. 466, 72 Eng.Rep. 700 (1597); E. Coke, A Commentary upon Littleton 274b (19th ed. 1832). The Court acknowledges instances in which statutory authority placed restrictions on the monarch's power. Ante at 260. The critical role of statutes in the imposition of the condition of banishment on pardons of convicted felons was recognized in a letter addressed to a member of the House of Lords:
There is hardly anything to be found respecting conditional pardons in the old English law-books; but the authority of the Crown to grant a conditional pardon in capital cases is . . . recognized in statute 5 Geo. 4, c. 84, s. 2. . . .
W. Forsyth, Cases and Opinions on Constitutional Law 460 (1869). [p278]
The King's prerogative was thus not as broad as the majority's reading of Blackstone indicates. The great discretion available to the King to dispense mercy did not incorporate into the pardoning power the royal right to invade the legislative province of assessing punishments.
Contrary to the Court's suggestion, limitation of Executive action to the statutory framework is not undermined by earlier decisions of this Court. In Biddle v. Perovich, 274 U.S. 480, 483 (1927), the Solicitor General expressly noted that "[a] commutation is the substitution of a milder punishment known to the law for the one inflicted by the court." Mr. Justice Holmes, writing for a unanimous Court, concluded on a related matter that consent to commutation was unnecessary since, "[b]y common understanding, imprisonment for life is a less penalty than death." Id. at 487. The Court held that the "only question is whether the substituted punishment was authorized by law. . . ." Ibid. While Holmes' specific reference is to the law of the Constitution, he then proceeds with a discussion of the statutory sanctions. Commutation to life imprisonment without any opportunity for parole would penalize the prisoner here beyond the terms of the UCMJ sanctions.
The requirement that the substituted sentence be one provided by law is not hampered by Ex parte Wells, supra, in which this Court upheld conditional commutation from a death sentence to a simple life term. The validity of mitigation of a sentence without depriving the prisoner of any additional rights is not inconsistent with rejection of unauthorized penal conditions. In Wells, the Court acknowledged that limitations on the pardon power mandated its exercise "according to law; that is, as it had been used in England, and these States." 18 How. at 310. Although the Wells Court was not faced with the question [p279] whether all possible conditions were in the ambit of Art. II, it addressed the specific limitation on penal conditions attached to commutations:
So, conditional pardons by the king do not permit transportation or exile as a commutable punishment, unless the same has been provided for by legislation.
Id. at 313. The remaining cases on which the Court relies to sustain the condition offer minimal support and are easily distinguished. [n15]
In conclusion, I note that, where a President chooses to exercise his clemency power, he should be mindful that
[t]he punishment appropriate for the diverse federal offenses is a matter for the discretion of Congress, subject only to constitutional limitations, more particularly the Eighth Amendment.
Bell v. United States, 349 U.S. 81, 82 (1955). See Ex parte United States, 242 U.S. 27, 42 (1916). The Congress has not delegated such authority to the President. I do not challenge the right of the President to issue pardons on nonpenal conditions, but, where the Executive elects to exercise the Presidential power for commutation the clear import of the Constitution mandates that the lesser punishment imposed be sanctioned by the legislature. [n16] [p280]
In sum, the no-parole condition is constitutionally defective in the face of the retrospective application of Furman and the extra-legal nature of the Executive action. I would nullify the condition, and direct the lower court to remand the case for resentencing to the only alternative available life with the opportunity for parole -- and its attendant benefits.
1. But see Part II, infra.
2. Article 118, 10 U.S.C. § 918 reads:
Any person subject to this code who, without justification or excuse, unlawfully kills a human being, when he --
(1) has a premeditated design to kill;
* * * *
shall suffer death or imprisonment for life as a court-martial may direct.
May 5, 1950, c. 169, § 1, 64 Stat. 140.
3. Military prisoners incarcerated in federal penitentiaries are governed by the same parole statutes and regulations applicable to all federal prisoners. Under the federal parole eligibility statute, 18 U.S.C. §§ 4202-4203 (1970 ed. and Supp. II), petitioner, an inmate for 20 years at Lewisburg, now has satisfied the 15-year prerequisite for parole consideration. See 10 U.S.C. § 858. Likewise, if Schick had been confined in a military facility he would now be eligible for parole under 10 U.S.C. §§ 952-953.
4. Where only one alternative punishment is available to the trial court, that punishment has been automatically imposed either by the appellate court itself, e.g., State v. Johnson, 31 Ohio St.2d 106, 285 N.E.2d 751 (1972); Commonwealth v. Bradley, 449 Pa.19, 295 A.2d 842 (1972); Anderson v. State, 267 So.2d 8, 10 (Fla.1972); or by the trial judge on direction from the appellate court, e.g., Capler v. State, 268 So.2d 338 (Miss.1972); State v. Square, 263 La. 291, 268 So.2d 229 (1972); Garcia v. State, 501 P.2d 1128 (Okla.Crim.1972).
5. Nothing in Furman suggests that it is inapplicable to the military. The per curiam carves out no exceptions to the prohibition against discretionary death sentences. The opinions of the five-member majority recognize no basis for excluding the members of the Armed Forces from protection against this form of punishment. Even the list of four capital punishment statutes not affected by the Court's decision, provided by my Brother STEWART, does not include the federal military statutes. 408 U.S. 238, 307 (1972). Even more persuasive is the language of my Brother POWELL in dissent which states that "numerous provisions of . . . the Uniform Code of Military Justice are also voided." Id. at 417-418.
