Transcript

IN THE SUPREME COURT OF THE UNITED STATES

ROBERT HOWE, SR., Petitioner, v. WILLIAM FRENCH SMITH, ATTORNEY GENERAL OF UNITED STATES, ET AL.

No. 80-5392

April 28, 1981

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:16 o'clock a.m.

APPEARANCES:

WILLIAM A. NELSON, ESQ., Appellate Defender, Office of the Defender General, State Office Building, 141 Main Street, Montpelier, Vermont 05602; on behalf of the Petitioner.

MS. BARBARA E. ETKIND, ESQ., Assistant to the Solicitor General, U.S. Department of Justice, Washington, D.C. 20530; on behalf of the federal Respondents.

JOHN J. EASTON, JR., ESQ., Attorney General, State of Vermont, Department of Corrections, 103 South Main Street, Waterbury, Vermont 05676; on behalf of the state Respondent.

PROCEEDINGS

MR. CHIEF JUSTICE BURGER: We'll hear arguments next in Robert Howe v. Attorney General. Mr. Nelson, I think you may proceed whenever you're ready.

ORAL ARGUMENT OF WILLIAM A. NELSON, ESQ., ON BEHALF OF THE PETITIONER

MR. NELSON: Mr. Chief Justice, and may it please the Court:

The petitioner is a Vermont convict who is in prison, not in Vermont, but in the United States Penitentiary in Terre Haute, Indiana. He challenges his incarceration by the United States and asks his return to the custody of Vermont.

The case involves two statutes, two federal statutes, and turns on the construction of one of them. Section 4001(a) of Title 13 guarantees that no citizen shall be imprisoned by the United States except pursuant to an act of Congress. Section 5003(a) of the same title authorizes the Attorney General to accept custody of state prisoners when the Director of the Bureau of Prisons certifies that proper and adequate treatment facilities and personnel are available. The question is the construction of that section.

QUESTION: What was Mr. Howe convicted of?

MR. NELSON: He was convicted of first degree murder.

QUESTION: And do you have any answer of your own as to what would be the proper and suitable correctional treatment for him?

MR. NELSON: Well, I think that the 2nd Circuit's view is reasonable, that his incarceration is not for treatment at all but simply for deterrence.

QUESTION: Well, do you think -- in other words, you think that it must be treatment of some sort?

MR. NELSON: Yes. We feel that the statute permits inmates to come into the federal system for purposes of treatment.

QUESTION: What if the Vermont penal authorities decide that no amount of treatment can ever rehabilitate this person, that he's simply got to be locked up for a good long time in order to keep him from doing it again.

MR. NELSON: Well, they are certainly entitled to that and then Mr. Howe is their problem. Then Mr. Howe must be dealt with as many difficult correctional problems must be dealt with by the state. There are options other than sending him to the federal system.

QUESTION: But you say the federal system has no right to receive him under these circumstances.

MR. NELSON: That's right. Except for treatment needs.

QUESTION: Did I hear you correctly to either say or imply that there is some legal obligation to treat him?

MR. NELSON: I think there is an obligation to treat him so long as he is in the federal system.

QUESTION: Why do you make it any different when it's in federal custody as a surrogate for the state, than when he is in the state custody with the state doing it on its own behalf?

MR. NELSON: Well, a prisoner committed to state custody is simply committed to the Commissioner of Corrections or to the prison system for whatever purpose imprisonment may serve. The same is true of a prisoner committed to federal prison. He is simply committed to a penal or correctional institution.

QUESTION: That is, after a federal criminal trial.

MR. NELSON: After a federal criminal trial; precisely. A state prisoner in federal prison is there under a narrower statute, the statute at issue here, one which permits incarceration when there are adequate and proper treatment facilities available.

QUESTION: Would it be your submission that absent this statute there would be no authority to receive a state prisoner at all?

MR. NELSON: Yes.

QUESTION: Why would that be?

MR. NELSON: That would be because of Section 4001 of Title 18, which prohibits imprisonment except pursuant to an act of Congress. That would prohibit imprisonment by executive order or by executive arrangement, such as the contract which was made in this case.

QUESTION: But 5003 isn't limited to treatment. It says, "Custody, care, subsistence, education, treatment, and training," doesn't it?

MR. NELSON: That's correct.

QUESTION: It doesn't, it isn't limited to treatment?

MR. NELSON: No, it's not.

QUESTION: Well, I was waiting for you to say it.

MR. NELSON: Pardon?

QUESTION: I was waiting for you to say it. You kept just using the one word "treatment."

MR. NELSON: Well, let's look at the face of 5003. It's at page 2 of our brief. Subsection (a) contains two clauses; grammatically, it's an independent clause. The independent clause, as Your Honor points out, permits the Attorney General to contract with appropriate officials of a state for the custody, care, subsistence, education, treatment, and training of inmates. That's just about everything, the full range of penological purposes, as one circuit court has put it.

That's one thing that that section does. The other thing it does is it limits that power to cases where the Director of the Bureau of Prisons certifies that adequate and proper treatment facilities and personnel are available.

QUESTION: Was that done in this case?

MR. NELSON: No, it wasn't. There was a certification that facilities were available at federal prisons. We think there's a difference between dead space in a prison --

QUESTION: Well, couldn't that be facilities for treatment?

MR. NELSON: Well, that's not the Government's position and it's not the state's position, and --

QUESTION: Answer my question; it's my question.

MR. NELSON: I don't think that the Bureau -- no, I don't think it could be construed as that. The Bureau did not intend it as a certification, specifically, treatment facilities; simply, facilities generally.

QUESTION: Looking at the same subsection (a) that you've just been reading from, the Attorney General may, "is hereby authorized to contract with the proper officials of a state or a territory for the custody" of a person "when the Director shall certify that proper and adequate treatment facilities and personnel are available."

