Opposition Brief — Power v. Massachusetts

{ Supreme Court, U.S. ie

FILED

*) \\\ yoy 30 1998

\ |

No. 95-277 CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

KATHERINE ANN POWER, Petitioner,

Vv.

COMMONWEALTH OF MASSACHUSETTS, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

MASSACHUSETTS SUPREME JUDICIAL COURT

RESPONDENT’S BRIEF IN OPPOSITION

SCOTT HARSHBARGER,

Attorney General

of Massachusetts

PAMELA L. HUNT*

Assistant Attorney General

Chief, Appellate Division

One Ashburton Place, Room 1811

Boston, Massachusetts, 02108

(617) 727-2200

*Counsel of Record

QUESTION PRESENTED

Whether this Court should grant certiorari to review

the constitutionality of a condition of probation which

forbade petitioner from profiting from her crimes, where the

condition was imposed with the petitioner’s consent, where

she declined the opportunity of withdrawing her guilty plea

if she did not agree to the condition, and where, consistent

with the approach taken by other courts, the lower court

found the condition reasonably related to the purposes of

criminal sentencing and probation.

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........----:++++ ii

STATEMENT OF THE CASE .......---+++++: 2

Reasons For Denying The Writ ......----++-+++5: 4

I.

II.

Conclusion

POWER AGREED TO ACCEPT THE

SPECIAL CONDITION OF PROBATION

AND DECLINED TO WITHDRAW HER

GUILTY PLEA WHEN INFORMED THE

COURT WOULD IMPOSE IT. ...... 4

THE SUPREME JUDICIAL COURT'S

DECISION UPHOLDING THE PROBATION

CONDITION IS CONSISTENT WITH THE

RULINGS OF THIS COURT AND THOSE

OF OTHER JURISDICTIONS. ....... 6

a

TABLE OF AUTHORITIES

CASES

Buckley v. Quincy Division of the District Court,

395 Mass. 815, 482 N.E.2d 511 (1985) ...... 10

Caplin & Drysdale, Chartered v. United States,

en ae os 60 6 0 Wie 12

Commonwealth v. Cotter,

415 Mass. 183, 612 N.E.2d 1145 (1993) ...... 5

Commonwealth v. LaFrance,

402 Mass. 789, 525 N.E.2d 379 (1988) ...... 5

Commonwealth vy. Power,

420 Mass. 410,

650 N.E.2d 87 (1995) ....... Epes By

Griffin v. Wisconsin,

ee ED © sg. 9. Oa eb wee 9, 13

Libretti v. United States,

__ U.S. __, 1995 WL 648120 (Nov. 7, 1995) . 5

McMann v. Richardson,

sg as ao aN eee ace e bok 5

Morrissey v. Brewer,

BT it ae A LPN Te a 13

Simon & Schuster, Inc. v. New York State

Crime Victims Board,

ee Dg nc ns wwe e es week 11, 12

ERROR Sere er rer ee eee,

Turner v. Safly,

tts PGE 69:6 @ on 0 8 oe ed AES 12

United States v. Janko,

865 F.2d 1246 (11th Cir. 1989) ........... 6

United States v. Lowe,

Bw # +. Ve @. | ) Bape pe eer 8

United States v. Peete,

919 F.2d 1168 (6th Cir. 1990) ........... 8,9

United States v. Smith,

ee mw % FF To Re, | eee &

United States v. Terrigno,

838 F.2d 371 (Sth Cir. 1987)............ 7,8

United States v. Tolla,

Gf p» fr fo Freee 11

United States v. Tonry,

Gio F268 146 Ge Ce. ISTE) cc cenecves 8, 11

United States v. Waxman,

638 F.Supp. 1245 (E.D. Pa. 1986) ......... 7

STATUTES AND COURT RULES

Oe GAs EE 0. ode oe ee ie ee ee eee 8,9

Massachusetts General Laws c. 276, § 87 .......... 4

Bes es GN Be. OOo 6s vid We eee oe eke nes 4

OTHER

ABA Standards Relating to Probation §3.3......... 6

Ww Ends 23 Y Fugitive: Ex-P Plead

Guilty in Bank Heist, Christopher B. Daly,

EU EE cba weer wee e es 11

|

-iv-

eee eee

No. 95-277

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

KATHERINE ANN POWER,

Petitioner

Vv.

