Opposition Brief — United States ex rel. Russo v. Nierstheimer

SUBJECT INDEX.

PAGE

Bhatemant oF Che Gad c.o:6 ei oss caadc bi canes sennesnns 1-3

Argument:

I. Petitioner’s contentions do not raise a substan-

tial federal question ................2.005- 3-9

Tasie or U. S. Cases Crrep.

Anderson v. Corall, 263 U. S. 193 ..............2005- 5

Zerbst v. Kidwill, 304 U. S. 359 2.0.2... . cece eee eees 5

TaBLE OF OTHER Cases CITED.

Dolan v. Swope, 7th Cir., 138 Fed. (2d) 301 ........ 7

Miller v. Evans, 115 Ia. 101, 88 N. W. 198 .......... 7

People v. Crowe, GT Gb Gb cick cc cccccec sees vin 4

PO Wa. TI Se Be Ge 64 60h 5 ven cei cea shad 8

People v. Mallary, 195 Dl. 582 .................4..8. 8

People v. McKinley, 371 Ill. 190 .............s0000. 8

People v. Ragen, 392 Ill. 423 .............ceeccces 7

PUPS V.. FOU, SEO Bik Oe 6 anh cad cdonweccdcaceuvan 4

Reed v. Colpoys (D. of C.), 99 Fed. (2d) 396 ........ 7

U.S. ex rel. Howard v. Ragen, 59 Fed. Supp. 376.... 8

U. S. ex rel. Kimler v. Ragen, 147 Fed. (2d) 197 .... 7

U. S. ex rel. Turner v. Bennett, 7th Cir., 153 Fed.

GENTE Svccand on 0kedesa beunduahs badge netaune we 7

Whitten v. Bennett, 7th Cir., 141 Fed. (2d) 295 ...... 7

Sratutes CIrrep.

Ill. Rev. Stats. 1935, Ch. 38, par. 808 ................ 4

ee

IN THE

Supreme Court of the United States

Ocroser Trem, A. D. 1945

No. 1286

THE UNITED STATES ex rel. ANGELO RUSSO,

Petitioner,

vs.

WALTER NIERSTHEIMER, Warden, Illinois State

Penitentiary, Menard Branch,

Respondent.

BRIEF AND ARGUMENT FOR RESPONDENT IN

Ne et TO PETITION FOR WRIT OF CER-

i .

STATEMENT OF THE CASE.

Since respondent has not been furnished a printed or

otherwise paged copy of the transcript of record filed in

this court, all references are to the pages in the printed

transcript of record filed in the United States Circuit Court

of Appeals for the Seventh Circuit.

The facts, which are not in dispute, are fully, concisely

and accurately stated in the findings of the District Court.

Those findings are as follows, verbatim:

Anes, mene ae

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2

The legality of his (petitioner’s) original sentence is

not challenged or pact ne in this proceeding.

The crime for which the petitioner was convicted and

sentenced carries a penalty under the Illinois laws of

from one to ten years.

Upon the conviction of petitioner, he was taken from

the Bar of the Court and delivered to the Warden of the

Illinois State Penitentiary (Menard Branch).

On July 1, 1936, he was ordered paroled and on his

application for out-of-state — he was ordered to do

parole in the State of New Jersey, and pursuant he left

the Penitentiary and went to the State of New Jersey on

or about July 1, 1936.

On December 8, 1936, he was convicted of the crime of

Assault and battery in the State of New Jersey, receiving

a six months sentence.

On December 24, 1936, the Illinois Parole Board issued

a parole violation warrant and on January 22, 1937, de-

clared the petitioner by its order to be a defaulter on his

out-of-state parole. The petitioner on the date the war-

rant was issued was serving time in New Jersey on the

above sentence.

The above parole violation warrant was filed with the

New Jersey officials having the petitioner in custody as a

detainer. January 24, 1937, the Illinois Penitentiary

officials refused to execute the warrant on the ground that

such officials had ne travel expenses. Petitioner at the

expiration of his sentence in New Jersey was released.

