SCHICK v. REED

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Argument of Homer E. Moyer, Jr.

Chief Justice Warren E. Burger: Mr. Moyer I think you may now proceed whenever you're ready.

Mr. Homer E. Moyer, Jr.: Mr. Chief Justice and may it please the Court.

The ultimate question in this case is a very narrow one.

It is whether the petitioner can ever be considered for parole.

The relief we seek is not his release from prison, only that he'll be given the opportunity to come before the parole court.

The facts in this case were simple and undisputed.

Maurice Schick, a man of some 52 years of age, has been incarcerated just under 21 years.

The terms of his present sentence require that he remain in prison for the rest of his life but no possibility of parole release.

In March 1954, he was tried by an army general court-martial convened just outside Tokyo, Japan for the murder of the daughter of an army colonel assigned to that post.

Following a six-day trial at which the sole disputed issue was the legal sanity of the accused at the time of the offense.

Petitioner was convicted and sentenced to death.

Although, at various times during the course of the trial and appellate proceedings, eight prominent civilian psychiatrists concluded that he lacked direct the requisite mental responsibility at the time of the offense.

His conviction and sentence were nonetheless approved by all military appellate reviewing authorities.

And in 1957, his case was forwarded as it's required by statute to the President for his review.

Chief Justice Warren E. Burger: There was a conflict in the testimony on his capacity, was there not?

Mr. Homer E. Moyer, Jr.: That's correct, Mr. Chief Justice.

Four army psychiatrists testified that he did not lack the requisite mental responsibility at the time --

Chief Justice Warren E. Burger: And with their four defendants' psychiatrists --

Mr. Homer E. Moyer, Jr.: At the time of trial, there were two civilian Japanese psychiatrists.

He did not have the opportunity to return to the United States during the course of the appellate proceedings.

Opinions were submitted by Dr. Karl Menninger, three other psychiatrists from the Menninger Clinic, the psychiatrist to Saint Elizabeth's, the psychiatrist for the Baltimore court system.

All of the civilian psychiatrists prepond that he lack the requisite mental responsibility.

In 1960, the President commuted petitioner sentence to life imprisonment unconditioned that he never be considered for parole.

At issue here is the validity of that "no-parole provision."

We maintain that it is constitutionally invalid on two separate and independently dispositive grounds.

First, it is invalid under the retrospective application of Furman against Georgia.

And second, it is invalid because in imposing a commuted punishment of life imprisonment with no possibility of parole.

The President exceeded his constitutional ground of authority under Article II, Section 2.

I should like first to discuss the Furman point which is the narrower ground for decision here.

Petitioner and respondents agree on a number of factors that bear on the Furman point.

There's first of all the no disagreement, that the sentence of life imprisonment with no possibility of parole could not have been a judge to trial.

The only sentencing options for the court-martial were death or life imprisonment without or with the usual parole possibility.

Second, there is no disagreement about the inextricable relationship between the death penalty and petitioner's present, "no-parole life sentence."

Petitioner could never have become subject to its present sentence, had he not first been sentenced to death.

Third, there is no disagreement that Furman against Georgia invalidated the imposition and as well as the carrying out of the dearth penalty.

Lower courts implementing Furman have vacated death sentence isn't substituted alternative punishments provided by statute.

And finally, there is no disagreement here that Furman against Georgia has been applied retrospectively.

Given this undisputed facts, the "no-parole provision" of petitioner sentence is necessarily invalid for it could not now exist but for the prior imposition of the death penalty.

Had the death penalty never been imposed petitioner would now be eligible for parole.

Moreover, if the Court were to uphold the petitioner's present sentence, it would sanction the following situation.

All prisoners sentenced to death but not executed at the time of Furman now are serving sentences of life imprisonment with eligibility of parole.

All, except the petitioner and one other prisoner whose situation is identical.

Schick, who is singled out for executive clemency, is now serving a more severe sentence than prisoners who have been sentenced to death but not executed and not singled out for executive clemency.

Justice Harry A. Blackmun: I suppose he is still eligible for further executive clemency, is he not Mr. Moyer?

Mr. Homer E. Moyer, Jr.: Presumably he could petition regularly for additional executive clemency.

A petition was submitted, Mr. Justice Blackmun, in 1968 and denied in early 1969.

Justice William H. Rehnquist: This presumably better off in that class of people, who didn't get or sentenced to death didn't get executive clemency and were executed?

