Amicus Curiae Brief — Bradley v. United States

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In THE

OCTOBER TERM, 1972

No. 71-1304

James B. Braviey, In., Byron H. Jounson, Ropert

T. Oveix, In., and WAA James HELiiesen,

Petitioners,

Tue Unrrep States or AmEnioa,

Respondent.

Ow Wait or CExTIO ART 10 THE Ustrep States Court

or APPEALS FOR THE Fmer Circuit

BRIEF FOR AMICI CURIAE

Inwꝗ Kiem

Two Park Avenue

New York, New York 10016

Of Counsel:

Pran Garri

161 William Street

New York, New York 10038

TABLE OF CONTENTS

Statement of Interest of Ami

Summary of Points Argued ...... .

Por I—The “no parole” provisions are not sub-

stantive liabilities saved by Pub. Law 91-513,

$1108 or 1 U.S.C. § 1h)

Porr II— The savings clause in the Comprehensive

Drug Abuse, Prevention and Control Act of 1970

does not constitute a bar to utilization of parole

provisions by the Courrtrttttttt..

Pomrr III To conform to the constitutional stand-

ards of equal protection the savings clause of the

new law must be deemed to provide a basis for

distinction between defendants other than the

effective date of the new legislation ...........

Pomr IV—The construction urged by the respond-

ent frustrates Congressional intent and renders

the denial of parole a cruel and unusual punish-

ae Ge ͥ01i¹ðmi²j. a ee

(a) 1 U.S. C. § 1oyohUö˖/n»˖sssssss 4

(b) Pub. L. 91-513, 84 Stat. 1236 (nt. to 21

TAG MPEG Sis es h

TABLE OF CONTENTS

Taste or Cases

Baxstrom v. Herold (1966), 383 U.S. 107; 86 8. c.

760, 15 L. Ed. 2d 620

Berman v. United States (1937), 302 U.S. 211, 58 8.

Ct. 164

Brown v. Kearney (5th Cir., 1966), 355 F. 2d 173.

Ernest v. Willingham (10th Cir., 1969), 406 F. 2d 681

Frazier v. Jordan (5th Cir., 1972), 457 F. 2d 726.

Furman v. Georgia, No. 69-5003, — U.S. — 92

8. Ct. 2726, L. Ed. 24 — (1972)

Great Northern Railway Co. v. United (1907), 208

U.S. 452, 28 S. Ct. 313, 52 L. Ed. 567

Hallowell v. Commons (1915), 239 U.S, 506, 36 S. Ct.

G WA ⁰ inbenncntin ie,

Hamm v. oy ot Ro Hin, 25 USS. 316

Hertz v. Woodman (1909), 218 U.S. 205, 30 S. Ct.

621, 54 L. Ed. 1001

Sepia United Stats, 327 v. 24 867 (D.C. Cir,

1968)

Mori gr (39 un d 0

cy Sey BOTs Me. T 72

Morrissey v. Brewer (1972), — US. —, 92 8. Ct.

2593, —— L. Ed:

Page v. United States (10 Cir., 1972), 459 F. 2d 467

Tate v. Short (1971), 401 U.S. 395, 91 S. Ct. 668, 28

L. Ed. 2d 130

1¹

TABLE OF CONTENTS iii

PAGE

United States v. Carr (7th Cir., 1972), 459 F. 2 16 10

United States v. Chambers (1933), 29 U.S, 217 17

United States v. Fifthian (9th Cir., 1971), 452 F. 2d

SRS . ͤ ae oa 10

United States v. Fiotto (2nd Cir., 1972), 454 F. 2d 252 9

United States v. Hark, 49 F. Supp. 95 (D. Mass.,

)) ⁵ĩðV naan s oF 0Us0% Blades ss 8, 14

United States v. Hines (10th Cir 1969), 419 F. 2d

V e 1

United States v. Obermeier (2nd Cir., 1950), 186 F

2 2 v 8, 9

United States v. Reisinger (1888), 128 U.S. 398, 9 8

TTT! ⁰Z . 14

United States v. Stephens (9th Cir., 1971), 449 F. 2d

JJ ² ² »» 5 9, 10, 14

United States v. Tynen (1871), 11 Wall. 88, 78 U.S.

/// oo cvecsncccece 6

United States v. Wooden (2nd Cir., 1971), 453 F. 2d

. ĩͤ . ̃ĩͤ -.... ganarely Sepa 10

United States ex rel. Voorhees v. Hill (D.C. Penn.

— . ³»ꝛQQQA A ²˙ 7

Vivienne Nagelberg and Gerson Nagelberg v. Rich-

ard G. Kleindienst, et al., S. D. N. V., Docket No.

—.. ¼——) ss ow wins ²] AAC? 2

Williams v. Illinois (1970), 399 U.S. 255, 90 S. Ct.

eee V 12

1 U.S.C. 6 109

18 U.S.C. § 4208 (8) (2)

A U.S.C, 8171

MisceLLaNEous

House Report No. 91-1444, U.S. Code, Congressional

and Administrative News, 1970, Vol. 3, page

4875 15, 16, 17

ag In THE

Supreme Court of the United States

OCTOBER TERM, 1972

No. 71-1304

James B. Bravizy, In., Brnox H. Jonxsox, Roser

T. Overt, In., and WLAaAx James Hen,

Petitioners,

Tue Untrep States or Amo,

' Respondent.