Now, if you contract for the custody of a person, it doesn't take a whole lot in the way of trained personnel other than guards, does it?

MR. NELSON: Justice Rehnquist, we agree that this statute is talking about transfers of inmates to federal prisons, and clearly custody is involved. The question is, when may those transfers occur? Must they be, may they be at any time for any purpose, or for no purpose at all, as in an intrastate transfer situation? That's the respondent's view. Our view is that it can occur only in cases of treatment needs where there are treatment facilities available in the federal prison system. Our view is supported by the construction placed on this statute by the House committee which passed it. It said that the section was limited to inmates with treatment needs. In the Senate the same view was expressed, although perhaps not quite so clearly. Senator McCarran, asked what the bill would accomplish, said it would permit the transfer of state inmates to federal prison in certain circumstances in a limited category of cases. Neither of those sources indicates that this statute gave the Attorney General a blank check to accept any state inmates for any purpose.

QUESTION: The language of Subsection (a) does outline the purposes for which the Attorney General may receive them and it's custody, care, subsistence, education, treatment, and training.

MR. NELSON: That's correct. If I invite someone to dinner, I am undertaking to give him a table to eat it on, a chair to sit on, a light to eat it by.

QUESTION: Not necessarily. Suppose it's a brunch out in the back yard?

QUESTION: How about a luau?

QUESTION: Why do you say there is such a rigidity in it?

MR. NELSON: Well, I guess I should take that back. I would undertake to provide the incidentals.

QUESTION: Some food.

QUESTION: Well, what if you invite him for custody?

MR. NELSON: Inmates here are not invited for custody. That's -- they're invited for treatment.

QUESTION: Well, but the reading of the statute, it seems to me, it's particularly phrased in the -- with the "and" as it is, would include custody as a separate facet.

MR. NELSON: All these are incidentals, necessary incidentals to --

QUESTION: You're really sitting on that first certification?

MR. NELSON: We think that's crucial. We think that's crucial.

QUESTION: And we don't have to get beyond that?

MR. NELSON: Well, the only way the statute could work is if it had something like the broad custody, care, subsistence, education clause in it, otherwise the Federal Government would only be in charge of the treatment aspects and everything else would be up in the air. There would be no authorization for general custody.

May I refer the Court to another, to two sections of the Youth Corrections Act, Sections 512 and 513 of the YCA. This statute, incidentally, is right next door to the Youth Corrections Act. The Youth Corrections Act permits placements of youth offenders in treatment facilities; precisely the same language used in 5003(a) is used in Section 512 of the Youth Corrections Act. It's clear that 5003(a) was modeled after 512, in part, after 512 of the Youth Corrections Act.

QUESTION: Mr. Nelson, it's entirely a different question. I just want to get something straight in my mind. You don't raise any challenge, do you, to the power of the Vermont authorities to enter into contracts for the placement of people in their custody elsewhere?

MR. NELSON: No, this case solely concerns the power of the Federal Government to accept custody.

QUESTION: So, if there's any -- you're suggesting, though, is if Vermont had entered into a contract, say, with New Hampshire, for New Hampshire to take over while they remodeled their prisons or something like that, that your client could attack the New Hampshire authority to accept the prisoners?

MR. NELSON: No, no, we're not claiming that.

QUESTION: Well, how do you get standing to attack the Attorney General's authority to spend federal funds in housing your client?

MR. NELSON: We assert a right not to be incarcerated by the United States Government.

QUESTION: Well, but isn't it arguable, at least, that you're really being incarcerated by the State of Vermont and they in effect have entered into a contract to have the Federal Government perform that state function for them during a temporary period?

MR. NELSON: No, I don't think that's arguable. It may be arguable that --

QUESTION: But in the first question about Vermont and New Hampshire, it seems to me you're suggesting you could not challenge New Hampshire's custody.

QUESTION: You assert a right under 18 U.S.C. 4001(a), don't you?

MR. NELSON: That's correct.

QUESTION: Because of that statute.

MR. NELSON: That statute.

QUESTION: The question is whether you're being detained by the United States, within the meaning of that statute, or whether he was still being detained by Vermont. Because I suppose Vermont could any time it wanted to say to the United States, we've decided to let this man go free.

MR. NELSON: Even by -- by contract they could; yes.

QUESTION: So that who is the detaining authority? Is it the state or the Federal Government?

MR. NELSON: The detaining authority is the Federal Government. He is clearly under federal detention. There may be a question of whether he is in custody in a legal sense of the state or of the Federal Government, but I don't think that there's a serious question that he is, in a real sense in federal detention, that he is imprisoned or detained by the Federal Government.

QUESTION: Could the Federal Government release him?

MR. NELSON: Pardon me?

QUESTION: Could the Federal Government release him?

MR. NELSON: No.

QUESTION: So who is he in the custody of?

QUESTION: Except on the say-so of Vermont.

QUESTION: Whose custody is that, now? Whose custody is he in?

MR. NELSON: In a legal sense, perhaps, he's in Vermont's custody.

QUESTION: Well, are we interested in any sense other than a legal sense?

MR. NELSON: Yes, I think in the sense intended, in a real sense, in a sense intended by 4001, he is imprisoned by the United States. The question is whether that imprisonment is authorized by an act of Congress.

QUESTION: Is it legal?

MR. NELSON: We say it's not.

QUESTION: So he's not in the legal custody of anybody. That's a lovely position. I know a lot of prisoners would love that position.

MR. NELSON: He's not demanding freedom, Your Honor. He's asking his return to Vermont custody.

QUESTION: Well, isn't that almost a case of damnum absque injuria, as we learned in law school? If he gets out of the federal prison he's going to go back to a minimum security in Vermont because the Vermont Legislature doesn't want to appropriate the funds for a maximum security?

