United States v. James T. Schell

DOYLE, Before LOGAN, McKAY and Judges. Circuit LOGAN, Circuit Judge.

James T. appeals Schell the trial court’s judgment finding dangerous him meaning offender within the of 18 U.S.C. him sentencing to two consecu- § year tive ten terms. appeal On the issues (1) are whether the trial court’s findings were statutorily constitutionally suffi- cient; (2) whether Schell dangerous special offender violated his Eighth right against Amendment cruel and (3) punishment; unusual whether the stat- “dangerous” ute’s definition of is unconsti- (4) tutionally vague; and whether using a preponderance of the evidence standard to dangerous special determine if Schell is a offender, authorizes, as the statute violated process rights. Schell’s due In October 1979 escaped Schell from the Correctional Regional Facility Southeast Scott, Fort Kansas. He was later recap- charged tured and with escape from prison, a violation of 18 751(a). U.S.C. Before trial, July again escaped, Schell this time from the where he was jail confined awaiting recap- trial. When Schell was charged tured he with a second escape was prison. judge consolidated the trial. Before escape two cases for trial the stating filed a notice was a reasonably believed Schell special offender. See 3575(a). U.S.C. § to both pleaded guilty escape After Schell hearing solely Cong., trial court charges, reprinted held 91st 2d Sess. a danger- whether Cong. determine Schell 1970 U.S.Code & Ad.News 4007- offender. language ous of the section limits its nor figures. application organized in- a trial court to Section Bailey, 846- States a defendant’s sentence crease 1976), statutory felony limits of he has com- 50 L.Ed.2d 767 if the court that the mitted finds defendant “dangerous special is offender.” The a trial in Schell also contends deter previous found Schell’s court to dangerous society, whether he is mining “special require- met the offender” record court have time the trial should considered 3575(e)(1).1 upon of section Based ments its remaining to prior be served on Schell’s presentence report examination and At the time the trial court convictions. testimony presented by sides, both the court dangerous special to a found Schell be of that Schell should be confined for found a fender, yet he had ten year to serve a term period longer than that for provided prison a bank a robbery, in federal for escape in felony protect order to term in thirty-five year Texas for fifteen to public conduct; his from future criminal thirty-five robbery, year to armed a five thus, “dangerous” was a special he offend- murder, a and fifteen in Texas for term er.2 The trial court then sentenced Schell aggravated for rob term in Arkansas year year to consecutive ten terms. two Schell argues that because these sen bery. Schell sentence, appeals by his as authorized might ninety- him to serve require tences U.S.C. 3576. prison,3 in he cannot be con years five “dangerous.” to be sidered

I contends the trial court’s find 3575(f) Schell not explicitly require does Section ings statutorily were neither nor constitu whether a a trial court to calculate defend- tionally argues sufficient. first He is imminent probable enough release ant’s enacted section 3575 Congress danger Any because a society. attempt to pose about sentences bring order to stiffer for a would ensnarl to make such calculation participants organized groups, sec and complexities uncertain- court finding a that he is procedures tion 3575 such parole ties of the a person. Because no evidence was jurisdictions. This consideration of other presented linking organized him to crime, against reading require- such militates argues the trial Schell court’s determination think a We defend- ment into the statute. dangerous is a l special that he offender vio past criminal conduct ant’s character and However, t his due rights. ated al factors the court must are the essential hough primary objective of section determining whether defend- consider in crime, combat organized 3575 was to nei the meaning of dangerous ant is within legislative H.R.Rep.No. ther the see history, section 3575(e)(1) provides previous

