# Petition for Writ of Certiorari — Scalise v. Thornburgh > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1253%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 494 U.S. 1083 ## Text 89 - 1478 - Supreme Court, US. No. FILED IN THE JOSEPH F. SPANIOL, JR, Supreme Court of the Uni ates OCTOBER TERM, 1989 JEROME SCALISE and ARTHUR RACHEL, Petitioners, RICHARD THORNBURGH and PHILIP T. WHITE, Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ANNE M. BURKE Counsel of Record 2650 West 5lst Street Chicago, Illinois 60632 (8312) 782-7295 EDWARD M. GENSON MARC W. MARTIN GENSON, STEINBACK & GILLESPIE 53 West Jackson Boulevard, Suite 1420 Chicago, Illinois 60604 (312) 726-9015 Attorneys for Petitioner Scalise SIDNEY Z. KARASIK Counsel of Record 100 West Monroe Street, Suite 911 Chicago, Illinois 60603 (312) 782-7295 Attorney for Petitioner Rachel Midwest Law Printing Co., Chicago 60611, (312) 321-0220 i QUESTION PRESENTED I. Does the Attorney General have a mandatory duty to make regulations implementing a treaty concerning the transfer of citizens imprisoned in foreign countries where the treaty’s enabling statute states that the Attorney General is authorized to make regulations and the perti- nent legislative history demonstrates that the Attorney General was expected to enact regulations? ii TABLE OF CONTENTS QUESTION PRESENTED ................... TABLE OF AUTHORITIES ................. NE A ke oig 6 cs sin nie ciwdoawen Caneel EEE SUIT IED oc ecscccastvedeiuspees STATEMENT OF THE CASE ............... REASONS FOR GRANTING THE PETITION: I THE SEVENTH CIRCUIT’S HOLDING THAT THE ATTORNEY GENERAL DOES NOT HAVE A DUTY TO ENACT REGULATIONS IMPLE- MENTING THE TREATY REGARDING IN- TERNATIONAL PRISON TRANSFERS CON- TRAVENES THE TREATY, THE POLICIES AND LEGISLATIVE INTENT UNDERLYING 18 U.S.C. §4102(4) AND IS IN CONFLICT WITH OTHER DECISIONS ON MATTERS OF STATUTORY CONSTRUCTION ............ CRY ves encssacncersdupevausewaene APPENDICES A—Opinion and Judgment of the United States Court of Appeals for the Seventh Circuit, ee a rrr rrr B—Opinion of the United States District Court for the Northern District of Illinois, June 3, 1988. . 11 A-1 B-1 ill TABLE OF AUTHORITIES Cases PAGE Abrams v. Hills, 547 F.2d 1066 (9th Cir. 1976), vacated, 455 U.S. 1010 (1982) .............. 10 Catron v. Marron, 19 N.M. 200, 142 P. 380 (1914). 10 Chase v. United States, 261 F.2d 833 (8th Cir. 19im, Gd, 266 US. 1 (1921) ............. 10 Estate of Smith v. Heckler, 747 F.2d 583 (10th Cir. ee ey cob ve vveeeees 10 Hotel Casey Co. v. Ross, 343 Pa. 573, 28 A.2d 737 es ee cee ees eves 10 Jarecki v. G. D. Searle & Co., 367 U.S. 303 (1961) . 10 Miller v. Federal Mine Safety and Health Review Commission, 687 F.2d 194 (7th Cir. 1982) .. 9 Mills v. United States, 713 F.2d 1249 (7th Cir. ee ee 9 National Association of Greeting Card Publishers v. United States Postal Service, 462 U.S. 810 ers cb dnaeesaseseseececes 9 Scalise v. Meese, 687 F. Supp. 1239 (N.D. IIl. ee ened eheseecverercesse 5 Scalise v. Thornburgh, 891 F.2d 640 (7th Cir. EEE 6, 7,9, 11 U.S. Sugar Equalization Board v. P. De Ronde & Ca, @ we eo. Gre Cir. 1925) ............ 10 United States v. Menasche, 348 U.S. 528 (1955)... 10 iv United States v. Rogers, 461 U.S. 677 (1983) .. 8 Walsh v. Farrington, 105 Vt. 269, 165 A. 914, 915 CRE 4éu¥400400e caravan eee 10 Statutes & Legislative History S UA © Oe ceedivendcasebss tee 6 De Cw De vos bck vensceouneneeaeeeee passim MB UBS. GTR oon v0seevaseecdassneueee 2 138 Cong. Roe. BG, GER... ccccccrececusweuns 9 H. Rep. No. 95-720, 95th Cong., Ist Sess. reprinted im 1977 U.S. Code Cong. & Admin. News 3146. 7, 8,9 Miscellaneous Pisani & Simon, The United States Treaties on Transfer of Prisoners: A Survey, 17 PAC. L. J. S23, SB (19GB)... cccesnscveu mene 4 IN THE Supreme Court of the United States OCTOBER TERM, 1989 JEROME SCALISE and ARTHUR RACHEL, Petitioners, VS. RICHARD THORNBURGH and PHILIP T. WHITE, Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT PRAYER Petitioners Jerome Scalise (“Scalise”) and Arthur Rachel (“Rachel”) respectfully pray that a writ of certiorari issue to review the judgment and order of the United States Court of Appeals for the Seventh Circuit. ee a OPINIONS BELOW The opinion of the Seventh Circuit Court of Appeals reversing the district court’s order granting summary judgment in the petitioners’ favor is reported at 891 F.2d 640 and is attached hereto in Appendix A. The opinion of the district court, granting summary judgment, is reported at 687 F. Supp. 1239 and is attached hereto in Appendix B. JURISDICTION On December 19, 1990, the United States Court of Ap- peals for the Seventh Circuit reversed the district ccurt’s order granting summary judgment for the petitioners. This petition is filed