Ow Warr or Czstionani To THE Untrep States Court

or APPEALS ron THE Fer Cmourr

BRIEF FOR AMICI CURIAE

— — —

Statement of Interest of Amici

The Amici Curiae herein, one of at least two groups of

Amici who are, with the consent of the parties to the Writ,

filing a brief with the Court, are two Federal prisoners

serving sentences for narcotics violation convictions. Ger-

‘son Nagelberg is presently an inmate at the Federal Pen-

. entiary at Lewisburg, Pennsylvania, and Vivienne Nagel-

berg, at the Massachusetts Correetional Institution for

Women at Framingham, Massachusetts.

Both were convicted after trial in the United States

District Court for the Southern District of New York, of

violations of the former 21 U.S. C. 44 173-and 174, and con-

spiracy so to do. Both were sentenced on June 18, 1970;

thereafter, the convictions were affirmed by the Second

Cireuit Court of Appeals, 434 F. 2d 585 (1971), and certio.

rari was denied by this Court, 401 U.S. 939, 91 S. Ct. 935

(1971). Following the denial of certiorari, a timely Rule

35 motion was granted to the extent of reducing each

sentence, and amended judgments, dated November 30,

fs 1971, were entered.

In the amended judgment, the sentencing court specific.

ally provided for parole at the discretion of the Board of

Parole, pursuant to 18 U.S. C. $4208 (a) (2), “if applica.

dle. 8 8

Because of advioe from the administrative authorities

that (i) those authorities did not consider the Amici to

be eligible for parole, and had so marked their prison

files; (ii) that the necessary information and files for

parole consideration had not been forwarded to the Board

of Parole; and (iii) that the administrative action was

final, the Amici commenced an action under 28 U.S.C.

$ 1361, in the nature of mandamus seeking to compel those

authorities to oo with the amended. judgment of the

Court. Vivienne Nagelberg and Gerson Nagelberg v.

Richard G. Kleindienst, et al., S. D. N. V., Docket No. 72

Civ. 4088. Issue was joined by service of defendants’

answer dated November 27, 1972.

It is the position of the Amici

clause contained in the

the provisions providing for a denial of parole are not

— 8

provisions providing for punishment but for the denial of

privileges and thus are not such as would be saved; that

notwithstanding the savings clause, there is nothing con-

tained therein which provides that the Court must adhere

to old law; that there are constitutional infirmities to the

invocation of the savings clause to the applicability of

parole privileges to some, but not other, similarly situated

Federal prisoners; and that the Congressional purpose is

frustrated by the continued denial of parole consideration

to a degree that it becomes cruel and unusual punishment.

The Amici Curiae herein present another of the factual

variations which the repeal of certain statutes has created.

Those variations, all of which resolve themselves about the

effective date of May 1, 1971, can be denoted as follows:

i) Commission prior—trial prior—sentence prior

ii) Commission prior—trial prior—sentence sub-

sequent

iii) Commission prior—trial subsequent—sentence

subsequent.

Actually, since if any date is determinative, it is that of

entrance of judgment, they can be reduced conceptually

to those whose final judgment is entered prior and those

Whose final judgment is entered subsequent. The Amici

herein deem themselves to be in the latter group, as are the

Petitioners herein, in view of the fact that the Amicis’ con-

victions and sentence did not become final until the favor-

able determination of the motion for reduction under Rule

35, when the amended judgment was entered, November

30, 1971.

Summary of Points Argued

1. The no-parole provision of 26 U.S.C. § 7327 (d) being

aa it i is, not a positive imposition of sentence (the positive

mandates being contained within 26 U.S.C. § 7327 (a) and

A U.S.C. H 178 and 174), and parole not being a sub-

stantive right, denial of i

$109);

or judicial process is of.

4. Congressional intent would be frustrated by the

application of either 1 U.S.C. $109, or the savings clause

of the Comprehensive Drug Abuse, Prevention and Control

Act of 1970, to the case at bar, and the denial of parole,

serving a legislative purpose or function, is a

of the Eighth Amendment’s proscription of cruel

and unusual punishment. '

5 i POINT I mies

The “no parole” provisions are not substantive

8 — saved by Pub, Law 91-513, § 1103 or 1 U.S.C.

The Petitioners: were sentenced under 26 U.S.C. 7237 (b)

for violations of 26 U.S.C. § 4705 (a). The Amici herein

were sentenced under 21 U.S.C. §$§ 173 and 174, for viola-

tion of those statutes.

4 The petitioners’ sentencing statute, 26 U.S.C. § 7237 (b)

3 a mandatory minimum sentence of five (5) years,

as does the Amicis’ herein, also five years. 21 U.S. C. § 173.