1. Section that when a de- sion of the last such offense or an- felony, fendant is convicted of the trial by impris- court punishable or death other offense ” can find that the year of one .... onment excess previously if he or she has been convicted 3575(f) provides 2. Section “for two or more committed on oc- offenses casions different from one another purposes “a defendant felony punishable such in such courts longer period if of confinement this section year, imprisonment in excess of one death or felony required provided than that for such for one or more of the de- such convictions protection public from further prior imprisoned has been fendant criminal conduct the defendant.” felony, commission of such and less than five years elapsed have commission between exaggerates prison maximum 3. Schell his time. felony such and either the defendant’s re- concurrently Texas sentences run with Both lease, otherwise, imprison- parole the federal sentence. ment or his for one such conviction commis- commit; also contends that Schell court the crimes they the amend relying erred in on the same pri- prohibits ment only gross sentence if it is evidence — ly disproportionate or convictions —to find that he is both a to the severity of the Estelle, crime. Rummel dangerous. offender and Schell ar although prior 63 L.Ed.2d 382 gues that convictions are (1980). In suggesting that “the justify length finding sufficient him a special actually imposed” the sentence for an offender, unde evidence is necessary additional niably purely serious crime “is a matter of Although find him dangerous. fact of id. at legislative prerogative,” prior convictions alone support puts into the Rummel decision finding dangerousness, court was en question any whether sentence short of rely titled to on both the fact and the felony death for convictions of the sort in convictions, prior nature of togeth volved here is cruel and punish unusual er with other evidence of Schell’s character - Florida, ment. Cf. Enmund v. and prior conduct. United States -, 3368, 102 73 1140 (1982) S.Ct. L.Ed.2d Warme, 57, (2d Cir.), 62 572 F.2d cert. de (death penalty applied unconstitutional to nied, 1885, 435 U.S. 56 felony murder defendant who did not kill or (1978). In announcing its deci kill). intend to sion, the trial court referred nature of previous felony convictions and Ill to the testimony helped of two women who 3575(f)’s Schell claims that section him him. escape accompanied or The wom “dangerous” definition of is unconstitution gun en testified his use of a in one escape to Congress might have cho ally vague. That and to his of several robberies commission language sen does not render a precise more company. while in their The court found unconstitutionally vague, statute United pattern history these facts “show a 87, 94, Powell, v. 423 U.S. States of violence and anti-social behavior on the 316, 320, long 46 L.Ed.2d 228 as part patent and a the defendant lack of intelligence need not people ordinary III, concern the lives of others.” R. for meaning and differ as to its “guess at its Connally v. General Construc application,” II 385, 391, 126, 127, Co., 46 S.Ct. tion contends Schell sentencing (1926). In this case the issue 70 L.Ed. 322 is him to serve two year consecutive ten who must administer judges whether trial terms, the trial court violated his Eighth apply concept readily section 3575 can cruel un right against Amendment sentencing In bail and dangerousness. punishment. appears argue usual to Schell routinely consider proceedings, judges trial Eighth Amendment requires that engage to propensity a defendant’s fu sentencing a before defendant a trial court and the potential ture criminal conduct dan must time the consider the is society. The con ger poses a defendant to serve. already scheduled Because he was as defined in section cept dangerousness to serve already up ninety-five scheduled considerations un merely articulates years, that the additional sen argues Schell or decision. derlying any bail un twenty years tence of was cruel and Fourth, Fifth, agree with the We therefore usual punishment. Sixth, Circuits, which have and Seventh is argument This meritless. Taken to its is not unconstitution “dangerous” held that extreme, require it would us to find that v. William ally United States vague. See sentence, short, virtually any however be (4th 1977); son, Unit F.2d punishment unusual Bowdach, comes cruel and 561 F.2d ed v. States already the defendant scheduled to 1977); Neary, 552 (5th United States denied, prior lengthy Cir.), serve sentences convic cert. F.2d Amendment Eighth tions. The does not 54 L.Ed.2d 98 S.Ct. Stewart, prohibit punishing state defendants (1977); States (6th Cir.), problem determining Much of the constitutionally is proof standard 49 L.Ed.2d 376 what 96 S.Ct. sentencing pursuant section required trying to characterize the 3575 derives IV proceeding. special offender” “dangerous alleges higher that a stan- Finally, Schell guilt that determines it If is “preponderance than the proof dard charge, separate under innocence standard called section the evidence” require proof beyond a reasonable we must necessary 3575(b) protect liberty Winship, In re doubt. See Clause. under the Due Process (1970) (“proof 25 L.Ed.2d 368 [required] a reasonable doubt ev beyond A standard of allocates the necessary the crime to constitute ery fact litigants between the risk of error indi charged”). which If with [the defendant] importance the relative ulti cates sentencing proceeding, a normal we it is Texas, Addington v. mate decision. standard. uphold must 418, 423, 99 Florida, 430 U.S. 358 & Gardner For example, “proof n.9, 51 & n.9, implies reasonable doubt” standard (although opinion) sen (1977) (plurality imposed party on whom that burden satisfy due process must tencing the entire risk of error. should bear almost provide entire need requirements, contrast, at 1808. In Id. at rights); procedural of criminal trial panoply “preponderance of the evidence” stan York, 337 U.S. v. New Williams litigants However, dard indicates should 1079, (1949). 