COMMONWEALTH OF MASSACHUSETTS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

MASSACHUSETTS SUPREME JUDICIAL COURT

RESPONDENT’S BRIEF IN OPPOSITION

The respondent Commonwealth of Massachusetts

respectfully requests that this Court deny the petition for writ

of certiorari.

OPINIONS BELOW

The opinion of the Supreme Judicial Court of

Massachusetts is reported at 420 Mass. 410, 650 N.E.2d 87

(1995).

STATEMENT OF THE CASE

During the summer of 1970, five individuals formed

a group which planned to commit various criminal acts

throughout the United States. (Tr. 9/15/93 20). On

September 23, 1970, petitioner Katherine Ann Power, along

with four others, robbed the State Street Bank and Trust

Company in the Brighton section of Boston. Three of her

cohorts entered the bank, armed, and robbed the tellers of

over $26,000. A fourth participant, William Gilday, armed

with a fully loaded Thompson submachine gun, positioned

himself in a car across the street from the bank. Power sat

in a “switch car" several blocks away ready to drive the

others from the scene after the robbery was completed.

Boston police officers Walter Schroeder and Frank

Callahan responded to the bank’s silent alarms which had

been triggered when the robbers entered. The robbers had

left the bank by the time the officers arrived and were

heading for the “switch car"; Gilday remained on the scene

as a lookout. When Officer Schroeder approached the front

door of the bank, he was shot in the back by Gilday and

died of his wounds the following day. Commonwealth v.

Power, 420 Mass. 410, 650 N.E.2d 87, 88 (1995).

Three of the robbers were arrested within days of the

crimes; a fourth eluded authorities until 1975 when she was

apprehended in Pennsylvania. Power remained a fugitive for

twenty-three years. On September 15, 1993, "in the glare of

national news media attention," Power surrendered to state

and federal authorities. Id. at 412, 650 N.E.2d at 88.'

' At the sentencing hearing, the Court and the parties

referred to Power’s lengthy fugitive status and extensive

negotiations between government authorities and Power

2

On September 15, 1993, represented by counsel,

petitioner offered to plead guilty to two indictments charging

armed robbery and to so much of a murder indictment as

charged manslaughter. After a full and complete colloquy,

the Court accepted the pleas, and scheduled a sentencing

hearing for October 6, 1993.

Pursuant to its agreement with petitioner, at the

sentencing hearing on October 6, 1993, the government

recommended she be sentenced to a state prison term of

eight to twelve years; petitioner’s attorney requested a

shorter sentence. The judge reiterated what he had said

during the plea proceeding: under Massachusetts law the

judge is not bound to sentence in accordance with any

agreement of the parties, but if the Court chooses to exceed

the government’s recommendation, the defendant may

withdraw her guilty plea and proceed to trial.

The Court accepted the Commonwealth’s

recommended prison term for manslaughter and one of the

two armed robbery counts. The judge, however, expressly

indicated he intended to exceed the recommendation by

imposing on one armed robbery count a twenty-year

probationary sentence, with the special condition that Power

not profit or benefit from her crimes. Under oath, and after

consultation with counsel, Power accepted the condition of

probation and specifically declined to withdraw her plea of

guilty. She was then sentenced as the Court indicated it

would do. The probation contract, which Power signed that

day, outlines in more detail the terms of the special

condition. Commonwealth v. Power, 420 Mass. at 413, 650

N.E.2d at 89. On appeal the Supreme Judicial Court

preceding her surrender and plea. In addition to the state

charges, she also faced federal charges.

-3-

affirmed the special condition, finding that while it

implicated Power’s First Amendment rights, it was

reasonably related to a valid probation purpose.

Commonwealth v. Power, 420 Mass. at 415, 421, 650

N.E.2d at 90, 93.7

Reasons For Denying The Writ '

POWER AGREED TO ACCEPT THE

SPECIAL CONDITION OF PROBATION

AND DECLINED TO WITHDRAW HER

GUILTY PLEA WHEN INFORMED THE

COURT WOULD IMPOSE IT.

