Petitioners Reply Brief — Ralston v. Robinson

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9Cr 2a 193]

No. 80-2049

sashes ied ib te States

OCTOBER TERM, 1980

GEORGE A. RALSTON, WARDEN, PETITIONER

Vv.

JOHN CARROLL ROBINSON

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

REx E. LEE

Solicitor General

Department of Justice

Washington, D.C. 205380

(202) 633-2217

TABLE OF AUTHORITIES

Cases: Page

Brown V. Carlson, 431 F.Supp. 756 ...............-....-++- 9

Brown Vv. Duchesne, 60 U.S. (19 How.) 188 .......... 4

Carter v. United States, 306 F.2d 288 ...................... 11

Chapman V. Houston Welfare Rights Organization,

I a cselantaunignn 4

Dorszynski v. United States, 418 U.S. 424 .............. 5

FTC v. Fred Meyer, Inc., 390 U.S. 341 .................. 4

Kokoszka Vv. Belford, 417 U.S. 642 ............0..2...000000 4

Kremens V. Bartley, 431 U.S. 119 ................::.2cc0000+ 13

Micklus v. Carlson, 682 F.2d 227 .............-.0-sececeeeee 13

Montanye Vv. Haymes, 427 U.S, 236 ...............2-..00--005 7

Moody V. Daggett, 429 U.S. 78 .............cccccccsceeeeceeeeee 7

Outing V¥. Bell, 682 F.2d 1144 ..................ccccecccsssseseees 9

Peyton V. Rowe, 891 U.S, 54 ............ccccsscesecseccescceneee 6

Preiser V. Newkirk, 422 U.S. 396 ............cccceecsee-eseees 13

Richards Vv. United States, 369 U.S. 1 .0....20..-..200--200 4

United States v. Addonizio, 442 U.S. 178 ................ 12

United States Vv. DiFrancesco, 449 U.S. 117 ............ 7,8

United States v. Munsingswear, 340 U.S. 36 .......... 13

United States v. Powell, 423 U.S. 87 .........2.00.cccc00000 12

United States v. Raines, 362 U.S. 17 ..........2000ccc00000e 12

Watt v. Alaska, No. 79-1890 (Apr. 21, 1981) .......... 4

Watts v. Hadden, 651 F.2d 1854 ..0000.0....00-ccccceeeeee 9

Weinstein V. Bradford, 423 U.S, 147 ....0....00.2000000.. 13

Statutes and rule:

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In the Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-2049

GEORGE A. RALSTON, WARDEN, PETITIONER

Vv.

JOHN CARROLL ROBINSON

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

For the most part, respondent appears not to take

issue with the central arguments of our opening

brief. Respondent identifies nothing in the legisla-

tive history or underlying policies of the Youth Cor-

rections Act suggesting that Congress intended to

require the Bureau of Prisons to confine an offender

who has received an adult sentence with ordinary

YCA offenders. He simply claims, in passing, that

the YCA “clearly mandates” that he be segregated

both from “non-YCA prisoners and, if necessary,

from other classes of YCA prisoners” (Resp. Br. 30

n.17). We explain in our opening brief (Pet. Br.

(1)

2

14-15, 28-32) why this approach—segregating YCA

offenders with subsequent adult sentences from all

other classes of offenders—produces results that Con-

gress could not have intended, that do not aid re-

spondent, and that cannot possibly be required by the

Act.’ Similarly, except for an unsubstantiated spec-

ulation in a footnote,’ respondent does not argue that

Congress intended YCA treatment as preparation for

an adult term of incarceration, or that Congress ever

envisioned that the custodial phase of YCA treatment

1In our opening brief we stated (Pet. Br. 14, 30) that at

the time the district court granted him relief, respondent

was one of only two inmates serving YCA sentences who

were confined at the United States Penitentiary at Marion,

Illinois, the most secure institution in the federal penal sys-

tem. We argued in this connection that unless respondent

were to be moved to a less secure institution, segregating him

from both ordinary adult offenders and ordinary YCA offend-

ers would have had the effect of placing him in nearly or

strictly solitary confinement.