93 L.Ed. 1337 423, error, at id. equally proceed share the risk offender” “dangerous special 1808, interests at stake rather at because the it is precisely; neither of these ing is importance. between them. equal societal roughly halfway have house a kind statutes, Kramer, 745, see 787, Gryger v. v. Santosky U.S. recidivism Like state 1256, 1388, Burke, 68 S.Ct. 1411-12, 71 L.Ed.2d 599 102 S.Ct. 1258, (1948), section does J., 92 L.Ed. 1683 (Rehnquist, dissenting). Proof (1982) charge, separate criminal but not involve inter convincing” “clear and evidence is an to increased subjects a defendant instead used in generally mediate standard civil underlying for the conviction. punishment allegations involving of fraud or some cases 1184, Neary, v. 552 F.2d United States quasi-criminal wrongdoing, other 864, denied, Cir.), 434 U.S. (7th cert. important rights individual are particularly Like normal 197, 54 L.Ed.2d 139 424, Addington, at 441 U.S. involved. “dangerous spe sentencing proceedings, be difficult Although grants trial cial offender” between to articulate the subtle differences impose discretion to sentences broad court equally proof, standards of diffi these limits; but un statutorily prescribed within ultimately affect they cult to how know sentencing proceedings, sec like normal decisionmaking, testing evidence requires an additional hearing tion 3575 “is presented by given standard may subject the court finding of fact before exercise.” empty semantic more than than other longer to sentences defendants 425, Tippett (quoting Id. at 99 S.Ct. at 1809 authorized. wise 1153, (4th Cir. Maryland, v. F.2d J., 1971) (Sobeloff, concurring part and ways to section 3575 similar In several dissenting part), dismissed sub nom. cert. Act found un- Sex Offenders the Colorado Court, City Patterson, Criminal Murel v. Baltimore Specht constitutional 92 S.Ct. L.Ed.2d 791 87 S.Ct. (1972)). involving In cases individual trial That statute allowed the court civil, the whether criminal or stan a defendant who committed rights, to sentence than other- proof reflects the value term society dard of harsher sex offense right. underlying on that places Id. would be authorized wise so, crime. doing Before the trial court had ings. He must be afforded all those safe- to make a new finding of fact —not an guards which are rights fundamental ingredient offense charged trial, essential to a fair including the —that the basis of a psychiatric report written to confront right and cross-examine the posed a “threat of bodily harm against witnesses him.” members of the public, or an habitual [was] 386 U.S. 87 S.Ct. at 1212(quoting mentally ill.” Pursuant ex United States rel. Gerchman v. Maroney, Act, Specht, who had been convicted of a (3d 1966) 355 F.2d (emphasis Cir. sex crime carrying year maximum ten added)). courts have upon Several focused sentence, was sentenced to an indefinite that quotation panoply” and its “full lan term of day one to life imprisonment. On considering guage whether the Due Proc appeal argued he the Sex Offenders higher ess Clause standard of Act process denied him due because it al- proof than the test set out in lowed the trial court make its findings on 3575(b). Bowdach, section United States v. the basis of hearsay undisclosed evidence (5th 1977); 561 F.2d 1172-75 and did not allow the defendant Stewart, cross-ex- United 531 F.2d States Cir.), amine present (6th denied, adverse witnesses or cert. own 332-34 evidence. (1976); Inendino, F.Supp. States 256-58 Court held that the Sex aff’d, (N.D.Ill.1978), (7th Offenders Act violated process. due It rea- Cir.), that, soned unlike normal stat- (1979); 62 L.Ed.2d 190 United States v. utes, the Act did not make commission of a Duardi, 384 F.Supp. (W.D.Mo. 882-83 specified crime the basis for sentencing, but 1974), on other grounds, aff’d 529 F.2d 123 instead made one conviction the basis for 1975). All but upheld Duardi commencing another proceeding to make a preponderance standard. agree We with new finding of thereby fact and enhance those courts that have said the Specht punishment. Id. at 87 S.Ct. at quotation Court’s Third Circuit lan 1211. The Court concluded that guage conclusively should determine required the defendant “present to be with important this issue because the issue was counsel, have an opportunity heard, to be be Smith, not before that Court. See Hollis v. confronted with against him, witnesses (2d 1978); 571 F.2d Cir. right have the to cross-examine, and to Bowdach, F.2d States v. 1173-74 offer evidence of his own.” Id. at Note, 1977); The Constitutionality Cir. at 1212. Permitting Increased of Statutes Sentences Specht Court did not address what Dangerous Criminals, for Habitual or proof standard of due process required, but Harv.L.Rev. 367-68 quote did express agreement and Specht certainly for prop stands the that, with a Third Circuit decision in con- like osition that statutes section 3575 must statute, sidering a similar stated: provide greater procedural protections than “It separate is a criminal proceeding normally those afforded defendants sen may which be after invoked conviction of tencing proceedings. guaran Section 3575 one of the specified crimes. Petitioner right tees a the to a hearing, to defendant therefore entitled to a judicial was full counsel, to of to compulsory proc assistance hearing magnified before the sentence ess, of adverse wit to cross-examination imposed. At a hearing such the re- nesses, fact, findings appeal and to to quirements process of due cannot be sat- every procedure an ex adverse decision — by partial niggardly procedural isfied or by Specht. If we were to pressly required protections. pro- A defendant in such a procedural “full panoply” hold that the ceeding is entitled to the full panoply of to criminal rights applicable trials must be the protections relevant which due proc- in section 3575 hearings, available we would guarantees ess in state criminal proceed- permit to the defendant to have have a given a notice has been the