MR. NELSON: Well, no, that's not true. Vermont has maximum security capacity, for one. For another thing, Vermont is a signatory of a number of interstate compacts, including the New England Compact. These compacts permit transfers of prisoners from jurisdiction to jurisdiction and they do not mention treatment. They talk about transfers of custody for custody reasons. They do not condition changes of custody on the availability of treatment facilities, and --

QUESTION: Why is your client going to be better off being imprisoned in the state penitentiary in New Hampshire than he is in the federal penitentiary at Terre Haute?

MR. NELSON: For one thing, he'd be closer to home. For another thing, I don't think that the question really is whether the inmate is better off. He's asking, I'm advocating his desire to be returned to Vermont and the question is whether he has a legal right to that relief.

QUESTION: Well, he wouldn't be seeing much of Vermont, would he?

QUESTION: Does the record show whether he has relatives in Vermont?

MR. NELSON: I don't think the record shows it but he does, yes.

QUESTION: So that visitation is a possible consideration?

MR. NELSON: Visitation is a major consideration. Visitation with family and friends, visitation with counsel. I have never met Mr. Howe. Another consideration, of course, is the parole possibilities. Mr. Howe is sentenced to life imprisonment. Life imprisonment in Vermont is actually zero to life. He is parolable, technically, right now. It's difficult if not impossible to work out any kind of even beginnings of a parole plan from Terre Haute. How can --

QUESTION: Are not the records at the federal prison maintained on the conduct and behavior of the prisoner and all of the factors that go into whether a prisoner is going to be eligible for parole?

MR. NELSON: Certainly. And that would be available to the Vermont Parole Board.

QUESTION: Is there anything in the Vermont Constitution or statutes that requires that Vermont prisoners convicted in Vermont courts be kept in custody within the boundaries of the state?

MR. NELSON: No.

QUESTION: Then, they, theoretically, they could send them to Devil's Island if they wanted to, couldn't they, if there were such a place now?

MR. NELSON: Under constitutional restraints, yes.

QUESTION: That's why you focus on the power of the Federal Government to receive rather than the power of the Vermont court to transfer?

MR. NELSON: That's correct. We see a clear right in federal law against federal imprisonment which is not authorized by statute.

QUESTION: What can 5003 mean if it doesn't mean that the federal system will help absorb -- say -- prisoners on request and use its unused capacity? What else was that statute passed for?

MR. NELSON: Well, I think the legislative history shows that it was passed for inmates with specialized needs, treatment needs. That it was limited to cases of inmates in need of treatment. The legislative history defines --

QUESTION: What does the language of the statute tell us? If the language is clear, we don't need to worry about the legislative history, do we?

MR. NELSON: That's true, that's true. And we think that the language of of the statute is pretty clear. Let's play dumb for a minute, read "treatment facilities and personnel." What does that mean? The core meaning of that phrase is, I think, hospitals or mental institutions of some sort. I think that's --

QUESTION: Well, but the core of this statute, if you want to talk about the core of it, is that the Federal Government can make available, Congress has said the Federal Government can make available unused space in its institutions for state prisoners.

MR. NELSON: That is -- well, one independent clause says --

QUESTION: Well, why do you have to parse, the particular words in order to discern that meaning?

MR. NELSON: It may do that, it may make federal prison facilities available when there are adequate and proper treatment facilities and personnel available. And I think it's important to know what Congress meant by that term. Did it mean, was that a euphemism for "prison"? The only way that this statute can be construed as a general blanket authorization to take state inmates to help the states out with their prison problems, for whatever reason, is to read treatment facilities and personnel as a euphemism for federal prison. I think there are compelling reasons not to read it that way. I think -- as I said, I think it has a core meaning of mental hospitals, physical hospitals. It means something broader than --

QUESTION: Where are the words that lead you to that conclusion?

MR. NELSON: Pardon?

QUESTION: Where are the words? Which words lead you to the mental problem?

MR. NELSON: Oh, I think the words "treatment facilities" in common speech means, among other things, mental hospitals or hospitals.

QUESTION: It may mean that to you but it doesn't mean that necessarily to everyone.

MR. NELSON: No, perhaps not. I'm not saying that it means --

QUESTION: Adequate treatment means, do they have the space, do they have the facilities to take on more inmates?

MR. NELSON: What does treatment mean? Treatment -- I'm not saying that it's confined to hospitals and mental --

QUESTION: Are you suggesting that treatment means only treatment for a mental problem?

MR. NELSON: No, I'm not, I'm not arguing that. I'm arguing that that's at least the core of its meaning. It can also mean other kinds of therapeutic types of treatment. I think in common speech, detoxification programs could be called treatment facilities, and alcoholism programs could be called treatment facilities. And the people in charge of that, of those programs, could be called treatment personnel. But I don't think, however --

QUESTION: In common speech, treatment is not necessarily synonymous with custody, is your argument, really, in answer to the Chief Justice?

MR. NELSON: No, that's correct, that's correct. That it's not --

QUESTION: Is there any treatment in the Vermont prisons that's not available in the federal prisons?

MR. NELSON: The record seems to say, no, that the facilities are about equivalent in both places.

QUESTION: Equivalent?

MR. NELSON: Yes, that the same types --

QUESTION: What do you have in Vermont like Springfield?

MR. NELSON: Pardon?

QUESTION: What does the prison system in Vermont have similar to Springfield in the federal prisons?

MR. NELSON: There is a -- there's a state hospital --

QUESTION: It would the whole state of Vermont.

MR. NELSON: There is a state hospital and --

QUESTION: Oh, sure, but is it the equivalent?

MR. NELSON: Oh, it's not as good, I'm sure.

QUESTION: Well, that was my question; equivalent.

MR. NELSON: Well, I misinterpreted it.

QUESTION: If Congress takes the word "treatment" out would you give up?

