Amicus Curiae Brief — Bradley v. United States

INDEX

Page

erest of seven women prisoners as amici curiae .... 1

yume nt:

I. All federal prisoners convicted of offenses against

the narcotic laws of the United States are now

eligible for parole, in accordance with applicable

pay statutes, because Congress by repealing

U.S.C. 7237(d) has eliminated the only bar to

such Parole eligibility. This result is mandated

4 Morrissey v. Brewer, No. 71-5103, decided by

is Court on June 29, 1972 .................... 3

Equal protection of the law requires that the new

drug act be construed to grant consideration for

parole to all federal narcotic offenders ......... 6

J%SSSSSSS%%%%%%Sbw s Fe bu 6 boo kk , oes kes 2

er v. United States, 302 U.S. 211 (19377) 6

Pole v. North Carolina, 419 F. 2d 127 (C. A. 4 1969) . . 9, 10

v. United States, 376 F. 2d 191 [C. A. 4 1967). 9

Pesaert v. Cleary, 335 U.S. 464 (1948ù) 6

ematsu v. United States, 319 U.S. 432 (1943) 6

lorrissey v. Brewer, No. 71-5103, O. T. 1971, decided

/ ]˙— SS „5, 6

tt v. Dail, 337 Supp. 731 (E. D. N.C. 1972) ........ 9, 10

v. United States, 459 F.2d 467 (C. A. 101972) ... 5

ey v. Kraemer, 334 U.S. 1 (194).

mpt v. United States, 367 F.2d 326 (C. A. D.C. 1966). 8, 9,

es „11

wo Guys from Harrison-Allentown, Inc. v. McGinley, |

Mn Oe PVET—VmkJ occ coh 7

mited States v. Bradley, 455 F.2d 1181 (C. A. 1 1972),

> cert. granted, No. 71-1304

5

8

United States v. 335 F. Supp. 523 (S. D. Cal. 1971)

ii Index Continued

United States v. Caraballo, 334 F. Supp. 843 (S. D.

1971), aff d. without opinion by C. A. 2,

ne v. McGarr, No. 72-1108 (C. A. 7, April 28,

United States v. Pratt, 276 F. 2 7 15 (D. N. J. 1967)

United States v. Pregerson, 448 F.2d 404 (C. A. 9 1971)

United States v. Robinso n, 336 F. Supp. 1 W

Wis. 1%)))))) „ 4 „„ „ seeese

United States v. Stephens, 449 F. 2d 103 (

C. A

United States v. Wooden, 453 F. 2d 1258 (C. A.

Watson v. United States, 439 F. 2d 422 (C. A. D.C.

m O > ae —

Srarurzs:

1 1%% c 3, 6

18 U.S. C. 35ʒß33 . ẽNO. 3344 7, 8, 10

26 U. S. C. 723ꝑ . 3, 4, 10, 11, 12, 13

Comprehensive Drug Abuse Prevention and Control

Act of 1970, Pub. L. No. 91-531, 84 Stat. 1236... 1, 3, 4,

5 5, 11, 12

Narcotic Addict Rehabilitation Act of 1966, Pub. L. No.

89-793, 80 Stat. 1438, 18 U.S.C. 4251(f) ) 27

MISCELLANEOUS:

H.R. Rep. No. 91-1444, 91st Cong., 2d Sess. (1970) .... il

Model Penal Code (1962)))!ʒ 12

National Commission on Reform of Federal Criminal

Laws, Final Report (1971), § 34! 12

President’s Commission on Law Enforcement and Ad-

ministration of Justice, The Challenge of Crime in

a Free Society (1967) ...... SES ati ED 11

President's Commission on Law Enforcement and Ad-

ministration of Justice, Task Force Report: Cor-

rections (1967y⸗er „ 12

3 United States Congressional and Administrative News

1970) 232 Res Seer Tea Eee 11

J

4

IN THE

Supreme Court of the United States

No, 71-1304

. OctoBerR TERM, 1972

JAMES B. BraDLeY, JR., Byron H. JOHNSON,

Rosert T. ODELL, In., AND WILLIAM JAMES HELLIESEN,

: Petitioners,

v.

THE ee STATES oF AMERICA,

Respondent.

