SCHICK v. REED, CHAIRMAN, UNITED STATES BOARD OF PAROLE, ET AL.
No. 73-5677
Supreme Court of the United States
Argued October 23, 1974—Decided December 23, 1974
419 U.S. 256
Homer E. Moyer, Jr., argued the cause for petitioner pro hac vice. With him on the briefs was Robert N. Sayler.
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
In 1960, the President, acting under the authority of
The pertinent facts are undisputed. In 1954 petitioner, then a master sergeant in the United States Army stationed in Japan, was tried before a court-martial for the brutal murder of an eight-year-old girl. He admitted the killing, but contended that he was insane at the time that he committed it. Medical opinion differed on this point. Defense experts testified that petitioner could neither distinguish between right and wrong nor adhere to the right when he killed the girl; a board of psychiatrists testifying on behalf of the prosecution concluded that petitioner was suffering from a nonpsychotic behavior disorder and was mentally aware of and able to control his actions. The court-martial rejected petitioner‘s defense and he was sentenced to death on March 27, 1954, pursuant to Art. 118 of the Uniform Code of Military Justice,
The case was then forwarded to President Eisenhower for final review as required by Art. 71 (a) of the UCMJ,
“[P]ursuant to the authority vested in me as President of the United States by Article II, Section 2, Clause 1, of the Constitution, the sentence to be put to death is hereby commuted to dishonorable discharge, forfeiture of all pay and allowances becoming due on and after the date of this action, and confinement at hard labor for the term of his [petitioner‘s] natural life. This commutation of sentence is expressly made on the condition that the said Maurice L. Schick shall never have any rights, privileges, claims, or benefits arising under the parole and suspension or remission of sentence laws of the United States and the regulations promulgated thereunder governing Federal prisoners confined in any civilian or military penal institution (18 U. S. C. 4201 et seq., 10 USC 3662 et seq., 10 USC 871, 874), or any acts amendatory or supplementary thereof.” App. 35.
The action of the President substituted a life sentence for the death sentence imposed in 1954, subject to the conditions described in the commutation. Petitioner was accordingly discharged from the Army and transferred to the Federal Penitentiary at Lewisburg, Pa. He has now served 20 years of his sentence. Had he originally received a sentence of life imprisonment he would have been eligible for parole consideration in March 1969; the condition in the President‘s order of commutation barred parole at any time.
In 1971, while appeals challenging the validity of the death penalty were pending in this Court, petitioner filed suit in the United States District Court for the District of Columbia to require the members of the United States Board of Parole to consider him for parole. The District
I
When the death sentence was imposed in 1954 it was, as petitioner concedes, valid under the Constitution of the United States and subject only to final action by the President. Absent the commutation of March 25, 1960, the sentence could, and in all probability would, have been carried out prior to 1972. Only the President‘s action in commuting the sentence under his Art. II powers, on the conditions stipulated, prevented execution of the sentence imposed by the court-martial.
The essence of petitioner‘s case is that, in light of this Court‘s holding in Furman v. Georgia, supra, which he could not anticipate, he made a “bad bargain” by accepting a no-parole condition in place of a death sentence. He does not cast his claim in those terms, of course. Rather, he argues that the conditions attached to the commutation put him in a worse position than he would have been in had he contested his death sentence—and remained alive—until the Furman case was decided 18 years after that sentence was originally imposed.
It is correct that pending death sentences not carried out prior to Furman were thereby set aside without conditions such as were attached to petitioner‘s commutation. However, petitioner‘s death sentence was not pending in 1972 because it had long since been commuted.
In sum, petitioner‘s claim gives rise to three questions: First, was the conditional commutation of his death sentence lawful in 1960; second, if so, did Furman retroactively void such conditions; and third, does that case apply to death sentences imposed by military courts where the asserted vagaries of juries are not present as in other criminal cases? Our disposition of the case will make it unnecessary to reach the third question.