MR. NELSON: Yes. I would give up. Well, I've been focusing on what it means and what I think the words mean in common speech. What don't they -- I mean, I don't think that treatment facilities and personnel can mean prison industries or other types of rehabilitative programs. I don't think that the man in charge of the canvas shop at Terre Haute is a treatment officer, or that the officers in charge of athletic programs or religious programming are treatment personnel. That is a jargon use of the phrase.

There's another mark against the 2nd Circuit's reading. Treatment appears twice in this statute, first in the phrase "treatment facilities" and second in the list of items contracted for. If it means custody, essentially, in its appearance, first appearance in the statute, then it must mean something very different in the second appearance in the statute.

In the second appearance it's different from custody, care, subsistence, education, and training. So the reading of the statute that the respondents propose requires that treatment be given two radically different meanings within one sentence. And it requires also that we presume Congress was using a jargon or technical usage when there is no indication that it was. In fact, the Court, if it is of a mind to, can read Title 18 of the Code from cover to cover and not find a single instance where "treatment facilities" is used as a euphemism for prison, or as anything but a definition of specialized types of treatment. It is used in the Youth Corrections Act to define a type of commitment different from ordinary prison. It is used in the Narcotic Addiction Rehabilitation Act to define a type of commitment different from ordinary prison; therapeutic.

QUESTION: Are you suggesting, do I take the argument to mean that this institution does not have a medical unit, for example, to deal with people who become ill, or that they have no facilities to deal with a person who has alcoholic tendencies when he arrives, although surely he couldn't become an alcoholic after he got there?

MR. NELSON: Perhaps.

QUESTION: Perhaps.

MR. NELSON: No, certainly the facilities are available in the institution, but they're not available to Mr. Howe. He hasn't been programmed. The district court found --

QUESTION: And maybe, as -- there's just no treatment for him except custody.

MR. NELSON: That's conceivable. That's certainly true.

QUESTION: In which case it's your claim that he cannot be transferred to a federal facility.

MR. NELSON: That's correct.

QUESTION: The first question in this case is whether or not there's a private right of action, isn't there?

MR. NELSON: Well, the Government raises that here the first time. It was never questioned below.

QUESTION: But isn't that the first, threshold question?

MR. NELSON: That is a threshold question, but I don't think it's a substantial one.

QUESTION: In other words, you're here challenging, as you said earlier, not the authority of Vermont to send him but the authority of the Federal Government to receive.

MR. NELSON: That's correct.

QUESTION: Where is your standing, your client's standing to challenge what the Federal Government is doing, even though it's holding him in custody?

MR. NELSON: Our stand -- we assert standing under 4001, Title 18. "No citizen may be confined by the United States except pursuant to an act of Congress."

QUESTION: How have you brought the -- you've asserted jurisdiction under 1346, and you do claim that you have a right rooted in 4001, I take it. You might have said that you're being held illegally and that you have a right to habeas corpus.

MR. NELSON: Well, these issues have been raised by habeas corpus, but it's habeas not seeking absolute freedom but seeking a change in custody.

QUESTION: Well, I know, but you are claiming that your custody is illegal.

MR. NELSON: That's correct.

QUESTION: By the United States and I suppose if you could claim, at least you have the right to habeas corpus whether you have the right under 4001 or not.

MR. NELSON: Yes, it could have been brought that way.

QUESTION: Well, is not 18 U.S.C. 5003 an act of Congress?

MR. NELSON: It certainly is, but we say it doesn't cover this case. As we construe it, it does not authorize the transfer of the prisoner to be warehoused.

QUESTION: Solely because of the word "treatment?"

MR. NELSON: No. Solely because of the phrase, "treatment facilities and personnel."

QUESTION: You told me, I said, if we took the word "treatment" out would you be out? And you said, yes.

MR. NELSON: I said, yes.

QUESTION: So you have changed. Now what's your latest?

MR. NELSON: Well, Justice Marshall, if we take the word "treatment" out, then transfers would be authorized where there were adequate and proper facilities and personnel available, and then we would have no case.

I'd like to reserve the remainder of my time for rebuttal.

MR. CHIEF JUSTICE BURGER: Very well. Ms. Etkind.

ORAL ARGUMENT OF MS. BARBARA E. ETKIND, ESQ., ON BEHALF OF THE FEDERAL RESPONDENTS

MS. ETKIND: Mr. Chief Justice, and may it please the Court:

The primary issue presented by this case is whether a state prisoner is ineligible for transfer to federal custody under 18 U.S.C. 5003 unless he has a need for specialized treatment that is available in the federal prison system. It is the position of the United States and the State of Vermont that Section 5003 is not so limited. Rather, in our view, the statutory requirements are met and any state prisoner regardless of treatment needs may be transferred from state to federal custody once a contract has been entered into between the state and federal governments, and once the Director of the Federal Bureau of Prisons has certified that facilities in federal institutions are available. On behalf of the United States I shall explain how the language of the statute, its legislative history, and its consistent administrative application require that construction. The Attorney General of the State of Vermont will discuss the state's vital interest in having this statute construed in the manner we urge.

Preliminarily, in response to Justice Marshall's question, we would say that our certification saying that facilities in federal institutions are available would imply that treatment facilities are also available, because what we have in the federal system are in fact treatment facilities; they are available.

Also, with respect to the question regarding transfer under the Interstate Correctional Compact, not only could he be transferred to New Hampshire, in which case he could be visited more easily, he could also be transferred presumably to Colorado, in which case it would be even more difficult for his family to visit him, yet he would assert no challenge to that type of transfer.

There is no suggestion in the statutory language that the federal prison system's authority to assume custody of a state prisoner is conditioned on the prisoner's need for specialized treatment available in the federal system. The plain language of Section 5003(a), as the Court recognizes, authorizes the Attorney General to contract not only for the purpose of treatment but equally for the purpose of custody, care, subsistence, education, and training of state prisoners.