8 Both the sentences of the petitioners and of the Amici

are affected by the terms of 26 U.S.C. $7237 (d) which

states that:

d) Upon conviction—

i (1) of any offense the penalty for which is Sema

in subsection (b) of this section .

the imposition or execution of sentence shall not be

suspended, probation shall not be granted and in the

case of a violation of a law relating to narcotic drugs,

section 4202 of title 18, United States Code, and the

Act of July 15, 1982 (47 Stat. 696; D.C. Code 24-201

and following), as amended, shall not apply.“

Effective May 1, 1971, both the substantive violation

statute, 26 U.S.C. $4705 and the sentencing statute, 26

U.S.C. § 7237 (and, in the case of the Amici, the all-inclu-

sive 21 U.S.C. §§ 173 and 174) were-repealed and in their

place were substituted the provisions of the Comprehen-

sive Drug Abuse, Prevention and Control Act of 1970,

21 U.S.C. $§ 801, et seg.

That legislation included a savings clause, Public Law

91-513, § 1103 (contained as a note to 21 U.S.C. §171),

„a) Prosecutions for any violation of law occurring

prior to the effective date of section 1101, shall not

be affected by the repeals or amendments made by

such section or section 1102, or abated by reason

pies “(b) Civil seizures or forfeitures and injunctive pro-

oeedings commenced prior to the effective date of

> -gection 1101 shall not be affected by the repeals or

amendments made by such section or section 1102, or

tl) abated by. reason thereof.” (Pub. . 91-513 Section

_ The first question then, which was undertaken by the

Petitioners, is what the savings clause was intended to

save, and concurrently, the effect, if any, of this savings

clause on the general savings clause now contained at

1 U.S.C. § 109, which reads?

The ‘repeal of any statute shall not have the effect

ta release or extinguish any penalty, forfeiture, or

liability incurred under such statute, unless the re-

pealing Act shall so

the previously disjointed

provisions (which ranged through Titles 18, 19, 21, 26,

28, 31, 40, 42, 46 and 49). Just as amendatory legislation

can be by implication and intent a de facto repeal, so too,

where. express intent and implied terms of repealing and

repealed acts so indicate, they should be construed as, in

fact, amendatory. United States v. Tynen (1871), 11 Wall.

88, 78 U.S. 88, 20 L. Ed. 153. If so, then giving the

necessary effect to substance over form, and invoking the

rule of strict construction with respect to criminal mat.

ters, 1 U.S.C. § 109 should be deemed not to apply since

it specifically refers only to repeal situations.

To the extent that suspensions of sentence and probation

are judicially imposed by, and subject to the surveillance,

the Court, a distinction can be made as between those dis.

Positions and parole, although the weight of authority ap-

pears to hold them as separate from sentence. See United

States ex rel. Voorhees v. Hill (D. C. Penn., 1934), 6 F.

Supp. 922 at 922, quoting 36 Op. Attys. Gen. 186:

“The suspension of execution of sentence or grant

_ of probation are acts separate and distinct from the

Judgment or sentence of the court and can not be re-

wees ne ee ce ee a

tence. .

—. n

called to the Court's attention.

Parole, on the other hand, is an aspect of the “correc-

tional process”, is obtained through the administrative

process and at the discretion of the Board of Parole, not

ae oe Courts.

Parole arises after the end of the criminal prosecu-

tion, including imposition of sentence. Supervision is

not directly by the court but by an administrative

agency, which is sometimes an arm of the court and

sometimes of the executive.“ [Morrissey v. Brewer,

(1972) —— U.S. ——, 92 8. Ct. 2593 at 2600, ——

L. Ed. 2d ——]. *

Hence, the Anme of parole consideration to narcotics

offenders sentenced after the effective date of the new law,

does not offend the judicial integrity which is sought to

de protected by the savings clauses. Such persons in the

position of the Petitioners and Amici are still convicted and

sentenced under the former provisions.

The general savings clause (and by the application of

the same reasoning, the specific savings clause) has been

— to save only substantive rights and liabilities.

. the Supreme Court, in three cases interpreting

former §13, has held that it saves existing substan-

‘ive rights and liabilities from repeal but does not

pPreserve ‘remedies’ or ‘procedure’ prescribed: in the

- ‘repealed statute. [United States v. Obermeier (Aud

Cir., 1950) 186 F. 2d 243 at 253). f 8

See Great Northern Railway Co. v. United (1907), 208

(1909), 218 U.S, 205, 30 8. Ct. 621, 54 I. Ed 1001; and,

Hallowell v. Commons (1915), 289 U.S. 506, 36 S. Ct. 202

60 L. Ed. 409. | ae ces

The savings clause has also been held not to effect regu-

lations or orders promulgated under a repesled statute,

United States v. Hark, 49 F. Supp. 95 (D. Mass., 1948).

Er application of the reasoning in Obermeier, supra, to

the penal s ‘the “unalterable substantive liabilityg

1186 F. 20 at 254.956), at least as regards the Amici herein,

is the act proscribed in former 21 U.S. C. $§ 173 and 174 and

the penalty therein provided.