—

On Writ of Certiorari to the United States Court of Appeals

for the First Circuit

BRIEF FOR AMICI CURIAE

— 4

—ͤ— —

INTEREST OF SEVEN WOMEN PRISIONERS AS

AMICI CURIAE

This amici curiae brief is filed, with the consent

of counsel for the parties, on behalf of seven women

prisoners presently confined at the Federal Reforma-

tory for Women, Alderson, West Virginia. All were

convicted and sentenced before May 1, 1971, the effec-

tive date of the Comprehensive Drug Abuse Preven-

tion and Control Act of 1970; All have served one-

third or more of their sentences.

Having exhausted their administrative remedies

with the United States Board of Parole, a suit on

behalf of these seven women prisoners has been filed

in the United States District Court for the Southern

District of West Virginia.. The suit is styled Irene

Alvarado, et al, v. Virginia McLaughlin, Warden, et

al., Docket Number 1399.

As of June 30, 1972, the Federal Reformatory for

Women had 554 residents. Of these, 127 had been

sentenced for narcotic offenses (commitments under

the Narcotic Addict Rehabilitation Act, of 1966 not

included).

The sentences of the latter group range from 5 to

25 years in length. Thirty-eight women were serving

sentences considered to be nonparolable and 89 were

serving parolable sentences. Of the women considered

not eligible for parole, 32 had been sentenced before

May 1, 1971, and 6 after that date. Of the women con-

sidered eligible for parole, 26 had been sentenced be-

fore May 1, 1971, and 63 after that date. (Appendix,

infra, pp. Ia-Za.)

Although their suit in the Southern District of West

Virginia is not a class action, the amici are representa-

tive of all thirty-eight women at the Reformatory

serving administratively classified nonparolable sen-

tences, as well as of other prisoners throughout the

country serving similar sentences. The figures cited

above illustrate the administrative difficulties the Bu-

reau of Prisons has encountered in classifying sen-

tences as parolable or nonparolable since the new drug

act became effective on May 1, 1971. In his Memoran-

dum for the United States in response to the peti-

tion for certiorari in this case the Solicitor General

pointed out that the question of eligibility for parole

„eomprehends all persons in custody who, regardless

of the date of sentencing, were convicted of violating

the old narcotic laws, which did not permit parole’’

and he agreed that the ‘‘inconsistency”’ between ya-

rious circuits on this question calls for resolution by

this Court (pp. 4-5). The lack of uniformity in ad-

ministrative treatment demonstrated by the statistics

8 by the Warden of the Reformatory for

omen (supra) equally calls for authoritative resolu-

tion of the question of parole eligibility of all persons

imprisoned for violating the narcotics laws in effect

prior to May 1, 1971. It is the position of amici that

all such persons are eligible for parole, regardless of

whether they were sentenced before or after that date.

-

— I

All federal prisoners convicted of offenses against the narcotic

laws of the United States are now eligible for parole, in

accordance with applicable parole statutes, because Con-

gress by repealing 26 U.S.C. 7237(d) has eliminated the only

bar to such parole eligibility. This result is mandated by

MORRISSEY V. BREWER, No. 71-5103, decided by this

Court on June 29, 1972.

Several of the Courts of Appeals and District

Courts have considered the effect upon persons con-

vieted of federal narcotic offenses of the specific sav-

ings provision, 5 1103 (a) of the Comprehensive Drug

Abuse Prevention and Control Act of 1970, Public L.

No. 91-513, 84 Stat. 1236, and the effect of the general

savings provision, 1 U.S. C. 109. None of these cases,

however, has presented in clear and unclouded form

4

the question the amici ~resent: did the repeal of 26

U.S. C. 7237(d) open the way for consideration for

parole of persons convicted and sentenced before May

1, 1971, for offenses committed by them against the

narcotic laws of the United States

Between the two énds of the spectrum, that is, as

between those persons who committed offenses after

May 1, 1971, and are now clearly eligible for parole

and those persons who committed offenses, were sen-

tenced, and were in prison on May 1, 1971, there are

a multiplicity of variations centering around the magic

date, May 1, 1971. The amici join the Solicitor Gen-

eral in asking this Court to settle all these problems,

as the United States Board of Parole should have done

long ago. The amici contend that the only rational rule

that can be declared in this situation is that all offend-

ers against the narcotic laws of the United States are

now eligible for consideration for parole in accordance

with the parole statutes of the United States.