II
The express power of
At the time of the drafting and adoption of our Constitution it was considered elementary that the prerogative of the English Crown could be exercised upon conditions:
“It seems agreed, That the king may extend his mercy on what terms he pleases, and consequently may annex to his pardon any condition that he thinks fit, whether precedent or subsequent, on the performance whereof the validity of the pardon will depend.” 2 W. Hawkins, Pleas of the Crown 557 (6th ed. 1787).
Various types of conditions, both penal and nonpenal in nature, were employed.3 For example, it was common for a pardon or commutation to be granted on condition that the felon be transported to another place, and indeed our own Colonies were the recipients of numerous subjects of “banishment.” This practice was never questioned despite the fact that British subjects generally could not be forced to leave the realm without an Act of Parliament and banishment was rarely authorized as a punishment for crime. The idea later developed that the subject‘s consent to transportation was necessary, but in most cases he was simply “agreeing” that his life should be spared. Thus, the requirement of consent was a legal fiction at best; in reality, by granting pardons or commutations conditional upon banishment, the Crown was exercising a power that was the equivalent and completely
The history of our executive pardoning power reveals a consistent pattern of adherence to the English common-law practice. The records of the Constitutional Convention, as noted earlier, reveal little discussion or debate on § 2, cl. 1, of Art. II. The first report of the Committee on Detail proposed that the pertinent clause read: “He [the President] shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment.”5 This limitation as to impeachments tracked a similar restriction upon the English royal prerogative which existed in 1787. 4 W. Blackstone, Commentaries *399-400. An effort was made in the Convention to amend what finally emerged as § 2, cl. 1, and is reflected in James Madison‘s Journal for August 25, 1787, where the following note appears:
“Mr. Sherman moved to amend the ‘power to grant reprieves and pardons’ so as to read ‘to grant reprieves until the next session of the Senate, and pardons with consent of the Senate.‘” 2 M. Farrand, Records of the Federal Convention of 1787, p. 419 (1911).
Later Edmund Randolph proposed to add the words “‘except cases of treason.‘” Madison‘s description of Randolph‘s argument reflects familiarity with the English form and practice: “The prerogative of pardon in these [treason] cases was too great a trust.” Id., at 626 (emphasis added). Randolph‘s proposal was rejected by a vote of 8-2, and the clause was adopted in its present form. Thereafter, Hamilton‘s Federalist No. 69 summarized the proposed § 2 powers, including the power to pardon, as “resembl[ing] equally that of the King of Great-Britain and the Governor of New-York.” The Federalist No. 69, p. 464 (J. Cooke ed. 1961).6
We see, therefore, that the draftsmen of Art. II, § 2, spoke in terms of a “prerogative” of the President, which ought not be “fettered or embarrassed.” In light of the English common law from which such language was
The few cases decided in this area are consistent with the view of the power described above. In United States v. Wilson, 7 Pet. 150 (1833), this Court was confronted with the question of whether a pardon must be pleaded in order to be effective. Mr. Chief Justice Marshall held for the Court that it must, because that was the English common-law practice:
“As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.” Id., at 160.
Similarly, in Ex parte Wells, 18 How. 307 (1856), the petitioner had been convicted of murder and sentenced to be hanged. President Fillmore granted a pardon “upon condition that he be imprisoned during his natural life; that is, the sentence of death is hereby commuted to imprisonment for life in the penitentiary of Washington.” Id., at 308. Later, Wells sought release by habeas corpus, contending that the condition annexed to the pardon and accepted by him was illegal. His argument was remarkably similar to that made by petitioner here:
“[A] President granting such a pardon assumes a power not conferred by the constitution—that he legislates a new punishment into existence, and sen-
tences the convict to suffer it; in this way violating the legislative and judicial powers of the government, it being the province of the first, to enact laws for the punishment of offences ..., and that of the judiciary, to sentence ... according to them.” Id., at 309.
However, the Court was not persuaded. After an extensive review of the English common law and that of the States, which need not be repeated here, it concluded:
“The real language of [Art. II, § 2, cl. 1] is general, that is, common to the class of pardons, or extending the power to pardon to all kinds of pardons known in the law as such, whatever may be their denomination. We have shown that a conditional pardon is one of them. ...