If it can be said of probation that:

lacing probationer upon probation did not affect the

finality of the judgment. Probation is concerned with

rehabilitation, not with determination of guilt.” [ Ber-

man v. United States (1937), 302 U.S. 211 at 213, 58

S. Ct 164, at 166].

Then it can be said even more forcefully of parole. Added

to this, are the statements of this Court, that“. . . revoca-

vice & rizing s¢ of sentence outside the peni-

re EPP 192 8. Ct. at 2597]

It can be said in no uncertain terms that, notwithstand-

ing the rights which might attach to parole or probationary

status once granted, parole and probation are privileges

and not substantive rights. It follows, then, that their

denial is not a substantive liability which attaches to the

criminal act and sentence so as to be likewise saved. (See

United States v. Obermeier, supra, 186 F. 2d at 254-255).

Thus, the result urged upon the Court by the Petition-

ers and Amici herein offends the integrity of neither the

former law, the new legislation, nor the judicial process,

POINT Il

The savings clause in the Comprehensive Drug

That the no parole provision is not part of the

prosecution, conviction and sentence, is the argument made

by the Petitioner. Likewise, it is argued above (at Point

I) that as a non-substantive or administrative matter, the

savings clause does not continue its existence.

An additional corollary suggests itself, in effect, that the

Court is afforded the opportunity (constitutionally re-

quired as argued, see Point III) of invoking the parole

provisions as it sees fit. Several recent Courts of Appeal

have expressly or impliedly approved this alternative and

the fact that parole i is not a part of the prosecution, such

that the latter is affected“ (see P. L. 91513, § 1103

)), supports this approval.

a Notwithstanding the acceptance by other Circuits of

United States v. Fiotto (2nd Cir., 1972), 454 F. 2d 252, and

like it, as indicative of a position opposite to that

of the Ninth Circuit in United States v. Stephens (9th

_Cir., 1971), 449 F. 2d 103, and United States v. Fifthian

(9th: Cir., 1971), 452 F. 24 505, see for instance, Page v.

United States (10th Cir., 1972), 459 F. 2d 467, we find a

Stephens, af course, was a situation where the defend-

ant, after being sentenced under the provisions of the old

law, was granted a suspension of sentence and probation.

There is, thus, an additional question not touched upon by

the Amici herein, to wit: can the same argument as made

for parole, be made for judicial suspension of sentence!

However, respecting the parole aspect, it is not clear

that the Second Circuit’s opinion is the antithesis of the

reasoning of Stephens, for that Court merely said, in

Fiotto, that imposition of sentence under 26 U.S.C. § 7237

was correct. ‘The same Circuit had said earlier, in United

States v. Wooden (2nd Cir., 1971), 453 F. 2d 1258:

„Of course, the district court is free to entertain

motions from the parties to reconsider the sentence.

Rule 35, F. R. Crim. P. If such a motion is made,

that Court may then consider United States v.

Stephens, 449 F. 2d 103 (9th Cir., 1971); United

States v. Caraballo, 321 F. Supp. 843 (S. D. N. J. July

19, 1971) aff d without opinion (2nd Cir. Oct. 1, 1971),

and United States v. Fiotto, Doc. 71-1641, currently

pending in this Court, concerning the effect of the

repeal of certain statutory provisions having to do

with sentence. [id. at 1258]

Similarly, the language in United States v. Carr (7th

Cir. 1972), 459 F. 2d 16 at 18-19, indicates that Court is

of the same feeling.

While the overwhelming majority of cases certainly

can be cited in opposition to the principle, it should be

pointed out that in those cases, as in the case at bar, the

question has been presented in a manner lending itself to

the interpretation which the Respondent herein urges. It

the issue in the context of the question: Is a

‘sentence under the former statutory provisions susceptible

to attack under a Rule 35 motion or on direct appeal as an

illegal sentence! In other words, can a defendant de-

mand parole! However, under this argument, we pose to

the Court the additional issue as to whether a sentence

under the old provisions but allowing for parole, is also

legal.

_ POINT III

To conform to the constitutional standards of equal

protection the savings clause of the new law must be

deemed to provide a basis for distinction between de-

fendants other than the effective date of the new

legislation.

Morrissey v. Brewer, supra, elearly determined, as have

other cases, see Mempha v. Rhay (1967), 389 U.S. 128;

Ernest v. Willingham (10th Cir., 1969), 406 F. 2d 681;

- United States v. Hines (10th Cir., 1969), 419 F. 2d 173;

Brown v. Kearney (5th Cir., 1966), 355-F. 2d 173; and Mar-

tin v. United States (4th Cir., 1950), 183 F. 2d 436, that

parolees and probationers have certain basic, constitutional

Tights and that such procedural safeguards attach to the

revocation process, as the particular constitutional right de-

' mands. It would be illogical and unreasonable to assume

that the constitution does not similarly govern the bene-

faction process to the extent that, at the very least, equal

protection under the Fifth and Fourteenth Amendments

must be afforded.

That an otherwise valid statute could not avoid consti-

tutional infirmities is ipse dizit. Legislation cannot vitalize

an otherwise constitutionally debilitated concept. The dis-

tinction or classification between similarly situated persons

in the application of privileges and rights, cannot be arbi-

trary, as in this case. As this Court stated in Baæstrom v.

