MCGINNIS v. ROYSTER
Legal provision: Equal Protection
Argument of Michael Colodner
Chief Justice Warren E. Burger: Mr. Colodner.
Mr. Michael Colodner: Mr. Chief Justice and may it please the Court.
The issue in this case is what is the role of federal courts in examining state statutes which relate to the internal and prison administration and what is the scope of this role within the Equal Protection Clause.
Now, the appellees in this case are inmates of state prisons.
Each of them was arrested and spent time in the county jail prior to trial because they could not post bail.
The appellee, Mr. Royster had been indicted for burglary and had spent 11 months in jail in 1965 to 1966.
Mr. Rutherford had been indicted and convicted of robbery in the first degree.
He had spent eight months in jail in 1966.
Under provisions Section 230(3) of the Correction Law, he received no credit for a good behavior for this period of pre-trial incarceration.
He did receive credit for the amount of time on his full sentence that he spent there but he was not allowed to earn good behavior time.
Chief Justice Warren E. Burger: How does the state institution go about evaluating the good behavior of a man who is not in their custody?
Mr. Michael Colodner: There is no way for the state to evaluate the good behavior of a man was is not in their custody.
Chief Justice Warren E. Burger: But you want credit for it even though they have no way of evaluating it, isn’t that the essence of this case?
Mr. Michael Colodner: The essence of this case is that plaintiffs say that they wish to be credited for this time and the state contends —
Chief Justice Warren E. Burger: Would this be an irrebuttable presumption that during the 11 months period this behavior was good as defined by the state institution?
Mr. Michael Colodner: Well, if we were to accept the reasoning of the District Court judge we would have to -- may have any irrebuttable presumption to that fact.
There is no —
Chief Justice Warren E. Burger: Even though his behavior might have been such as in the state institution, it would be rated as very bad.
You concede that, I take it, that that might be the consequence.
Mr. Michael Colodner: That is true, but the real problem with this case presents is that the concept of good behavior in a county jail over and apart from the supervisory problem and the evaluation problem is totally different from the concept of good behavior in a state prison after someone has already been convicted and is now part of a rehabilitation program.
That was in fact demandable for rehabilitation.
If someone is in the county jail and he is arrested is presumed innocent, there seems to be no — certainly there is no need for the state or the county, or any political entity to institute a rehabilitation program for someone who is presumed innocent and is presumed to have no need for rehabilitation at all.
It is only after he has been convicted that not only does the state presume the need but the individual inmate.
Now it is in the proper attitude to presume that he can be reformed and rehabilitated.
Chief Justice Warren E. Burger: Is there any classification process, at the detention level, as have the state level when they get into the penitentiary, do they undertake to classify people in categories of either skills or psychological--
Mr. Michael Colodner: Your Honor, there is an orientation program when someone reaches the state penitentiary he goes to a receiving center.
Chief Justice Warren E. Burger: No, but in the jail I am speaking of.
Mr. Michael Colodner: There is nothing in the county jails at all.
You are detained, you cannot make bail, you are put in the cell and if by some fortuitous circumstances the local institution has some type of recreation available or some type of small —something or other if the inmate is lucky enough to be able to partake in that while he is waiting there for his trial.
Unknown Speaker: That's true of every county in part of the New York?
Mr. Michael Colodner: Some counties have absolutely nothing, some have a little something, it depends on --
Unknown Speaker: (Inaudible).
Mr. Michael Colodner: It is very -- very often it is nothing more but we have this problem, there are inmates in county jails who are serving misdemeanor sentences.
County jail very often outside the New York City serves a dual function.
It detains people waiting for trial and then also detains people who have been convicted and are serving sentences of one year or less.
Chief Justice Warren E. Burger: Are there some counties in New York or some places where they have as a detention center, something less than a jail or in the nature of dormitories or is that some of the state have them?
Mr. Michael Colodner: I am not aware of that.
We do have a system now where we only have sentences served on weekends, but I do not — you are really talking about a minimum security type of institution and with pretrial detainees I do not think that we have anything like that.
This is a post conviction, after an evaluation is made by the state correctional people.
Unknown Speaker: Mr. Colodner, going thorough the mathematics of this argument, I take it that when it comes down to difference between you and your opposition, is one third of the jail time, I think mathematically this is where the argument comes out, and that's all your argument is about.
Mr. Michael Colodner: Well, we are arguing about at most two or three months.
Unknown Speaker: Well it is one third of the jail time and I am sure algebraically this is what it comes out.
Mr. Michael Colodner: About one third of the jail time.
Unknown Speaker: Now, let me ask you, not only about I think it is one third of the jail time.
Mr. Michael Colodner: Okay.
Unknown Speaker: Is there a possibility of mootness here?
Mr. Michael Colodner: There is no possibility of mootness at all.
Unknown Speaker: But Rutherford is already have his date come and go, is it not?
Mr. Michael Colodner: No, Royster had his date come and go.
Rutherford has his dates set for January 23rd 1973, but this is a class action Your Honor.
It affects the entire class of prisoners who have been imprisoned prior to 1967 or have been arrested prior to 1967.
Unknown Speaker: But is this true as to all name members of the class?
Mr. Michael Colodner: Yes.
Well, the two name members of the class are also pre 1967 prisoners.
Unknown Speaker: But aren’t they -- don’t they have their date.
One of them already has passed and the other one is coming up in a month.
Mr. Michael Colodner: That is true.
Unknown Speaker: Certainly, probably before this Court can decide the case.
Mr. Michael Colodner: That’s true but we have the situation as this Court faced in Dunn versus Blumstein.
We have a statute that is — enforcement in which is capable of repetition yet escaping review.
We do a have a substantial number, we have over -- we have 2,322 old law prisoners remaining in state prison all of whom are affected by the former Correction Law.