In Massachusetts, conditions of probation must be

agreed to by the defendant. Massachusetts General Laws c.

276, § 87 provides the court the power to place a convicted

2 The procedural posture of Power’s challenge to the

special condition is somewhat unclear. In her brief to the

Supreme Judicial Court, Power outlined her objection as

having been raised in letters by counsel to the sentencing

judge, and in a Motion for Reconsideration of Special

Conditions of probation, claiming they were vague and in

violation of the First Amendment. The Commonwealth

argued below that Power failed to follow the proper

procedures to challenge the condition. The Supreme Judicial

Court referenced a Revise and Revoke motion not mentioned

by the defendant, found the reconsideration motion akin to a

Mass. R. Crim. P. 30 motion, and proceeded to consider the

merits, "[t}he matter having been fully briefed and being of

public interest." Commonwealth v. Power, 420 Mass. at

411 n.1, 650 N.E.2d at 88 n.1.

pe

?

>

defendant, with his or her consent, on probation for such

term and upon such conditions as the judge deems proper.

Whether on a guilty plea or after trial, probationary

conditions require the assent of the defendant.

Commonwealth v. Cotter, 415 Mass. 183, 188, 612 N.E.2d

1145 (1993). The consent requirement distinguishes

probation in Massachusetts from that in other jurisdictions or

from a probationary sentence that is imposed by the court

without a defendant’s assent. There is no question that in

this case the Court followed the proper procedures to verify

Power’s consent to the condition that she not profit from her

crimes. Nor is there a suggestion that her consent, given in

open court, under oath, was not voluntary or that the plea

and sentencing proceedings were flawed.

Another important aspect of the petitioner’s

probationary condition is that it came as part of her guilty

plea. She was specifically given the option, consistent with

Massachusetts law, to withdraw her plea and go to trial

should she not be willing to abide by the condition. It was

not, as is often the case with challenged conditions of

probation, imposed upon her against her will, nor was she

required to accept the condition on pain of incarceration on

that charge. Compare Commonwealth v. LaFrance, 402

Mass. 789, 791 n.3, 525 N.E.2d 379, 381 n.3 (1988).

Where "the voluntariness of a criminal defendant's

concession to imposition of a particular sentence is

questionable, the relevant inquiry is whether the sentencing

stipulation was informed and uncoerced on the part of the

defendant... .” Libretti v. United States, U.S.__.

1995 WL 648120 (Nov. 7, 1995). That a defendant makes

the choice in connection with a plea simply does not render

the election an impermissible abrogation of the defendant's

rights. See McMann v. Richardson, 397 U.S. 759, 766-

767, 770 (1970). A condition of probation which would

i/

otherwise be unconstitutional, that results from a negotiated

plea agreement, is not unconstitutional. See, ¢.g., United

States v. Janko, 865 F.2d 1246, 1247 (11th Cir. 1989).

Il. THE SUPREME JUDICIAL COURT’S

DECISION UPHOLDING THE PROBATION

CONDITION IS CONSISTENT WITH THE

RULINGS OF THIS COURT AND THOSE

OF OTHER JURISDICTIONS.

Fashioning appropriate probationary terms suitable to

the offender and the offense requires the sentencing court be

afforded considerable discretion. In fact, the "success of

probation as a correctional tool is in large part tied to the

flexibility within which it is permitted to operate." ABA

Standards Relating to Probation § 3.3 commentary

(Approved Draft 1970). This includes the imposition of

restrictions that encroach to some degree on the

probationer’s personal liberties. All criminal sentencing

involves to a greater or lesser degree, some restriction on

the convicted defendant’s behavior.

Petitioner agrees with the notion that probationers

may be subject to restrictions that would be unconstitutional

if applied to the general public. Petition at 5. She suggests,

however, that there is some disagreement as to the proper

inquiry for evaluation of the propriety of probationary

conditions which implicate First Amendment rights. A

review of the cases upon which she relies reveals that the

distinction she posits is illusory. Moreover, petitioner cites

no disagreement among lower courts as to the validity of any

probationary condition similar to the one she challenges in

this case.