within ninety days from the entry of that judgment. This Court’s jurisdiction is invoked under 28 U.S.C. § 1254. STATUTE INVOLVED 18 U.S.C. § 4102 provides in pertinent part: The Attorney General is authorized— (1) to act on behalf of the United States as the authority referred to in the treaty; (2) to receive custody of offenders under a sentence of imprisonment, on parole, or on probation who are citizens or nationals of the United States transferred EEE nn es | = = from foreign countries and as appropriate confine them in penal or correctional institutions, or assign them to the parole or probation authorities for super- vision; . * * * (4) to make regulations for the proper implementa- tion of such treaties in accordance with this chapter and to make regulations to implement this chapter. STATEMENT OF THE CASE In 1980, Petitioners Jerome Scalise and Arthur Rachel, citizens of the United States, traveled to London, England. While there, they allegedly committed an armed robbery of a jewelry store. It was alleged that they escaped with approximately $3.6 million in jewels, including the famous Marlborough Diamond. Scalise and Rachel were arrested and convicted in the Old Bailey for violations of the 1968 Theft Act of the United Kingdom and § 18(1) of the United Kingdom’s Firearm’s Act of 1968. The British judge imposed prison sentences of fifteen years on both Scalise and Rachel. Scalise and Rachel commenced ser- vice of their prison terms on August 6, 1984, and have been imprisoned across seas ever since. On July 1, 1985, the United States, the United Kingdom and several other countries entered into a treaty known as the Convention on the Transfer of Sentenced Persons (“the Convention’’). This treaty went into effect on August 1, 1985, and allows prisoners convicted abroad to serve their sentences in their home country. Treaties regarding international prisoner transfers serve salutary purposes. the terms of agency action. The reviewing court shall— (2) hold unlawful and set aside agency action, find- - ings and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law... . Because the Attorney General acted withcut the guidance of regulations specifically required by the Act, his denial of plaintiffs’ requests constitutes an abuse of discretion, and requires reversal, as a matter of law. See Industrial Holographics, Inc. v. Donovan, 722 F.2d 1362, 1367 & n. 9 (7th Cir.1983) (failure to promulgate and adhere to regu- lations can amount to arbitrary and capricious conduct be- cause of the “danger of arbitrary action in the absence of articulated standards”); cf: White v. Roughton, 530 F.2d 750, 754 (7th Cir.1976) (failure of township supervisor to promulgate rules and regulations governing welfare eligi- bility violated due process because it placed “virtually unfettered discretion in [the supervisor] and his staff’’). B-14 However, even if the Act did not specifically require that the Attorney General adopt regulations in carrying out his duties under the Act, this court would still be forced to reverse his decision here. In denying plaintiffs’ requests, the Attorney General necessarily determined that their request fell within Con- gress’ contemplation of “unusual situation{s]” in which denial of transfer might be appropriate. The Attorney General points to several factors he employed in reaching this conclusion: (1) the relative seriousness of the offense for which plaintiffs are incarcerated; (2) plaintiffs’ ‘“‘extensive” criminal history; (3) the fact that plaintiffs will be immediately eligi- ble for parole if transferred to an American prison; and (4) the unlikelihood that transfer would facilitate plaintiffs’ rehabilitation. Yet, as noted earlier, the Attorney General has not pro- vided this court with any evidentiary material supporting these “findings”, or indicated how they compare with other transfer request cases. The only cases available to this court for comparison are those few published opinions in which prisoners have been granted transfer back to America and then attacked, through habeas corpus, the legality of their incarceration here. While those cases are unlikely to constitute a representative sample of the At- torney General’s decisions on transfer requests, this court notes that many of them involved crimes more serious than those for which plaintiffs are currently incarcerated.