Of this group, I would say at least 200-300 are affected by this very provision because anyone who is arrested or had committed a crime subsequent between 1963 and 1968 say and it was a serious crime, it was a murder or a robbery in the first degree or there were multiple offenders, every single one of these people would be affected by the this law and would not have reached their minimum date at all.
Unknown Speaker: Well, I take the view on behalf of the state is not raising the question of or not raising the --
Mr. Michael Colodner: We can't raise the question of mootness because we have a class order action against us and if this case were to be moot we would have our statute declared unconstitutional.
Unknown Speaker: Yes, but is that the answer to what if all your name parties are out?
Mr. Michael Colodner: Well then our basic problem would be as soon as the name parties are out, another name party would come right in.
I myself have the case pending in the District Court awaiting disposition of this case involving someone who comes right under this statute.
Unknown Speaker: Would this second party now released where he did prevail in this case?
The one who has the January 23 date.
Mr. Michael Colodner: He would not necessarily be released that just means that he would meet his parole board at that particular point.
The basic problem that really happened with this case is that the District Court misunderstood the concept of --
Unknown Speaker: That his January 23 is only his parole, when he may be considered for --
Mr. Michael Colodner: Only when when he maybe considered for parole.
Unknown Speaker: And if it were not parole he’d have to wait till when?
Mr. Michael Colodner: He have to wait till the maximum of his sentence or depending on how much good tome he would earn on that sentence.
Justice William H. Rehnquist: Is that the only consequences of good time under the New York Penal Code Mr. Colodner?
It determines the initial date on which you first go before the parole board.
Mr. Michael Colodner: That was the only consequence of good time on the minimum sentence which is the only thing at issue in this case.
There is good time on the maximum sentence and here we have a very interesting distinction and this is where the District Court really missed the conception.
Good time on the maximum basically serves more of a custodial function.
Here it is really where you are trying to encourage good behavior.
It's essentially a negative concept, don’t break the rules and we will reward you with the certain amount of good time.
That is on the maximum.
Good time on the minimum doesn’t serve that function, it's more of a rehabilitator function.
It’s saying, you perform well, you show positive attitude and we will give you chance to be released very, very early, and it’s the balance of these concepts which is really a issue here and we are dealing with the minimum sentence and this is the rehabilitative concept.
Now I as pointed out in my brief historically, there has always been a distinction between what was called commutation between conduct and compensation which was for positive performance and the whole history of the New York correctional scheme tries to strike a balance between the two until finally in 1931 the two were consolidated and in fact at one point they used to actually pay people for compensation, and they finally reduced sentence for compensation.
Now, specifically in the statute, there is a reduction in sentence for both good conduct and for the efficient and willing performance of duties assigned.
So good time is certainly more than a question if whether you are bad or good as the District Court has stated.
It is not question really of saying whether being bad or good is the primary function and rehabilitation is the secondary function, peripheral functions under the statutory scheme.
Justice Thurgood Marshall: Before this statue was rehabilitation actually in existence in New York?
Mr. Michael Colodner: Well, rehabilitation is an existence in this --
Justice Thurgood Marshall: There is some way working code isn't it?
Mr. Michael Colodner: Definitely, Your Honor.
Justice Thurgood Marshall: So why is a man who is released be depending on something that is just ephemeral?
Mr. Michael Colodner: Well Your Honor, we don’t know to what extent rehabilitation is really the role of the prison or the role of society.
We have set up a system to enable the state correctional authorities to evaluate an individual's particular performance in a particular program.
Justice Thurgood Marshall: Who evaluates it?
Mr. Michael Colodner: The department, there are two means of evaluation.
First, there’s a Department of Correction, which evaluates him under very, very strict standards.
Justice Thurgood Marshall: And how many people does he come in contact with who evaluate him?
Mr. Michael Colodner: Well first of all there is a time allowance --
Justice Thurgood Marshall: Isn’t it true we have one or two in a jail with a thousand men?
Mr. Michael Colodner: That is not true?
That is not true.
Justice Thurgood Marshall: Well, how many do you have?
Mr. Michael Colodner: For evaluation?
Justice Thurgood Marshall: For rehabilitation?
Mr. Michael Colodner: For rehabilitation, you have --
Justice Thurgood Marshall: And then evaluation after the rehabilitation.
Mr. Michael Colodner: Rehabilitation is a continuing concept.
You have your industry setup, you have work training, you have a school program set, you have an educational curriculum.
Justice Thurgood Marshall: What industry do you have other than stamping out license plate?
Mr. Michael Colodner: A great many industries Your Honor.
Justice Thurgood Marshall: Like what?
Mr. Michael Colodner: Textiles factories, we have barber shop there.
We teach trades, we manufacture a lot of goods.
I know Greenhaven State Prison has a textile factory.
I am not familiar with anything more than that.
Justice Thurgood Marshall: Unless you have in (Inaudible)?
Mr. Michael Colodner: I am not familiar with the situation in (Inaudible) Your Honor.
Justice Thurgood Marshall: Are you talking about the whole state?
Mr. Michael Colodner: That is true.
But the fact, Your Honor, the fact that rehabilitation may not be successful and the New York State Department of Correction is not going to stand before this Court and say that we are successfully rehabilitating every prisoner comes there.
It does not mean that the state cannot try to set forth a statutory scheme and attempt to rehabilitate and if the scheme is not successful to try a new scheme.
Justice Thurgood Marshall: But if I understand this man's complaint is not about rehabilitation or what have you, it's about using the standard by which he loses a third of his time.
That’s all he is complaining about.
Mr. Michael Colodner: That’s correct, Your Honor.
Justice Thurgood Marshall: And your answer is that he is losing because you have this very elaborate rehabilitation program.
Am I right or wrong?
Mr. Michael Colodner: He is losing this because we have a very – not an elaborate but we have a system of evaluation of the prisoners performance in a state correctional program, and this is very important—
Justice Thurgood Marshall: Then why are you saying that we have no rehabilitation program?