Mr. Homer E. Moyer, Jr.: He certainly was not executed.

We don't believe that the Government's argument draw as much strength from the fact that the Government was here precluded from carrying out what we now know to be a constitutionally cruel and unusual punishment.

Justice William H. Rehnquist: Do you know that the death penalty --

Mr. Homer E. Moyer, Jr.: I'm sorry sir.

Justice William H. Rehnquist: You know that the death penalty is cruel and unusual in the military situations?

Mr. Homer E. Moyer, Jr.: Well, the Government has raised that point here.

The answer to that is we submit clearly that it is constitutionally cruel and unusual.

I shall address that in some detail momentarily.

Justice Harry A. Blackmun: Now that I've interrupted you, as I looked at your brief and your reply brief, I think you didn't cite Warden against Marrero of last term.

Thus the Government has relied upon somewhere in your argument, would you touch upon that and let us have the benefit of your comments, when do you get to it?

Mr. Homer E. Moyer, Jr.: Warden against Marrero involved primarily, Mr. Justice Blackmun, a statutory question about parole applicability for the petitioner there and the effect of a 1970 statute dealing exclusively with drug traffickers and whether someone who was ineligible for parole under prior statute was -- should be considered eligible for parole subsequent to the 1970 statute.

The question we present here or that is involved here is not under our Furman point of statutory question.

Our point here is that retrospective application of the constitutional rule of Furman must necessarily invalidate the "no-parole provision."

There was in this case, no statutory basis for the "no-parole provision" and that point, I shall elaborate on.

The result in this case that the petitioner is serving the most severe sentence of anyone in the Federal Prison System, because he was a subject of executive clemency is simply a pervasive result.

The result -- this result is clearly contrary to the purpose and the spirit of executive clemency and we submit under Furman against Georgia cannot be permitted to stand.

And then asking the Court to invalidate this provision, we're asking simply that it rule exactly the same way as the Supreme Court of California en banc ruled when it was faced with precisely the same issue.

That case is In re Walker and is discussed in our brief.

In responding to the Furman point, the Government has abandoned some arguments that are earlier advanced including I might note the argument that the majority of the Court of Appeals below adopted its rationale of decision, namely that death sentence was never imposed in petitioner's case because it had never been ordered executed.

Now, the Government's primary defense to the Furman point appears to rest on the contention raised for the first time and its brief under merits that Furman against Georgia does not apply to the military at all.

This contention on the factual assertions that rest upon are wholly unsupportable.

On our reply brief, we have cited extensive authority which contradicts this new argument and I shall not repeat that case law here.

Let me say only in summary that that proposition is directly contradicted by opinions of members of this Court in Furman against Georgia itself which expressly contemplate applicability to the military.

It is also inconsistent with precedents of military courts and civilian courts including this Court applying the Eighth Amendment ban on cruel and unusual punishments to the military.

But it must be emphasized that the proposition that the Government puts forward here is fundamentally inconsistent with the entire pattern of development of military law since the enactment of the Uniform Code of Military Justice in 1950 because that pattern of growth which has been shaped by civilian court opinions, military court opinions, and by congressional enactments has consistently minimized the differences between military and civilian criminal procedures.

Now, the Government offers two factual justifications, why Furman should not apply to the military.

It should first be observed that whether or not these are true, these assertions would not serve to override contrary Bank of Preston cited in our brief.

Moreover, by seeking a factual evaluation, the Government asks this Court to open the door to jurisdiction by jurisdiction review of the applicability of the Furman rationale to the particular experience of a given jurisdiction.

But most important, the factual assertions that the Government seeks to rest its argument on are demonstrably false.

The Government argues first that military discipline and special military circumstances require the use of the death penalty.

Restated this argument is that military discipline is dependent upon capital punishment or more precisely dependent up on constitutionally cruel and unusual punishments.

This is simply the baseless.

The short answer is provided by the military itself or the death penalty and the military has fallen into destitude.

It is simply not used.

When it has been used by the military, it has been used not to further disciplinary purposes but the punish servicemen for committing civilian type offenses.

The fact that the United States Marine Corps has gone for more than a century and a quarter without so much as it judging the death penalty at trial is itself conclusive evidence that the Government's claim is simply unsupportable.

The Government also argues that the military appellate structure assures that the use of the death penalty in the military will not be random or discriminatory.

