Jones v. Thomas

PETITIONER:Jones
RESPONDENT:Thomas
LOCATION:Sable Communications of California

DOCKET NO.: 88-420
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 491 US 376 (1989)
ARGUED: Apr 26, 1989
DECIDED: Jun 19, 1989

ADVOCATES:
Springfield Baldwin – on behalf of the Respondent
Stephen D. Hawke – on behalf of the Petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – April 26, 1989 in Jones v. Thomas

William H. Rehnquist:

We’ll hear argument now on number 88-420, Jimmy Jones v. Larry P. Thomas.

You may proceed.

Stephen D. Hawke:

Mr. Chief Justice, and may it please the Court.

To understand the double jeopardy issue and to understand the federalism issue before the Court today, it is necessary to, uh, to discuss briefly the facts that have led, the 15 years of facts that have lead up to this, to the present appeal.

In November of 1972, the respondent, in an attempted robbery and in in the City of St. Louis, killed a fellow named Mentoe Vernell.

The next spring, in May of ’73, the respondent was found guilty in the Circuit Court of the City of St. Louis.

The Judge sentenced the respondent to 15 years imprisonment for the attempted robbery conviction and to life imprisonment for the first-degree murder conviction, those sentences to run consecutively and in that order.

In other words, 15 years, and once the 15 years is complete, then service of the life sentence begins.

In 1975, the conviction was affirmed by the Missouri Court of Appeals.

Two years later, in 1977, the respondent initiated a post-conviction action in the Circuit Court of the City of St. Louis.

A post-conviction action in State Court in the State of Missouri is called a 2726 motion, and we’ll probably refer to it as that today.

In the year 1980 and in 1981, the Missouri Supreme Court issued two opinions in cases called State v. Olds and State v. Morgan.

In those cases, the Missouri Supreme Court determined that the Missouri legislature did not intend that there be multiple punishments, did not intend that the, that, that, that defendants be punished twice for felony murder and underlying felony.

Shortly after those opinions, on March 27, 1981, the 2726 motion, the PCR motion, was amended to include a double jeopardy claim on the basis of State v. Morgan and State v. Olds.

Later that year, three months later in June 16, 1981, then Governor Christopher Bond issued a commutation to the respondent for the attempted robbery conviction and sentence.

One year later, June of 1982, the Circuit Court of the City of St. Louis granted respondent’s motion for 2726 Relief.

The attempted robbery conviction and sentence were vacated.

Sandra Day O’Connor:

Why was, why were these repeated actions taken after it had already been decided?

I, I just didn’t understand why we had two additional proceedings after it had already been resolved.

Stephen D. Hawke:

Okay.

Olds and Morgan are collateral proceedings.

They involve completely different defendants, and it was not until after Morgan and Olds were decided by the Missouri Supreme Court that the 2726 motion was amended to, to include a double jeopardy claim.

Before Morgan and Olds, there was no, there was no indication in the Missouri jurisprudence that there was a, there potentially could be a double jeopardy problem here.

In fact, in State versus Overstreet, the Missouri Supreme Court indicated that there was no double jeopardy problem.

Sandra Day O’Connor:

I guess you didn’t understand my question.

I didn’t understand why there was a commutation and then later this second proceeding to set, set it aside.

Stephen D. Hawke:

Okay.

When the 2726 motion was initially filed in 1977, it was denied.

The denial went up on appeal to the Missouri Court of Appeals and was remanded back to the Circuit Court of the City of St. Louis because there was an incomplete record for the, for the Missouri Court of Appeals to consider the 2726 appeal.

The Governor’s commutation is completely separate.

Stephen D. Hawke:

It is completely different.

There is no, I do not believe that there’s any relationship between the Governor’s commutation and the double jeopardy claim.

During the late 70s and early 80s, uh, there was a program with the Missouri Department of Corrections where governors commutations were issued where a prisoner serves seven-twelfths of his time in a peaceable manner.

And there is discussion of that old governor’s commutation program in cases called Love v. Black and Parrish v. Wyrick, which I believe are cited in brief, uh, on, in the main brief.

But the, but to answer your question directly, there is, I do not believe that there is any relationship between the commutation and the litigation in the Circuit Court of the City of St. Louis.

The 2726 relief was granted by the St. Louis City Circuit Court.

The attempted robbery conviction and sentence were vacated and held for nought.