Mr. Michael Colodner: If there were no rehabilitation program at all, I think it would still be the same.
It would be the same for other reasons, because you have a man who – it can only be – Your Honor we are releasing him now at the minimum date.
The sentencing judge has set a date all the way at the lowest possible date this man can get out and the correctional scheme set under this law is that they are going to let him out two thirds of that date, which means even lower than the lowest.
They have to evaluate the man and it's perfectly reasonable for the state to set up a system that says, we are not going to consider time spent in institution where we had no chance of evaluating him.
Now maybe this is not the perfect system but Equal Protection does not require that we have the perfect system and more of the basic problems with the opinion of the court below is that it said, now wait a second state, I do not think you are putting in the best system, and so the District Court, the majority below said, “Let me show how to do it” and it showed how we can basically have a better evaluation by the Parole Board in the state prison how we could transfers the records from the county jails and we can set the system that way.
That might be true but the constitution doesn’t require that the state do this.
There is nothing unreasonable about the statutory scheme which is set up right now.
State prisons and county jails are completely different.
County jails for the first part offer nothing, they are purely detention centers.
There is certainly not a fact in this record to show that they offer anything, and it would be impossible for the state to set up a system of evaluation or a rehabilitative program in an institution where people are presumed innocent and could not be subject to but in fact if they were compelled to participate we have a Thirteenth Amendment problem and also we have to sense this the amount of time spent in the county jail is so short comparatively that if you are going to set up any sort of a meaningful program or even have any meaningful evaluation, it would not be worthwhile to look upon two or three months in an institution where nothing can really be accomplished within that space.
Now unless you remember that the evaluation by the Correction Department, it is dual evaluation here, first the Correction Department certifies to the parole board that this man is now ready to be considered for release and this is certainly something the legislature can do.
The opinion of the court below are argued strongly that the Parole Board has a lot of discretion, so it doesn’t really matter, but a state legislature certainly has the power and the right to draw line and set up to a certain point, parole board, you are not allowed to make this evaluation because we have made a legislative determination that a man has to spend a particular amount of time in a particular program.
And this evaluation and I left out Section 214(4), the Correction Law, is a very serious one because it involves a complete re-determination of the inmate's attitude, of his progress and this is made by officials, the Director of prison industries, the physician, the warden, the Director of education.
This is serious evaluation and it cannot be done by considering time in a county jail.
Now what essentially happened here was that the District Court ignored everything, ignored -- in fact the District Court acknowledged that there are certainly differences and yes there were different goals and yes, you really can’t rehabilitate people in county jails, but it ruled out the primary basis for this statute was whether someone was good or bad, and that is it and this totally ignored the differences that I have stated that the primary basis for the release on good time on the minimum sentence is the rehabilitative function, not a custodial function.
And then the District Court said, well, assuming that there are --
Unknown Speaker: (Inaudible) difference between you and the City Judge Court you are right.
As I read the opinion, the opinion was that this isn’t the rehabilitative function at all but the overriding consideration is that overriding consideration in the granting of good time reduction is maintenance of prison discipline.
Mr. Michael Colodner: I don’t know where the District Court gets that reasoning from because --
Unknown Speaker: Well where do you get your reasoning from?
Mr. Michael Colodner: From the very language of Section 233 of the Correction Law, good time is awarded for good conduct and for the willing and efficient performance and duties that are assigned.
There are two concepts and they balance.
Unknown Speaker: But it isn't important -- is it important for you to decide which one is the primary as long as the District Court didn’t deny that the other reason was part of it.
Mr. Michael Colodner: Absolutely not.
In fact the District Court acknowledged it and said, if it was sole and exclusive reason, state I would agree with you, but the District Court decided for my reading of the opinion that since it wasn’t the sole and exclusive reason, we only go by what the primary reason is, and this is totally in conflict with the decisions on this Court in Equal Protection.
Unknown Speaker: Well this is what the Court said, “Defendants contend that good time is granted as an incentive to the inmates to participate in these prison rehabilitation programs and that, since county jails are not equipped to provide such services, there is no basis for granting good time for time served therein.
If it were clear that the awarding of good time was based solely and exclusively on an evaluation of an inmate's performance in such programs so endemic to the state prison system, the denial of good time for jail time might be understandable; however, this does not appear to be the case.
Rather, it seems that the overriding consideration,” now the District Judge said the “overriding consideration in the granting of good time reductions is the maintenance of prison discipline,” and you quarrel with that.
Mr. Michael Colodner: I certainly do quarrel with it, first of all --
Unknown Speaker: And your answer to --
Mr. Michael Colodner: First of all --
Unknown Speaker: -- illuminate that the statute can't be read that way.
Mr. Michael Colodner: The statute can’t be that away.
We put in affidavits to the effect this wasn't the purpose at all, there was much more purpose then the award for custodial behavior.
None of --
Unknown Speaker: You also say that the statute should be upheld as an effort to serve the non overriding purpose of the statute.
Mr. Michael Colodner: A statute should be upheld to serve whatever purpose it is passed for.
We can't make considerations as to whether something is primary or secondary, if that were the case any judge can look and decide to see what or any clerk can look and decide to see which one he liked best and then pick it out and then try to gear and restructure the state system according to what he thought was the primary basis or the secondary basis and in fact as soon—
Unknown Speaker: (Inaudible) say that what the rule should be under the Equal Protection Clause?
Mr. Michael Colodner: Definitely if—
Unknown Speaker: Then do some of the clauses primary and secondary have some elements?
Mr. Michael Colodner: Whatever all the clauses there are I don’t know but certainly not the Equal Protection Clause.
For instance, let's assume that good behavior is just the primary basis here and that evaluation is a secondary basis, why couldn't the legislature then repass the same statute and put a little amendment at the bottom and say we think that rehabilitation is the primary basis.