The petitioner thereafter remained at liberty until

about January 11, 1939, when he was convicted of the

crime of ‘‘Breaking with Intent’’ in the State of New

Jersey, receiving a sentence of from five to fifteen years

in the New Jersey Penitentiary.

On January 30, 1939, the Illinois Parole authorities

issued a duplicable parole violation warrant and filed

same as a detainer with the New Jersey Penitentiary

officials.

On December 21, 1942, the Petitioner having been re-

leased from the New Jersey Penitentiary, waived extra-

dition and was returned to the State of Illinois.

On January 11, 1 after petitioner was returned to

Illinois, he was heard by the Parole declared to

be a violator and passed for the maximum of his sentence

which the Parole Board computes, will expire on Sep-

tember 2, 1947.

At the time the petitioner filed his petition for a habeas

corpus in this Court more than ten years had expired

from the date of his original sentence.

The petitioner is now in the Hlinois State Penitentiary

(Menard Branch) in the custody of a who

detains him under the original sentence. (Tr. pp. 32-33.)

ARGUMENT.

I.

Petitioner’s contentions do not raise a substantial federal

question.

Petitioner’s argument may be briefly stated as follows:

He contends that since Illinois officials failed to apprehend

and reincarcerate him for his first violation of his parole,

which was a simple assault and battery, therefore Illinois

lost the right to take any cognizance of his second parole

violation, which was the crime of a felonious burglary. He

further contends that, although Illinois declared him to be

a violator and issued a warrant for his arrest on his first

violation, its failure to execute that warrant until he had

committed a second and far more serious violation, for

which a warrant was also issued, endows him with a con-

stitutional immunity to service of the remainder of his

original sentence on account of either his first or second

breach of faith with the State. :

The State of Iinois computes the time served by peti-

tioner actually by confinement in the penitentiary and con-

structively by allowance of credit to petitioner for time

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4

spent on parole prior to his first violation thereof, as

follows:

May 13, 1935 to July 1, 1936 — lvyr.1 mo. 18 days.

(date of entry into (date of release on

Illinois State Pen- parole)

itentiary)

Credit for time from

July 1, 1936 to December 8,1936 — 5 mo. 8 days,

(date of parole) (date of conviction

for first violation)

Time served from

December 21, 1942 to July 24, 1945 — 2 yrs. 7 mo. 3 days.

(date of return to (date of filing

Illinois State Pen- instant petition)

4 yrs. 2 mo. 1 day

Incidentally, it should be emphasized, as we have noted

above, that although Illinois is not required by the United

States Constitution to do so, and the Federal government

would not do so if petitioner were a Federa! and not a state

prisoner (cf. Zerbst v. Kidwill, 304 U.S. 359), Illinois gives

petitioner credit not only for all of the time actually served

behind prison walls, but also for all of the time that peti-

tioner was at large upon parole until his first violation of

such parole. The authorities have also allowed petitioner

time off for good behavior notwithstanding the fact that

he has not behaved well.

Therefore, although petitioner contends that Illinois’

treatment is so cruel and unusual as to violate the Federal

constitution, it appears that petitioner will be released

when he has served only six years and three months of a

ten-year sentence, of which service five months and eight

days are credited for time during which he was on parole

and of which only five years, nine months and twenty-two

days will have been served within prison walls. It is sub-

1 This is in accordance with applicable Illinois statutes. Ill. Rev. Stats.

1935, Ch. 38, par. 808. See People v. Crowe, 387 Til. 53; Purdue y. Ragen,

375 Ill. 98 and The People v. Dixon, 387 Ill. 420.

a Et AEG ALLIED

5

mitted that the most forcible refutation of petitioner’s con-

tention is a clear statement thereof.

Petitioner’s contention is in direct conflict with this

court’s decisions in Anderson v. Corall, 263 U. S. 193 and

Zerbst v. Kidwill, 304 U. S. 359.