In fact, there were three, not two, offenders serving YCA

sentences at Marion on the date of the district court’s order.

The statement in our opening brief was based apparently on

erroneous information in the Bureau of Prisons’ central com-

puter records in Washington. The Bureau discovered the

error when it sought to confirm the information with officials

at Marion. We discovered this error several days before

respondent’s brief was due to be filed and advised respond-

ent’s counsel of it immediately. We regret the discrepancy,

but we note that it is wholly immaterial to our argument.

2 Respondent suggests (Resp. Br. 30 n.18) that YCA treat-

ment might have a “strengthening effect” that will aid him

during his adult incarceration. Essentially the same sug-

gestion was made by the court of appeals and is answered

in our opening brief (Pet. Br. 15, 33-37). Respondent offers

no answers to our arguments; nor does he cite anything from

the legislative history of the Act to support his assertion or

show how it is consistent with the Act’s underlying prin-

ciples.

3

would culminate not in a gradual reintegration into

society but in an adult prison term.

Thus respondent implicitly concedes that the his-

tory and purposes of the YCA refute his claim, and

he essentially relies on the assertion that the plain

language of the YCA compels the court of appeals’

conclusion (Resp. Br. 13, 18-21) ; he echoes the court

of appeals’ argument that his sentence has been im-

permissibly “modified” or “reevaluat[ed]” (Resp. Br.

14, 20); and he attributes to the Bureau of Prisons

a number of positions, which he then attacks, on is-

sues that are not before the Court.

1. Respondent does not question our showing (Pet.

Br. 18-21) that when Congress enacted the YCA it

did not contemplate or specifically concern itself with

the problem presented by an offender who receives a

subsequent adult sentence while serving a YCA sen-

tence. Nonetheless, respondent asserts that because

he was “ ‘committed * * * to the custody of the At-

torney General pursuant to’” the YCA (Resp. Br.

18, quoting 18 U.S.C. 5006(e) ; emphasis by respond-

ent), he is a “committed youth offender” within the

meaning of the Act, and that the language of the

Act entitles every committed youth offender to treat-

ment and segregation under 18 U.S.C. 5011 for the

entire length of his sentence (Resp. Br. 18-20).

Our principal answer is that because there is no

indication that Congress or the drafters of the YCA

had in mind the question presented by dual-status

offenders when they wrote the language respondent

invokes, the Court should not interpret that language

in isolation from the Act’s underlying purposes.

“When ‘interpreting a statute, the court will not

look merely to a particular clause * * * but will

4

take in connection with it the whole statute * * *

and the objects and policy of the law * * * and

give to it such a construction as will carry into ex-

ecution the will of the Legislature * * *.’” Kokoszka

v. Belford, 417 U.S. 642, 650 (1974), quoting Brown

v. Duchesne, 60 U.S. (19 How.) 188, 194 (1857).

The Court has said that “in all cases of statutory

construction, our task is to interpret the words of

the[] statute[] in light of the purposes Congress

sought to serve’ (Chapman v. Houston Welfare

Rights Organization, 441 U.S. 600, 608 (1979)),

and that it is “fundamental that a section of a statute

should not be read in isolation from the context of

the whole Act, and that in fulfilling our responsibility

in interpreting legislation, ‘we must not be guided

by a single sentence or memter of a sentence, but

[should] look to the provisions of the whole law, and

to its object and policy’” (Richards v. United States,

369 U.S. 1, 11 (1962); footnotes omitted). The

Court “cannot, in the absence of an unmistakable

directive, construe the Act in a manner which runs

counter to the broad goals which Congress intended

it to effectuate.” FTC v. Fred Meyer, Inc., 390 U.S.

341, 349 (1968). See also Watt v. Alaska, No. 79-

1890 (Apr. 21, 1981), slip op. 6-7.