This is first of all precisely the type of argument that this Court refused to hear in the petitions for rehearing submitted by the States of Pennsylvania and Georgia.

Secondly, this is demonstrably untrue.

We address this point at some length in our brief and I shall not repeat that.

Let me say only, that we know that the use of the death penalty in the military is random in the extremes.

We know that it is used so and frequently that it cannot possibly serve any legislative or social purpose.

We know that it is discriminatory among the services for it's confined almost exclusively to the Army.

We know that this impact is racially discriminatory of the eight servicemen executed since 1950, whose race we know, all were black.

And furthermore, we know rather dramatically that in the military, the use of the death penalty does not necessarily correlate with the severity of the crime.

By no stretch of the imagination can it be asserted with the use of the death penalty in the military is less discriminatory or less random or less irrational.

There is in short no basis whatever for the factual assertions.

The Government puts forward and on the basis of which the Government will have this Court override a substantial bank of contrary precedence.

Our second point, in the broader constitutional point is that imposing the sentence of life imprisonment with no possibility of parole.

The President exceeded his constitutional ground of authority under Article II, Section 2.

I would like in this connection to begin by noting what is not in dispute on this point.

It is undisputed first, that the President possesses the constitutional power to commute sentences.

It is secondly undisputed that he possess is absolute discretion in deciding when to exercise that constitutional power.

But it is also undisputed that there are some limits to that constitutional power.

There are admittedly some lesser punishments that the President cannot substitute in the act of commutation.

Justice Harry A. Blackmun: Was any objection made at the time of the commutation?

Mr. Homer E. Moyer, Jr.: No, Mr. Justice Blackmun.

The consent or the acceptance of the petitioner was not requested and he, of course, was a man who was facing execution and was offered some form of executive clemency and was not in a very strong bargaining position.

The narrow issue here is what types of lesser punishments may be substituted by the President.

What are the limits to the constitutional power to commute the sentences?

Chief Justice Warren E. Burger: On your theory Mr. Moyer, if a military -- if a man in military were sentenced to, let us say, 30 years and that was commuted down to 20 or 10 on condition of no-parole, that would be equally unconstitutional, I take it.

Mr. Homer E. Moyer, Jr.: Well, the first point to notice that a 30-year sentence would never come before the President in the course of ordinary military appellate review if one's --

Chief Justice Warren E. Burger: Only death sentences?

Mr. Homer E. Moyer, Jr.: That's correct.

Death sentences and cases involving flight officers go before the President as the ordinary course.

But if the particular prisoner military or civilian petitioned directly from the penitentiary for executive clemency in his case, the President certainly would have the constitutional authority to hear that case.

Whether or not the President could commute to a punishment of 20 years without possibility of parole would depend on whether there is any legislative authority for that punishment.

But the basic point is that the President may not make up any punishment that he chooses to substitute as a lesser punishment.

Justice Byron R. White: Suppose Mr. Moyer the statute imposed a flat 30-year penalty, could the President commute that to 10 years?

Mr. Homer E. Moyer, Jr.: We certainly would say that he could, Mr. Justice White.

Justice Byron R. White: Why, the statute doesn't authorize him so to do?

Mr. Homer E. Moyer, Jr.: Well, the question, the rule in the Wells case and Biddle against Perovich which require -- the rule requires that there'd be some legislative basis is as stated in those cases a broad rule.

That requisite legislative basis has never been spelled out precisely by this Court.

Presumably, it could be present in one of the three forms

If the commuted punishment were an alternative punishment for the particular sense, there clearly would be no question that the requisite legislative basis was present.

Justice Harry A. Blackmun: I'm assuming there is no an alternative?

Mr. Homer E. Moyer, Jr.: There is none in this case.

And in the hypothetical you posit, a second reading of the legislative basis rule in Wells might will be that legislative basis exists where the commuted punishment is one of common usage found throughout the code.

And in that case, confinement certainly is the most common punishment.

And under the hypothetical you posit, the President certainly would be able to commute in that situation and we do not contend otherwise in this case.

This rule obviously flows from the basic separation of powers that the defining of criminal punishments is a uniquely legislative option, that a ruling by this Court to the President need not look to legislatively sanctioned punishments, would confer up on the President, the authority to device punishments that he sees fit.

Now, the Government appears not to take serious issue with the general proposition that there must be some legislative basis of commuted punishment.