QUESTION: But why then does the statute require that the Director shall certify that proper and adequate treatment facilities and personnel be available?

MS. ETKIND: Well, there are a couple of answers to that. One is that the description of treatment facilities is merely, the use of "treatment facilities" is merely a correct description of the federal facilities, the federal prisons, because what we have are treatment facilities.

To be sure, other federal statutes refer to prisons as penal and correctional institutions, but those provisions were passed, not only were passed by Congresses other than that which passed 5003, but they concern the operation and management of federal prisons as institutional entities rather than the slots within them that may be available for the housing of state prisoners. And finally, even if the phrase, "treatment facilities" were intended to refer to something narrower than the typical facilities that we provide for all federal prisoners, Section 5003 still requires no more than a certification that facilities are available, presumably in the case that the prisoner would need them. But nothing in the statutory language suggests that the Director must make an individualized determination in the case of each potential state transferee that he needs specialized treatment available in the federal system and that specific treatment facilities have been earmarked for him.

Our argument is not merely as petitioner misconceives it, that Section 5003(a) contains no implied right of action in favor of state prisoners, but rather --

QUESTION: No, no, his implied right of action comes from a different section, I think.

MS. ETKIND: 4001?

QUESTION: Yes. (a).

MS. ETKIND: Well, either of those. Our argument is not merely that there is no implied right of action, but rather that 5003 simply is not violated by the transfer of a state prisoner for --

QUESTION: Well, that's the argument on the merits, but there's a threshold question about whether or not there is a right of action to bring the lawsuit such as the one that was brought here, which was not habeas corpus.

MS. ETKIND: Right. And while we would assert that there is no private right of action, we have not pressed that because most of these cases have come up under habeas and there certainly would be a right if the petitioner is right in the way he construes the statute, then there would be a remedy in habeas.

QUESTION: What's your normal remedy in habeas?

MS. ETKIND: Transfer. To transfer --

QUESTION: Transfer? Why wouldn't it be release?

MS. ETKIND: No. Habeas has been used in cases in which --

QUESTION: But the normal remedy of habeas corpus, the normal request, is for release.

MS. ETKIND: The normal request is for release, but it has been employed in cases in which the prisoner is complaining that he's in the wrong place.

QUESTION: That he's detained illegally?

MS. ETKIND: Yes. In the wrong place. He should be somewhere else. And in fact, in the 7th Circuit, where we have lost this issue, the remedy is that the court orders that the prisoner will be returned to the state's authority and if not the writ will issue and he will be released.

QUESTION: It would seem to me that 4001(a), the purpose of that section must have been to give a citizen who is detained by the United States not pursuant to an act of Congress a remedy. What else would 4001(a) do?

MS. ETKIND: Well, the legislative history of 4001(a) is very specific. That statute was passed in connection with the repeal of the emergency, the Internal Security Act, a provision that allowed citizens to be rounded up and detained if there was just probable cause to believe that they were engaged in some sort of illegal activity without conviction. And the legislative history makes quite clear that 4001 was enacted in order to provide that citizens would not have to be afraid of that.

QUESTION: Well, in other words, what you're saying is that a citizen who is detained by the United States not pursuant to an act of Congress ought to have a remedy in court to get out?

MS. ETKIND: That's what petitioner is saying.

QUESTION: What?

MS. ETKIND: That's what the petitioner --

QUESTION: Well, that's what you're telling me too. Because you're saying these people were detained under this internal security legislation and this was to change that and give them a remedy for it.

MS. ETKIND: Well, but when we look to see whether a private right of action is available we look at more than the language of the statute itself.

QUESTION: No, but the first thing we look at, what group does it confer a benefit on? Is there a special class of persons? And there sure is a special class defined in 4001(a), persons who are imprisoned except pursuant to an act of Congress, imprisoned by the United States without any act of Congress authorizing it.

MS. ETKIND: Except that the legislative history makes clear that the persons for whom they were concerned and to whom they wanted to give a right of action were those that were being detained without conviction only upon a probable cause of engaging in some sort of illegal activity. We've addressed that in our brief, I believe it's page 25, Note 13.

Section 5003 does not provide, as petitioner would have it, that no state prisoner may be transferred to the federal prison system unless the Director certifies that he is in need of specialized treatment available in the federal system. Rather, the only condition imposed under Section 5003(a)'s broad authority to contract, apart from the reimbursement requirement, is that the Director have certified that proper and adequate treatment facilities and personnel are available. That certification nowhere requires that an individualized determination of treatment need and available federal resources be made with respect to each potential state transferee.

QUESTION: Let's assume that a state, a given state, not Vermont, had a provision in its criminal statutes governing its institutions, that any prisoners on coming in would be examined and classified, and if they were found to have particular problems, for example, alcoholism and emotional disorders, then the statute would provide in that state, shall receive treatment for such condition. Now, could that prisoner be transferred to a federal institution absent a certification by someone that treatment was available? In other words, absent that situation, they would not be complying with the state statute.

MS. ETKIND: That's a much closer question and I think in that case there might be an expectation created by state law.

QUESTION: Well, the Congress in passing 5003 --

MS. ETKIND: Did not use that.

QUESTION: I would think must be assumed to have taken into account that perhaps some states do require some kind of treatment. And, of course, it's well known that all the federal prisons do provide some forms of treatment. Would you think that might have been in the contemplation of Congress in drafting that?

MS. ETKIND: No, no, I don't think so. To go to the legislative history, what Congress's basic underlying motive, intent, was, was to match the needs of the states with the surpluses of the Federal Government, whatever they might be at that time. The requests that the Bureau of Prisons had been getting was for space in the federal system for juveniles and for drug addicts, and we had that space available and so we determined to make that available. But in a gross sense the intent of Congress was not to limit it in that way, it was just to make what we had available to the states.

