Johnson v. Rockefeller

LASKER, District Judge

(concurring in part and dissenting in part).

I agree with the majority that § 79-a’s marriage bar may be regarded as a punishment, 1 and if so is constitutionally “within New York’s power to prescribe.” I therefore concur in holding the statute is constitutional.

I disagree, however, with the majority’s characterization of the deprivation imposed by § 79-a, that is, that “[i]n actuality the effect of the statute is to *382 deny to Butler only the right to go through the formal ceremony of marriage.” This formulation appears to approve the State’s argument that marriage for or to a life-termer is no marriage at all, because it does not permit cohabitation and procreation. . Although the tangible elements of marriage thus emphasized are undoubtedly of central importance in ordinary circumstances, nevertheless, the non-tangible devotion of man and wife is certainly of equal — many would say higher— value. By barring Butler’s marriage, the state deprives him and his wife-to-be of the critical emotional support to be found in the formalized and symbolic relation itself. The State prevents them from committing themselves to each other. The importance of these interests has recently been recognized by the Commissioner of Correctional Services, who has said:

“A major Departmental objective is to foster ties to the community that will help create stability in the inmate’s personal life. Accordingly, the permission of the Commissioner will no longer be required in a case where an inmate wishes to marry, and the Department will provide appropriate assistance to inmates who wish to become married.” Administrative Bulletin #107, from Peter Preiser, Commissioner, to Superintendents of Correctional Facilities and Camps, dated August 13, 1973.

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I disagree with the majority, therefore, that the “statute adds nothing of significance to the effects of such incarceration.”

Furthermore, the formalized commitment is vital not only as an emotional support during the period of incarceration, even if it be actually for life, but also as a solemn undertaking to the panoply of the marriage relationship in the event of the prisoner’s release by parole or commutation, possibilities which become actualities in a significant number of cases. It is no answer that in such an event the parties would be free to marry, for the passage of years without the existence or possibility of even a formalized emotional commitment will almost certainly mean that the wife-to-have-been will have built her life' elsewhere.

I differ, too, from the majority’s view that the State’s power to regulate the institution of marriage justifies the ban on marriage of life-term prisoners. Without denying that power or denigrating the State’s interest in preserving the integrity of marriage as an institution, I see no reasoned basis for the State’s claim that that integrity depends on barring the marriage of life-term prisoners to the infinitesimally small number of women who are willing to embark on a relationship which they must necessarily understand will be of the most limited nature. No wife entering into such a marriage will expect support from her husband — unless his means permit it. Since conjugal arrangements do not exist in New York, no child will require support; and should New York law permit conjugal visits in the future, contraceptive methods and the wife’s constitutional (and, in New York, statutory) right to an abortion assure that no child will be born except in accordance with the wife’s deliberate wish. Furthermore there may be a strong State interest in preserving such marriages:

“No civil deprivation is likely to affect the convict more adversely than the loss of domestic rights. One recent study of post-release failures among federal prison releasees found that released convicts who resumed residence with their wives experienced the lowest recidivism rate. Ex-convicts who lived alone, however, were determined to be the most likely to return to crime. These findings dramatically illustrate the interest that society has in preserving the family ties of imprisoned convicts. Unfortunately, present laws largely ignore this interest.” “The Collateral Consequences of a Criminal Conviction,” 23 Vand.L.Rev. 929, 1168 (1970) (footnote omitted).

*383 I concur with the majority that neither the decisions to date of the Supreme Court nor of this Circuit establish that the marriage bar violates the Eighth Amendment. But the argument that the deprivation of the right to marry is cruel punishment is nonetheless powerful.

First, marriage is a fundamental right in the constitutional sense: “one of the ‘basic civil rights of man,’ ” Loving v. Virginia, 388 U.S. 1, 12 , 87 S.Ct. 1817, 1824 , 18 L.Ed.2d 1010 (1967).

Second, the statute here prohibits a critical formalized emotional commitment without any compelling necessity and without benefiting the state. It gratuitously imposes a punishment the significance of which, when added to the life term, is non-existent or at most miniscule. In that sense the punishment is “excessive” within the meaning of the Eighth Amendment.

However, the Eighth Amendment — as construed by the Supreme Court — does not appear to be triggered by excessiveness alone; rather, as stated by Mr. Justice Brennan in Furman v. Georgia, 408 U.S. 238, 282 , 92 S.Ct. 2726, 2748 , 33 L.Ed.2d 346 (1972):

“The test, then, will ordinarily be a cumulative one: If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes.”

Even if the marriage bar be regarded as “arbitrary” and “severe punishment,” which has not been “shown to serve any penal purpose more effectively ' than a significantly less drastic punishment”, nothing in the record nor anything of which we can take judicial notice establishes that society has indicated that it does not regard the bar, as acceptable. It is true that 38 or more States permit prisoner marriages, 2 but New York has the constitutional right to tread its own path.

Perhaps the fact that the New York Legislature has this year repealed the bar to civil suits for damages by prisoners and that the Commissioner of Correction has altered the State’s policy so as to allow the marriage of all prisoners but life-termers is a sign in the wind that the medieval relic which is the remaining subject of this litigation will soon be discarded. Under the decisions to date of the higher courts, however, the responsibility for such a change lies with the legislature of the State.

. Even this point is not free from doubt. Section 79 is not part of the Penal Law, but of the Civil Rights Law. The State does not argue that it was intended as a form of punishment, and there is a serious question whether it originated historically as punishment. It seems rather that, so far as the marriage bar is concerned, the ancient view was that those who committed serious crimes ought not to be allowed to procreate. See “The Collateral Consequences of Criminal Conviction,” 23 Vand.L.Rev. 927, 1065 (1970).

. “The Collateral Consequences of a Criminal Conviction,” 23 Vand.L.Rev. 929, 950, n. 71 (1970). Since 1970, when only thirteen states had civil death statutes, one state (Idaho) has repealed its civil death provision, one (New Jersey) enacted a new law and the law of one (Oregon) was stricken by a three-judge district court, so that twelve states now have civil death laws on their books. No information is at hand as to whether all of these statutes bar marriage of prisoners.