“In this view of the constitution, by giving to its words their proper meaning, the power to pardon conditionally is not one of inference at all, but one conferred in terms. ...
“... [T]he power to offer a condition, without ability to enforce its acceptance, when accepted by the convict, is the substitution, by himself, of a lesser punishment than the law has imposed upon him, and he cannot complain if the law executes the choice he has made.
“‘... And a man condemned to be hung cannot be permitted to escape the punishment altogether, by pleading that he had accepted his life by duress per minas.‘” Id., at 314-315.
In other words, this Court has long read the Constitution as authorizing the President to deal with individual cases by granting conditional pardons. The very essence of the pardoning power is to treat each case individually.
III
A fair reading of the history of the English pardoning power, from which our Art. II, § 2, cl. 1, derives, of the language of that clause itself, and of the unbroken practice since 1790 compels the conclusion that the power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress. Additionally, considerations of public policy and humanitarian impulses support an interpretation of that power so as to permit the attachment of any condition which does not otherwise offend the Constitution. The plain purpose of the broad power conferred by § 2, cl. 1, was to allow plenary authority in the President to “forgive” the convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable. If we were
Petitioner‘s claim must therefore fail. The no-parole condition attached to the commutation of his death sentence is similar to sanctions imposed by legislatures such as mandatory minimum sentences or statutes otherwise precluding parole;7 it does not offend the Constitution. Similarly, the President‘s action derived solely from his Art. II powers; it did not depend upon Art. 118 of the UCMJ or any other statute fixing a death penalty for murder. It is not correct to say that the condition upon petitioner‘s commutation was “made possible only through the court-martial‘s imposition of the death sentence.” Post, at 269-270. Of course, the President may not aggravate punishment; the sentence imposed by statute is therefore relevant to a limited extent. But, as shown, the President has constitutional power to attach conditions to his commutation of any sentence. Thus, even if Furman v. Georgia applies to the military, a matter which we need not and do not decide, it could
We are not moved by petitioner‘s argument that it is somehow “unfair” that he be treated differently from persons whose death sentences were pending at the time that Furman was decided. Individual acts of clemency inherently call for discriminating choices because no two cases are the same. Indeed, as noted earlier, petitioner‘s life was undoubtedly spared by President Eisenhower‘s commutation order of March 25, 1960. Nor is petitioner without further remedies since he may, of course, apply to the present President or future Presidents for a complete pardon, commutation to time served, or relief from the no-parole condition. We hold only that the conditional commutation of his death sentence was lawful when made and that intervening events have not altered its validity.
Affirmed.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN join, dissenting.
The Court today denies petitioner relief from the no-parole condition of his commuted death sentence, paying only lip service to our intervening decision in Furman v. Georgia, 408 U. S. 238 (1972). Because I believe the retrospective application of Furman requires us to vacate petitioner‘s sentence and substitute the only lawful alternative—life with the opportunity for parole, I respectfully dissent.