The amici think that the following cases support

their position: United States v. McGarr, — F. 2d —

(C.A.7, No. 72-1108, April 28, 1972) ; United States v.

' Fithian, 452 F.2d 505 (C.A.9 1971); United States v.

Stephens, 449 F.2d 103 (C.A.9 1971) ; United States v.

Pregerson, 448 F.2d 404, 406 (C.A.9 1971); United

States v. King, 335 F. Supp. 523, 555 (S.D. Cal. 1971).

Although clearly distinguishable on their facts, the

amici recognize that the United States is relying upon

the fellowing cases as supporting a contrary position:

United States v. Bradley, 455 F.2d 1181 (C.A.1 1972),

the case now before this Court; United States v.

Fioto, 454 F.2d 252 (C.A.2 1972) ; United States v.

Wooden, 453 F. 2d 1258 (C.A.2 1971) ; United States v.

Caraballo, 334 F. Supp. 843 (S. D. N.Y. 1971, aff d

os wee ete me e

5

5

without opinion October 7, 1972, by the Second Cir-

cuit); Page v. United States, 459 F.2d 467 (C.A.10

1972) ; United States v. Robinson, 336 F. Supp. 1386

(W.D. Wis. 1972).

There may be other recently reported cases; there

most surely are other unreported cases.

These cases, though, have been superseded by the

decision of this Court in Morrissey v. Brewer, No.

71-5103, handed down on June 29, 1972. The Court, in

ah opinion by Mr. Chief Justice Burger, reviewed

“the function of parole in the correctional process’’,

saying (Slip Op. 6):

.. . Rather than being an ad hoc exercise of clem-

ency, parole is an established variation on impris-

onment of convicted criminals. Its purpose is to

help individuals reintegrate into society as con-

structive individuals as soon as they are able,

without being confined for the full term of the

sentence imposed. It also serves to alleviate the

costs to society of keeping an individual in prison.

The essence of parole is release from prison, be-

fore the completion of sentence, on the condition

that the prisoner abide by certain rules during the

balance of the sentence.

In light of this function, the Chief Justice said, Pa-

role arises after the end of the criminal prosecution,

including imposition of sentence“ (id., 9). No mem-

ber of the Court expressed disagreement with this

analysis.

This conclusion Parole arises after the end of

the criminal prosecution“ answers fully the ques-

tion much discussed in the lower courts as to the limits

of a “prosecution” within the meaning of the specific

Savings provision contained in §1103(a) of the new

6

drug act. That provision preser ves „prosecutions for

any violation of law occurring prior to May 1, 1971.

Morrissey makes clear that parole is a matter separate

from and unconnected with prosecution“.“ Thus

parole does not extinguish prosecutions which the sav-

ings clause preserves.

This construction of the specific savings clause

should be dispositive of the question, for it is a recog-

nized principle of statutory construction that a spe-

cific provision prevails over a general one. 8

Even if the general savings provision contained in

1 U.S.C. 109 is to be considered, Morrissey again pro-

vides the answer. That section preserves “‘any pen-

alty, forfeiture or liability incurred under“ a repealed

statute. In Morrissey the Court characterized parole

as an established variation on imprisonment of con-

victed criminals (supra, p. 5). As a variation on

imprisonment” it is a penalty, forfeiture or liabil-

ity’? within the meaning of 1 U.S.C. 109. Thus again,

parole does not extinguish any penalty, forfeiture or

liability which the savings clause preserves.

I.

Equal protection of the law requires that the new drug act be

construed to grant consideration for parole to all federal

narcotic offenders.

When considering legislation challenged as violative

of the guarantee of equal protection of the laws under

the Fifth and Fourteenth Amendments, this Court has

looked to the purpose of the legislation in resolving

the constitutional issue. See, e. g., Goesaert v. Cleary,

1 Bee also Berman v. United States, 902 U.S. 211, 212 (1987)

(Final in @ criminal case means sentence. The sen-

tence is the judgment) Korematsu v. United States, 319 U.S.

482, 435 (1943).