In our opening brief, we show that attempting to

afford respondent segregation and treatment as if he

were an ordinary YCA offender would be inconsist-

ent with the purposes of the Act and would produce

results that Congress could not have intended. But

even if the Court were to consider the language

of the YCA in isolation, as respondent urges,

that language does not compel the result respond-

ent seeks. Respondent’s textual argument leads

5

equally well to the conclusion that an offender who

receives a concurrent adult sentence while serving a

YCA term remains a “committed youth offender” en-

titled to treatment and segregation under 18 U.S.C.

5011. It is wholly implausible to suppose that such

an offender must be treated as a YCA offender and

not an adult,® but this implausible result can be

avoided only by looking beyond the text of the YCA.*

8 Among other things, such an interpretation of the Act

would effectively deny judges the power to impose concurrent

adult sentences on offenders serving YCA terms, despite the

Congress’s clear intention—which both respondent and the

court of appeals emphasize (e.g., Resp. Br. 14)—that the YCA

not restrict a sentencing judge’s discretion, See Dorszynski

v. United States, 418 U.S. 424, 486-442 (1974).

*Nor can respondent argue that it is sufficient to “read

together” the text of the YCA and the text of the statutes

governing adult sentences. First, any effort to read the YCA

together with another statute involves acknowledging that the

text of the YCA does not solve the problem and that the

statutes’ underlying purposes must be considered; respondent

all but concedes that such an acknowledgement would be

fatal to his claim. In any event, read literally, the statutes

governing adult sentencing appear to make respondent a “com-

mitted” adult offender under 18 U.S.C. 4082, the statute giv-

ing the Attorney General broad discretion over the conditions

of confinement of adult offenders. At the point respondent

was sentenced as an adult, the court entered a judgment

ordering that respondent be “committed to the custody of the

Attorney General” (Form 25, Fed. R. Crim. P.), That re-

spondent has not yet begun to serve his adult sentence does

not mean he has not been committed to the custody of the

Attorney General pursuant to that sentence; under 13 U.S.C.

3568, a sentence “shall commence to run from the date on

which [the offender] is received at the penitentiary “ * * for

service of such sentence,” making it clear that the date of

commitment to the custody of the Attorney General is dis-

6

We do not contend that the language of the Act, in

isolation, favors our position—simply that it is in-

adequate to resolve the issue in this case. In our

view, the conclusion is inescapable that the language

of the Act was not drafted with an eye to the prob-

lem of the dual-status offender who has had both a

YCA and an adult sentence imposed on him, and

to solve that problem the Court must look beyond

the text to the Act’s purposes.

2. Respondent asserts (Resp. Br. 20, 26) that we

rely on the supposed power of the Bureau of Prisons,

or of the judges who imposed his adult sentences, to

“overturn,” “reevaluat[e],” or “override” respond-

ent’s YCA sentence. Respondent argues that the ex-

ercise of this power violates both the YCA (Resp.

Br. 24-27) and the Double Jeopardy Clause (Resp.

Br. 38-34).

As we explained in our opening brief (Pet. Br. 37-

38), assertions that this case involves a revocation or

modification of a sentence misconceive the issue. It

is true that when respondent received an adult sen-

tence, the Bureau of Prisons altered the conditions

of his custody; but altering the conditions of a pris-

oner’s custody does not constitute “review[ing]” or

“modif[ying]” (Resp. Br. 14) his sentence. The Bu-

reau routinely alters the conditions of prisoners’

custody, for example when it moves them from one

facility to another (see 18 U.S.C. 4081, 4082); it is

clear that such actions do not constitute an impermis-

tinct from the date on which an offender begins to serve his

sentence. Moreover, Peyton v. Rowe, 391 U.S. 54 (1968), in-

dicates that respondent is apparently “in custody under [the

adult] sentence” for purposes of attacking it collaterally under

28 U.S.C. 2255, even though he has not yet begun to serve

that sentence.