This is exactly what this Court dealt within Palmer versus Thompson and so we don’t look to the motive of the legislation.
We look to see whether there is any state of facts that can consider – just to justify the classification.
If we find the state of facts that is the end of the judicial rule.
Justice Thurgood Marshall: How long we have time off for good behavior in New York?
Mr. Michael Colodner: Pardon.
Justice Thurgood Marshall: How long is New York given time off for good behavior?
Mr. Michael Colodner: Under this particular scheme—
Justice Thurgood Marshall: How long has New York —
Mr. Michael Colodner: Oh, how long — since the turn of the century, Your Honor.
Justice Thurgood Marshall: And how long they have the rehabilitation program in New York?
Mr. Michael Colodner: We have had a developing program since the turn of the century.
Justice Thurgood Marshall: You really say that?
Mr. Michael Colodner: Yes.
In this particular field of person administration, the standard which has to be used keeping the rational basis standard because we are out dealing with what is a very sensitive area, we have to balance both the needs of the prison in so far as the needs of the inmates are concerned and the needs of the prison structure concern versus the needs of the society which is paramount to whether somebody is going to be released prior to the lowest part of his sentence.
There are no known solutions to this problem and as Mr. Justice Marshall points out there maybe problems as to whether rehabilitation succeeds or not and penalty is a very open science, for this is the very area because of the openness of this field where the state has to have broad discussion, just like this Court stated in Jefferson against Hackney in the welfare area which is also a very open question in terms of what is the proper solution.
The state cannot be put in the constitutional straitjacket in dealing with how we are going to going to set up a very complex system of awarding good time.
As it is illustrated by the history of the statute all through the -- since the turn of the century we have been constantly changing out statute, sometimes putting good time on the minimum, sometimes on the maximum, sometimes on indeterminate terms sometimes on definite terms, trying to strike a balance and the state should be allowed to do this.
Unknown Speaker: All the people involved in this case get jail time for their --
Mr. Michael Colodner: Everyone gets jail time.
Unknown Speaker: There are sentences, they get credit for the time they spend in jail?
Mr. Michael Colodner: That’s right.
Unknown Speaker: They just don’t get time for that jail time.
Mr. Michael Colodner: That is right.
Unknown Speaker: Some of them --
Unknown Speaker: Mr. Colodner.
Mr. Michael Colodner: Yes sir.
Unknown Speaker: The opinion of the three-judge Court at 61(a) of the appendix, states that under certain of circumstances the states does grant good time credit for pre-sentence detention.
Mr. Michael Colodner: That is right Your Honor.
Unknown Speaker: Could you explain the circumstances under which that occurs?
Mr. Michael Colodner: Good time is granted on the maximum sentence.
Unknown Speaker: Just on the max.
Mr. Michael Colodner: No, there are – on the maximum sentence, because as I pointed out the difference between the custodial components on the maximum, the rehabilitative component on the minimum makes it a more effective disciplinary device on the maximum.
Good time is also rewarded for jail time on penitentiary sentences, those are sentences for misdemeanors of less than one year.
Here again, the evaluation is not that sensitive.
We are dealing with short sentences with much less serious crimes and with a practical problem that the county jails are overcrowded and they want a faster turn over.
Unknown Speaker: So the good time for pre-sentence detention is allowed only with respect to the maximum and only where this ultimate sentence is less than a year.
Mr. Michael Colodner: That’s right.
It is under the old law.
Unknown Speaker: Right.
Even though (inaudible) the one person who gets the time would be in the same jail as one who doesn’t get the good time.
Mr. Michael Colodner: I don’t think if there is a comparable situation there, I don’t know whether you can -- yes, that is true.
If someone -- now if we’re comparing someone with both people who are convicted of felonies, there is no comparable situation, neither of them get good time.
Unknown Speaker: That is right.
But now let's take --
Unknown Speaker: Neither of them.
Mr. Michael Colodner: Neither of them.
But if you are someone who is convicted of a misdemeanor as opposed to someone who is – let's say both indicted for both.
Unknown Speaker: Yes.
Mr. Michael Colodner: The misdemeanant would get credit for good time.
Unknown Speaker: And they both might be in exactly the same jail.
Mr. Michael Colodner: Exactly the same jail but it makes not difference in those terms because when you are dealing with a misdemeanant, the state legislature would set up a system which is purely custodial and it's a very short sentence and they are willing to give him as much time as they wish to give him without trying to set up a program for rehabilitation.
Unknown Speaker: So you say in this context the state purpose that you say justifies the discrimination against these petitioners doesn’t exist?
Mr. Michael Colodner: That is right.
There is no discrimination against these petitioners in terms of the goals of this particular statutory scheme.
Unknown Speaker: But this discrimination it’s justified, I think.
Mr. Michael Colodner: Definitely justified.
Unknown Speaker: I think you say it's justified.
Mr. Michael Colodner: I say so and I think of the record bears me up and I think that the majority of the District Courts didn’t — just didn’t like the statute because the majority of the District Courts basically acted as a super legislature and showed the state of —
Unknown Speaker: (Inaudible).
Mr. Michael Colodner: I don’t know if Judge Hayes used that word, I use that word in my brief.
Unknown Speaker: Because the last sentence reads a lot like (Inaudible).
Mr. Michael Colodner: I think that's exactly what the District Court did.
It incorrectly analyzed the statute, it totally ignored every justification we put forth by saying that, but would not consider these justification because they want solely and exclusively.
Unknown Speaker: But basically I gather the state's position is that however many purposes this denial may serve, at least serves one state purpose but on the rational distinction basis.
Mr. Michael Colodner: That’s correct, Your Honor.
Unknown Speaker: It sustains the statute fostering rehabilitation.