The two other jurisdictions which have addressed the

validity of a probation condition forbidding financial profit

-

similar to that imposed here upheld the conditions as

reasonably related to the purposes of probation. In United

States v. Terrigno, 838 F.2d 371 (9th Cir. 1987), the

defendant was enjoined, as a condition of probation, from

receiving money for speaking about her crimes,

embezzlement and converting public funds. The condition

stated that during her probationary period the defendant

could “not receive any financial remuneration or any other

thing of value from any speaking engagements, written

publications, movies, or any other media coverage dealing

with her involvement in this offense." Id. at 373. The

Ninth Circuit found the condition reasonably related to the

rehabilitation goal of probation: "We certainly cannot say it

is unreasonable to think that the rehabilitation of a person. .

. will be more effective if she is reminded in a very practical

sense that ‘crime does not pay.’" Id. at 374. The

rehabilitative goal of preventing the defendant from profiting

from her crime would neither deny the public the benefit of

hearing her story nor unduly restrict her First Amendment

rights. Id.

Similarly, in United States v. Waxman, 638 F. Supp.

1245 (E.D. Pa. 1986), the defendant who pleaded guilty to

charges of art theft was restricted from any sort of financial

profit from his well-publicized crimes. Rejecting a First

Amendment challenge, the court found the probationary

condition reasonably related to rehabilitation: "Certainly, it |

is in his own interest . . . to learn that society will neither |

tolerate criminal behavior nor permit the criminal to profit |

from it when he can be prevented from doing so." Id. at

1246.

The Supreme Judicial Court, in a thoughtful opinion,

reviewed the cases from other jurisdictions addressing the

basic questions implicated in this case and concluded,

correctly, that probation conditions are enforceable even if

Fr, a

er

they affect a preferred right so long as the condition is

primarily designed to meet the goals of sentencing and of

probation. Commonwealth v. Power, 415 Mass. at 90, 650

N.E.2d at 89. Stating that merely because constitutional

rights may be implicated the condition is not invalidated, the

Court also recognized that restrictions are not without

limitation where they bear no rational relationship to a valid

sentencing goal or are simply overly offensive. Id.

United States v. Smith, 972 F.2d 960, 961-962 (8th

Cir. 1992), which petitioner cites as standing for an analysis

different than that undertaken by the Supreme Judicial Court,

to be applied to a probationary condition affecting a

fundamental right, Petition at 5, does no more than rely on

the same cases which guided the Supreme Judicial Court’s

decision. In Smith, a probationer convicted of a narcotics

offense was enjoined from causing the conception of a child

with one other than his wife. The court sought to determine

whether condition was proper under the factors in the

Federal Probation Act, 18 U.S.C. § 3651 et seq., and found

it unworkable and unrelated to the seriousness of the drug

offense and to promoting respect for the law.

Every court that has considered probationary

conditions has undertaken the same analysis, looking to see

whether the conditions are reasonably related to the statutory

purposes of probation and whether they are reasonably

necessary to attain those purposes. The Supreme Judicial

Court did not undertake a different analysis, and in fact

quoted and relied upon the authorities petitioner now

suggests state a different standard. E.g., United States v.

Peete, 919 F.2d 1168 (6th Cir. 1990); United States v.

Lowe, 654 F.2d 562 (9th Cir 1981); United States v. Tonry,

605 F.2d 144 (Sth Cir. 1979). In fact, United States v.

Terrigno, 838 F.2d at 374, which petitioner claims takes a

"minority" approach, Petition at 6, indicates that "careful

=.

V—

review" is necessary when a probation condition restricts

fundamental rights. This conclusion was relied upon in

United States v. Peete, 919 F.2d at 1181, a case petitioner

says undertakes a stricter analysis.

No authority cited by petitioner suggests that a

probationary condition is subject to the same First

Amendment scrutiny that applies to statutes or restrictions of

general applicability. The so-called special scrutiny that is

employed when reviewing probation conditions is no more

than an inquiry whether the condition is drawn to achieve the

purposes of probation.

For probation imposed in the federal courts, the test

is limited to the stated purposes of 18 U.S.C. § 3651, and

conditions must be reasonably related to and crafted to meet

the statute’s goals of rehabilitation of the offender and

protection of the public. To the degree other jurisdictions

require “careful analysis" to assure the condition is

reasonably related when a fundamental right is implicated,

the Supreme Judicial Court concurred and conducted that

inquiry. "Careful review" does not imply a different

‘standard of review.