7

sible modification of a sentence, so long as “the con-

ditions or degree of confinement to which [a] pris-

oner is subjected [by the Bureau of Prisons] is with-

in the sentence imposed upon him.” See Montanye

v. Haymes, 427 U.S. 236, 242 (1976) ; Moody v. Dag-

gett, 429 U.S. 78, 88 n.9 (1976). See also United

States v. DiFrancesco, 449 U.S. 117, 187 (1980) ; id.

at 148 (Brennan, J., dissenting) (decisions to revoke

parole or probation do not constitute an impermissi-

ble revision or modification of a sentence because

they are within the contemplation of the sentence

already imposed. )

Thus the question in this case concerns the nature

of the limitations imposed by respondent’s YCA sen-

tence; in particular, the question is whether Con-

gress intended a YCA sentence to confer on an of-

fender sentenced as an adult the right to be confined

with ordinary YCA offenders or the right to a form

of treatment plainly not designed for those awaiting

adult incarceration. If, as we argue, it is inherent

in a YCA sentence that the requirements of YCA

treatment and segregation do not survive a subse-

quent adult sentence, then respondent was subject to

no increase or change in his original sentence. This

is the issue we address in our opening brief; dis-

cussion of reviewing, revoking, or overturning a sen-

tence only beclouds the issue.°

5 Respondent also suggests that there is a double jeopardy

problem in this case because the conditions of his custody

were modified after he began to serve his sentence, But

even the dissenters in United States v. DiF rancesco, supra,

—who took the position that increasing a sentence on

appeal violates the Double Jeopardy Clause—said that parole

or probation revocation is permissible precisely because it is

“predicated on a defendant’s activity since imposition of the

8

8. Respondent repeatedly attributes to us posi-

tions that our principal brief does not adopt on issues

that are not before the Court. For example, respond-

ent asserts that our position “must be” that offenders

guilty of “serious offenses, or more than one offense,

are not to be treated as YCA offenders” (Resp. Br.

15); that the Bureau of Prisons believes the term

“Tijnsofar as practical” in 18 U.S.C. 5011 “frees [it]

to ignore the segregation requirement whenever [it]

concludes that such segregation is administratively

inconvenient or in conflict with [its] penological

philosophy” (Resp. Br. 27-28); that we are “of the

opinion that only ‘good’ prisoners are deserving of

rehabilitative treatment” (Resp. Br. 17-18) ; that the

Bureau applies the YCA “only to those who commit

minor offenses or are model prisoners” (Resp. Br.

16); and that the Bureau wishes “to deny YCA

treatment to troublesome cases” (Resp. Br. 21).° The

central fact of this case, however, is not that respond-

ent has committed three serious offenses or that he

is a major disciplinary problem—although these

things are true—but that respondent has received an

adult prison sentence. The YCA does not give adult

offenders a right to be confined with ordinary YCA

offenders, and Congress did not intend YCA treat-

ment as preparation for a period of adult confine-

ment. Respondent’s answers to the various argu-

original sentence” (449 U.S. at 148 (Brennan, J., dissent-

ing)). A change in the conditions of custody is even less of a

“modification” of a sentence than parole revocation.

* In this case, we have not chosen to assert that the Bureau

has these powers, but it is worth recalling that correctional

authorities in the English Borstal system—after which the

YCA was indisputably modeled—had such powers. See Pet.

Br, 24.

9

ments he attributes to us do not even address these

fundamental policies of the YCA.

The extraneous issues that respondent attempts to

raise have been the subject of litigation in other

eases in the lower courts; we so advised this Court

in our opening brief (see Pet. Br. 22-23 n.15, 25-26

n.16, 28 n.17). While we of course do not take the

extreme views on these issues attributed to us by

respondent, we do believe, as we advised the Court,

that some lower court decisions have gone too far

in denying the Bureau the flexibility it needs to struc-

ture effective treatment programs and to protect

inmates and the public (Pet. Br. 25-26 n.16, 28 n.17).