Although we view the statutory language as unambiguous resort to the legislative history demonstrates, as I said, that the intent was to match the states' needs with federal surpluses. The petitioner's construction would frustrate that intent by preventing the Federal Government, even when it has the necessary surpluses, from meeting the urgent needs of the state correctional system. The Bureau's construction of Section 5003 has permitted it to accept custody of nearly 172 New Mexico prisoners who were displaced by the massive disruption in that state's penitentiary on February 2 and 3, 1980. Similarly, pursuant to its broad construction of Section 5003, the Bureau assumed custody of 111 Idaho state prisoners after riots occurred in that state's maximum security facility on July 23, 1980. And more recently, the United States District Court for the District of Maryland ordered the Maryland prison system to transfer 100 of its inmates to the federal system in order to partially relieve the state system's overcrowding problem.

None of those emergency relocations would be possible under petitioner's cramped construction of the statute, nor would the federal system be authorized to afford protective custody to a state prisoner who was in danger from his fellow state inmates or to accept custody of any state prisoner regardless of how much he could benefit from or indeed desires certain aspects of federal incarceration, unless such a prisoner was otherwise in need of specialized treatment available in the federal system.

As the court below put it, adopting petitioner's view of the statute would mean that a wholly incorrigible prisoner or on the other hand a fully rehabilitated prisoner incarcerated not for treatment but solely for purposes of deterrence could not be transferred from state to federal custody solely to take advantage of training and educational opportunities available only at federal facilities.

QUESTION: But, of course, you would agree, would you not, that prior to 1952, when this statute was passed, that was the situation? There was no statutory authorization to help the states out in these situations.

MS. ETKIND: Well, I'm not sure that at that time the Executive Branch could have entered into those contracts with the states because 4001 was not passed until 1971, so I don't think there would have been anything to stop the Federal Government from doing it.

QUESTION: Do you think that the Executive Department would have the power to do it if it weren't for 4001?

MS. ETKIND: Yes, I believe so. I don't think it needs 5003 except for 4001. Vermont certainly is not unique among the states in its need for maximum security or other facilities for its offenders. This Court is well aware of the severe overcrowding problems in state and local penal institutions generally. As of mid-December, 1980, however --

QUESTION: Could I interrupt you, just to go back to that question I asked before? Prior to the enactment of 5003, did the Federal Government ever take custody of state prisoners, to your knowledge?

MS. ETKIND: I don't know.

QUESTION: So apparently the states did find some other way to solve these emergency problems, because I assume there were problems from time to time where state facilities got into trouble. Presumably they contracted with other states, I suppose.

MS. ETKIND: That may have been, but I also think that the overcrowding problems that the states have been having have been escalating; I don't know at what stage they were --

QUESTION: Well, there's nothing in the legislative history of this statute that suggests it was enacted to handle the overcrowding problem, is there?

MS. ETKIND: No, there isn't specifically, but as I mentioned before, I think the gist of it is that if the Federal Government has a surplus and a state has a need, then those should be matched. Certainly, the Congress --

QUESTION: Well, but, there is history that your opponent cites to the effect that the Federal Government was developing special programs such as for alcoholics and drug addicts and youth corrections and the like.

MS. ETKIND: Oh, we had that.

QUESTION: Contemporaneously with the enactment of this statute.

MS. ETKIND: Well, the legislative history doesn't indicate that we were developing them at that time. I think it indicates and I think it's clear that we had them at those times. As of mid-December, 1980, the entire federal system was slightly short of its rated physical capacity. And to the extent that such surplus federal facilities can be used to alleviate the state's problems, be they lack of maximum security facilities, lack of treatment programs, or overcrowding in general, we submit that the purposes of 18 U.S.C. 5003 would be furthered. And this shows that from the enactment of Section 5003 to the present, the Bureau of Prisons consistently has maintained the view that we urge here, that there are no limitations on the purposes for which state prisoners may be transferred to the federal system, that simple custody is a sufficient reason. Indeed, in its first annual report after the passage of Section 5003 in 1952, the Bureau suggested as examples of situations in which the transfer provision might be employed, those in which "a state may wish to transfer a vicious, intractable offender who cannot be handled readily in its own institutions, or a female prisoner for whom appropriate facilities are not available."

We submit that considerable deference is due such a contemporaneous and consistent interpretation of the statute by the agency that drafted the legislation, suggested its enactment to Congress, and has been charged with its administration ever since.

I'd like to rely on our arguments in our brief with respect to the second two points, unless there are any questions from the Court. Thank you.

MR. CHIEF JUSTICE BURGER: We'll resume there at 1 o'clock today.

(Recess)

MR. CHIEF JUSTICE BURGER: Mr. Attorney General, you may proceed whenever you are ready.

ORAL ARGUMENT OF JOHN J. EASTON, JR., ESQ., ON BEHALF OF THE STATE RESPONDENT

MR. EASTON: Thank you, Mr. Chief Justice, and may it please the Court:

I think above all else this case is not merely a case of statutory construction but it involves the ability of Vermont and similar states to provide a dignified and humane approach to dealing with those who run afoul of the law. Maybe stated differently, the question is, may Vermont continue to operate a community-based correction system where offenders, more than 95 percent of those housed in Vermont, where they have the right to be integrated back into the community. Or must we return to the conditions that existed in 1974, when we decided to close down the maximum security prison, when we were spending a full 25 percent of our resources on two percent of those incarcerated? I think that's really the issue.

QUESTION: Mr. Easton, I take it nobody disputes the statement in the opinion of the Court of Appeals for the 2nd Circuit that Vermont, as contemplated in the agreement in 1975, closed its only maximum security prison?

MR. EASTON: That's not in dispute, Justice Rehnquist.