jury, require “beyond reasonable doubt” Then, facts, 3575(a). for all and before trial. U.S.C. standard essential § acceptance judge plea, after trial exclude found hearsay including — de- historical facts about certain per which statute must find presentence reports verifia- past easily record that are fendant’s judge See In re Win mits to utilize. previously has been ble: that defendant 358, 90 ship, 397 U.S. two felonies committed at least (1970). However, do convicted of we not believe (and now convicted occasions on different that much is required. occasion); on a different of another First, determining what is due least imprisoned on at been defendant has balancing depends the interests felonies; that less than one prior of the Addington, U.S. at involved. commission elapsed have between years five Significant interests lie on court and felony now before at regular sentencing pro sides. Even both felony or de- prior of the last commission defendant, ceedings, although he has no prison for one release fendant’s sentence, particular to a does have “a right 3575(e)(1).4 The Id. prior convictions. legitimate interest character of the true, all must court, having found this to be leads to the procedure imposition which finding re- make another that defendant Florida, sentence.” Gardner per- longer than quires confinement in order to underlying felony mitted in the nature of further from his criminal protect public procedures dangerous special of finding judg- obviously That conduct. than it hearing greater fender would be sentencing every that which ment similar to because sentencing proceedings at normal give establishing whether judge makes in status sen- long a short or convicted sentence brings beyond increased range permitted tence within statutory maximum for the felo underlying must be statute. The decision underlying ability ny gain pa hinder view of the histori- judge’s upon based Fatico, role. See United States underlying record, cal the nature of the (E.D.N.Y.1978), aff’d, F.Supp. and the tes- crimes, report, presentence (2d 1979), F.2d 1053 Cir. as to de- by both sides timony presented propensity fendant’s character (1980); cf. Holmes v. United States Board behavior. Parole, 1243, 1251(7th 1976) F.2d re recognize We have many states (prison board’s classification of quired a trial court find reason prospects affects a prisoner’s pa fender is a recidivist able that the defendant doubt Norton, role); Cardaropoli v. him an increased sen before (2d government, 1975) (same). Yurko, 10 519 P.2d tence. In re Cal.3d however, interests in legitimate also has 561, (1974); People v. 564, 112 Cal.Rptr. 513 society from is protecting individual who 374, 812, Casey Ill. 77 N.E.2d 815 399 likely engage in further criminal con 74, State, Ind. 181 (1948); v. 243 Smith through incapacitation the offend duct — (1962); Martin, 336 520, 522 v. State N.E.2d like deterring in others him. er —and 394, (Mo.1960); 396-97 v. Liv State S.W.2d Second, the function of trial court in v. ermore, (Mont.1921); 196 P. 977 State proceeding quite 3575 is a section similar to 29, 605, 606, Janiec, 74 A.2d N.J.Super. 9 ordinary sentencing 1007, function deci- 955, its 95 denied, 71 cert. range punishment Reese, than sions. The 258 (1951); People wider v. L.Ed. 1376 normally would to the apply underlying (1932); fel- v. N.Y. 179 N.E. 307 State Waterhouse, conviction available 330 ony only becomes 209 Or. 307 P.2d validity alleged express opinion not 4. We do have before us thus we no on the meaning within the to be a those subsections. (2) (3) 3575(e), subsections of section and or