I
The Court misconstrues petitioner‘s retroactivity argument. Schick does not dispute the constitutional validity of the death penalty in 1954 under then-existing case law. Nor does he contend that he was under sentence of death1
The relationship between the death sentence and the condition is clear. Article 118 of the Uniform Code of Military Justice (UCMJ)2 authorizes only two sentences for the crime of premeditated murder: death or life imprisonment which entails at least the possibility of parole. Confinement without possibility of parole is unknown to military law;3 it is not and has never been authorized for any UCMJ offense,
The retroactivity of Furman is equally unclouded. The Court “[has] not hesitated” to give full retroactive effect to the Furman decision. Robinson v. Neil, 409 U. S. 505, 508 (1973). See Stewart v. Massachusetts, 408 U. S. 845 (1972); Marks v. Louisiana, 408 U. S. 933 (1972); Walker v. Georgia, 408 U. S. 936 (1972). The per curiam decision struck down both “the imposition and the carrying out” of discretionary death sentences as cruel and unusual punishment in violation of the Eighth Amendment. 408 U. S., at 239. The opinion specifically held that the “judgment ... is ... reversed insofar as it leaves undisturbed the death sentence imposed ....” Id., at 240. The retroactive application of Furman results in more than the simple enjoining of execution; it nullifies the very act of sentencing. In effect a post-Furman court must ensure a prisoner the same treatment that he would have been afforded had the death penalty not been imposed initially.4
The full retroactivity of a constitutional ruling is aimed at the eradication of all adverse consequences of prior violations of that rule. We have recognized the importance of erasing “root and branch” the adverse legal consequences, both direct and indirect, of prior constitutional violations. See, e. g., McConnell v. Rhay, 393 U. S. 2, 3 (1968); Linkletter v. Walker, 381 U. S. 618, 639 (1965). The effective operation of this procedure was demon-
Since Furman is fully retroactive petitioner‘s case should be simple to resolve. The terms of Art. 118 of the UCMJ provide that a person convicted of premeditated murder “shall suffer death or imprisonment for life as a court-martial may direct.” A death sentence was imposed by the court-martial and affirmed by the Board of Review and the United States Court of Military Appeals, 7 U. S. C. M. A. 419, 22 C. M. R. 209 (1956). The death sentence so imposed was declared unconstitutional by Furman and is therefore null and void as a matter of law. The only legal alternative—simple life imprisonment—must be substituted. Concomitantly, the adverse consequence of the death sentence—the no-parole condition of petitioner‘s 1960 commutation—must also be voided, as it exceeds the lawful alternative punishment that should have been imposed. Petitioner should now be subject to treatment as a person sentenced to life imprisonment on the date of his original sentence and eligible for parole.5
The Court today suggests that petitioner cannot claim any benefit from Furman because no death penalty was pending against him at the time of the decision. The 1960 commutation is touted as the panacea for the constitutional defects of petitioner‘s original sentence. Unfortunately, such is not the case.
The imposition of the death sentence was the indispensable vehicle through which petitioner became subject to his present sentence. The commutation of the sentence did not cure the constitutional disabilities of the punishment. A noted expert on the subject of Presidential clemency states:
“Unlike a pardon, a commutation does not absolve the beneficiary from most of the legal consequences of an offense.”6
Although petitioner is not under direct threat of the death sentence, “he has suffered and continues to suffer enhanced punishment—the loss of his statutory right to
I would also note that the UCMJ, enacted in 1950, has by decision and practice incorporated the Bill of Rights and afforded its protection to the members of the Armed Forces. See, e. g., United States v. Tempia, 16 U. S. C. M. A. 629, 634, 37 C. M. R. 249, 254 (1967); United States v. Jacoby, 11 U. S. C. M. A. 428, 430-431, 29 C. M. R. 244, 246-247 (1960); United States v. Jobe, 10 U. S. C. M. A. 276, 279, 27 C. M. R. 350, 353 (1959). The fact that a court-martial rather than a jury imposes the death sentence is irrelevant. In my view the penalty is equally severe, and in my view equally offensive to the Eighth Amendment for that reason, see Furman v. Georgia, 408 U. S., at 314-374 (Marshall, J., concurring). Moreover, the potential for abuse and discrimination with which my Brethren were concerned in Furman is as evident here as in the civilian courts.
II
Since the majority devotes its opinion to a discussion of the scope of Presidential power, I am compelled to comment. I have no quarrel with the proposition that the source of the President‘s commutation power is found in
The congressionally prescribed limits of punishment mark the boundaries within which the Executive must exercise his authority.9 By virtue of the pardon power the Executive may abstain from enforcing a judgment by judicial authorities; he may not, under the aegis of that power, engage in lawmaking or adjudication. Cf. United States v. Benz, 282 U. S. 304, 311 (1931) (an act of clemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter it qua judgment); United States ex rel. Brazier v. Commissioner of Immigration, 5 F. 2d 162 (CA2 1924) (pardon power does not embrace right to bar congressionally prescribed deportation of prisoners).