Beyond the language of Furman the Court has made clear in Trop v. Dulles, 356 U.S. 86 (1958), that the Eighth Amendment is applicable to the military. While the Court divided on the penal nature of the statute which provided additional sanctions for servicemen convicted of wartime desertion, there was no disagreement on the application of the Amendment.
I would also note that the UCMJ, enacted in 1950, has by decision and practice incorporated the Bill of Rights and afforded its protection to the members of the Armed Forces. See, e.g., United States v. Tempia, 16 U.S.C.M.A. 629, 634, 37 C.M.R. 249, 254 (1967); United States v. Jacoby, 11 U.S.C.M.A. 428, 43031, 29 C.M.R. 244, 246-247 (1960); United States v. Jobe, 10 U.S.C.M.A. 276, 279, 27 C.M.R. 350, 353 (1959).
The fact that a court-martial, rather than a jury imposes the death sentence is irrelevant. In my view, the penalty is equally severe, and, in my view, equally offensive to the Eighth Amendment for that reason, see Furman v. Georgia, 408 U.S. at 314-374 (MARSHALL, J., concurring). Moreover, the potential for abuse and discrimination with which my Brethren were concerned in Furman is as evident here as in the civilian courts.
6. W. Humbert, The Pardoning Power of the President 27 (1941).
7. 157 U.S.App.D.C. 263, 270, 483 F.2d 1266, 1273 (1973) (Wright, J., dissenting).
8. Although pardon and commutation emanate from the same source, they represent clearly distinct forms of clemency. Whereas commutation is a substitution of a milder form of punishment, pardon is an act of public conscience that relieves the recipient of all the legal consequences of the conviction. See, e.g., United States ex rel. Brazier v. Commissioner of Immigration, 5 F.2d 162 (CA2 1924); Chapman v. Scott, 10 F.2d 156, 159 (Conn.1925), aff'd, 10 F.2d 690 (CA2), cert. denied, 270 U.S. 657 (1926); Note, Executive Clemency in Capital Cases, 39 N.Y.U.L.Rev. 136, 138 (1964); Humbert, supra, n. 6, at 27; Black's Law Dictionary 351, 1268-1269 (4th ed.1968).
9. Indeed, Mr. Chief Justice Marshall expanded on the notion of separation of powers, stating:
[T]he power of punishment is vested in the legislative . . . department. It is the legislature . . . which is to define a crime, and ordain its punishment.
United States v. Wiltberger, 5 Wheat. 76, 95 (1820).
10. Article 71(a) of the UCMJ, 10 U.S.C. § 871(a), outlines the Presidential role in the review of military convictions.
With the exception of premeditated murder and felony murder the UCMJ authorizes punishment at the discretion of the court-martial. Thus, in the majority of cases the President would not be limited to only two alternatives but could commute to any lesser sentence than that imposed by the court-martial consistent with the statutory authorization. It is only in the face of the mandate of Art. 118, limiting the alternatives to death or life imprisonment with the possibility of parole, that the restriction to the statutory alternatives may appear at first blush unduly Draconian.
11. As already indicated, confinement without opportunity for parole is unknown to military law. See text accompanying n. 3, supra. Moreover, the only federal law recognition of this punishment in a civilian context is found in the very limited no-parole provisions dealing with continuing narcotics enterprises. 21 U.S.C. § 848. Guided by the special nature of drug offenses and drug offenders the Congress enacted this narrow exception to universal eligibility for parole. See H.R.Rep. No. 2388, 84th Cong., 2d Sess., 4, 8, 11, 64 (1956).
12. The Court cites Ex porte Wells, 18 How. 307 (1856), and an opinion of Attorney General Brownell, 41 Op.Atty.Gen. 251 (1955), in support of the statement that
Presidents . . . have [frequently] exercised the power to pardon or commute sentences upon conditions that are not specifically authorized by statute.
Ante at 266. Wells involved the simple substitution of the lesser penalty of life imprisonment for death; no separate punitive condition was attached to the Executive action. A legal opinion from the Attorney General supplies reasoned interpretations but hardly bears the force of law.
13. The King's pardon power, from which the President's Art. II power derives, also was subject historically to statutory limitations. See Ex parte Wells, supra, at 312-313; id. at 322 (McLean, J., dissenting).
14. With few exceptions conditional pardons were not granted by state governors except where authorized by law, Ex parte Wells, supra, at 322 (McLean, J., dissenting). The Court's references to the Framers' writings on the pardon power fail to take account of the separation of powers doctrine so fervently embraced by the constitutional drafters. National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949); The Federalist No. 47 (J. Madison) (J. Cooke ed.1961); E. Corwin, The President: Office and Powers 140 (1940). In fact, Corwin notes:
[T]he President is not authorized to add to sentences imposed by the courts [pursuant to legislative direction] -- he may only mitigate them. . . .
Ibid. (emphasis in original).
15. United States v. Wilson, 7 Pet. 150 (1833), turned on the technical question of whether a pardon must be pleaded and only referred in dictum to the possibility that the President could condition a pardon. In Ex parte Garland, 71 U.S. 333"]4 Wall. 333 (1867), and 4 Wall. 333 (1867), and Ex parte Grossman, 267 U.S. 87 (1925), the Court focused on the discretionary aspect of the pardon power which is here unchallenged. The emphasis was on the right of the President to grant a pardon to any criminal, for any offense, at any time. The question of conditional action was raised in only a tangential manner.
16. The Court likens the no-parole condition to "sanctions imposed by legislatures such as mandatory minimum sentences. . . ." The similarity is all too close, in my view. Indeed, it is precisely because the President has invaded the legislative domain that the condition must fail.