7

$35 U.S. 464 (1948) (social and moral purposes at-

tributed to statute providing for sexual classification

in employment) ; Two Guys from Harrison-Allentown,

Inc. v. McGinley, 366 U.S. 582 (1961) (secular purpose

attributed to Sunday closing law).

A prohibition against these amici prisoners belie

considered for parole eligibility solely because of the

date on which their offenses were committed creates an

indefensible and irrational classification of prisoners.

Under such a classification, two prisoners of the same

sex, Same age, same background, same criminal record,

and most importantly with the same potential for re-

habilitation are treated differently, solely because of

the dates of their offenses, or convictions, or sentences,

or some similarly arbitrary and irrelevant criterion.

One such prisoner with a fifteen-year sentence may be

granted parole after serving one-third of her sentence,

or five years, but another must remain in prison for the

full fifteen years less good time and other statutory

deductions, or for about ten years:

Watson v. United States, 439 F. 2d 442 (C. A. D.C.

1970), supports this view. The defendant in Watson

had been convicted of two prior narcotic offenses and

was, therefore, ineligible under Title II of the Nar-

cotie Addict Rehabilitation Act of 1966, 18 U.S.C.

4251(f), for rehabilitative treatment. Another person

with only one such conviction would have been eligible.

The Court of Appeals for the District of Columbia Cir-

euit held that to the extent that the Act denied qualified

persons eligibility for updated rehabilitation pro-

grams, it violated the equal protection embodied in the

: 1 Due Process Clause of the Fifth Amendment.

An analogy is found in the history of the federal

jal time statute, 18 U.S.C. 3568. Before its enact- |

ment in 1960, the federal courts often tacitly gave

credit for the time offenders had spent in custody be-

fore formally beginning service of their sentences.

However, in the absence of statutory authority, the

courts did not credit with jail time an offender who

had been given a mandatory minimum sentence. To

correct this injustice, Congress required the Attorney

General to give credit for jail time. . . where the stat-

ute requires the imposition of a mandatory minimum

sentence. Congress made no provision, however, for

the automatic award of jail time credit against non-

mandatory sentences. It may have been assumed that

the courts would provide such credit as a matter of

course, but the legislative history ix silent on that point.

Thus, when courts sometimes failed to provide jail time

credit, a new and unforeseen discrimination developed:

persons sentenced for less serious offenses, those not

carrying a mandatory minimum, were denied the jail

time credit that was automatically accorded to persons

convicted of more serious offenses. Stapf v. United

States, 367 F. 2d 326, 328 (C. A. D.C. 1966). Congress

corrected this new injustice in 1966 by amending § 3568

to require the Attorney General to credit all offenders

with jail time. The 1966 amendment became effective

in September, 1966. By its terms it had prospective

effect only, thereby creating an additional diserimina-

tion between persons sentenced before the effective

date and those sentenced after that date. Recognizing

that the history of the 1960 and 1966 amendments

demonstrated that the discrimination was uninten-

tional, the District of Columbia Circuit in Stapf v.

United States, supra, found the discrimination could

easily be corrected. —

This is not a case, we reiterate, where Congress

removed part of an evil but disclaimed action on

the ie This is a case, rather, where Congress

acted as to the only evil that required legislative

action, and assumed that in all other instances

equivalent relicf would be by the courts.

In such a context the acts unlawfully when

it effectuates rather than avoids an arbitrary

classification. 367 F.2d at 329-330.

See also, Dunn v. United States, 376 F.2d 191 (C. A. 4

1967) ; United States v. Pratt, 276 F. Supp. 80, 82 (D.

N. J. 1967); cf., Shelley v. Kraemer, 334 U.S. 1 (1948).

The Stapf viewpoint of unconstitutional discrimina-

tion was applied by the Fourth Circuit in Cole v. North

Carolina, 419 F.2d 127 (C.A. 4, 1969). Originally,

North Carolina had denied credit for jail time pending

appeal. In 1969 the legislature amended the statutes

xo as to grant credit for such jail time, but the enact-

ment operated prospectively only from its effective

date. Cole had been convicted and appealed before that

date. The Attorney General of North Carolina, com-

mendably”’, said the court, suggested that the case be

remanded to the district court With directions to give

the jail time credit. The justification, the Attorney

General states, is to avoid unlawful discrimination be-

tween the defendants tried subsequent to the enactment

of the credit statutes and those tried prior to their

enaetment.“ Id. at 128. The court agreed and granted

the relief the Attorney General had suggested.