Once it is determined that all courts that have

reviewed probationary conditions under this test do so in

essentially the same manner, this case stands for no more

than the routine question whether the test was properly

applied to the particular facts of this defendant and her

circumstances and is a constitutionally unremarkable matter.

In assessing the condition imposed by the Massachusetts

court, the inquiry must be whether the condition serves the

state’s purposes in criminal sentencing. See Griffin v.

Wisconsin, 483 U.S. 868, 875 (1987) (in determining

whether state’s needs justify regulation applicable to

probationers, Court must take regulation as interpreted by

state courts). Massachusetts had declared the purposes of a

-9-

criminal sentence -- including probation -- go beyond those

underlying the federal statute to include punishment,

retribution and deterrence in addition to rehabilitation and

public protection. Commonwealth v. Power, 420 Mass. at

414-415, 650 N.E.2d at 90. Thus any review of Power’s

probationary condition must be measured against those

purposes, and not be strictly limited to the goals of the

federal probation statute.’

Under this litmus, the probation condition imposed on

Power furthers Massachusetts’s sentencing goals. Allowing

her to profit from her crime and her ability to evade

apprehension would not serve to rehabilitate her. Rather, it

would provide an undeserved reward for her behavior. The

rehabilitation needs for one who, while pleading guilty, had

remained a fugitive for years and surrendered only after

lengthy negotiations, are acute. The condition also serves as

a deterrent both to her and to the general public. As the

Supreme Judicial Court held, by this condition this defendant

and others similarly situated are "given to understand that

the crime committed and her successful, albeit illegal,

fugitive status of over twenty-three years will bring neither

reward, benefit, or profit, and her rehabilitation and

understanding of the depth of her criminality are enhanced."

Commonwealth v. Power, 420 Mass. at 418, 650 N.E.2d at

91-92. The state may validly deter any expectation that

> The practice of placing defendants on probation

began in Massachusetts as part of the common law

independent of statutory authorization. Buckley v. Quincy

Division of the District Court, 395 Mass. 815, 817 n.2, 482

N.E.2d 511, 512 n.2 (1985).

-10-

those who commit notorious or sensational crimes‘ may reap

large profits from their stories of those crimes. Moreover,

every modern notion concerning the purposes of sentencing

recognizes the retributive nature of sentencing. All

sentences, including non-incarcerative sentences of

probation, carry a measure of punishment and restriction on

liberties enjoyed by those not convicted of criminal behavior.

See United States v. Tolla, 781 F.2d 29, 35 (2d Cir. 1986):

United States v. Tonry, 605 F.2d at 148. Any person who

commits crimes against society, especially crimes of

violence, can properly expect to be constrained in ways that

may be characterized as punishment. It is no less true for

sentences of probation than it is for prison sentences.°

The test employed to determine the validity of a

probationary condition that implicates a First Amendment

right is not altered by this Court’s decision in Simon &

Schuster, Inc. v. New York State Crime Victims Board, 502

U.S. 105 (1991). In Simon & Schuster this Court struck

down New York’s "Son of Sam" law providing that profits

from speech related to any crime be placed in an escrow

* The amicus National Victim Center pointed out

below that Power was on the FBI’s "Most Wanted” list for

14 years, making her one of the longest sought after women

eri in sige — sii B. Daly, Woman Ends

Heist, Wash. Post “0 16, 1993, at Al.

> It is not unusual for a probationary condition to run

concurrent with a prison sentence if the purposes of the

condition, be they to effectuate restitution, a stay away

order, or prohibit profiting from crime, dictate that they be

in place simultaneously with incarceration.

st.

account for the benefit of crime victims, because the statute

was overbroad as it reached to all persons engaged in

expressive conduct in which they admitted some criminal

conduct, regardless of whether they had been convicted.

This Court also found the statute not narrowly tailored to

meet its dual stated purposes of ensuring criminals do not

profit from their crimes and in compensating victims of

crime. The Court found no compelling interest in a

statutory scheme which sought to compensate victims only

from the criminal’s “story telling" proceeds rather than his

other assets. Id. at 119-120.

