granting habeas petition of African American prisoner who escaped Georgia chain gang on grounds that treatment in the chain gangs was cruel and unusual punishment; "We shall not set out in this opinion the revolting barbarities which Johnson and his witnesses state were habitually perpetrated as standard chain gang practice. To perpetrate these atrocities in an opinion is to be unfair to the American scene as a whole and to reflect little credit on this generation for posterity. It is enough to state that leg-irons and most frequent beatings were among the 'minor' constant cruelties.”
How later courts described this case
- granting habeas petition of African American prisoner who escaped Georgia chain gang on grounds that treatment in the chain gangs was cruel and unusual punishment; "We shall not set out in this opinion the revolting barbarities which Johnson and his witnesses state were habitually perpetrated as standard chain gang practice. To perpetrate these atrocities in an opinion is to be unfair to the American scene as a whole and to reflect little credit on this generation for posterity. It is enough to state that leg-irons and most frequent beatings were among the 'minor' constant cruelties.”
- holding that habeas relief releasing petitioner was the appropriate remedy to avoid cruel and unusual punishment inflicted in Georgia prisons
Written by the judges who cited it.
The opinion
O’CONNELL, Circuit Judge
(concurring in part, dissenting in part).
I agree with my brethren that, just as the Eighth Amendment forbids the infliction of cruel and unusual punishment by the federal government, the Fourteenth Amendment includes a similar prohibition against states. Regardless of his guilt or innocence of the murder charge lodged against him, Johnson never lost — and still has — the absolute right not to be subjected to cruel and unusual punishment wherever the Constitution of the United States is the supreme law.
Further, I agree that habeas corpus may be here utilized to vindicate Johnson’s constitutional right. It is not without reluctance that I reach this conclusion, however; for (1) I remain keenly aware that, because Georgia chooses to disregard the mandates of the Eighth Amendment and of its own constitution, this court turns loose a convicted murderer among the law-abiding citizens of Pennsylvania, a state which has expressly refused to harbor him; (2) also, I entertain considerable doubt whether an impenitent Georgia administration would be deeply grieved by a decision which permits Georgia to utilize the other 47 states as penal colonies for its “escaped” prisoners. 1 I nevertheless bow to the exigencies of the situation; better it be that a potentially dangerous individual be set free than that the least degree of impair *258 ment of an individual’s Basic constitutional rights be permitted.
An initial difficulty with which the opinion of the majority confronts me, however, is that it .not only substitutes its own finding of fact for an inconclusive statement of -the court below, but also deems no conclusion possible other than that Johnson suffered cruel and unusual punishment prior to his flight from Georgia. True, several witnesses testified to “the known facts concerning the working of the Georgia penal system at the time of the petitioner’s sentence”; but, in the court below, only one witness professed to actual knowledge of how Johnson, and not chain-gang prisoners in general, was treated: Johnson himself. I think that Johnson may well have told substantial truth when he described his'chain-gang ordeals; and I think the district court had ample basis for making such á critical finding of fact; but I see no reason why this court should invade the province of the court below and insist that credibility be attached to Johnson’s testimony. It must be recalled that the burden of proof of his allegations lay with Johnson, whose testimony is to be viewed in the light that he has a vital interest in the outcome, and who has been disbelieved by other courts. 2 The case at bar seems to me one particularly appropriate for adherence to the usual procedure of leaving the finding of facts to the court of first instance.
If I assume nevertheless that my brethren are correct in holding that Johnson did receive cruel and unusual punishment in Georgia, I believe that this alone should not be assigned as the reason for Johnson’s enlargement. The record before this court contains other factors which seem to me essential to consider and pertinent to our decision. The Johnson whose, fate ‘ we are determining is more than a convicted murderer in the eyes of Georgia officialdom'. He is a Negro who has broken imprisonment and who has made virulent accusations against the white officials and guards of the Georgia public works camp. In the absence of persuasive evidence of effective steps toward reform in Georgia, I think it would be ingenuous to expect those Georgia authorities to accord to Johnson’s constitutional rights greater respect than this court finds was conceded to Johnson during his Georgia imprisonment. This court is in a position, therefore, where it need not, and should not, declare that the drastic remedy here announced is one which will lie whenever there has been, in the past, an infliction of cruel and unusual punishment. I deem it sufficient that we invoke our power to release an individual who not only has suffered cruel and unusual punishment but also faces grave and imminent danger of like abuse and very possibly even death by extra-legal means, if he is returned to Georgia.
If, nevertheless, this court must choose between past and prospective violation of a .basic constitutional right as the ground for *259 release of an individual, I should prefer to place reliance upon the latter. I think the cases support this view. Thus, in Francis v. Resweber, 1947, 329 U.S. 459 , 67 S.Ct. 374 , 91 L.Ed. 422 , the Supreme Court of the United States entertained writs based upon the claim that execution of that petitioner would constitute cruel and unusual punishment and thereby deny him due process; and, while the court was not unanimous in either reasoning or result, all its members seem to me to have endorsed the concept that the courts may prevent threatened violations of a constitutional right like that here involved. 3 Likewise, in Weems v. United States, 1910, 217 U.S. 349 , 30 S.Ct. 544 , 54 L.Ed. 793 , 19 Ann.Cas. 705, the Supreme Court, reversing a judgment because the sentence violated the bill of rights, placed great stress upon the punishment which the sentence would impose upon Weems in the future; see 217 U.S. at pages 366, 373, and 381, 30 S.Ct. 544 , 54 L.Ed. 793 , 19 Ann.Cas. 705. The logic of invoking the judicial power to eliminate a threatened invasion of a basic constitutional right seems to me irresistible.