The rule of Cole was applied in Mott v. Dail, 337

F. Supp. 731 (E. D. N. C. 1972). The question involved

was whether the prisoner was entitled to credit on his

sentence for time spent in custody prior to trial. North

Carolina decisional law was to the effect that he was

not entitled to such credit. In ordering that the credit

“be given, the Court said (at 732):

8 deeision in this case is governed by the

rationale in Cole v. North Carolina, 419 F.2d 127

|

10

(4th Cir. 1969). In that case Cole sought credit

for time spent in custody pending appeal. Under

the provisions of North Carolina General Statute

§ 15-186.1 a person tried after ratification of the

rea is entitled to cgi nie ee 3

ean a was rior

enactment a However, the State of

North Carolina conceded and the Fourth Circuit

Court of Appeals held that when the statute was

made prospective only ert nse .

arose against tried prior e ratification

of the Statute The court ordered that credit be

given.

The situation in the instant case is analogous to

Cole. North Carolina General Statute § 15-176.2,

ratified July 19, 1971, allows credit for time spent

in custody prior to trial. The statute applies only

to cases tried after the date of ratification. Peti-

tioner was tried prior to enactment of the statute.

Applying the reasoning underlying Cole, it is

elear that petitioner is being subjected to an in-

vidious discrimination and that he is entitled to

credit for all time spent in custody prior to trial.

See, Withers v. North Carolina, No. 71-1111 (4th

If the repeal of 26 U.S.C. 7237(d) is to be construed

so as to avoid the constitutional question of equal pro-

tection, then the reasoning of Stapf, Cole, and Mott is

persuasive. An intent to practice unlawful discrimi-

nation cannot be attributed to Congress. As in the en-

aetment and amendment of provisions for crediting

‘jail time (18 U.S.C. 3568, discussed above), the repeal

of §7237(d) cannot be regarded as a case where Con-

gress removed part of an evil’’ (that is, the denial of

parole eligibility for persons committing offenses on or

after May 1, 1971) (but disclaimed action on the rest”

(that is, the evil of a denial of parole eligibility for

1.

11

persons who had committed offenses before that date).

Stapf v. United States, supra, p. 8.

‘Moreover, the legislative history of the 1970 drug

act contains several references to a broad legislative

intent in the repeal of §7237(d). Referring to the

recommendations made by the President’s Advisory

Commission on Narcotics and Drug Abuse (the

Prettyman Commission), the House Committee said:

The Commission recommends that the penalty

eee of the Federal narcotics and marihuana

aws which now prescribe mandatory minimum

sentences and prohibit probation or parole be

amended to fit the gravity of the particular offense

so as to provide a greater incentive for rehabili-

tation.

Action. As discussed earlier in this report,

elimination of the prohibition against probation

and parole of narcotic offenders, is accom plished

by this bill. H.R. Rep. No. 91-1444, 91st Cong., 2d

Sess. (1970) ; 3 U.S. Cong. & Admin. News (1970)

4584-4585. [Emphasis added.]

Similarly, the House Committee, responding to recom-

mendations by the President’s Commission on Law

Enforcement and Administration of J ustice, said:

State and federal drug laws should give a large

enough measure of discretion to the courts and cor-

rectional authorities to enable them to deal flexibly

with violators. . .

Action. The penalty structure set forth in the

reported bill provides a flexible system of penal-

ties for Federal offenses, in accordance with .. .

this recommendation. ... H.R. Rep. No. 91-1444,

— 3 U. S. Cong. & Admin. News (1970) 4587.

2 ; see also, The President's Commission on

Law Enforcement and Administration of J ustice,

7577 ĩðͤ—vßv5,—ʃ

12

The rere. of Crime in a Free Society, 141-143,

eats Id., Task Force Report, Correc-

ons, 86.

The key phrases in the above passages, ‘‘incentive for

rehabilitation and ‘‘discretion . . to correctional au-

thorities”’, show that Congress, in repealing § 7237 (d),

intended to map out the treatment for all federal

nareotic offenders, past, present, and future. The

whole purpose of the repeal of § 7237(d) was to pro-

vide ‘‘flexibility” and ‘‘discretion’’ in the rehabilita-

tive phase of the criminal process, a purpose which

has also been incorporated into both the Model Penal

Code and the proposed new Federal Criminal Code.