Power recognizes that her probation condition does

not suffer from overbreadth. Petition at 7. This distinction

is of critical importance. Unlike a statute with general

applicability, the condition here is directed against one

individual who has been convicted of serious offenses and is

framed in terms of her particular circumstances. The

condition does not irrationally attempt to compensate victims

with profits of one type of speech. Rather, it is directly

responsive to what this Court declared to be an "undisputed"

compelling interest: “that criminals do not profit from their

crimes." Id. at 119. Even where preventing a criminal

from profiting from crime in some way burdens

constitutionally protected rights, this Court has affirmed the

government’s “legitimate interest in depriving criminals of

economic power." Caplin & Drysdale, Chartered v. United

States, 491 U.S. 617, 631 (1989) (no right to use forfeitable

assets to retain attorney or to exercise right to speak.)

Just as this Court has rejected strict scrutiny review

of prison regulations affecting constitutional rights in favor

of a reasonable relationship standard, Turner v. Safly, 482

U.S. 78 (1987), the demands of the criminal justice system

and the purposes of sentencing process dictate the same

result for review of probation conditions. _The lower

-12-

standard of review is warranted because probationers, like

prisoners, "do not enjoy ‘the absolute liberty to which every

citizen is entitled, but only . . . conditional liberty properly

dependent on observance of special conditions’." Griffin v.

Wisconsin, 483 U.S. at 874, quoting Morrissey v. Brewer,

408 U.S. 471, 480 (1972). Even were the Court to conclude

that conditions of probation which restrict a probationer’s

ability to profit financially from the story of his or her crime

are subject to a strict scrutiny analysis, the condition here

would survive as it furthers not only the general purposes of

probation, but also because it rests upon a compelling state

interest and is specifically tailored to achieve that end.

Contrary to Power’s assertion, the Supreme Judicial

Court did not effectively rule "that state courts have the

discretionary authority to impose content-based restrictions

on any speech, so long as the speaker has been convicted of

a crime." Petition at 4. It held that the condition allows

Power "to speak on any subject, including her crimes,

whenever, and through whatever medium she desires. .. .

The condition merely prohibits the defendant from profiting

financially from speech about her crime or her experience as

a fugitive."° Commonwealth v. Power, 420 Mass. at 415,

® The Supreme Judicial Court allowed the record to

be expanded to include information that Power appeared in a

nationally televised interview with Barbara Walters on

February 11, 1994, which was watched by millions of

viewers. Prior to the decision of the Supreme Judicial

Court, the New Yorker magazine and Boston Globe

newspaper also published articles based on interviews with |

Power. See also Amicus Brief filed in the Supreme Judicial |

Court by the National Victim Center, which provided the

Court with a copy of the Walters interview. The probation

-13-

650 N.E.2d at 90. This limitation on profit, while

permitting unrestricted speech and expression, provides an

appropriate limitation of the restriction that is necessary to

achieve the compelling state interest.’

department took no action against Power as the result of

these interviews.

The expanded record also reveals that Power stated to

her probation officer and to both the state court and the

federal District Court under the pains of perjury that she has

never had any intention of personally profiting financially

from her "story."

7 Reflective of the attention she received when she

surrendered, and concerns expressed at the sentencing

hearing that Power might well be characterized favorably not

only for her actions but for her experience as a long-time

fugitive, the court included within the probation order a

restriction on those events undertaken and experienced by

her while avoiding apprehension. This, too, was narrowly

restricted to the demands of the particular case. (Tr.

10/6/93 8, 25-26, 30, 52.)

The suggestion that Power must have all speech pre-

approved by her probation officer, or that the condition is

impermissibly standardless and vague, is also belied by the

specific terms and the narrow reach of the condition to

prohibit only financial profit.

-14-

Conclusion

For all the above reasons, the petition for writ of

certiorari should be denied.

Respectfully submitted,

SCOTT HARSHBARGER

Attorney General

Of Massachusetts

PAMELA L. HUNT’

Assistant Attorney General

Chief, Appellate Division

One Ashburton Place, Rm. 1811

Boston, MA 02108

(617) 727-2200

“Counsel of Record

Dated: November 30, 1995

-15-