DURST v. UNITED STATES

Argument of Michael S. Frisch

Chief Justice Warren E. Burger: We will hear arguments next in 5935 Durst against the United States.

Mr. Frisch, I think you may proceed when you are ready.

Mr. Michael S. Frisch: Mr. Chief Justice and may it please the Court.

The issue presented by this case is whether a fine or requirement of restitution may be imposed upon one sentence to probation under the terms of the Federal Youth Corrections Act, 18 United States Code Section 5010 (a).

Each petitioner entered a pleaded guilty to a misdemeanor violation of federal law before United States Magistrate in Maryland and each was placed on probation under the terms of the Youth Act.

Petitioner Rice being sentenced under the terms of that Act which extends it to young adult offenders.

Each was ordered to pay a fine to the United States and additionally petitioner Durst was ordered to make restitution on a stolen check.

The District Court in this case and the other lower federal courts which have held fines to be permissible under the Youth Act have essentially relied upon two sections of the statute and inferred these two sections a congressional intent to permit fines.

The first of these sections is Section 5023 (a) of Title 18 which in effect incorporates the indult probation statute Section 3651 of Title 18 into the Youth Act, and the courts have reasoned that since fines are a permissible condition of probation for adults, they are also permissible under the Youth Act.

What we respectfully suggest that this argument ignores is that the power to impose a fine does not originate with Section 3651, rather it originates with the substantive statute under which a person is convicted.

We respectfully suggested the Court that when one is sentenced under the Youth Act, once a finding of benefit is made under that Act, once one is deemed to be worthy of the treatment and rehabilitation provided for by that Act, they are no longer punished for the offense.

As provided for by Rule 3651, rather they are made subject to the treatment and rehabilitation of the Act, and as a result of that we suggest that reference to 3651 which can not be read as a penalty provision within itself, can in now way be read in such a way as to permit fines under the Youth Act.

Now the question might naturally arise what was the purpose of enacting 5023 (a) by Congress if it were not to impose fines.

Unfortunately the legislative history with regard to the Act is not really very helpful in this regard.

There are perhaps, however, a number of reasons why 5023 may have been enacted rather than to permit fines.

I think perhaps the best of these reasons has to do with the nature of the Youth Act itself.

Congress knew when it enacted the Youth Act that it did not create any specialized programs of treatment and rehabilitation for Youth Act probationers as oppose to those sentenced under the imprisonment provisions of 5010 (b).

Realizing that, Congress made it quite clear by enacting 5023 (a) that whatever programs of treatment and rehabilitation were available to adults under 3651 are made equally available to Youth offenders by the operation of 5023 (a).

Additionally, the argument has been made and adopted number of judges in the District Court of Maryland that as a result of the operations of 5023 (a) and the incorporation of the general probation statute that a split sentence can be imposed under the Youth Act that is to say a sentence of imprisonment of up to six month to be followed by a period of probation.

By doing this it gives a court in fact a middle ground between 5010 (a) and 5010 (b) without requiring the indeterminate sentence of up to four years.

Additionally, a fair reading of 3651 which we suggest to this Court demonstrates that intent to fine does not exist fairly clearly, absolutely clearly sets out that restitution is permissible under the Youth Act and we are prepared to concede at this time.

It is quite clear under 3651 that restitution is a permissible condition of probation.

The second section of the statute that the courts have relied upon in order to permit fines under the Youth Act is in fact changed in the original language, the proposed language of 5010 (b) which originally read that imprisonment under Youth Act was in lieu.

Penalty otherwise provided by law, and this was changed in the present form of the law to penalty of imprisonment.

There is a letter cited in the Government’s brief in support to the proposition that this permits fines.

In response to that we would make two argument to the Court: First and most importantly, 5010 (b) is not the issue before this Court.

That is a separate and distinct sentencing alternative from 5010 (a) and not the one for decision in this case.

As Mr. Chief Justice Burger in Dorszynski stated at Page 43, the Act creates two new sentencing alternatives, and the one before this Court is the probation alternative and not the incarceration alternative.

Justice Thurgood Marshall: It was just an ordinary you are talking about.

Mr. Michael S. Frisch: Mr. Attorney General Biddle --

Justice Thurgood Marshall: That was a letter from the Attorney General of the United States.

It was not just an ordinary letter.

Mr. Michael S. Frisch: Not an ordinary letter.

Justice Thurgood Marshall: It gives me a straight impression, it was just a letter.

Mr. Michael S. Frisch: Well, it was a letter written to the House Committee considering the bill, I believe, transmitted from the Judicial Conference considered to the Youth Act.

Justice Thurgood Marshall: Yeah, from the Attorney General of the United States.

Mr. Michael S. Frisch: That is correct Your Honor.

Secondly, if the Court does --

Justice Thurgood Marshall: And it said explicitly, a fine was to be included.

Mr. Michael S. Frisch: That is correct with reference to be Your Honor.

Justice Thurgood Marshall: And that was the reason for the amendment.

Mr. Michael S. Frisch: That is correct Your Honor.

If the Court is convinced --

Justice Thurgood Marshall: Have you anything against that, any legislative history to contradict that?

Mr. Michael S. Frisch: No, I do not Your Honor.

But I think the important point to be made is that, that letter and the change language was referenced to the incarceration alternative.

I would direct the Court’s attention to the language in 5010 (a) which states that the sentencing judge may suspend imposition or execution of sentence.