Herold (1966), 383 U.S. 107 at 111; 88 C. Ct. 760, 15 L. Ed :

2d 620: f

Equal protection does not require that all persons be

dealt with identically, but it does require that a distine.

tion made have some relevance to the purpose for which

the classification is made. Walters v. City of St. Louis,

347 U.S. 321, 237, 74 S. Ct. 505, 509, 98 L. Ed. 660.

This principle applies to persons in the position of the

Petitioners and the Amici herein.

Another way of expressing the same thought, is that the

application of „no parole“ provisions to & sentence subse-

quent to May 1, 1971, becomes the imposition of an uncon-

stitational condition to a sentence, a principle recently

repudiated in Frasier v. Jordan (5th Cir., 1972), 457 F. 2d

726, which was based, in turn, upon this Court’s decisions in

Williams v. Illinois (1970), 399 U.S. 235, 90 S. Ct. 2018,

26 L. Ed. 2d 586; Morris v. Schoonfield (1970), 399 U.S. 508,

90 8. Ot. 2232, 26 L. Ed. 2d 773; and Tate v. Short (1971),

401 U.S. 395, 91 S. Ct. 668, 28 L. Ed. 2d 130,

If there is to be any effective saving of the no parole“

provision it must therefore be on a basis more rational and

less arbitrary than that of a mere date on a calendar. In

effect, with the passage of the Comprehensive Act of 1970,

the legislature created a special class af cases, to wit: those

defendants who are convicted under prior law but sentenced

after the effective date.

In the past, statates revising penalties have contained a

Proviso which avoids the constitutional difficulty

Cases tried prior to the effective date of this Act and

which are before the court for the purpose of sentence

or resentenoe shall be governed by the provisions of law

in effect prior to the effective date of this Act: Pro-

vided, That the judge may, in his sole discretion, con-

ider -cireustances in mitigation and in aggravation and

make a determination as to whether the case in his

opinion justifies a sentence of life imprisonment, in

which event he shall sentence the defendant to life im-

8 Such a sentence of life imprisonment shall

be in accordance with the provisions of this Act.

_ (Bmphasis in the original) ; lid., at page 870]

S0, too, here, the legislation, if it is not to be construed

unconstitutionally, must be implied to contain such a pro-

yision authorizing judicial discretion, and not in a way

as to demand the absolute and discriminatory applications

of the old provisions.

The opinions rendered by this Court in Furman v.

Georgia, No. 69-5003, US. „92 8. Ct. 2726 —— L.

Ed. 2nd —— (1972) and its companion cases, lend them-

selves to this view. Though dealing in the main with the

question of whether the death penalty~is unconstitutional,

the Court also recognized that the issue there is derived

from the ‘‘basic theme of equal protection [92 S. Ct. at

2732, opinion of Douglas, J. J.

This case represents a situation which, if the Respond-

ent’s position is accepted, is violative of the Equal Pro-

tection Clause by its terms, or, if viewed only from the

point of decisional law, is arbitrary in its application. Its

application has none of the attributes of “informed selec-

tivity” [92 S. Ct. at 2754] which might save it, unless this

Court requires them to be read into the terms of the sav-

ings clause by necessary implication.

(a) 1U.S.C.§ 109. 5 5

The principle embodied, perhaps impliedly more than

expressly, in Hamm v. City of Rock Hill, and the his

points up the importance of congressional intent to any

interpretation, that the spirit of the legislation can, and

indeed, should, overcome the word. Just as an unwanted

result should not irrevocably attach to an intended change,

an intended change should not by hypertechnical appli.

cation, decree an unwanted result.

Behind the statute was the common law rule that with

the repeal of an act without any reservation of its pen-

States v. Hark (D.C. Mass: 1943), 49 F. Supp. 15 at 97.

Thus, 1 U.S. $109 was passed to avoid the inadvertent

and absolute application of the rule, and necessarily the

presumption, where the underlying intent was absent.

The distinction between a technical abatement and non-

technical abatement was clearly made by United States v.

Stephens (9th Cir., 1971), 449 F. 2d 103, at page 105, note

6. The general savings clause serves as a stopgap to in.

advertency. But just as avoidance of the inadvertent ap-

i ion of the common law rule was sought, so should the

inadvertent application of the statute where congressional

intent is manifests opposition to such application. There-

fore, by intent, 4 109 should not apply; by reason, it should

not be applied. i

(b) Pub. L. 91-513, 84 Stat. 1236 (nt. to 21 U.S.C. § 171)

As to the purpose and intent of the Comprehensive Drug

use and Prevention Act of 1970, the Congressional re-

_— make this clear:

“If the abuser is to be penalized, he should not be

penalized in the spirit of retribution. The modern con-

cept of criminology should apply—that penalties fit

offenders as well as offenses. . . . When the penalties

involve imprisonment, however, rehabilitation of the

individual, rather that retributive punishment, should

be the major objective.” [House Report No. 91-1444,

U. S. Code, Congressional and Administrative News,

1970, Vol. 3, page 4575

Indeed, in that same report, under the caption, Princi-

pal Purpose of the Bill“, was written, This legislation

is designed to deal in a comprehensive fashion with the

growing menace of drug abuse in the United States.