While the clemency function of the Executive in the
A
The English annals offer dubious support to the Court. The majority opinion recounts in copious detail the historical evolution of the pardon power in England. Ante, at 260-262. See also Ex parte Wells, 18 How. 307, 309-313 (1856). The references to English statutes and cases are no more than dictum; as the Court itself admonishes, “the [pardon] power flows from the Constitution alone.” Ante, at 266. Accordingly, the primary resource for analyzing the scope of Art. II is our own republican system of government. See Grosjean v. American Press Co., 297 U. S. 233, 248-249 (1936). The separation of powers doctrine does not vest the Chief Executive with an unrestrained clemency power, supra, at 274-275, but views his functions as distinct from the other coordinate branches. Ante, at 262-264. The references to the early American experience are not dispositive.14
“The sovereign of England, with all the prerogatives of the crown, in granting a conditional pardon, cannot substitute a punishment which the law does not authorize.” 18 How., at 323 (McLean, J., dissenting).
Even the authority quoted by Blackstone in support of the proposition, 2 W. Hawkins, Pleas of the Crown 547 (8th ed. 1824), does not actually support the suggestion of unlimited power in the King. In fact, the conditions discussed were either imposed pursuant to statute or of a nonpunitive nature. See Coles Case, Moore K. B. 466, 72 Eng. Rep. 700 (1597); E. Coke, A Commentary upon Littleton 274b (19th ed. 1832). The Court acknowledges instances in which statutory authority placed restrictions on the monarch‘s power. Ante, at 260. The critical role of statutes in the imposition of the condition of banishment on pardons of convicted felons was recognized in a letter addressed to a member of the House of Lords:
“There is hardly anything to be found respecting conditional pardons in the old English law-books; but the authority of the Crown to grant a conditional pardon in capital cases is recognized in statute 5 Geo. 4, c. 84, s. 2....” W. Forsyth, Cases and Opinions on Constitutional Law 460 (1869).
B
Contrary to the Court‘s suggestion, limitation of Executive action to the statutory framework is not undermined by earlier decisions of this Court. In Biddle v. Perovich, 274 U. S. 480, 483 (1927), the Solicitor General expressly noted that “[a] commutation is the substitution of a milder punishment known to the law for the one inflicted by the court.” Mr. Justice Holmes, writing for a unanimous Court, concluded on a related matter that consent to commutation was unnecessary since “[b]y common understanding imprisonment for life is a less penalty than death.” Id., at 487. The Court held that the “only question is whether the substituted punishment was authorized by law....” Ibid. While Holmes’ specific reference is to the law of the Constitution, he then proceeds with a discussion of the statutory sanctions. Commutation to life imprisonment without any opportunity for parole would penalize the prisoner here beyond the terms of the UCMJ sanctions.
The requirement that the substituted sentence be one provided by law is not hampered by Ex parte Wells, supra, in which this Court upheld conditional commutation from a death sentence to a simple life term. The validity of mitigation of a sentence without depriving the prisoner of any additional rights is not inconsistent with rejection of unauthorized penal conditions. In Wells the Court acknowledged that limitations on the pardon power mandated its exercise “according to law; that is, as it had been used in England, and these States.” 18 How., at 310. Although the Wells Court was not faced with the ques-
“So, conditional pardons by the king do not permit transportation or exile as a commutable punishment, unless the same has been provided for by legislation.” Id., at 313.
The remaining cases on which the Court relies to sustain the condition offer minimal support and are easily distinguished.15
In conclusion I note that where a President chooses to exercise his clemency power he should be mindful that “[t]he punishment appropriate for the diverse federal offenses is a matter for the discretion of Congress, subject only to constitutional limitations, more particularly the Eighth Amendment.” Bell v. United States, 349 U. S. 81, 82 (1955). See Ex parte United States, 242 U. S. 27, 42 (1916). The Congress has not delegated such authority to the President. I do not challenge the right of the President to issue pardons on nonpenal conditions, but, where the Executive elects to exercise the Presidential power for commutation the clear import of the Constitution mandates that the lesser punishment imposed be sanctioned by the legislature.16