As my foregoing comments indicate, I have grave doubts whether past infringement of Johnson’s constitutional right would of itself entitle him to release. Were the state of Georgia actually in loco peni-tentiae, it might well be expected that criminal and civil sanctions could and would be applied, by effective legal process in that state, against those responsible for the cruel and unusual punishment visited upon Johnson. Cf. In re Birdsong, D.C.S.D.Ga. 1889, 39 F. 599 , 4 L.R.A. 628 , and Howard v. Arizona, 1925, 28 Ariz. 433 , 237 P. 203 , 40 A.L.R. 1275 . As far as I can see, however, it is not contended that crudities of the Georgia authorities were the equivalent of a pardon for the murder of which Johnson was convicted. For the purposes of the petition before us, the guilt or innocence of Johnson is not in issue. Also, it seems clear that the sentence of the Georgia county court, unlike that involved in Weems v. United States, supra, was not so erroneous as to entitle Johnson to discharge on habeas corpus. Consequently, still outstanding against him, and only incidentally affected by the treatment he has received, is a valid determination by properly-constituted authority that Johnson be imprisoned for life. Could this penalty be served, with observance of those constitutional rights which prisoners retain, cf. Coffin v. Reichard, 6 Cir., 1944, 143 F.2d 443, 445 , 155 A.L.R. 143 , I think it would be both unwise and improper for this court to restrain Pennsylvania from honoring a request by Georgia for his extradition.
My position may be readily illustrated by a hypothetical case. Let us assume that two individuals, X and Y, are indicted on a charge of murder, that the trial judge erroneously compels them to take the stand and answer incriminating questions, and that both X and Y are convicted. Shortly thereafter, X escapes to another state, while Y appeals and obtains a reversal of the conviction. Under the majority ruling as I interpret it, X is spared the possibilities of extradition and a new trial, since a fundamental constitutional right was denied him; while Y must face trial again. Is not this an incongruous result? If the fact be added, however, that it seems likely that X or Y will be required at a new trial again to testify against himself, I can see sound reasons for a court to intervene, on behalf of either X or Y, and forbid the step which makes it possible for the fresh constitutional violation to be consummated.
For the reasons stated, I believe the judgment of the court below should be vacated and the cause remanded for a determination whether Johnson has suffered cruel and unusual punishment and would be reasonably likely to undergo similar abuse if he were returned to Georgia, the disposition of his petition to be dependent upon those critical findings.
It should not be assumed too quickly that Georgia is zealous in guarding its prisoners and vigorously pressing for their extradition when they escape and flee into other states. As indications of the attitude of Georgia, I cite the following:
(a) The court below stated that about *258 175 other prisoners had escaped at the same time as Johnson.
(b) One of those who testified in the court below concerning the treatment ■given Georgia chain-gang prisoners was one Moreland, also a fugitive from Georgia justice. Judge Samuel A. Weiss, of the Court of Common Pleas of Allegheny County, Pennsylvania, in an- opinion granting Moreland’s petition for habeas corpus, recited this testimony of More-land : “ * * * that the Warden observed his [Moreland’s] departure and made no objections; that he proceeded to the town of Thomasville, Georgia, where he received medical attention in the local jail under supervision of the Chief of Police. He then was released and proceeded to Atlanta, Georgia, his bus fare having been paid by the Chief of Police.”
(e) As the majority opinion notes, Johnson’s other witnesses, except for one, were also escaped Georgia convicts who happened to be in the Allegheny County Jail.
(d) The State of Georgia failed to express its position as to Johnson’s petition, not only in the district court, but also at both hearings in this court, although in the order directing rehearing this court specifically invited the attorney general of Georgia “to appear amicus curiae and to file a brief herein if he so desires.”
At his murder trial in Georgia, Johnson limited his defense to his written statement alleging that the homicide was accidental; but the jury found him guilty of murder. As to Johnson’s testimony in his habeas corpus hearing in the Court of Common Pleas of Allegheny County, the Superior Court of Pennsylvania stated that the record “affirmatively shows him to be an untrustworthy witness.” 49 A.2d at page 197.
“ * * * if the proposed, punishment amounts to a violation of due process of law under the Constitution of the United States, then the State must find some means of disposing of this ease that will not violate that Constitution.” Mr. Justice Burton, 329 U.S. 459 , at page 481, 67 S.Ct. 374 , at page 385, 91 L.Ed. 422 ; emphasis supplied. Cf. opinion of Mr. Justice Keed, 329 U.S. at page 464 , 67 S.Ct. 374 , 91 L.Ed. 422 , and last sentence of concurring opinion of Mr. Justice Frankfurter, 329 U.S. at pages 471-472, 67 S.Ct. 374 , 91 L.Ed. 422 .