679 banc); Lawson, (1957) (en (1979); Williamson, State 125 United States v. (1942). (4th 1977); W.Va. S.E.2d We also F.2d United States recognize Bowdach, making (5th the difficulties find- F.2d ing dangerousness, any Stewart, and that 1977); clinical United States diagnostic identifying Cir.), for such probably significant offenders results in ov- L.Ed.2d erprediction. ABA Standards AFFIRMED. Sentencing Criminal Alternatives Justice — But the and Procedures McKAY, Circuit Judge, concurring in said, civil has in connection with com- dissenting in part: and part illness, mitments for mental “there is a I concur in the majority’s conclusion that question serious to whether a state could sentencing under the “dangerous special of- prove ever doubt beyond a reasonable that provisions Organized fender” of the Crime mentally likely an individual is both ill and procedural protections Control Act requires to be at dangerous.” Addington, beyond provided those normal sentenc- However, I ing. majori- dissent from

Finally, we recognize ty’s that the “preponderance “the conclusion responsibility for prime rationalizing speci- the information” standard penal provisions of the code must these penalty pro- structure in fied sufficient to upon legislature.” last fall analysis process rights. tect defendant’s Standards, supra, at ABA 38. The prepon I. standard 3575(b) derance inserted in .section was a Congress, deliberate decision of the Organized Section 3575 of Crime Con- empow coordinate branch sentences, provides trol Act ered “provide Constitution specified charged, those general ... Welfare United States.” who convicted defendants are identified as I, legislative U.S.Const. art. cl. 1. The § “dangerous special offenders.” U.S.C. history that Congress indicates was aware (1976). Under provisions of sec- § of the due process concerns —indeed the prosecution tion notifies the trial very arguments made here —and that judge before trial of its intention to seek weighed H.R.Rep.No. these concerns. See 3575(a). sentence. 18 U.S.C. § Cong., (1970), reprinted 91st 2d Sess. jury informed of this notifica- Cong. in 1970 & U.S.Code Ad.News 4074-75 3575(a). tion. 18 If defend- U.S.C. § (statement Rep. Dennis); id. 4086-87 of the crime originally ant is convicted (statement Reps. Conyers, Mikva charged, judge the trial holds a Ryan). must, therefore, give great We the convicted to determine whether defend- decision, weight to its see Fullilove v. Klutz is a offender” under section “special ant nick, 2758, 2771, 3575(e), and defendant is whether “dan- we are reluctant gerous” 3575(f). Upon under section find* say Congress’ balancing of those ing by of the informa- interests was incorrect. tion the defendant a “special both “dangerous,” judge offender” must Taking into account all these considera punishment sentence the defendant tions, we conclude that Schell’s interests prescribed by section U.S.C. government’s and the interests are roughly 3575(b). and, therefore, equal the trial court’s use of section 3575’s stan recognizes The majority that section 3575 process dard did not violate due on imposes a sentence a convicted defend- rights. doing In so we join four other specified that ant is not crime Inendino, circuits. See United States v. 604 a upon is based factual charged and that 458, Cir.), denied, (7th F.2d 463 cert. 444 separate in a criminal inquiry conducted 932, 276, U.S. 62 L.Ed.2d 100 S.Ct. 190 majority correctly The con- proceeding.

680 Bowdach, v. 561 Compare States proc- of due United principles that under eludes 1160, 1977) (Specht (5th 1172-75 Patterson, 386 F.2d v. Specht expressed ess section 3575 principles apply to 1209, process 326 due 18 L.Ed.2d 605, 87 S.Ct. U.S. Stewart, v. with United States proceedings) greater is entitled to (1967), the defendant denied, Cir.), cert. 426 326, 332 531 F.2d in the section 3575 safeguards procedural 2629, 376 49 L.Ed.2d 96 S.Ct. U.S. than he would re- sentencing proceeding do not process principles due (1976) (Specht sentencing proceeding. in a normal ceive par In proceedings). to section 3575 apply to an are crucial Specht principles ticular, difficulty have had deter courts protection procedural understanding of sentencing the factors that made mining defendant, and therefore that is due to Specht Act in the Sex Offenders under elaboration. merit further situation” from normal “radically different the due the Court considered Specht, In See, Bow e.g., sentencing proceedings. un- sentenced of defendant process rights (increased sentence dach, F.2d at 1173 561 Act. This Sex Offenders der Colorado’s new separate conviction and triggered trial court was if the provided that statute fact); Stewart, (a 332 531 F.2d at finding of any person ... opinion “of the [con- charge); and distinct new offenses], large, if at specified sex victed of Preiser, F.Supp. v. 372 ex rel. Sero States bodily a threat of harm to mem- constitutes part, aff’d in (S.D.N.Y.), 665 or is an habitual public, of the bers 1974), (2d U.S. ill,” might he receive an inde- mentally (a (1975) 95 S.Ct. day one to life sentence of from terminate fact outside the tradi separate decision of at at 87 S.Ct. imprisonment. disparity This sentencing process). tional taking had been convicted of Specht language demonstrates opinion under statute indecent liberties alone, provide does not standing Specht, penalty years. of ten carried a maximum guidance evaluating the due concrete to an indeterminate sen- was sentenced He generally at stake. See process interests Act. the Sex Offenders tence under Constitutionality of Per Note, Statutes claims, reviewing Specht’s process due In for Habitual or Increased Sentences mitting Court stated that Supreme Criminals, 89 Harv.L.Rev. Dangerous Act presented the Sex Offenders under situation” from normal “radically different years Specht, Five after at sentencing proceedings. U.S. a more method developed disciplined The Court noted that at 1211. that concentrates analysis process of due not make the commission of a “does statute at stake. See nature of the interest the basis for sentencing,” specified Roth, Regents U.S. Board of conviction “the made one basis but rather Under L.Ed.2d commencing another under determines first approach, court this whether a person Act to determine another raising a due party whether bodily a threat of harm to the constitutes or liber- protected property has complaint men- offender and public, or is an habitual at at 92 S.Ct. ty interest. at 1211. at 87 S.Ct. tally ill.” 386 U.S. the party the court finds If 2705-06. the invocation of characterized The Court interest, must then the court has such making of a “the Act as the Sex Offenders safeguards are procedural what determine punish- to criminal leading charge new importance on the based required, proceedings concluded that un- ment” and n.8, at involved. interests with statute must be conducted der the has Supreme Court 2705 n.8. The at for the defendant procedural protections that raise in cases method this employed in normal sentenc- provided those process rights. post-conviction issues of ing. 386 U.S. McDonnell, See, e.g., Wolff (1973); Mor- encountered considerable dif have Courts Brewer, Specht applies. rissey identifying ficulty