Mr. Michael Colodner: I would suggest it serves more than one but that —
Unknown Speaker: Whatever that maybe that at least that one.
Mr. Michael Colodner: At least one.
Unknown Speaker: And all you have to show is that it serves one.
Mr. Michael Colodner: That’s correct.
Unknown Speaker: That's your position.
Mr. Michael Colodner: That’s our position.
Chief Justice Warren E. Burger: Thank you, Mr. Colodner.
Before you start let me put this question to you and you may develop the reply as you wish.
Suppose that there was a pretrial detention of the man in a jail in France subject to extradition to this this country, and it took 6 months to get them extradited out of France back to New York for trial under the Extradition Treaty, would you make the same arguments there that you are making here.
Argument of Jeffrey Sorge
Mr. Jeffrey Sorge: Your Honor I believe it would be very difficult to really answer that question if it refers to a penal institution in France.
I doubt very much that the state penal institutions in New York State would be in the position to judge whether a person has behaved properly and a penal institution in France whether there are any programs, they would really not be able to evaluate any type of program in France.
I believe that a better example might be let's say if a person was detained in New Jersey and he is expedited from New Jersey.
Unknown Speaker: Let's make it from Alaska.
Mr. Jeffrey Sorge: Okay, Alaska, another state of the nation.
Here we have the Interstate Compact which states that any prisoner in an other state prison subject to the jurisdiction of New York at the same time will be treated equally under the law.
So here we would not have the problems.
Unknown Speaker: Would you think it is easier to evaluate what is going on in a local jail than it is what's going in a jail in Hawaii or in Alaska?
Mr. Jeffrey Sorge: Yes, I do Your Honor.
I believe it is much easier just because the location of the jail, I believe also, and it's indicated that the ultimate jurisdiction of all jails is under the Department of Correction.
So there are obviously intertwined aspects here.
Unknown Speaker: Does that holding in the land in Alaska, pre-trail detention that I think is as an agent of the State of New York, are they not?
Mr. Jeffrey Sorge: Yes they are Your Honor.
Unknown Speaker: Or in Paris, France.
Mr. Jeffrey Sorge: I agree Your Honor, and I think this would boil down to the position that really which is position we maintain and maintain throughout this entire case that it doesn’t really matter where they are detained.
It just matters what good time is actually credited for.
The Attorney General in his argument alleges that the good time is granted as an incentive for participation in the rehabilitative programs, we believe that there more than sufficient examples in the District Court’s opinion and in our brief to show that this is not the purpose of a good time reduction.
Unknown Speaker: (Inaudible) no part of the purpose at all?
Mr. Jeffrey Sorge: Yes, Your Honor.
This is the—
Unknown Speaker: I thought when I read your brother earlier from the majority opinion below, at least accepts, I thought the ideas that there was something overriding about maintenance of prison discipline but that didn’t preclude.
Mr. Jeffrey Sorge: I believe.
Unknown Speaker: As a purpose the rehabilitation objective that you probably spoke about.
Mr. Jeffrey Sorge: I believe that Mr. Justice would refer of Page 59 (a) of the Appendix, here the Court considers the differences between the county jails and the state prisons and I believe it's stated there that whatever the differences are, it doesn’t matter, because they are reasonably related to the purposes of the statute.
In other words the Court, the three-judge Court is not contesting on any differences between the two jails.
They are just stating merely that whatever the differences are, these differences are relevant because this differences are not equated with giving good time and in that light Your Honor, I would submit that this Court did not concede that there were differences and did not state that these differences attributed to giving good time.
And I would like to just pose an example.
While the —
Unknown Speaker: Then it is your position that the only purpose at all served by the statute, exclusively the only single purpose is the disciplinary one.
Mr. Jeffrey Sorge: Your Honor, it’s extremely difficult to say whether the only purpose is just for the discipline.
I believe that the Court has —
Unknown Speaker: If a purpose is the rehabilitation one, then are you not in some trouble?
Mr. Jeffrey Sorge: If the main purpose is?
Unknown Speaker: If a purpose, not the main purpose, a purpose.
Mr. Jeffrey Sorge: I don’t believe so, Your Honor, because as the district court stated the overriding consideration in this case is disciplinary.
Unknown Speaker: I know it did.
Mr. Jeffrey Sorge: Now I believe—
Unknown Speaker: Suppose rehabilitation were a subordinate purpose.
Mr. Jeffrey Sorge: I believe that —
Unknown Speaker: (Voice Overlap) good time.
Mr. Jeffrey Sorge: Surely.
I believe that just by the examples cited in the District Court’s opinion and in the examples cited our brief, there are very many situations where an inmate does not have available any rehabilitative facilities whatsoever yet he still gets good time credit and I think in a situation there, we can see clearly that the rehabilitative facilities have absolutely nothing to do with granting of good time that's why I see no rehabilitative facilities.
Justice William H. Rehnquist: Well you go further then than the district court, I take it, because I read the district court's opinion the same way Mr. Justice Brennan does, as saying that rehabilitation is a subordinate function and that its opinion is based on that.
You say that it really is no function at all.
Mr. Jeffrey Sorge: I believe that, if you take the state prisoners themselves, Mr. Justice, there might be a subordinate position.
However, I would repeat that the overriding consideration is the disciplinary aspect of it.
However in other situations which come under the jurisdiction of the State Department of Correction, we can extend this argument even further saying that the rehabilitative facilities have absolutely no relationship to the grantee of good time.
So, it would be a two-fold argument.
At one time I am agreeing with Your Honor, at the same time I believe that the very logical explanation of this is that in very many situations it does have no relationship to the statute.
Unknown Speaker: But I gather you agree that the equal protection test here is the rationality test advantage not the compelling interest test.
Mr. Jeffrey Sorge: Yes, I do realize that Your Honor and I would point out that the District Court, a contradiction to the Attorney General's argument also recognize the various standards imposed by Dandridge.