Indeed, the Solicitor General in Biddle against Perovich argued that very point rather the area of primary dispute here, this whether there exists the requisite legislative basis.

We maintain that no such basis here exists for the following reasons.

First, the commuted punishment of life imprisonment with no possibility of parole is a punishment completely foreign under military law and foreign to the Uniform Code of Military Justice.

Not only as it's not a punishment for the offense of which petitioner was convicted but it is provided nowhere in the UCMJ.

If death sentence were imposed at a military trial, it would simply be an illegal sentence.

Moreover, that punishment was nowhere to be found among the civilian federal criminal statutes.

When the President in Schick's case commuted his punishment, he could point to no statute that authorized the punishment of life imprisonment with no possibility of parole.

Thus, in Schick's case the President not only substituted the commuted punishment but he devised it.

And so doing, we maintain that he exercised a uniquely legislative function, a function reserved by the Constitution to the legislature.

So, in final response to your question, Mr. Justice Blackmun, under any reading of the rule suggested in the earlier cases Wells and Perovich by this case, the President's action here would not be sustainable.

Indeed, when one looks at the legislative scheme not only is there no authorization for the lesser punishment to which petitioner sentence was commuted but the legislative scheme reflects a direct con -- directly contrary policy for the parole statute which has been a part of federal law since 1910.

It reflects a congressional commitment to offender rehabilitation as a matter of federal correctional policy.

I would like to conclude reserving remainder of my time for rebuttal.

Justice Harry A. Blackmun: Of course, the statute in Marrero isn't quite in line on what you've just said.

Now, there were some of us who didn't agree with the Court's holding in Marrero and I guess I'm struggling but still --

Mr. Homer E. Moyer, Jr.: Well, the statute that issue there, Mr. Blackmun, I think the --

Justice Harry A. Blackmun: But it was a statute.

Mr. Homer E. Moyer, Jr.: That's correct Mr. Justice --

Justice Harry A. Blackmun: The events in congressional policy at least.

Mr. Homer E. Moyer, Jr.: That's right.

That statute, however, did not exist at that time or a statue authorizing life imprisonment with no possibility of parole did not exist at the time that the President acted in Schick's case.

The statutory authority that the Government has cited in their brief as justification for the President's action here was not enacted until 1970.

There was in 1960 at the time of the commutation, no legislative authorization for that punishment and it's our position that the action taken by the President without any legislative basis in imposing a lesser punishment could not later be ratified by the adoption of that punishment.

Justice Harry A. Blackmun: Well, then are you suggesting that if possibly it could be done today constitutionally?

Mr. Homer E. Moyer, Jr.: The question of whether the President -- of what punishments the President could commute to today would depend upon what punishments today are authorized by the legislature.

To hold otherwise is to allow the President to devise himself punishments for the punishment of crimes.

Justice Harry A. Blackmun: But at least today we have the example of the Marrero statute.

Mr. Homer E. Moyer, Jr.: We do today have a statute which imposes life imprisonment without possibility of parole.

Now, that statute it should be noted as narrowly confined.

It is combined to drug traffickers and the legislative history of statutes dealing with trafficking and drugs indicates that the congressional intention was to confine those no-parole imprisonment situations to that narrow category of crimes.

Justice Harry A. Blackmun: Is that because it is more offensive crime than murder, do you think?

Mr. Homer E. Moyer, Jr.: No, the congressional reports there stated that the purposes of rehabilitation in the context of drug traffickers could be carried out only by keeping such offenders within prisons, that the parole policy was uniquely inapplicable to that situation.

I should like to conclude with just a word about the balance of interest in this case.

On the one side, there are important considerations favoring invalidation of the no-parole provision.

In addition to the constitutional rules at stake, a no-parole provision in this case is directly contrary to national penal and correctional policy.

The no-parole provision is anti-rehabilitative in the extreme.

And finally, the no-parole provision in this case discriminates against the petitioner by placing him in a special uniquely disadvantaged category where he is serving a more severe sentence than anyone else in the federal prison system.

On the other hand, there are no countervailing Government interests here at stake for all we asked in this case is that petitioner be given the opportunity to be considered for parole.

This balance or imbalance of interest here are the strongly we suggest for invalidation of the no-parole provision.

I just like to reserve the remainder of my time.

Chief Justice Warren E. Burger: Mr. Claiborne?