QUESTION: You do have agreements with other states, don't you?

MR. EASTON: That is correct. We are participants in not only the New England compact but also the national compact. We have made agreements with the New England states and most of the other states in the country.

QUESTION: Which would allow Vermont to carry on its present regimes --

MR. EASTON: That is true.

QUESTION: Even though the federal prison system were not available to you.

MR. EASTON: One of the considerations, though, Justice Stewart, is that just looking at the other New England states, most of those states, they themselves have the same problems that Vermont has, overcrowding, lack of humane facilities, facilities just not equipped to deal with prisoners such as Mr. Howe.

QUESTION: But New Hampshire, for example, I think, has a maximum security institution.

MR. EASTON: That it does, and we have a compact with them.

QUESTION: Well, doesn't that extend also to some of your educational facilities? Doesn't Vermont have an agreement with Maine that Vermont law students can go to Maine, the University of Maine Law School, whereas University of Maine residents can go to the University of Vermont' Medical School?

MR. EASTON: Certainly it exists in veterinary school and, I believe, medical school. I'm not sure if it exists in law schools too.

QUESTION: Vermont has its own law school now.

MR. EASTON: It does.

QUESTION: But it's not state-sponsored.

MR. EASTON: That's correct. It's a private institution. I guess the thrust of my argument is that the Federal Bureau of Prisons, which has been described as, in fact, I think, in one of the Lono opinions as one of the best penal systems in the world, that having that available to us for the five percent of those prisoners who need the facilities enables us to have a community-based correction system to care for the remaining 95 percent of those who can be integrated back into our community. We're talking, in a state like Vermont, of a very small correctional system. We have less than 500 prisoners. We have 3,700 probationers. Our whole corrections population is smaller than the size of several state institutions. Our system consists of six facilities around the state, four community correction centers and two state-wide centers. The largest only has a capacity of less than 150. All the rest are under 100. These are --

QUESTION: I suppose the legal question is, say we agree with you, that it'd be a very good idea for the Federal Government to take over a large portion of these state responsibilities, but the question is whether Congress has authorized it, isn't it?

MR. EASTON: We're not unmindful of the fact that if there's an entitlement, that then under the federal statute that we have to meet that entitlement for Mr. Howe. We're saying here, though, that there is no special entitlement that he is entitled to, and therefore we shouldn't get bogged down on that issue. There is no special constitutional or statutory entitlement that he deserves, and so to accept his argument that he's got to have some specialized treatment, then that hampers the ability of Vermont to properly administer its correctional system, and I think this Court has long held that such a --

QUESTION: Well, that really isn't quite his argument. His argument is that he has a right to stay in the Vermont system unless the federal system offers something that Vermont does not offer in the way of special treatment.

MR. EASTON: Yes, I think the court below found --

QUESTION: The Federal Government isn't just going into the business of making their facilities available on a wholesale basis.

MR. EASTON: As the court below found, Justice Stevens, even if some of the same activities and programs were available in Vermont, they're less accessible to Mr. Howe because of his need for maximum security incarceration. We literally do not have the ability on the long-term basis to house a prisoner of this sort, and so therefore, while there may be some programs that are parallel from our system into the federal system, for a prisoner who is there on a long-term basis, who presents a maximum security risk, as Mr. Howe did, then they're far less accessible. I think it's interesting, it's contained in the petition of certiorari in Hawaii v. Mederios, the finding of the magistrate in Illinois who said the states are literally faced with the unenviable position of having, if the returned prisoners like this are returned to the states, then they're placed in conditions that literally are inhumane and they'd be making arguments for Eighth Amendment freedom, or the states have to release them. So, it puts us in a very untenable position if we do not have the freedom and flexibility to contract with the Federal Government for this type of prisoner.

QUESTION: I take it that your friend's position would be the same if the federal institution to which the transfer was made were 200 yards away from your closed institution in Vermont. Do you assume that that's the case?

MR. EASTON: I do, Your Honor, and also --

QUESTION: It isn't the cut-of-state factor, it's the transfer to a federal institution.

MR. EASTON: Well, petitioner's counsel said he wants to be in Vermont, but the statute which he challenges --

QUESTION: That's a little sweeping for the argument, perhaps.

QUESTION: Well, it might have been the motivation for his lawsuit.

MR. EASTON: I think, perhaps.

QUESTION: But his legal claim would be the same, as the Chief Justice suggests, if the federal facility were 200 yards away from the state facility.

MR. EASTON: I think, regardless of where the federal facility is --

QUESTION: Yes; the issue is the same.

MR. EASTON: That's correct. What I want to impress upon the Court here is that there has been no finding by any of the courts below that there is any constitutional right here, nor is there any statutory right. So absent that, I think it's very important that the state administration --

QUESTION: Well, the claim certainly is that there's a statutory right not to be in the custody of the Federal Government. Their claim is that the statute forbids custody of this prisoner by the Federal Government.

MR. EASTON: Perhaps I stated it wrong. Let me say, Justice White, that the issue is whether there is any entitlement, despite the claim, whether the statute gives him any entitlement. And we suggest that --

QUESTION: Well, you can call it what you want to, but he says that my custody by the United States is illegal. And he's making what's equivalent to a habeas corpus claim, which is a classic claim under habeas corpus, that this custody is illegal.

MR. EASTON: First of all, he's not of course challenging Vermont's statute, he's challenging the federal statute and the federal statute has been found to say that we're talking about care and custody and subsistence and education and treatment and training, and he is challenging the treatment aspect, trying to give that a primacy that it doesn't deserve.

QUESTION: But Mr. Attorney General, actually, basically, as my brother White suggests, he's challenging his detention by the federal authorities as illegal in violation of the laws of the United States, isn't he?

MR. EASTON: He has to. However --

QUESTION: Does that have anything to do with whether he has an entitlement?