(3) by providing for an overall balanced scheme of crimi-

nal penalties for offenses involving drugs.” [id., at page

4567]. But the effect given it by most of the cases of

persons in the positions of the Petitioners and the Amici,

is precisely the opposite in this regard as among persons

guilty of similar acts. It has become a situation even

more disparate and retributive by virtue of the judicial

non-recognition or misapplication of this new legislation.

To quote further from the indicators of Congressional

intent:

“The severity of existing penalties, involving in many

instances minimum mandatory sentences, have led in

many instances to reluctance on the part of prosecu-

tors to prosecute some violations, where the penalties

». Beem to be out of line with the seriousness of the of-

fense. In addition, severe penalties, which do not

take into account individual cireumstances, and which

And, diseussing the bill in terms of the Prettyman Com-

mission and Katzenbach Commission Recommendations, it

was stated, respectively:

“12. The Commission recommends that the penalty

provisions of the Federal Narcotics and marijunna

laws which now prescribe mandatory minimum sen-

tences and prohibit probation and parole be amended

to fit the gravity of the particular offense so as to

provide a greater incentive for rehabilitation.

Action. As discussed earlier in this report, elimina-

tion of almost all mandatory sentences, as well as

elimination of the prohibition against probation and

parole of narcotic offenders, is accomplished by this

bill.“ IId, at p. 4585] 6

(3) Recommendation. State and Federal drug laws

should give a large enough measure of discretion to

the courts and correctional authorities to enable them

to deal flexibly with violators, taking account of the

nature and seriousness of the offense, the prior record

of the offender and other relevant circumstances.

Action. The penalty structure set forth in the re-

Ported bill provides a flexible system of penalties for

Federal offenses, in accordance with both this recom-

mendation and recommendation No. 12 of the Pretty-

ane Commission. The recommended Model State

law also contains similar provisions. [Id., at p. 4587-

4588]

It is clear that Congress has the power to create the

effect: we argue here, that is, to abate the application of

the parole denial statute vis-a-vis pending convictions

which are still susceptible of direct action or relief. As

stated in Hamm v. City of Rock Hill, supra, 379 U.S. at

316: U

In our view Congress clearly had the power to ex-

tend immunity to pending prosecutions . . . We have

found Congress has . power to extend the statute

to pending convictions .

The congressional intent and purpose expressed in the

above-quoted reports certainly evidences such an extension

of immunity. But even absent such expressions of intent,

the abatement of the ‘no parole” provisions should be read

into the new legislation. Again, an stated by thig Court in

the Hamm case, cited earlier:

It is apparent that the rule exemplified by Cham-

bers“ does not depend on the imputation of a specific

intention to Congress in any particular statute. None

of the cases cited drew on any reference to the prob-

lem in the legislative history or the language of the

_ Statute. Rather the principle takes the more general

in the rule, is to be read wherever applicable as part

of the background against which Congress acts.“

1879 U.S. at 313]

Certainly; Congress had no intention to remove criminal

sanction from the particular illegal acts, and for this

reason, the savings clause had to be included, But the

Congress’ did intend to adjust the methods by which the

particular ‘sanctions are applied and the savings clause

must not be construed to frustrate in part or in whole this

Congressional purpose. Congress, in passing the savings

clause, was interested, in sustaining, not parole denial,

but rather the criminal liability for such acts as covered

by the repealed statutes.

It follows from this argument, that the application of

no parole“ provisions becomes excessive and no longer

serves a valid legislative purpose. Thus, this argument

may be extended to the constitutional level that imposition

of the no parole“ provisions is violative of the Eighth

Amendment's proscription of cruel and unusual punish-

ment. See Furman v. Georgia, No. 69-5003, 92 S. Ct. 2726

(1972), the opinions of Douglas, J. and Brennan, J.

CONCLUSION

For the reasons herein stated the amici request that

Fee hy day agahek phere § 7237 @

1 the bar to parole to

s sentenced after May 1, 1071, *

Respectfully submitted,

Inwin Kiem .

Two Park Avenue

New York, New York 10016

Dated: New York, N. Y., January 2, 1973.

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Jyllabus

BRADLEY er au. v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

kx FIRST CIRCUIT

No. 71-1304. Argued January 8, 1973—Decided March 5, 1973

On May 6, 1971, petitioners were convicted and sentenced for nar-

cotics offenses committed in March 1971. They received the

minimum five-year sentences under a provision that was mandatory

and made the sentences not subject to suspension, probation, or

parole. Effective May 1, 1971, that provision was repealed and

liberalised by the Comprehensive Drug Abuse Prevention and

Control Act of 1970. On petitioners’ motion for vacation of their

sentences and remand for resentencing, the Court of Appeals held

that the new provisions were unavailable in view of the Act’s saving

clause, which made them inapplicable to “prosecutions” antedating

the Act’s effective date. Held:

1, The word “prosecutions” in the saving clause is to be accorded

its normal legal sense, under which sentencing is a part of the

dondept of prosecution. Therefore, the saving clause barred the

“District Judge from suspending sentence or placing petitioners on

2. Under the saving clause, parole under 18 U. S. C. § 4208 (a)

is likewise unavailable to petitioners, since by its terms that pro-

vision is inapplicable to offenses for which a mandatory penalty is

provided; and, in any event, a decision to grant early parole under

‘that provision must be made upon entering a judgment of

conviction,” which occurs before the end of the prosecution. Pp.