They stated first that the Equal Protection clause requires only that the state practice be rationally based and free from invidious discrimination.
They also stated that while certain individuals might be substantially harmed by any form or type of discrimination that this would be okay if there is a valid governmental objective.
However, I believe that the important aspect of this is a Court’s comment immediately after this and this is found on Page 59 (a) of the Appendix, the Court after citing these two principles and after I believe showing clearly to this Court that the lower court was aware of their duty, the Court stated that they would countenance any artificial distinctions, not reasonably related to the statute.
And I think this is the grass root problem here.
The Court has determined that the justifications presented by the Attorney General in this case are not reasonably related to the statute and are purely artificial distinctions.
And the Attorney General Your Honor has stated that the District Court has totally misapplied the Equal Protection standards and the reason they misapplied it, number one is that they did not challenge the Attorney General’s argument that there is a difference between the facility's purpose and usage of the state jails versus the local penal institutions.
Now, we also note that the state has considered these differences as I stated before and they found out that they were not reasonably related to the statute.
The manner in which they found – they arrived at this conclusion is by looking at the legislative intention and the manner in which they did this was, was civil and the first case the fact that good time is a disciplinary device in the state penal institution was readily conceded by the Attorney General.
Also, we find that in the New York State Court this is in the case of Perez versus Follette which is cited on Page 8 of our brief and in Page 60 (a) of the Appendix, this Court while upholding the constitutionality of the statute arrived at the same conclusion that good time is an effective disciplinary device.
Also we find that while this case refers solely to the provisions of Section 230(3) which states -- or excuse me -- which draws the distinction between the county inmates who are subsequently send to the state and persons who are not so detained prior to being sentenced.
The Courts in New York have also considered the following subsection, this is 330(4) and this concerns the maximum release date.
Now, there is a very clear distinction between the two sections as far as the line in which it is applied.
The Court will notice that in Subdivision 3 the legislatures —
Unknown Speaker: Are you relying on Perez and Follette as a construction of 233 limiting its purpose to the disciplinary objective?
Mr. Jeffrey Sorge: No, Your Honor.
I’ve submitted to this Court that that gives an indication of what the state's purpose is as far as that section is concerned, that’s the limited purpose on some of the case.
Unknown Speaker: Well I think what it says is the policy underlying the discretionary grant of good time reductions is clear, the attitude and conduct of prisoners should improve if they are offered an incentive for good and productive behavior while at the same time the fact that reductions can be withheld will inhibit bad conduct, that's the language, isn't it?
Mr. Jeffrey Sorge: Yes, Your Honor.
Unknown Speaker: Now may I say again, is this is an interpretation of the statute?
Mr. Jeffrey Sorge: I believe that's a interpretation of statute but I think at the same time we can find out --
Unknown Speaker: An interpretation to what effect?
Mr. Jeffrey Sorge: I believe this is an interpretation that shows the legislative intent of the statute.
Unknown Speaker: That this was the only intent?
Mr. Jeffrey Sorge: No, that this -- it’s very difficult to say whether this was the only intent because the case doesn't – it's trying to find that factor really.
However, there are other considerations that the Court should look at when they look at the legislative stand not only one case that was decided by the Court.
As I was explaining before the difference between Subdivision 3 and Subdivision 4 of the Section 230 of the New York Correction Law, draws clear distinction between in one case the pretrial detention of prisoners as far as good time under minimum sentence is concerned and pretrial detention of prisoners as far as their maximum or conditional release date from a state penitentiary.
The first subdivision, Subdivision 3 specifically states that this good time should be determined on the amount of the minimum sentence less jail time.
Subdivision 4 however, does not refer to jail time whatsoever.
In People versus Deegan and the case of Paul versus Warden who served at county jail which is found in the Appendix at Page 68 and also Page 8 of our brief, this very issue of whether jail time should be included or excluded in the computation of good time to be provided in the determination of the maximum sentence was raised.
And what was the argument by the state in both of those cases?
In both of those cases the state argued that there are differences between the county jail and differences between the state jails.
There are differences in purpose, usage and facility and both in of those cases the courts rejected the state argument.
And I believe that's very important to show the legislative purpose their.
Another example, when a prisoner arrives at a state penal institution after being transferred from the county jail, when is his good time computed?
It's computed immediately upon his arrival.
And I believe the statement of the District Court is very correct, when it states that this indicates that a prisoner does not earn good time credit, when he is in state penitentiary, instead he is penalized for bad behavior and how is he penalized?
I believe the state legislature made this quite clear in establishing various boards for discipline the person and also for determining when good time should be allowed.
There are two boards.
We have -- I am referring to one, this is the, what they call the superintendent proceeding.
This superintendent proceeding is a proceeding that is used whenever there is disciplinary action taken against the prisoner in a state prison.
This action arises whenever there is misbehavior involving a danger to life, health, security or property or in a case where there are persistent minor violations against the rules of the prison.
This is a very elaborate procedure which starts where a report is filed by one of the sheriffs or one of the guards on the floor.
This report is subsequently forwarded to what they call the adjustment committee.
The adjustment committee reviews the report.
The adjustment committee may take three actions, it may recommend reappraisal of the prisoner's program, it may recommend nullification of the report or it may take what they call adjustment committee action.
Adjustment committee action very briefly is an action where they discuss the problem where the person who are involved, the inmates and the guards on the floor etcetera, and after this adjustment committee rules on this case, it may take further action.
It may confine a person in his cell or it may confine the inmate in a private housing unit or it may take away specific privileges.
Up to this time we must realize that there is absolutely no provision for taking away good time.
Good time is taken away subsequently, they have to go through further proceedings to get to the point where they can actually take away good time.
After the adjustment committee has made their ruling, only until there are persistent violations after that could they possibly refer this to a superintendent proceeding.