MR. EASTON: He has to have some basis on which to challenge his custody, and he's challenging the basis in the statute under 5003.

QUESTION: Yes, his challenge is that laws of the United States expressly say you can't do this, you cannot deliver me to a federal authority.

MR. EASTON: He's attacking 5003 and his attack on 5003 --

QUESTION: He's invoking 5003.

QUESTION: No, no -- no, no.

MR. EASTON: I'm sorry. He's invoking it and attacking the concept of treatment, suggesting that --

QUESTION: He's claiming it under that the Federal Government may not have custody of this prisoner unless there is some other law that authorizes it.

MR. EASTON: And then we get to 5003, which he invokes, as Justice Stewart suggests --

QUESTION: His claim isn't on 5003; his claim is on 4001.

MR. EASTON: Okay.

QUESTION: It's illegal; this custody is illegal under 4001.

MR. EASTON: Then he gets to 5003, piggy-backing, and saying that under 5003 he's got to receive some specialized treatment.

QUESTION: No, it's the Government that's relying on 5003.

QUESTION: No, he is.

MR. EASTON: Well, I think Justice White, in his question that he presents, that he himself is saying that there's got to be a finding under 5003.

QUESTION: I thought his entire argument was focusing on the term "treatment" in 5003(a).

MR. EASTON: I believe that is correct, as his counsel stated, that it involves the construction of that statute. And he is suggesting that the word "treatment" in that statute be given some sort of primacy that the court below found it not necessary to give.

QUESTION: Well, then, the case should be dismissed for failure to state a federal question, to raise a federal question within the jurisdiction of the Court under 1346.

MR. EASTON: Now that it's here before this Court, I think it would be helpful for the Court to dispose of it to avoid this very troublesome situation that exists in the circuits where the 7th Circuit has ruled one way and the 1st, 2nd, 3rd, and 10th Circuits -- because otherwise the states will be --

QUESTION: What would you say if he filed a petition for habeas corpus against the federals? Of course, you may not even be in the case.

MR. EASTON: That's true. He's entitled --

QUESTION: And saying that, basing it on 4001 saying, my custody is illegal under 4001. The United States would come back and say, sorry but it's authorized under 5003, as a defensive matter.

MR. EASTON: What would happen is, I think we'd get in that position that Justice Marshall suggested earlier, is that we would have the prisoner trying to wander back and forth between the two systems and that's the result --

QUESTION: And hoping to get lost.

MR. EASTON: Exactly. That's the result we want to avoid by construing this statute, 5003(a), not to give him some special entitlement to treatment.

QUESTION: Your friend, I think, if I recall correctly, conceded that there was nothing in Vermont law, including its Constitution, to prohibit Vermont from having its penal institutions in another state. Now --

MR. EASTON: That's correct. There's no challenge to that.

QUESTION: Hasn't the State of Vermont made this federal facility its prison by making a contract under 5003, making it a surrogate prison?

MR. EASTON: Well, I think that we haven't gone that far but we have integrated the Vermont system as part of our corrections philosophy, so that those who need the entitlements which Vermont statutes give them, if offered by the federal system, we can take advantage of that. Thank you, Your Honor.

MR. CHIEF JUSTICE BURGER: Very well. Mr. Nelson, do you have anything further?

ORAL ARGUMENT OF WILLIAM A. NELSON, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

MR. NELSON: Just a few points, Your Honor.

QUESTION: Do you think Vermont can't make some other entity a surrogate, including a private corporation? Suppose some group of people got together, penologists in the universities, set up a private, nonprofit corporation to do better than most of the penal institutions do, much like setting up the postal corporation outside of the old system, do you say that Vermont could not incarcerate its prisoners in that kind of an institution?

MR. NELSON: Out of the state?

QUESTION: Anywhere. Two hundred yards down the road or 2,000 miles away in Alaska, or 3,000 miles.

MR. NELSON: I can't point to anything in Vermont law which would prohibit that but I don't feel confident in saying that it would be authorized either. It seems fishy, on the face of it. It's not -- the statutes which empower the Vermont Commissioner of Corrections to incarcerate people speak of incarceration generally within the state. A particular statute was passed to permit incarceration in the federal system as a reciprocal act to 5003. If Vermont were able without such a statute to designate another agent to incarcerate its prisoners, then the Vermont reciprocal statute would not have been necessary.

I want to address the agency interpretation argument which was presented by the Solicitor General. In the first place, we think that the agency's interpretation is entitled to weight only if it's reasonable. In this case we don't think it's even reasonable. The circuit reached its decision, the circuit said that it was construing the statute as it did, not quite at face value. The district court reached the decision it did, indications in the legislative history to the contrary notwithstanding. Both of these sources, as well as the context of other statutes in which 5003 sits, indicate that the agency's current interpretation is simply not reasonable, not merely that it's not preferable.

Secondly, the agency interpretation has varied. The original agency interpretation, after all, was a letter submitted to the judiciary committees of both House and Senate stating that federal facilities were needed for specialized cases, that there were requests received for specialized cases. This, I think, is an agency interpretation made directly to a house of Congress.

The formal agency interpretation of this statute is contained in the Code of Federal Regulations, and it simply tracks the statutory language. It does not omit the treatment facilities and personnel requirement.

QUESTION: Well, couldn't special cases mean Alcatraz?

MR. NELSON: It could, but it was, the Deputy Attorney General said that it mostly related to juveniles, and I think he was referring to the YCA, which had been passed in the previous Congress, that the 82nd Congress made the YCA available to the states, as well as other treatment facilities.

I see that my time has expired.

MR. CHIEF JUSTICE BURGER: Very well, thank you, gentlemen. The case is submitted.

(Whereupon, at 1:16 o'clock p.m., the case in the above-entitled matter was submitted.)