Argument of Louis F. Claiborne

Mr. Louis F. Claiborne: Mr. Chief Justice, may it please the Court.

I should like to begin with the last point touched upon by my opponent which is to say, the propriety of the no-parole condition which is attached by the President when he commuted such in Schick's death sentence.

As Mr. Justice Blackmun, I think has narrowed the point, my opponent is not clear whether he is saying that one must look to the penalties or punishments provided by the murder statute in your Article 118 of the Code on whether one simply looks to the federal criminal law or the criminal law as a whole to determine the issue which he puts which is can the President invent a new novel penalty punishment alien to American Law.

For the purpose of this case, we may assume, though the Court has never so held and it's arguable that only other constitutional limitations applies such as cruel and unusual punishment.

We may assume that the President enjoys no power to create a totally novel or bizarre penalty which is elsewhere unknown in the criminal laws of the United States.

But that is simply not this case.

To be sure, Article 118, the murder statute in the military case provides only two alternatives, death or life imprisonment with normally, eligibility for parole, but other laws in the Untied States including a specific federal statute, do envisage life imprisonment without a parole.

So we're not in the area of a novel invention, the creation of a new penalty which arguably might present a difficult constitutional question.

We're dealing with a condition which is only recently affirmed by Congress as a proper punishment in the federal system as Mr. Justice Blackmun has pointed out.

We're also dealing with the provision which is common in the laws of 20 States and many times for murder, often for all life sentences, the eligibility for parole which is otherwise available is denied in the case of life sentence.

Nothing therefore extraordinary in this provision and therefore, nothing beyond the power of the President unless he is confined to the same alternatives the judge would be, and of course he is not.

One need take only the example of a judge who sentences to the statutory minimum, the result would be that the President cannot exercise his power of mercy --

Justice Thurgood Marshall: You don't have the facts this has been done?

Mr. Louis F. Claiborne: Mr. Justice Marshall, so far as our research indicates, President Eisenhower on five occasions, include -- five occasions in addition to this one, commuted death sentences with the condition of no parole.

One other case it was life, the other case is it was periods of 55 or 45 years with no-parole eligibility.

The Attorney General Brownell, who wrote an opinion for President Eisenhower with respect to these cases, indicates that President Wilson had on two occasions done the same thing.

Of course, there was no occasion to do so before 1913 because parole in the case of a life sentence was not the rule.

In fact, it was unavailable generally before 1910 in the case of life sentences before 1913.

So, we don't expect to find a long backward history of this except as I say Mr. Justice throughout the experience of 20 States in which life sentences are --

Justice Thurgood Marshall: How many is it in Federal Government?

Mr. Louis F. Claiborne: Well, we do have of course, as Mr. Justice Blackmun, pointed out the narcotic statute which does expressly as a matter of congressional decision did not grow.

Justice Thurgood Marshall: In narcotics, convictions received any clemency?

Mr. Louis F. Claiborne: Not --

Justice Thurgood Marshall: This is no?

Mr. Louis F. Claiborne: Not that I'm --

Justice Thurgood Marshall: Right.

Mr. Louis F. Claiborne: Undoubtedly --

Justice Thurgood Marshall: So, that had nothing to do with my point is how many times that we had clemency without a parole by the President of the United States?

Mr. Louis F. Claiborne: Well, so far as I'm aware, Mr. Justice Marshall, six instances by President Eisenhower and two by President Wilson.

The decisions of the President in commutation matters are not published and whether research were thorough would produce other instances I don't know.

So far as I'm able to say those are the only instances.

Justice William H. Rehnquist: Do you have any idea how many sense is in total President Eisenhower commuted?

Mr. Louis F. Claiborne: Of military death sentence --

Justice William H. Rehnquist: Yes.

Mr. Louis F. Claiborne: Of sentences of --

Justice William H. Rehnquist: No, military sentences.

Mr. Louis F. Claiborne: Military death sentences during President Eisenhower's period in office would at a guess and it's really a guess because the figures are divided in ways that don't show it too clearly of something in the order of 20.

Now, let me say finally on this point that there is no statutory bar even assuming that a statutory bar to this sort of condition attached to a presidential pardon were constitutionally relevant.

The very statute involved here under the Uniform Military Code specifically authorizes the President to commute a sentence to such lesser punishment as he sees fit leaving him a full sway, full of discretion.