If Congress was aware of the necessity to change the language with respect to (b) to add the language in lieu of penalty and imprisonment, I think the question might reasonably be asked, why a similar change was not enacted as to (a)?

Why that same limiting language was not put into (a)?

The Government in its brief, I believe, response to this argument by stating that it would be illogical to conclude that Congress intended fines with respect to the incarceration alternative but not with respect to probation.

I would suggest to the Court that there is a logical distinction between people sentenced under 5010 (b) and people sentenced under 5010 (a).

I believe a sentencing judge makes a qualitative distinction between one who is in need of the incarceration alternative and one who is only in need of probation supervision and at this shows a different type of person that is being treated by the Court with respect to (b) as oppose to (a).

Justice William H. Rehnquist: What about restitution?

Would your same argument, as defines, apply to a requirement that the defendant make restitution?

Mr. Michael S. Frisch: No Your Honor.

I am prepared to concede that restitution is proper from the fair reading of Section 3651.

I believe the distinction to be made between fines and restitution is that the power to impose restitution resides right in the probation statute.

With respect to fines, it refers back to the substantive offense with which a person is committed.

The final concern of courts that have found fines to be permissible under the Act is that to hold otherwise would deny the benefits of the Act to otherwise qualify the young offenders, and I can not state to the Court that this is not at least the possibility.

However, I would hope that sentencing judges, particularly those cognizant Mr. Justice Marshall’s concurring opinion in the Dorszynski case which describes of Youth Act as a preferred sentencing alternative which still treated as such and not deny the benefits of the Youth Act to an otherwise qualified individual, merely because Congress did not provide for a fine in the sentencing scheme.

Secondly, having conceded that restitution is permissible and appropriate under the Act in the correct case, I would think that in most cases where a fine would be called for where the individual had either financially profited from his offense or caused his victim to cause some loss, the fact that restitution is available under the Act might go along way toward procuring that concern of the Fourth Circuit and the other courts that have permitted fines with respect to denying the benefit of the Act.

Regardless of that, we do suggest to the Court that the real issue here is one of statutory constructions, one of the fair readings of the Act and that although fines maybe a wise policy under the Act. That is not the question before this Court; it is merely a question of what Congress provided for.

That a fair reading of this Act, reading 3651, and the change in language with respect to 5010 (b) is simply not a sufficient indicator of Congress’ intent as to this penalty.

Unless there are any questions, I would like to reserve five minutes for rebuttal.

Thank you.

Chief Justice Warren E. Burger: Very well.

Mr. Solicitor General.

Argument of Ward H. Mccree

Mr. Ward H. Mccree: Mr. Chief Justice and may it please the Court.

The Government contends that the decision of the Court of Appeals is supported not only by the literal terms of the Youth Corrections Act but also by the Act’s legislative history.

The provisions under which petitioners were sentenced, 18 U. S. C. Section 5010 (a) provide, if the quarters of the opinion that the youth offender does not need commitment, it may suspend the imposition or execution of sentence and place the youth offender on probation.

Now nothing in this provision or in any other provision of the Act precludes the imposition of a fine, and since my brother concedes that restitution is not proscribed, I will not labor that.

Indeed, such 5023 (a) of the Act expressly provides that nothing in this chapter shall limit or affect the power of any court to suspend the imposition of execution of any sentence and place the youth offender on probation, or be construed in any wise to amend, repeal, or affect the provisions of 18 U. S. C. Section 3651 relative to probation.

When we advert to 3651, we find that language provides, while on probation and among the conditions thereof, the defendant maybe required to pay a fine in one or several sums and maybe required to make restitution or reparation.

Now I understand my brother to concede that this statutory provision that permits the Court to require restitution as found in 3651 eliminates that element from the consideration of the Court in this appeal.

I submit it similarly eliminates from this Court’s consideration or its contentions that a fine might not be imposed.

I think probably we could conclude our argument at this point.

I would emphasize that the letter of Attorney General Biddle, as the Court has suggested in its questioning, is not a mere letter, but it is a letter that purports to communicate to the Congress the consensus of all the interested persons outside of the legislature that were considering this piece of legislation.

The Judicial Conference of the United States and the Department of Justice including the Bureau of Prisons and the Parole Board, I think it makes it very clear that fines were not to be proscribed.

And in the words of this Court in Dorszynski the purpose of the Youth Corrections Act is indeed to afford additional sentencing options to the District Court.

We submit that with counsel’s concession and with that view of the statute that the judgment of the Court of Appeals is eminently correct as indeed it was in Oliver --

Justice Byron R. White: Does 3651 permit the imposition and fine as a condition of probation when the underlying statute does not impose a fine?

Mr. Ward H. Mccree: Mr. McCree: I would not so contend.

I would suggest that it permits the imposition of a fine only when the underlying statute calls for fine and/or imprisonment, and it does indeed in this case.

Justice Byron R. White: Doesn’t this case simply go for sentence the amount of that provision?

Mr. Ward H. Mccree: No, they do not sentence the amount of that provision but that --

Justice Byron R. White: What under 3651?

Mr. Ward H. Mccree: Well, 3651 incorporates the offense that was committed that brought the person before the Court by reason of the indictment.

If the Court has no further questions the Government will submit its argument at this point.

Chief Justice Warren E. Burger: Thank you Mr. Solicitor General.

Do you have anything further Mr. Frisch?

Thank you gentlemen.

The case is submitted.