681 33 L.Ed.2d Recent As applications stated, Court has a crimi clarify this method conviction a process rights right the due nal limits defendant’s Meachum, from freedom confinement. by Specht. accorded 2538; U.S. at 96 S.Ct. at Green Fano, In Meachum v. holtz, 7, 99 at 442 U.S. at S.Ct. 2103. The 2532, 49 L.Ed.2d 451 (1976), S.Ct. the Su typically limitation scope specified this preme by convicting Court stated that a sentence, by range sentences, a or a crime, of a person curtails that the crime. A de the statute defines a at liberty interest. U.S. 96 S.Ct. only grounds limited fendant has contest explained that “given a specified sentence the statute be conviction, valid the criminal defendant has specification “legis cause the a matter of constitutionally deprived been liberty Estelle, prerogative." lative Rummel extent State confine 263, 274, U.S. subject him and him to the rules of its (1979) (footnote omitted). L.Ed.2d 382 prison system long so as the conditions of Likewise, when a court chooses sentence confinement do not otherwise violate the statute, range specified from the in the Constitution.” 427 U.S. at at only has due process limited 2538; accord Greenholtz Nebraska Penal rights choice, to contest the court’s Williams Inmates, 2100, 2103, U.S. York, 1079, 93 v. New 69 S.Ct. The Court noted (1949), L.Ed. con because that a a conviction curtails defendant’s viction has the defendant’s extinguished right right range. to freedom from within that confinement, to freedom How but it ever, separate imposes a statute on a does not this extinguish liberty interest a sentence convicted defendant completely. Meachum, 427 See U.S. at 224- defining crime, specified in the statute Thus, 96 S.Ct. at 2538. in Vitek v. Specht “radically a states that different Jones, 100 S.Ct. arises. situation” 386 U.S. at (1980), the Court held is different at 1211. This situation because where a convicted felon was transferred liberty on a statute encroaches interest hospital from a state to mental prison from which was freedom confinement pursuant statute, to a state transfer the criminal extinguished by not conviction. implicated liberty interest that is protect legislature’s specification of a sen- by ed the due clause. 445 U.S. at tence, sentences, range in the statuto- 494, 100 Relying part S.Ct. at 1264. ry definition of a crime the liberty declares Specht, the Court concluded that the trans interest in freedom confinement prisoner fer of hospital to mental through is lost ex- By which conviction. range justi within the of confinement plicitly providing maximum sentence fied the conviction. 445 U.S. at conviction, however, it that can result from S.Ct. at 1264. liberty also defines residuum Meachum and Vitek indicate that the cru- the de- in freedom confinement post-conviction cial inquiry where proc- fendant retains after conviction. ess claims are advanced is whether par- Meachum, at 96 S.Ct. at 2538 ty liberty asserts a interest which was not (confinement within “the range must be extinguished by the criminal In conviction. has authorized custody which conviction particular, suggests Vitek that Specht due Vitek, 445 impose”); State process concerns arise where a im- statute (conviction de- at 1264 of a poses post-conviction restriction on the to subject fendant does not entitle State liberty greater defendant’s per- than that involuntary in a mental him to commitment mitted Thus, criminal conviction. hospital). post-conviction Unlike the liber- the application Specht in- revocation, ty parole involved in interests into the quiry nature scope crimi- of a Brewer, 408 U.S. Morrisey v. nal conviction. “good-time provide revocation, McDonnell, the Specht Wolff

credit” section 3575 safeguards 41 L.Ed.2d in the 539, 94 procedural U.S. that with the in- interest are consistent liberty this residual proceeding conclude, by statutory enact- I further unlike and conditioned at stake. created terests Instead, right safe- majority, procedural is the absolute that the ment. the proof confinement that left of of must include a standard freedom guards Specht by unextinguished “preponderance the conviction. the discipline than greater recognizes existence of this the implicitly standard. information” terminology Articulated in the of interest. II. Specht pro- process analysis,