The general parole statute as we indicate in our brief initially had a provision which specifically says this is in no way meant to control or fetter the discretion of the President when exercising its constitutional power of pardon.

Now, let me say that the relevance of this issue is important if the Court should hold that the mandatory death sentence passes constitutional muster because in that event it will indeed be important to recognize in the President a power to commute or in governors of states the power to commute any mandatory death sentence.

But in at least the most shocking cases, once cannot expect that a power of clemency to be exercised if the alternative use here is unavailable.

And yet the result would be if the alternative were available to encourage the commutation of death sentences when the chief executive, whether the United States Service is in a position to assure that there will be no automatic eligibility for parole in 15 years, which does not deprive him of a later opportunity or of his successor of an opportunity to reconsider the matter at a later time nor indeed does it in this case.

Now, leaving that question and turning to Furman versus Georgia.

It is said that Furman versus Georgia has been held by this Court to be fully retroactive.

And it is true that in two cases in Michigan versus Payne and in Robinson versus Neil, this Court so characterized its prior holdings with respect to Furman and Georgia.

I don't want to quibble that terminology but it is at least arguable that all the Court has ever held with respect to Furman is that it will prevent the present execution of any death sentence no matter when imposed.

The Court has not had occasion to hold and has not held that Furman versus Georgia is fully retroactive in the same sense as it's held Gideon versus Wainwright fully retroactive.

For instance, I don't suppose the Court has had before it but I'm not sure that the Court has foreclosed itself from ruling if a criminal at the prison now should come before the Court and say, "I plead guilty out of fear of a death penalty which this Court has now ruled was unconstitutional and therefore, I want to withdraw my plea and have a trial."

That would be fully retroactive application of Furman.

If the Court were to force such a prisoner a reopening of his conviction on a plea of guilty and it's not an unreal hypothesis.

There may indeed also be civil consequences that flow from a full retroactive application of Furman.

(audio abruptly cut 00:35:34-00:35:40)I'm not sure what they would be.

Well, they deal with life insurance policies or other matters.

But this Court hasn't left that question open.

Now, let's say that the Court has not closed the door.

Of course, this is not to indicate how you don't want to decide it now that the question may be presented.

We analyze it this way.

We say the basis of the decision in Furman, when one puts together the opinions of the members of the Court who constituted majority.

It seemed to turn on two findings.

The first is that the public attitudes of today with strong emphasis on the very recent past indicate a rejection of the death penalty as unnecessarily cruel.

Also, the experience of the recent past in the civilian context in the United States, indicates that the administration of a death penalty has been so random, so freakish, so discriminatory, so haphazard that it is unusual and cruel to impose it or carry it out today.

To effectuate those policies, it is not necessarily required to go back 20 years to invalidate a death sentence which has already been commuted 14 years ago and to look to the collateral consequences of the death sentence.

It seems to us that the approach followed in Michigan versus Payne is appropriate here.

And it's true that in Michigan versus Payne, the Court declined to make any retrospective application.

Eventhough, all that was at stake was sentenced just as here.

Now here the Court has gone somewhat further, it has said, "We will require resentencing whether it's still a realistic alternative."

But it need not necessarily go over further step of undoing the commutation which was premised on a death sentence which was imposed at a time when this Court might not have found imposition freakish or contrary to prevalent attitudes.

Now finally, we get to the question of whether at all events, Furman should be applied in military context.

I owe the Court an apology for raising this issue so late in the day.

Part of the explanation is that in the District Court, Furman had not yet been decided when the case is in the District Court.

This Court had not yet decided Furman.

In the briefs in the Court of Appeal, my friend invoked Furman only by analogy, that is to suggest that the no-parole condition for the reasons given by majority in Furman violated the Cruel and Unusual Punishment Clause.

An argument no longer pressed here nor indeed put by the petition of certiorari only if the oral argument in the Court of Appeal was it suggested that Furman had any direct application to this case.

Justice Harry A. Blackmun: This is Court of Appeals.

Mr. Louis F. Claiborne: Court of Appeals.

Justice Harry A. Blackmun: Other place where as Court of Appeals --

Mr. Louis F. Claiborne: I have been too far away, it was just meant.

Now, even so we should raise the point in our brief in our position in this Court.

We were slow in seeing it.

It is, however, it seems to us an important point if they ought not be decided backhandedly in this case.

My opponent spends a very great deal of time in his reply brief proving that the cruel and unusual punishment concept applies to the military.