In Anderson v. Corall, cited above, this court considered

on habeas corpus the case of a prisoner who, while on

parole from the Federal penitentiary, was convicted of a

crime against Illinois and sentenced to the Illinois peni-

tentiary. The prisoner was not rearrested by Federal

authorities until after the service of his sentence in Illi-

nois, by which time the period of his original Federal

sentence would have expired if he had served that sentence.

But this court held that he had not served it. Although this

court recognized that a prisoner ‘‘while on parole”’ and

therefore ‘‘in the legal custody and under the control of

the warden,’’ so that such custody is ‘‘in legal effect im-

prisonment,”’ nevertheless it held that ‘‘violation of the

parole, evidenced by the warden’s warrant and his con-

viction, sentence to and confinement in the Joliet peni-

tentiary, interrupted his service under the sentence here in

question,’’ so that the prisoner’s violation of the parole

‘‘was in legal effect on the same plane as an escape from

the custody and control of the warden.”’ (p. 196.) The

court then held that, the prisoner having voluntarily inter-

rupted constructive service of his sentence outside prison

walls by violating his parole, he might be rearrested after

the expiration of the time during which his sentence would

have run if he had remained in the penitentiary or had

properly conducted himself while at large on parole.

To the same effect is Zerbst v. Kidwill, 304 U. S. 359.

A number of prisoners, while on parole from Federal peni-

tentiaries, committed further offenses, for which latter

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offenses they were convicted and received sentences. Upon

these latter sentences they were returned to the same peni-

tentiary from which they had been parolled. They con-

tended that after the expiration of their second sentence,

they could not be again or further inearcerated on account

of their original sentences. This court, holding the con-

trary and speaking through Mr. Justice Black, said, at

page 363:

‘*“* * * Unless a parole violator can be required

to serve some time in prison in addition to that imposed

for an offence committed while on parole, he not only

escapes punishment for the unexpired portion of his

original sentence, but the disciplinary power of the

Board will be practically nullified. If the parole laws

should be construed as respondent contends, parole

might be more oscmen y| granted, contrary to the

broad humane pur of ongress to grant ief from

imprisonment to rving prisoners.”’

But petitioner seeks to avoid the service of his sentence

by adverting to the fact that, after his first parole viola-

tion in New Jersey, Illinois’ administrative agents did not

rearrest him and transport him from New Jersey to Illinois

because they were without funds appropriated for that

purpose.

The answer to this argument is that this court has

held that the status of a parole violator may constitu-

tionally be regarded as that of an escaped convict.

(Zerbst v. Kidwill; Anderson v. Corall, both cited above.)

It is not only the privilege but the duty of an escaped

convict to return voluntarily and submit to the service of

the unexpired portion of his sentence. The Illinois Supreme

Court holds, and its holding is controlling here unless this

court can say that it is so unreasonable as to deny due

process, that a prisoner who violates the conditions upon

which he is enlarged is required, voluntarily and under his

7

own initiative, to return to prison. He in effect promises

to do so by going at large. He has only himself to blame

if he does not keep the promise that gained him conditional

freedom and can obtain no rights because the Illinois au-

thorities fail to pursue and rearrest him. The Illinois rule is

set forth in the case of The People v. Ragen, 392 Il. 423, in

language found at pages 427-428 and quoted in the

margin.”

The contention that Illinois parole violators are entitled

to their freedom if they are not arrested promptly after

their violation has been repeatedly presented by such

prisoners to the United States Circuit Court of Appeals.

Although the decisions of that court are not authoritative

here, the well reasoned opinions in the following cases

decided by the Cireuit Court of Appeals for the Seventh

Cireuit are in point by their logic: Whitten v. Bennett,

Tth Cir., 141 Fed. (2d) 295; U. S. ex rel. Turner v. Bennett,

Tth Cir., 153 Fed. (2d) 292; U. S. ex rel. Kimler v. Ragen,

147 Fed. (2d) 197; Reed v. Colpoys (D. of C.), 99 Fed. (2d)

396; similar contentions in Dolan v. Swope, 7th Cir., 138

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These cases sustain as valid under the Federal constity-

tion the well settled Illinois rule that a parole violator may

be returned at any time even though his sentence would

have expired had he served it in prison, and even thongh

state officials have neglected or even refused to take affirm-

ative steps to apprehend him. The Illinois rule is stated in

People v. Dixon, 387 Ill. 420; The People v. McKinley, 371

Ill. 190; The People v. Mallary, 195 Thi. 582.