At a superintendent's proceeding if one has had—we have a formal procedure of due process where a person is represented by employee of the state prisons they charge—
Unknown Speaker: Are you talking about administrative remedies?
Mr. Jeffrey Sorge: Yes, exactly Your Honor.
Not administrative remedies really Your Honor, this is an administrative procedure for taking away good time.
There are only two procedures which find — that we can find for taking away good time.
This is one of them.
And I’m using this example merely to show the disciplinary and the punitive nature of this, to show that the factor of good time is based upon good behavior.
Unknown Speaker: Was it — would there have been any discretion in the administrators to grant good time in this case?
Mr. Jeffrey Sorge: I am not exactly sure if I understand your question, Your Honor.
As far as —
Unknown Speaker: I will put it this way.
Does the statute require the discrimination to which you’re objecting?
Mr. Jeffrey Sorge: Well Section 230(3) does.
Unknown Speaker: Well does it – it just requires it, it is just isn't a matter of an administrative application statute in this case?
Mr. Jeffrey Sorge: Oh definitely not.
The statute states specifically on that decision as to what the state —
Unknown Speaker: And the administrator would have no -- the prison administration would have no discretion whatsoever that varied from the statute?
Mr. Jeffrey Sorge: No I believe it would not.
Unknown Speaker: But your view of the matter is, it would require, would it not that the state institutions give credit as though the man's behavior had been of the highest order even though that might be contrary to the fact.
Mr. Jeffrey Sorge: It is contrary to the fact, all I have to do is look at file sent from the in the county jails which indicate what jail times should be credited to the person and also get support for all of the defendant's actions.
Unknown Speaker: Well, are you suggesting that these files are a complete substitute for their own observation and their own standards and the state institution?
Mr. Jeffrey Sorge: Yes, Your Honor.
As far good behavior is concerned, I don’t believe that you have to have a very complicated procedure to determine whether a person is being faithfully abiding by the rules of a specific penal institution.
I don’t believe that there should be a difference in the location of the detention facility as far as good behavior is concerned.
Unknown Speaker: And you’d carry this again within the hypothetical I gave you if you were in a prison in Hawaii or Alaska?
Mr. Jeffrey Sorge: Yes, Your Honor.
Unknown Speaker: But you wouldn't undertake to carry it beyond the continental boundaries I gather.
Mr. Jeffrey Sorge: I just believe that it might be a little bit too complex and I am not really prepared to argue that issue.
There is a very good possibility that it would apply equally to that jurisdiction also.
I believe also that while we have – returning to the superintendent's proceeding, here we have one example of administrative action or procedure which is definitely punitive in nature and it’s a definitely a disciplinary board in nature which takes away good time.
In response to this the Attorney General stated that there is another board, this is a time allowance committee and he says that the time allowance committee considers more than just the behavior of the inmate while in prison in determining whether good time should be allowed or not.
And I would like to state -- specifically I would like to quote from a statute which determines or which directs exactly what the purpose of this committee is.
This is found on Page 68 of the Appendix and also recognizing the appellants brief on Page 6.
They state that in regards to this board whether they should allow good time or not, they said the board shall have discretion of withholding the good time allowance as and I quote “a punishment for offenses against the discipline of the prison or penitentiary in accordance with the rules herein before mentioned.
Reduction credited to a prisoner in the first instance, in his account, by the warden, as provided in section 230 shall stand as the reduction allowed, unless withheld wholly or partly by the board as punishment, as above provided."
I believe this purely shows and clearly shows the legislative intention that the reduction of good time is a punishment for bad behavior in a prison.
And then also there are very many situations where good time is credited to other persons in different situations.
Such as good time is credited to both misdemeanants and felons serving definite sentences in county jails and this is very important because the language referring to these individuals which is Section 250 of the Correction Law states that good performance or a good time shall be credited based upon the defendant's behavior, conduct and his efficient and willing performance of duty in that county penitentiary.
It is exactly the same language as contained in Section 230(3).
And I believe that this would undermine the Attorney General's argument that any difference in usage, purpose or availability of facilities, in the county jail versus the state penal institutions is a determinative factor in deciding good time.
And in this regard I would like to used another example while we are contesting mainly or while we are considering mainly the local county jail as the pretrial detention facilities, there are other pretrial detention facilities in the State of New York.
They don’t have the -- I believe Mr. Chief Justice you asked before whether they had a pretrial facility which really was not detention, which was a minimum security facility, they do not have any such thing in New York.
However, they do have two other facilities for pretrial detentions.
If a person is found to be criminally insane and not competent to assist his attorney in presenting the defense in his case then he maybe certified to the various state institutions in the state of New York.
These are state institutions for the mentally retarded.
They have two such state institutes, one under the jurisdiction of the Commissioners of Mental Hygiene, the second one is under the jurisdiction of the Commissioner of Correction the person involved in this case.
The Commissioner of Correction has jurisdiction over two such facilities.
This are Matteawan State Hospital and Dannemora State Hospital and while a person -- may I just continue this I will conclude it -- while a person is there, he is receiving rehabilitative facilities, he’s receiving rehabilitative treatment.
Chief Justice Warren E. Burger: We will resume after lunch, you will have a substantial amount of time, I think.
You have some time left Mr. Sorge.
Mr. Jeffrey Sorge: Thank you Mr. Chief Justice, may it please the Court.
Immediately prior to the luncheon recess of this Court, I was describing how the county jails are not the only pretrial detention facilities in the State of New York, there are other detention facilities one of which are the state hospitals for the persons who are mentally incapable of standing trial.
These state hospitals are under the jurisdiction of the State Department of Correction.
Chief Justice Warren E. Burger: But you wouldn’t apply good behavior standards to people confined in those circumstances ordinarily would you?