58-8.

2 T. 20 1181, affirmed.

~~ "Manaimats,, J., delivered the opinion of the Court, in which Bunazn,

» — 4emmed, and in Part I of which Brennan and Warrs, II., joined.

_- - SBaunnan and Wurrs, JJ., filed a statement concurring in the judg-

ment. Dovatas, J., filed a dissenting opinion.

5 eee are

Westie OS, Soph ay . the pre-

goes to press.

SUPREME COURT OF OF THE UNITED STATES

No. “71-1304

Charles B. Bradley, Jr, et al., On Writ of Certiorari to

Petitioners, the United States Court

* of Appeals for the First

United States. Circuit.

[March 5, 1973]

Mr. Justice Mans delivered the opinion of the

In this case we must decide whether a District Judge

may impose a sentence of less than five years, suspend

the sentence, place the offender on probation, or specify

that he be eligible for parole, where the offender was

convicted of a federal narcotics offense that was com-

mitted before May 1, 1971, but where he was sentenced

after that date. Petitioners were convicted of conspir-

ing to violate 26 U. S. C. §4705(a) (1964 ed.) by

selling cocaine not in pursuance of a written order form,

in violation of 26 U. S. C. 3 7237 (b) (1964: ed. and

Supp. V). The conspiracy occurred in March 1971. At

that time, persons convicted of such violations were sub-

ject. to a mandatory minimum sentence of five years.

The sentence could not be suspended, nor could proba-

tion be granted, and parole pursuant to 18 U. S. C. § 4202

was unavailable. 26 U. S. C. § 7237 (d) (1964 ed. and

Supp. V). These provisions were repealed by the Com

| prehensive Drug Abuse Prevention and Control Act of

1970, Pub. L. 91-513, 84 Stat. 1236, 21 U. S. C. § 801

et seq. The effective date of that Act was May 1, 1971,

five days before petitioners were convicted.

On appeal to the Court of Appeals for the First Circuit,

| not. here were raised. Following

ute, 57237 (d) is o be treated as still remaining in

foroe.“) 455 F. 2d 1181, 1190, 1191. ‘Accordingly, the

Court ‘of Appeals held that the trial judge lacked power

to impose a lesser sentene. N

V Petitioners Bradley, Helliesen, and Odell were found guilty also

ing u firearm during the commission of felony,

18 U. 8. C. $924 (e) (2). Each’ was sentenced to

placed on: probation for three years on these counts.

* Bee aleo United States v. McGarr, 461 F. 2d 1 (CA7 1972);

United States v. Fiotto, 454 F. 2d 252 (CA2 1971).

BRADLEY v. UNITED STATES 3

in the highest court authorized to review them. See

Bell v. Maryland, 378 U. S. 226, 230 (1964); Norris v.

Crocker, 13 How. 429 (1851). Abatement by repeal in-

cluded a statute’s repeal and re-enactment with different

penalties. See 1 J. Sutherland, Statutes and Statutory

Construction § 2031 n. 2 (3d ed. 1943). And the rule

applied even when the penalty was reduced. See, e. 9.,

The King v. M’Kenzie, 168 Eng. Rep. 881 (K. B. 1820);

Beard v. State, 74 Md. 130, 21 A. 700 (1891). To avoid

such results, legislatures frequently indicated an inten-

tion not to abate pending prosecutions by including in

the repealing statute a specific clause stating that pros-

ecutions of offenses under the repealed statute were not

to be abated. See generally Note, Today's Law and

Yesterday’s Crime: Retroactive Application of Amelio-

rative Criminal Legislation, 121 U. Pa. L. Rev. 120, 121-

130 (1972).

Section 1103 (a) of the Comprehensive Drug Abuse

Prevention and Control Act of 1970 is such a saving

clause. It provides:

“Progecutions for any violation of law occurring

prior to the effective date of [the Act] shall not be

affected by the repeals or amendments made by

lit! . . or abated by reason thereof.”

Petitioners contend that the word “prosecution” in

$1108 (a) must be given its everyday meaning. When

people speak of prosecutions, they usually mean a pro-

ceeding that is underway in which guilt is to be deter-

mined. In ordinary usage, sentencing is not part of the

prosecution, but occurs after the prosecution has con-

cluded. In providing that “prosecutions . . shall not

be affected,” § 1103 (a) means only that a defendant

may be found guilty of an offense which occurred before

May 1, 1971. The repeal of the statute creating the

offense does not, on this narrow interpretation of 3 1103

4 BRADLEY v. UNITED STATES

(a), prevent a finding of guilt... But § 1108 (a) does noth-

ing more, according: to petiti hs a |

» Although: :

believe: that ‘their position’ is not:-consistent..with Con.

“prosecution” clearly im-

porte a beginning and an end. Cf. Kirby v. Illinois, 406

U. S. 682 (1972); Mempa v. Rhay; 389 U. B. 128 (1967).

In Berman v. United States; 302 U. 8. 211 (1037), this

Court said, Final judgment in à criminal case means

sentence. The sentence is the judgment. Miller v.