modern due imposes that sentence vides that a statute of opinion pro- lists a number Specht beyond post-conviction proceeding in a provided be in safeguards that must cedural charged impairs a in the crime specified sentencing statutes. post-conviction in liberty interest free- defendant’s residual However, as at Consequently, un- dom from confinement.1 notes, does not majority Specht specify the explained in theory process the of due der pro- for appropriate standard of the n.8, 92 at Roth, at under these statutes. ceedings conducted n.8, procedural provide such a statute must Mr. claim that the Consequently, the interests in- safeguards consistent with at “dangerous interest stake in the liberty volved.2 merits a stan- proceeding offender” special rigorous “preponder- more than the dard dangerous and the Section test must be of the information” de- ance provides clearly proceeding it im- importance the of evaluating termined concerns.3 The plicate Specht process Board competing interests involved. of the on a convicted imposes statute sentence Roth, n.8, Regents beyond specified the defendant n.8, convicted, for which he was specific the of protected liberty encroaches identification thereby particular, In requires considera- process in freedom confinement. I of due interest dictates conclude, agrees, (a) private the inter- majority three factors: tion of purposes of this and the conditions confinement. See 1. It is sufficient case Carter identify holding Specht. simply States, (D.C.Cir. How- v. 1962) ever, post- why Specht (a longer imposed the reason holds term under the Youth impairs liberty conviction interest deserves statute because the Act is constitutional Corrections statutory defi- mention. the Act of confinement under cannot conditions legislature’s expresses a crime nition of ordinary equated in an be with incarceration and the determination of the relevant facts con- Robinson, 454 prison). see But Ralston punishment particular sequent crime. n.13, n.13, 219-20 proving provides A trial mechanism (1981) (if conditions confine- doubt, relevant facts a reasonable youth serves an ment are modified that a so as within conviction classifies the defendant greater length than sentence adult adult statutory subject spec- definition and may arise). receive, issues could constitutional punishment. imposes an ified A statute that separate post- through a additional sentence Indeed, drafting Organized Crime Con- 3. in a conviction results reclassifica- Act, Congress recognized that section 3575 trol purpose of tion of the defendant for the en- expressed implicated the due concerns punishment. hanced es- This reclassification Cong., Specht. H.R.Rep.No. 91st See sentially identical to an additional criminal con- (1970), reprinted in 1970 U.S.Code 2d Sess. liberty Consequently, viction. the defendant’s (response Cong. 4069-70 Ad.News original & conviction is interest that survived the inquiries Department concern- procedural protections, of Justice to entitled to similar to trial, Act); provided post-conviction Organized id. ing at Control at Crime those proceeding. Dennis); Specht, (statement Rep. at id. 4074-75 Conyers, at 1211-12. Reps. (statement Mikva 4086-87 Congress response, Ryan). Apparently in and incorporated determining In whether the restriction on lib- procedural in section erty conviction, permitted exceeds that the criminal Specht. explicitly safeguards mentioned in a court need to consider tra- imposed length between the deoffs of the term affect; that the action will government’s est is a “dangerous offend- of an (b) deprivation the risk erroneous er.” Under section the defendant procedures used, if through period “a confinement long- probable the additional or and value of sub- the provided than that crime for er [in (c) and procedural safeguards; stitute the the defendant is re- which convicted] interest, including the func- of government’s public for the the quired protection from that the by tion involved and the burdens sub- the criminal defendant.” further conduct procedural requirements application stitute would en- 3575(f). The of 18 U.S.C. Eldridge, 319, 424 tail. Mathews v. U.S. standard to this determina- preponderance 893, 903, (1976). 96 L.Ed.2d 18 S.Ct. 47 results in a dangerousness tion of substan- deprivation risk of

tial an erroneous liberty interest. defendant’s A. liberty Supreme Court,

The interest that Schell The courts, asserts is lower le right to his freedom psychiatrists from confinement be- commentators and gal all rec yond specified maximum term ognize exceedingly for the difficult charged. This interest is perhaps less future predict dangerousness. See Adding liberty Texas, 418, 429, substantial than the interest at v. ton U.S. during stake a criminal trial: (1979); additional 60 L.Ed.2d 323 Hollis v. Smith, may be less onerous (2d confinement than sur- 571 F.2d 1978); instance; first render freedom in the the ABA Standards Criminal Justice —Sen stigma attaches and tencing Alternatives Procedures 40 stigma status be less odious than Psychiatric See also American As Nevertheless, sociation, punitive of conviction. Report incar- Task Force on the Clinical among Aspects ceration is the most severe intru- of Violent (1974) Individuals 28 Mentally freedom, Rubin, sions fundamental Dangerousness Prediction of curtailing in importance.” of immense ll Criminals, “interests In re Arch. General Psychi I Winship, atry in cited United States v. (1970). Furthermore, Edwards, (D.C. A.2d 1370 n.17 Schell’s interest is liberty (en Mr. not App.1981) banc) (Mack, delimited J. dissenting), the terms of its creation. Unlike the parole revocation, interests encountered L.Ed.2d 141 The uncertainty at Morissey, supra, “good-time dangerousness, or revocation in predicting tendant cou credit,” Wolff, supra, Mr. with the low threshold of pled proof re Schell asserts is not created or dangerousness quired conditioned establish under by statute. Nor is Mr. Schell’s liberty in- section creates a substantial risk that terest diminished truly dangerous considerations persons who are not will be own best interests. the civil com- their deprived liberty. Unlike erroneously Addington mitment considered in Texas, rigorous A proof more standard of is like- substantially to reduce ly risk of an (1979), Mr. Schell’s confinement is not for deprivation liberty. erroneous A more might treatment from which he benefit. rigorous mitigates standard the uncertainty These considerations indicate that Mr. determining dangerousness. involved right to from freedom confinement Moreover, it particular protection offers fundamentally important and unquali- merely defendant who is “more likely Consequently, Mr. Schell fied. asserts a not” to be dangerous, than liberty interest of high order. erroneously deprived likely to be of his most freedom.