Petitioner’s counsel exploits to the uttermost the de-

cision of District Judge Shaw in U. S. ex rel Howard y,

Ragen, 59 Fed. Supp. 376. This decision was the result of

an inadvertent, most unfortunate and wholly baseless con-

cession on the part of an Illinois assistant attorney gen-

eral, who stated to Judge Shaw that under the laws of

Illinois, there was no way in which a prisoner who had once

violated his parole might thereafter, though repentant and

contrite, expiate his offense by returning to the penitenti-

ary and submitting himself to imprisonment for the hal-

ance of his term if the State officers did not actively pursue

and rearrest him. This assistant attorney general even

went so far as to indicate that even if a prisoner voluntarily

returned to Illinois and sought by mandamus to compel the

warden to reincarcerate him so that he might pay his debt

to society, nevertheless under Dlinois law such relief would

be refused; and that he would be told that he must, until

the end of his days, anticipate that at any moment he would

be again locked up for an indefinite period of time if the

authorities should elect to rearrest him. With such a state-

ment in the record from an assistant attorney general,

it is not entirely startling that Judge Shaw found want of

due process. But there is no support whatever for this

view of the Illinois law.

The contention of counsel for the petitioner in the instant

ease is predicated entirely upon the premise, regretahly

9

conceded by the state in the case before Judge Shaw but

never conceded in this case, that a prisoner is, in the

language of the instant petitioner’s counsel, ‘‘on a string”’

for the rest of his days if he once violates parole. This

premise is simply without the slightest support in the law

of Illinois.

We may note in passing that in any event, in the case

before Judge Shaw the prisoner’s sentence would have

expired by its own terms before he was rearrested. All that

Judge Shaw held (and his holding has been three times

overruled by the Circuit Court of Appeals for the Seventh

Circuit, see cases cited above) was that after the time dur-

ing which the sentence would have expired by tts terms,

a prisoner might be reincarcerated. Although we do not

agree with Judge Shaw’s decision on that point, the case

before him is quite distinguishable from the instant case;

for in the case at bar the period for which petitioner was

sentenced had not expired when petitioner was rearrested,

and even under Judge Shaw’s decision, on which counsel

for the instant petitioner so heavily relies, the instant pet.

tioner would be subject to rearrest and reincarceration.

The Illinois decisions cited above, all of which are

directly in point and are conclusively adverse to the peti-

tioner’s contentions, must govern this case unless this

court can say that the rule which they announce is so un-

reasonable as to offend a civilized sense of justice. That

rule, so far as it is applicable here, is that a prisoner who

violates his parole must return to the Illinois State Peni-

tentiary and complete the service of his sentence or be

subject to rearrest and reincarceration, notwithstanding

the fact that the prisoner might have been arrested sooner

for a previous viclation of his parole. We submit that this

rule is constitutional and should be sustained.

vee

10

In conclusion, it should be observed that petitioner twice

violated his parole. He asserts that the failure promptly

to.rearrest him for the first violation of his parole was the

waiver of right to rearrest him not only for that first

violation, but also for any subsequent violation of parole.

In other words, what petitioner really contends is not

only that, when parole authorities fail to arrest him

promptly for a first violation of parole, he acquires a pre-

scriptive right to violate his parole as often as he pleases

but further that this supposed right is protected by the

Fourteenth Amendment to the Constitution of the United

States.

It is submitted that this contention does not raise a sub-

stantial Federal question and that therefore certiorari

should be denied.

Respectfully submitted,

Grorce F. Barrett,

Attorney General of the State of Illinois,

Attorney for Respondent.

Wim C. Wrxzs,

Assistant Attorney General,

Of Counsel.