Without quibbling, this Court has indeed never held that the Cruel and Unusual Punishment Clause of the Constitution applies to military, there are four votes for that proposition in Travis versus Dallas and only one Court of Appeal has directly so held.

But for the purpose of this case, we may assume that Article 55 of the code enacts the same standard for the military and I'm willing to treat it under that same extent.

But it does not follow that what is cruel and unusual in this civilian context is ipso facto cruel and unusual in the military system.

Cruelty is relative, war is cruel and the reasons underlying this Court's decision in Furman for finding the death penalty cruel and unusual mainly not be applicable in the military context.

There may be a special need for deterrent in military conditions and there, it may be more important to look to the imposition of the death sentence in the area on the battlefield which may have a very real deterrent whatever happens on review.

On the other hand, the freakish and haphazard imposition of the death penalty which persuaded this Court to hold such discretionary penalties unconstitutional in civilian context is not so likely in the military.

If only because there are so many levels of review of sentence, something unknown to the civil system.

First of all, the convening authority must make a decision when referring a case whether to refer it as a capital case or not, a first screen.

If the court-martial having had the case referred to it as capital sentences the prisoner to the death penalty, it must be approved by the convening authority.

After that the case goes to the Court of Military Review which has a gained power to reduce so vary -- to commute the death sentence.

Then, the case goes to the Court of Military Appeals which has no power to vary the sentence but reviews to conviction in line of death sentence.

But finally, in every death sentence case at a single level, the level of the President, we have a review of the death sentences imposed.

So, it's reasonable to suppose that with a centralized system and these levels of review, we're going to come out with a patent that is less freakish to use Mr. Justice Stewart's terminology than we find in so many disparate jurisdictions all over the country and indeed in the federal civilian system.

Justice Potter Stewart: If one can accept the thesis of how it came about that the one corporal or sergeant in World War II was executed for desertion?

Sergeant, what was his name?

Mr. Louis F. Claiborne: Slovik, I believe.

Slovik --

Justice Potter Stewart: Slovik, Slovik.

The fact that so many different people with responsibility and each one passing about to the other would lead to almost a more freakish situation, wouldn't it?

Mr. Louis F. Claiborne: Well, I'm not sure --

Justice Potter Stewart: That's at least the thesis of what happened in that case is to Corporal Slovik or Sergeant Slovik.

Mr. Louis F. Claiborne: Mr. Justice Stewart, in the particular case of Sergeant Slovik, I cannot --

Justice Potter Stewart: I don't know the facts but really --

Mr. Louis F. Claiborne: Of course, there were many death sentences imposed and executed in World War II.

Justice Potter Stewart: But only one for --

Mr. Louis F. Claiborne: Only one for desertion.

Justice Potter Stewart: Desertion.

Mr. Louis F. Claiborne: Those that were imposed for murder one doesn't know whether it was the murder of the commanding officer or an officer one for desertion, Mr. Justice Marshall.

Justice Thurgood Marshall: You have to carry out with more than one imposed.

Mr. Louis F. Claiborne: And they were, they were something --

Justice Potter Stewart: Many, many, many imposed and only one carried out.

Mr. Louis F. Claiborne: Yes.

Well, Mr. Justice Marshall, you speak from closer experience than I do.

I do know from what few figures we have, that there were indeed several imposed then only one carried out for desertion.

There were many for other crimes, now, I must say, the other crimes mostly rape than murder.

Justice Potter Stewart: Murder.

Mr. Louis F. Claiborne: Murder one doesn't know whether that was military or not, it could have been.

But I'm not suggesting that this Court has a basis on which to make a decision as to whether Furman or to apply to military.

I am suggesting that they're all sufficient differences so that the Court order hold its hand and if it reaches that issue which it reaches only if it first holds that Furman would if -- would retroactively apply to the situation.

Then, you have to decide whether it applies to the military at all.

In that event, we think the record far too bear the facts, figures or other indications as to the deterrent value, as to the actual experience are not explored in this record.

And the Court ought had more to go on before reaching that very important step.

Accordingly, should the Court go so far in the case within the appropriate cause would have to be a remand to the District Court with an opportunity for presentation of evidence and of statistics which would furnish that Court, the Court of Appeal and have ultimately this Court with a concrete record on which to make that important decision.

Now, we've recognized that this is a hard case.