Mr. Jeffrey Sorge: Your Honor, not only these pretrial detention facilities, however there are also facilities which receive inmates who are transferred from the state prisons to the mental institutions and for the period of time that these mental patients stay in these institutions the State Commission of Correction does grant them good time.
So I believe that they—
Chief Justice Warren E. Burger: It's not a reasonable thing to do, you would hardly take a person who is confined because he is mentally incompetent and hold him to the standards that you would hold normal people.
Mr. Jeffrey Sorge: Yes, Your Honor but this would be -- they are not really applying the standards because he is being confined due to their mental problem.
They are computing this because he’s been transferred from a state prison where he’s already been subjected to an indeterminate sentence and then sending him to the mental hospitals.
So he is still under the custody of the Commissioner of Correction.
Now, while the Commissioner of Correction does give the good time credit for a person who has been transferred from the state prison, we submit that there are different usages, purposes and availability facilities in the mental hospitals.
And we believe it's obvious that there is a difference between the mental hospitals and the state jails.
To counter this argument the Attorney General stated in Page 7 of his reply brief that it is difficult to see how this diminishes the validity of Section 230(3).
These are two classes of inmates who have been transferred to state institutions that have programs specifically designed for their specialized needs.
Willing participation and performance in these treatment programs under state's supervision which certainly call for the awarding of good time.
Now, I submit to this Court readily that this is quite a cogent argument.
However, I would pose a question to the Attorney General if these programs or if these facilities do have programs that are beneficial to the inmates and if they do believe that these programs meet the specialized needs of the inmates then why does not the Commissioner of Correction give good time credit for the amount of time that a person spends in these exact facilities if its pretrial confinement.
They do not give good time on this period of time.
So I believe that the different types of programs is not related to the giving of good time and I think this is specific example which points that out clearly.
Chief Justice Warren E. Burger: That's the only the problem in that area, that wouldn't be any basis for holding here, would it?
Mr. Jeffrey Sorge: I believe it would be somewhat of a basis, because I believe in the first place it shows a practice in New York state.
In the second place I would argue that it is at least an indication of the state's intention.
I believe also that we find that there is supposedly a uniform scheme of granting, the computation of a person's sentence.
I believe that this would also have an effect on that.
I believe that this presents a definite conflict in the states practice. Secondly we have other examples which present similar examples of conflict.
For example, if the person is already been sentenced and has been received in a state prison, if he is subsequently transferred back to a county jail for a post-conviction remedy and remains in the county jail until that post-conviction remedy is completed, then transferred back to the state prison, he gets good time credit for the amount of time that he spent in the county jail.
So here he is being detained in exactly the same facility as are the persons that are discriminated against under Section 230(3), however as a matter of policy of New York state, he is getting good time credit for that.
I submit to this Court that this is an incredible inconsistency and I believe that the explanation just submitted to Mr. Chief Justice would apply equally here.
Here is an indication of the intent of the legislature etcetera. Lastly as the Attorney General has argued that the District Court misapplied the standards of the equal protection in that it did not consider their argument that good time should not be reduced from the pretrial detention period because in effect it reduces the amount of time that a parole board has to consider whether a person should be eligible or not for parole.
I submit that the District Court did in fact consider this proposition.
On page 63 (a) of the Appendix, the District Court came out in extremely strong language as a matter of fact, it stated that the fears of the District Attorney -- excuse me -- of the Attorney General in this case are wholly illusory.
I believe this is very clear statement of the decision of the District Court.
Thank you very much, Your Honor.
Chief Justice Warren E. Burger: Thank you Mr. Sorge.
Rebuttal of Michael Colodner
Mr. Michael Colodner: Your Honor, I have two minutes --
Chief Justice Warren E. Burger: Yes, you have a few minutes left.
Mr. Michael Colodner: I’d like to answer two of the contentions raised by the attorney for the appellees.
First of all there is a certain amount of clarity in the institution between people who are once sent to state prison and then for various reasons have to be sent to institutions and one of the examples raised is someone who has to return to the county jail because he is contesting a proposed conviction proceeding while the Court knows the validity of his sentence and he might remain in this county jail for two days or a few weeks depending on how long it takes.
Now, certainly we are not going to say that these people are not to be awarded good time because in the course of their program in the state prison they have to leave for a short instance.
In fact, if we did deprive these people of good time, we would be raising serious constitutional problems about denial of access to the courts.
If a inmate in state prison knows that if he wants to utilize a state post-conviction remedy but he would also be losing good time he might be deterred in utilizing that remedy.
Unknown Speaker: Of course you might use that probably for some other reason as well.
Mr. Michael Colodner: That is true.
Unknown Speaker: As a prosecution or defense witness for somebody else.
Mr. Michael Colodner: They are all possibilities.
The system doesn't work on absolute perfection, what if someone was sick for two weeks.
Does he get good time?
I would like to add one more thing and before lunch, the argument was made that the time allowance committee operates solely as the punitive entity it does not at all.
The time allowance committee is what gives credit for good time.
This is an evaluation that take takes into account the entire institutional experience of the inmate, not whether he’s been good or bad.
In fact in the superintendent's proceedings that was mentioned previously which is purely a punitive action the time allowance committee can re-credit any time subtracted by the superintendent's proceeding when the date—
Unknown Speaker: This argument doesn't -- your submission as I get it that under Subdivision 3 jail time is — there is no discretion in considering jail time at all you said.
Mr. Michael Colodner: No, that’s—
Unknown Speaker: And what you’re talking about is procedure that deals with the only situation in which it may consider good time namely time spent in the prison.
Mr. Michael Colodner: That's right.
Unknown Speaker: Isn’t that right?
Mr. Michael Colodner: But my point I am making on this argument is to show that the time spent in prison is evaluated from a rehabilitative standpoint, not necessarily only from a punitive standpoint.
Chief Justice Warren E. Burger: Thank you, gentlemen the case is submitted.
We’ll hear arguments next in --