Model Penal Code § 1.01 and § 1.02 (1962); National

Commission on Reform of Federal Criminal Laws,

Final Report (1971), § 3401.

The Court of Appeals for the Ninth Circuit, in

United States v. Stephens, 449 F.2d 103 (1971), has

cogently summarized the purpose of the 1970 drug act,

> while applying it in a way that avoids problems of

equal protection (at 106) :

The new Act reflects the current view that

probation should be available for these [narcotic]

offenses. Allowing it here permits a salutary

tempering of the arbitrariness which otherwise

would result from hewing to a cut-off date in

transition from old to new law and an approach to

evenhanded dispensation of justice not otherwise

available. We fail to see how the public interest

would be served by straining for a statutory con-

struction that would achieve a contrary result.

‘The same reasoning applies to parole. The amici

submit, in summary, that this Court should construe

the repeal of § 7237(d) so as to preserve its constitu-

13

tionality and at the same time provide an ‘evenhanded

dispensation of justice” to all federal prisoners con-

victed of narcotic offenses.

CONCLUSION

For the reasons herein stated, the amici submit that

the Court should construe the repeal of 26 U.S.C.

7237(d) as a removal of the prior prohibition against

parole as to all imprisoned narcotic offenders con-

victed of offenses which occurred before the repeal.

Respectfully submitted,

FRED M. Vinson, In.

Rosert S. EnD ARI.

800 17th Street, N. W.

Washington, D. C. 20006

August 1972.

r ee OS , a eee ee ee

Sea

9

la

APPENDIX

Unrrep States Department or Justice

Bureau or Prisons

FepreraL Rerormatory ror WomMEN

ALpERsoN, West VMOIxIA 24910

July 28, 1972

Proressorn WILLIAM Rrrz

Washington & Leé University

Lexington, Virginia

Dear Professor Ritz:

We are submitting the following information per your

request :

As of July 26, 1972, we have a total of 71 in the NARA

program.

On June 30, 1972, of the 554 residents at Alderson, 127 of

them had narcotic offenses, 38 were not eligible for parole,

89 were eligible to meet the Parole Board.

From July 1, 1972, through July 26, 1972, 14 new residents

have been committed to the institution with narcotic’

offenses with sentences ranging from 1 year to 15 years.

The following people entered the institution with no parole

and their status has now changed :

18059-170 Betsey, Wetahanna Jo

Sentenced March 25, 1970—North Oklahoma

5 years—no parole

Sentence changed J une 1972

5 years—Eligible for parole

18060-170 Gordon, Flora

Sentenced March 12, 1970

5 years—no parole

Sentence changed May 17, 1972

5 years—Eligible for parole Oct. 28, 1971

2a

18159-170 Francis, Elizabeth Ann

Sentenced June 5, 1970—N. Oklahoma

8 years—no parole

Sentence changed May 17, 1972

5 years—Eligible for parole Nov. 15, 1971

Met July 1972 Board

18566-170 Isaza, Maria Victoria

Sentenced April 23, 1971—E. New York

9 years—no parole

Sentence changed June 6, 1972

4 to 6 years—YCA 5010(b)

Met July 1972 Parole Board

18687-170 Isaza, Ruth Estela

Sentenced April 23, 1971—East New York

74% years—no parole

Sentence changed June 6, 1972

4 to 6 years—YCA 5010(b)

Met July 1972 Parole Board

18651-170 Johnson, Mary Lee

Sentence June 23, 1971—E. Louisiana

5 years—no parole

Sentence changed—5 years 4208(a) (2)

Has made parole for October 1972

Residents Eligible for Parole

Sentenced before May 1971

Sentenced after May 1971

$188

Total

Not Eligible for Parole

Sentenced before May 1971

Sentenced after May 1971

Sl a8

Total

| We are attaching a list of residents with parole and a list

ok residents with no parole.

If you need additional information, please let us know.

Very truly yours,

Vox W. MoLavcxuin

Virginia W. MeLaughlin

Warden

Enc.

ee: Mr. Fred M. Vinson, Jr.