We do want to emphasize that it is not our position that the President once imposes this sort of condition that's so irrevocably.

It is as Attorney General Brownell made clear in his advice to President Eisenhower open to that President to any of the successes to vary the condition and it will be that the circumstances would justify in this case.

Chief Justice Warren E. Burger: In other words, in that view the President is a continuing de facto parole.

Mr. Louis F. Claiborne: Exactly, Mr. Chief Justice and it is open to the prisoner.

Perhaps, especially so in the military context in which the President serves also as Commander-In-Chief to appeal to him and perhaps that procedure in the military doesn't require going through the pardon court, I really can't speak too authoritatively about that.

But --

Justice William J. Brennan: But Mr. Moyer say that there had been an effort --

Mr. Louis F. Claiborne: Well, I frankly was unaware.

He tells -- I think he said 1968.

Justice William J. Brennan: Yes.

Mr. Louis F. Claiborne: It is -- I'm not for a moment suggesting that I have any basis on which to encourage the hope that such an application would be successful.

On the other hand, six years had been gone by.

There's no reason not to reapply.

Chief Justice Warren E. Burger: Thank you, Mr. Claiborne.

Mr. Moyer, do you have anything further?

You have about six minutes left.

Rebuttal of Homer E. Moyer, Jr.

Mr. Homer E. Moyer, Jr.: Mr. Chief Justice I have only two brief points in rebuttal.

The first is, that in asking this Court to hold that the retroactivity of Furman does not reach petitioner's sentence, the Government is asking this Court to create a new strand to the doctrine of retroactivity, a strand that would hold that some retroactive constitutional rulings are retroactive for some purposes but not for others.

Chief Justice Warren E. Burger: Well, but your proposition is based on the assumption that we've decided this issue in broad enough scope to embrace military?

Mr. Homer E. Moyer, Jr.: That's correct, Mr. Chief Justice.

Chief Justice Warren E. Burger: And that's your starting point.

Mr. Homer E. Moyer, Jr.: That's right and that's the second point that I would like to address.

Respondent suggest the appropriateness of a remand in an evidentiary hearing in this case.

We would suggest that that is uniquely inappropriate.

First, whatever facts might be adduced at an evidentiary hearing, they would not suffice to overturn the contrary precedents in military and civilian courts.

But moreover, we know from the facts before this Court now, that there are no facts that could be adduced that would justify the position or the propositions that the Government puts forward.

Let me deal quite briefly in the specifics of the use of the death penalty.

First, the idea that the death penalty is a deterrent must necessarily rest upon the reasonable expectation that that penalty will be used.

In the military, there is no basis for that form of expectation and certainly not in the case where military discipline is at stake.

There were a 102 servicemen executed during World War II, 101 of those 102 were convicted of civilian type offenses, rape and murder.

Only one was executed for having committed a military type offense.

All 12 of the servicemen executed since 1950 committed civilian type offenses.

But even if you accept the Government's hypothesis, that there is some deterrent value to the imposition of the death penalty without it as ever being executed.

We know that doesn't sustain their position here because the marine corps is not even adjudged the death sentence before -- since before 1849.

The navy has adjudged it five times in that century and a quarter.

Chief Justice Warren E. Burger: Well, I suppose it would be arguable that that demonstrates equally or perhaps no more than that the discipline in the marine corps is much better and that the quality and caliber of the people is higher as they traditionally claim.

Mr. Homer E. Moyer, Jr.: I suppose, Mr. Chief Justice in the same way, it could be argued that the more random and the more freakish the imposition of the death penalty is, the more that shows that the deterrent effect is created by the death penalty.

Justice Thurgood Marshall: How --

Mr. Homer E. Moyer, Jr.: We --

Justice Thurgood Marshall: How many death penalties you say when?

Mr. Homer E. Moyer, Jr.: 102 were executed during World War II.

All but one were -- the servicemen who had been convicted of murder or rape.

Justice Thurgood Marshall: You mean carried out.

Mr. Homer E. Moyer, Jr.: That's correct.

We do not --

Justice Thurgood Marshall: Because I know of one is with 51 were sentenced to death but they didn't die.

Mr. Homer E. Moyer, Jr.: That's correct.

That my figures--

Justice Thurgood Marshall: So, there were more that were imposed.

Mr. Homer E. Moyer, Jr.: Oh, yes indeed.

No question about that.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.