B. C. “preponderance The information” standard utilized in section 3575 two proceed- The has interests in the applied ings determine whether the to determine used “dan- standard first, required offender” Courts have “clear convinc- gerous status: dangerousness society persons who standard to determine ing” are protection second, protec- proceedings, Adding- dangerous; commitment in civil indeed ton, dangerousness determine who are and to persons tion of high sentencing proceed- Both interests are of a “sex offender” imprisonment. state Smith, (2d order, assuring safety of the Hollis ings, first required maintaining 1978). has “moral public, second Addington, deportation proceedings law. force” of the this standard INS, Woodby 99 S.Ct. at 1810-11. well. (1966).4 17 L.Ed.2d 362 standard furthers the it of the fac- imposes foregoing interest because a minimal The consideration first process establishing in Mr. due dangerousness, burden and tors relevant liberty interest the likelihood dan- that his is of thereby increases claim indicates the prepon- be the use of gerous high offenders will insulated and that a order However, presents society. previously not- standard evidence derance of ed, deprivation poses standard preponderance the sub- of an erroneous substantial risk are that a more persons stantial who It also shows threat of that interest. Thus, proof be sentenced as well. will dangerous significantly will rigorous standard this preponderance hampers Finally, the standard the the risk of deprivation. reduce government’s by wrongfully government’s second interest the interests it indicates that undermining imprisoning persons preponderance and the The important. are also government’s moral force the criminal law. furthers interest standard proving minimizing the burden dan- in rigorous proof A more standard of will government’s impedes gerousness but government’s interests, affect but the erroneous determina- avoiding interest depends upon effect precise standard rigorous A more dangerousness. tions of imposed. requiring proof A “be- standard of proving burden standard increases yond a doubt” enhanced reasonable offers the risk of an but reduces dangerousness, assurance that defendants are not errone- erroneous determination. ously dangerous, determined to be but it might prove insuperable considerations, an obstacle re- On basis these I moving defendants from society. proceeding that a section 3575 re- conclude has The noted that in deter- rigorous standard quires more dangerousness purpose minations of evidence than preponderance commitment, of civil this deprivation standard be results subjective demanding given liberty too nature in freedom the defendant’s dangerousness that, of the determination. at a Add- I believe min- from confinement. 418, 429-30, Texas, ington v. imum, convincing” and standard is a “clear A “clear and required by process. due convincing” essential requiring provides standard “clear and convincing” pro- standard compromise provides evidence important between liberty of the defendant’s tection preponderance reasonable comparatively doubt providing interest while protection governmental standards. It offers increased burden on additional small danger- Moreover, from erroneous determinations of “clear and interests. con- compared commonly ousness used test vincing” standard standard, yet provides attainable dangerousness stan- oth- for determinations establishing important dard dangerousness. contexts where equally er serious Indeed, Congress required itself has include whether even “clear and convinc “clear convincing” protect ing” standard for determinations defend standard is sufficient dangerousness pretrial proceed rights. United States v. detention ant’s ings. Edwards, (D.C.App.1981) (en 23-1322(b)(2)(A). Ann. D.C.Code A.2d constitutionality pretrial banc), detention stan finally adjudicated; dard has not been 72 L.Ed.2d 141 issues liberty are at stake. For interests these

reasons, I dissent from the majority opin-

ion. Barnard, City, Brian M. Salt Lake Utah SMITH, Plaintiff-Appellant Z.

Michael (Kerry Eagan and John Maycock, B. Salt Utah, City, with him brief), Lake on the COUNTY, plaintiff-appellant. governmental entity IRON municipal corporation; Ira Gary Richards, Brandt, B. Ferguson, Mil- Schoppman, County Sheriff; Gary Iron Nelson, Utah, ler & Salt Lake City, Shatzer, Miller, and Jack Defendants- defendants-appellees. Appellees. SETH, DOYLE, Before Chief Judge, Cir 81-1195. No. BOHANON,* Judge, District cuit Judge. United States Court of Appeals,

Tenth Circuit. DOYLE, WILLIAM E. Judge. Circuit The action here arose United 18, 1982. Oct. District for the District States Rehearing Denied Dec. brought to 42 pursuant Utah. It was County Iron against vari- U.S.C. § appeal officials. The is from the dis- ous granting court’s final order trict defend- summary judgment. ants’ motion for Plaintiff was detainee-prisoner in the City in jail County, at Cedar Iron Utah. disposition of awaiting burglary He was charge against which been had filed him. 3, 1979, Gary Shatzer, January who On was duty, jailer on heard banging noise coming vicinity plaintiff’s from the difficulty locating cell. He had some sound, the plaintiff he did he saw but when cell on the floor of the under a bunk. Shat- doing, he was and he zer asked him what doing responded anything. was not that he being further and not able inquiring After answer, plaintiff obtain an Shatzer told he would be forced mace if to use he whatever object being not give did him Bohanon, Oklahoma, designation. sitting by *The Honorable Luther L. District of Judge States Senior District for the Eastern

Case Details

Case Name: United States v. James T. Schell

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Dec 2, 1982

Citation: 692 F.2d 672

Docket Number: 80-2255, 80-2256

Court Abbreviation: 10th Cir.