Aderhold, 288 U. 8. 206, 210; Hull v. Wampler, 298 U. 8.

460, 464. Id., at 212. In the legal sense, a prosecution

terminates only when ‘sentence is imposed. See also

Korematsu v. United States, 319 U. S. 432 (1943) ; United

States v. Murray, 275 U. S. 347 (1928) ; Affronti v. United

States, 360 U. S. 79 (1955). 80 long as sentence has

not been imposed, then, § 1103 (a) is to leave the prose-

BRADLEY v. UNITED STATES 5

no power to consider suspending petitioners’ sentences

or placing them on probation. Those decisions must

ordinarily be made before the prosecution terminates,

and § 1108 (a) preserves the limitations of § 7237 (d) on

decisions made at that time.

The courts of appeals that have dealt with this prob-

lem have failed, however, to consider fully the special

problem of the parole eligibility of offenders convicted

before May 1, 1971. The Seventh and Ninth Circuits

hold that such offenders are eligible for parole.“ The

First Circuit in this case stated that petitioners were

“inéligible for suspended sentences, parole, or probation.”

455 F. 2d 1181, 1191 (emphasis added).

In the federal system, offenders may be made eligible

for parole in two ways. Any federal prisoner “whose

record shows that he has observed the rules of the insti-

tution in which he is confined, may be released on parole

after serving one-third of” his sentence. 18 U. S. C.

§ 4202. Alternatively, the District Judge, [u] pon enter-

ing a judgment of conviction, ... may (1) designate in

the sentence of imprisonment imposed a minimum

term at the expiration of which the prisoner shall

become eligible for parole, which term may be less

than, but shall not be more than one-third of the maxi-

mum sentence imposed by the court, or (2) the court

may fix the maximum sentence of imprisonment to be

— in’ which event the court may specify that the

7 2, supra. We: wore informed at oral argument that “the

Board of Parole is now considering as eligible for parole only de-

fendants who have been sentenced in the Seventh and Ninth Cir-

cuits for narcotics offenses.” Tr. of Oral Arg., at 23. Our dispo-

sition of this case has no bearing on the power of the Board of

Ses infra, —

(a).

BRADLEY v. UNITED STATES 7

Mr. Justice Brennan and Mr. Justice Wars join

Part I of the Court’s opinion and would affirm for the

reasons there expressed. They are also of the view that

§ 1103 (a) forecloses the availability of parole under both

18 U. S. C. § 4202 and 18 U. S. C. § 4208 (a), and that

even if this were debatable as to § 4202, that the general

savings statute, 1 U. S. C. § 109 clearly mandates that

conclusion as to that section. They therefore do not

join Part II of the Court's opinion.

SUPREME COURT OF THE UNITED STATES

No. 711304

r et al, On Writ of Certiorari to

Petitioners, the United States Court

v. a of Appeals for the First

United States. Circuit.

[March 5, 1973]

Mr. Justice Dova.as, dissenting.

The correct interpretation of the word “prosecutions”

as used in § 1103 (a) of the 1970 Act was, in my view,

the one given by the Court of Appeals of the Ninth Cir-

euit in United States v. Stephens, 449 F. 2d 103, 105:

Prosecution ends with judgment. The purpose

of the section has been served when judgment under

the old Act has been entered and abatement of pro-

ceedings has been avoided. At that point litigation

has ended and appeal is available. Korematsu v.

United States, 319 U. S. 432, 63 S. Ct. 1124, 87

L. Ed. 1497 (1943). What occurs thereafter the

manner in which judgment is carried out, executed

or satisfied, and whether or not it is suspended in

no way affects the prosecution of the case.”

‘The. problem of ambiguities in statutory language is

not peculiar to legislation dealing with criminal matters.

And the question as to how those ambiguities should be

resolved ‘is not often rationalized. The most dramatic

illu ration at least in modern times is illustrated by

v. United States, 346 U. S. 273, where a divided

P. SRA SN

life, not in its favor. The instant case is not of that

| proportion but it does entail the resolution of unspoken

sumptions— those favoring the status quo of prison

systems as opposed to those who see real rehabilitation

as the only cure of the present prison crises. As Mr.

Justice Holmes said, “judges do and must legislate, but

they ean do so only interstitially; they are confined from

molar to molecular motions.” Bouthern:Pavific Co. v.

Jensen, 244 U. S. 205, 221.“

Judges do not make legislative policies. at in e

struing an ambigious word in a criminal code I would

try to give it a meaning that would help reverse the long

trend in this Nation not to consider a prisoner a “person”

in the constitutional sense. Fay Stender writing in

Maximum Security (1972) p. Ke eu of

the “tremendously sophisticated defenses against the least

„dete Holmes also said:

a e of tthe he ie luise And this in

VVV

been the law is in fact new. It is legislative in its grounds. The

very considerations which the courts most rarely mention, and always

with an apology; are the secret root from which the law draws all

eee We mean; e ee ore oma adil

BRADLEY v. UNITED STATES 3

increase in the enforceable human rights available to the

prisoner.” |

A less strict and rigid meaning of the present Act would

be only a minor start in the other direction. But it is

one I take.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.