® 6 A letter from the American Consul, Embassy of the United States in London, to plaintiff Scalise, dated June 28, 1985, though (Footnote continued on following page) B-15 See, e.g., Tavarez v. U.S. Attorney General, 668 F.2d 805 (Sth Cir.1982) (manslaughter); Boyden v. Bell, 631 F.2d 120 (9th Cir.1980) (smuggling heroin); Kanasola v. Civilet- ti, 630 F.2d 472 (6th Cir.1980) (murder); Wilden v. Fields, 510 F.Supp. 1295 (D.Wis.1981) (murder). This is not to say that there are no circumstances in which an American convicted of armed robbery abroad can be denied transfer back to the United States. But in the absence of clearly articulated reasons and factual support for a denial, such a deviation from past practice compels this court to find the Attorney General’s deci- sion arbitrary and capricious, and an abuse of discretion in this case. See West Chicago, Illinois v. United States Regulatory Commission, 701 F.2d 632, 648 (7th Cir.1983) (where agency proceeds through informal adjudication, it must clearly state and support its reasons for its decision). Because, as noted above, this court finds it appropriate to remand this case to the Attorney General for further proceedings consistent with this ruling, a few comments are appropriate on the Attorney General’s application of the factors noted above to plaintiffs’ requests. To the extent that the Attorney General relied on the above factors to determine the danger that plaintiffs might pose to the American public if transfer were granted, he acted appropriately. Although Congress specified only the 8 continued obviously not binding on the Attorney General, provides an in- teresting view of at least one American official regarding the sorts of “unusual situation{s]”’ in which an American’s transfer request might be denied: [GJeneral policy for both the British and Americans is not to withhold consent for transfer except for extenuating circum- stances; for example, a mass murderer. (Emphasis added). B-16 seriousness of the crime for which the prisoner is incar- cerated, and his eligibility for parole, as factors which could bring a case within the “unusual situations” in which transfer might be denied, see H.Rep. No. 95-720, 95th Cong., 1st Sess., reprinted in 1977 U.S.Code Cong. & Admin.News 3146, 3155, this court cannot say that the Attorney General abused his discretion in looking to other factors—i.e. plaintiffs’ past criminal record—to determine plaintiffs’ future threat. In his arguments to this court, however, the Attorney General indicated that he also employed the above fac- tors in reaching a determination that granting the transfer requests would contradict the Convention’s salutory pur- pose of improving bilateral relations between transferring nations. Gov. Mem. at 5 (“(TJhe transfer and possible parole of the plaintiffs would harm rather than enhance foreign relations between our countries.’’); see also H.Rep. No. 95-720, 95th Cong., Ist Sess., reprinted in 1977 U.S.Code Cong. & Admin.News 3146, 3148-49 (setting forth the three primary benefits of the Act: (1) increased probability or rehabilitation of offender; (2) improved bi- lateral relations between the transferring countries; (3) humanitarianism). This argument turns the Act and the Convention on their heads. Granting requests can improve bilateral relations; it cannot impair them. The host coun- try always retains the right to decline a request for transfer and keep the prisoner in its own jails. Thus, to the extent the Attorney General rejected plaintiffs’ re- quest because he felt granting it would somehow impair relations between the United States and the United King- dom, he clearly overstepped his discretion under the Act. This Court also finds problems in the Attorney General’s reference to the negligible rehabilitory benefits of bring- ing plaintiffs back to this country. The legislative histories B-17 of the Act and the Convention clearly indicate that Con- gress and the President preswmed that permitting an American incarcerated abroad to serve out his sentence in America would enhance the chance of rehabilitation. See, e.g., H.Rep. No. 95-720, 95th Cong., Ist Sess., re- printed in 1977 U.S.Code Cong. & Admin.News 3146, 3149 (“Offender rehabilitation, which is one of the primary objectives of U.S. penal policy, is facilitated as a result of execution of penal sentences in an offenders home coun- try.’’) (emphasis added). Nothing in these histories in any way suggests that the Attorney General may determine, on a case-by-case basis, whether he believes that transfer would serve such a function. Thus, the Attorney General also abused his discretion when he unilaterally made the determination that transfer would not facilitate rehabilita- tion, and then used this finding as a reason to deny plain- tiffs’ requests. Procedural Due Process The Constitution “prohibits the federal government from depriving a person of life, liberty, or property without due process of law.’’ Campbell v. Miller, 787 F.2d 217, 222 (7th Cir.1986), cert. denied, ___. U.S. ___., 107 S.Ct. 673, 93 L.Ed.2d 724 (1987). Liberty interests can be found in the Constitution itself, in statutes, or in administrative regulations. However, once it is determined that such a protected interest exists, the Constitution alone prescribes the procedures the government must follow in the course of depriving a person of it. Cleveland Board of Educa- tion v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed. 2d 494 (1985). This court could find no authority, and the parties sup- plied none, on the liberty interests, if any, of American B-18 citizens incarcerated abroad who seek transfer to the United States. Nevertheless, there appears no reason why they should be treated differently from Americans im- prisoned in American jails who claim the right to be, or not to be, transferred from one prison to another. Cf. Haig v. Agee, 453 U.S. 280, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) (American living in West Germany could chal- lenge, under Due Process Clause, federal government’s procedures in revoking his passport). And in those cases the law is quite clear: Where a statute or administrative regulation places limits on the discretion of administrative officials with regard to transfer decisions, a liberty in- terest arises and the Due Process Clause comes into play. Mitchell v. Hicks, 614 F.2d 1016 (5th Cir.1980); see Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983) (prisoner had no due process right to remain in Hawaii where state placed no substantive limits on au- thority of state officials to transfer him to California or any other state). This court has already discussed at length the limits the Act places on the Attorney General’s discretion with regard to transfer requests. Americans incarcerated abroad thus have a legitimate expectation that their re- quests will be granted, subject only to exceptions which the Attorney General is authorized to prescribe. Thus, this court finds that the Act creates a liberty interest in these American citizens which the Attorney General can only deny through the procedures mandated by the Due Proc- ess Clause. Of course, just what these procedures encompass is not an easy question. Not only is a pre-deprivation hearing impossible to guarantee, but a post-deprivation one may be as well. At a minimum, however, the Attorney General ee B-19 should provide a prisoner whose request has been denied with both a specific explanation and elaboration of the grounds for his decision, and an opportunity to rebut them, see Campbell v. Miller, 787 F.2d at 224 (“The Su- preme Court has repeatedly stated that procedural due process is a non-Euclidean concept critically related to time, place and circumstances.”’), either in writing or, where the prisoner desires, in person through a represen- tative of his choosing. In this case, the Attorney General responded to plain- tiffs’ requests with the single-paragraph letter reproduced above. This response leaves this court without meaningful basis for reviewing his decision. More importantly, how- ever, it leaves plaintiffs, in prisons thousands of miles away, at a loss to understand why the government has condemned them to serve out their sentences in foreign jails when, as far as they can tell, Americans who have committed far more egregious crimes have been afforded the opportunity to serve their penance in their homeland. Such action on the part of the Attorney General falls short of even the limited procedural requirements to which plain- tiffs are entitled. Summary This court has determined that the Attorney General has violated its duty under the Act to promulgate regula- tions setting forth standards and guidelines to govern the requests of Americans incarcerated abroad to be transfer- red to an American prison. This court has also found that the Attorney General acted arbitrarily and capriciously, and abused his discretion, in denying the request of the plaintiffs in this case. Finally, this court has concluded that the Attorney General deprived plaintiffs of due proc- B-20 ess of law in denying their requests under the Act without a sufficient explanation and elaboration of his decision and without affording them an opportunity to rebut. CONCLUSION Accordingly, this court orders the Attorney General to promulgate regulations pursuant to its authority under the Act within a reasonable time. This court further orders the Attorney General, after the establishment of these regulations, to determine the eligibility of plaintiffs for transfer to America, to inform the plaintiffs of his deci- sion, and, if negative, to afford the plaintiffs an oppor- tunity to respond to this decision either in writing or, if plaintiffs choose, through personal representatives in this country. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1253%3A1. Public record. Not legal advice.