These decisions are part of the background of this

case; to the extent that the Bureau’s flexibility in

dealing with YCA offenders has been excessively

limited by the lower courts, it is even more. important

that offenders like respondent—for whom the YCA

is so clearly not intended, and who are so clearly

ill-suited to YCA treatment—not be included in the

class of YCA offenders. But the reason respondent

should be excluded from that class is that he has been

sentenced to adult prison terms and therefore is,

from the standpoint of the YCA’s policies, an adult

offender.

Respondent also repeatedly cites (e.g., Resp. Br.

8, 12 & n.3), Brown v. Carlson, 481 F. Supp. 755

(W.D. Wis. 1977), and Watts v. Hadden, 651 F.2d

1354 (10th Cir. 1981), in an apparent effort to at-

tack the Bureau’s good faith. As we explained in

our opening brief (Pet. Br. 22-22 n.15, 25-26 n.16),

these cases disapproved aspecis of the Bureau of

Prison’s interpretation of the segregation require-

ment found in 18 U.S.C. 5011.7 The issue addressed

7 Other cases have upheld the Bureau’s policies. See, e.g.,

Outing v. Bell, 632 F.2d 1144, 1145-1146 (4th Cir. 1980).

10

in Brown and Watts is not involved in the present

case; here, our argume~t is that the purposes under-

lying Congress’s preference for segregation demon-

strate that that preference, whatever its precise con-

tours as applied to ordinary YCA offenders, does not

entitle an offender like respondent to be confined with

YCA offenders—indeed, it suggests that he be kept

away from ordinary YCA offenders—or otherwise to

be segregated from adult offenders. In other words,

what is at issue here is not the Bureau’s interpreta-

tion of the segregation requirement, but whether re-

spondent can invoke that requirement at all.

After the decision in Brown, the Bureau, as we

said in our opening brief, did not seek review but

instead devised a plan that increased the extent to

which YCA offenders were segregated. In the wake

of the recent decision in Watts, the Bureau is again

developing a nationwide plan. The Bureau informs

us that the plan is likely to call for institutions to be

populated either solely by YCA offenders or solely by

adult offenders.

4. Respondent asserts, three times (Resp. Br. 2,

15, 17 n.6), that he was never treated according to

the provisions of the YCA, even before he received

his adult sentence. So far as we know, respondent

has never miade this claim before, in this or any other

litigation; certainly the claim has never been upheld

by a court. Respondent does not even attempt to sub-

stantiate it. Nothing we are aware of suggests that

respondent was treated as anything other than a

YCA offender before he received his first adult sen-

tence. In any event, the claim is wholly immaterial

to this case. |

5. We have already discussed respondent’s double

jeopardy argument (pages 7-8 & note 5, supra);

1l

his other constitutional contentions are equally with-

out merit. Respondent asserts that treating him as

an adult violates the Due Process Clause because

“[w]hatever process was due, [respondent] did not

receive it” (Resp. Br. 35). This is a puzzling con-

tention. As we show in our opening brief, Congress

determined that adult offenders are not to be treated

or segregated as if they were YCA offenders, even

if they continue to serve YCA terms. Although re-

spondent has a different view of Congress’s inten-

tions, we cannot imagine that respondent means to

suggest that the decision we attribute to Congress

would violate the Due Process Clause. The only re-

maining question is whether respondent was properly

determined to be an adult offender. That determina-

tion was made by a criminal trial and sentencing—

the most elaborate form of procedure known in our

system, and surely sufficient to satisfy the Due

Process Clause in this case.

Respondent also raises (Resp. Br. 32-83) what he

terms an Equal Protection Clause argument. This

argument is based on cases (e.g., Carter v. United

States, 306 F.2d 288, 285 (D.C. Cir. 1962) ) uphold-

ing 18 U.S.C. 5010(b), the provision of the YCA

that allows an offender to be sentenced to a six-year

term for a crime carrying a maximum adult sentence

of less than six years. Respondent does not dispute

our view (Pet. Br. 45-46 n.26) that questions that

might arise if such an offender received a subsequent

adult sentence are not before the Court and should

not be considered at this time, because respondent

was sentenced under 18 U.S.C. 5010(c) to a ten-year

term for a crime carrying a maximum adult sentence

of life imprisonment. As we said in our opening

brief, any arguments that might be available to an

12

offender serving a six-year term for an adult sen-

tence with a lesser maximum are not available to

respondent. See, e.g., United States v. Powell, 423

U.S. 87, 92 (1975); United States v. Raines, 362

U.S. 17 (1960).

Nonetheless, respondent asserts that treating him

as an adult offender violates the Equal Protection

Clause because “the rehabilitative opportunities of

the YCA sentence may well have been a crucial fac-

tor in the sentencing judge’s decision regarding the

length of the sentence” (Resp. Br. 33). It is difficult

even to state this claim as an equal protection chal-

lenge, because it is not clear from what class of

persons respondent believes himself to have been ar-

bitrarily distinguished. Moreover, as we explain in

our opening brief (Pet. Br. 36, 38), since respondent

will begin an adult prison sentence when his YCA

term ends, the best interpretation of Congress’s in-

tentions is that respondent’s rehabilitative opportuni-

ties will be enhanced by treating him as an adult at

once instead of continuing iamappropriate YCA treat-

ment, which is intended to culminate in a gradual

reintegration into society. It is implausible to sug-

gest that such a congressional judgment violates the

Equal Protection Clause. In any event, even if the

length of respondent’s sentence was based on the

sentencing judge’s incorrect predictions about re-

spondent’s future behavior and the resulting actions

of prison authorities—and respondent has not shown

that his sentence was based on any such prediction—

respondent is not entitled to relief. See United States

v. Addonizio, 442 U.S. 178 (1979).

Couched in its most favorable form, respondent’s

equal protection argument appears to be a claim that

it is somehow unfair, or improper, or in derogation

of a statutory right not to accord him YCA treat-

13

ment for the entire length of his sentence. We an-

ticipated this argument in our opening brief (Pet.

Br. 16-17, 40-45).

6. In our opening brief we said (Pet. Br. 11 n.12)

that if this case becomes moot before the Court de-

cides it, the Court should vacate the judgment of

the court of appeals and order respondent’s complaint

dismissed. See United States v. Munsingwear, 340

U.S. 36, 39 (1950). Respondent argues (Resp. Br.

36) that the Court should instead dismiss the writ of

certiorari as improvidently granted. In cases where

the Court has granted certiorari, or consilers an

issue worthy of plenary consideration, its consistent

practice has been that which we suggest. See e.g.,

Kremens v. Bartley, 431 U.S. 119, 126, 129 (1977);

Weinstein v. Bradford, 423 U.S. 147 (1975) ; Preiser

v. Newkirk, 422 U.S. 395 (1975). As we explained

in the petition, and in our motion for expedited con-

sideration of the petition, the court of appeals’ de-

cision created a conflict among the circuits that in-

terfered with the ability of the Bureau of Prisons

efficiently to operate an integrated correctional sys-

tem. The difficulty is aggravated by two factors:

two maximum security prisons, including the most

secure institution in the federal system (at Marion,

Illinois) are located in the Seventh Circuit; and some

courts have intimated (incorrectly, in our view) that

prison officials may be held personally liable if the

YCA is not followed (see Micklus v. Carlson, 632

F.2d 227, 239 (3d Cir. 1980)). Respondent ad-

vances no sufficient reason, and no authority, for

departing from the Court’s practice and leaving in-

tact a judgment which this Court thought worthy of

review but was unable to review before it became

moot.

14

CONCLUSION

For these reasons and the reasons stated in our

principal brief, the judgment of the court of appeals

should be reversed.

Respectfully submitted.

REx E. LEE

Solicitor General

SEPTEMBER 1981

oY. 8. GOVERNMENT PRINTING OFFicE; 1901 3592768 627