The respondent appealed to the Missouri Court of Appeals arguing that the attempted, that the first-degree murder conviction need to be vacated as well.

The Missouri Court of Appeals affirmed the denial of relief and held the procedures used by the rule 27.26 circuit court did not prejudice the respondent.

With those facts in mind, it is now necessary to examine what exactly happened in the courts below, the federal court below, after the petition for writ of habeas corpus was filed.

And in the appeal to the, uh, to the United States Court of Appeals for the 8th Circuit.

As the Court knows, in a panel opinion there were three different opinions issued by the panel, uh, the effect of which were to, uh, rule that a double jeopardy violation existed but to remand the case to the state court to determine if, if the double jeopardy violation could be cured.

The 8th Circuit sitting en banc reheard the case and ruled on a five to four decision that the respondent’s double jeopardy rights were violated.

With this background and procedure in mind, It’s now necessary to examine exactly the, what the Court of Appeals for the 8th Circuit ruled and to examine whether or not the respondent’s double jeopardy rights have been violated.

The Court of Appeals ruling held for nought the litigation that occurred in the, in, in the state court.

Held for nought the litigation that vacated the multiple punishment.

For the respondent to be entitled to federal habeas corpus relief, he must demonstrate that he is

“in custody in violation of the Constitutional laws or treaties of the United States. “

That is the language of the habeas corpus statute.

Now, the respondent attempts to invoke the double jeopardy clause.

The double jeopardy clause of the, of the Constitution, as this Court noted in North Carolina v. Pearce, protects against reconviction after an acquittal, mind that’s not the situation here.

It protects against, uh, uh, a reconviction after, after a conviction.

It prohibits reprosecution after a conviction.

That’s not the situation here.

North Carolina v. Pearce also describes that the double jeopardy clause precludes multiple punishment.

This Court in its, has described what it means by multiple punishment in a series of cases from back in the early 80s in DiFrancesco, in Whalen and in Missouri v. Hunter.

This Court has described the multiple punishment aspect of the double jeopardy clause as prohibiting punishment that is in excess of what the legislature intended.

In this situation, the legislature–

Antonin Scalia:

Does that mean that if I get, if I get sentenced, uh, for a particular crime for five years, uh, and, uh, then under a statute that allows five to 20, and the trial judge later has second thoughts, uh, he can call me back and give me another 10?

Think that’s all right?

Stephen D. Hawke:

–It depends on the context of what you are describing.

Antonin Scalia:

Or even a different trial judge calls me back and gives me another 10.

That’s okay, because we haven’t exceeded what the legislature intended.

Stephen D. Hawke:

I, I, that’s, that is a close question.

I–

Antonin Scalia:

I don’t think it’s close at all.

That’s, that’s the problem.

Stephen D. Hawke:

–What you have, what you are looking at there is the, at the expectancy of the defendant.

In the DiFrancesco case, the court, uh, affirmed a procedure where the Court of Appeals could increase the punishment because the defendant’s expectation, uh, uh, of finality in the punishment was not brought in the question.

If the defendant is just brought in five years later and the trial judge says, well, I’m going to increase your sentence to 20 because for whatever reason, I, I believe that, I believe that the defendant’s expectancy in punishment would certainly be implicated here.

Antonin Scalia:

Expectancy is not to be punished a second time for the same offense.

And here he was sentenced and punished once, and you are saying, despite your expectation that you were sentenced and punished and once, we’re going to bring you back and sentence you again because you got off on the other one.

Stephen D. Hawke:

In this particular case, when the defendant was sentenced, his expectancy was to serve 15 years imprisonment followed by a term of life imprisonment.

His, when he filed a rule 2726 motion in State Court, that–

Antonin Scalia:

Expectancy for the defense was to serve 15 years or as much less as he could get off with if he, if he came under the Governor’s commutation program.

Wasn’t that his expectancy on this offense?

Stephen D. Hawke:

–On this offense, when he was sentenced, he had the expectancy of serving 15 years followed by a life term.

Antonin Scalia:

Not on the single offense.

Stephen D. Hawke:

When he was sentenced.

Antonin Scalia:

When he was sentenced.

What do you… did he get the two terms for the, for, for a single offense?

Stephen D. Hawke:

He received two terms for the, uh, for the attempted robbery.

But at that time, at the time he was sentenced, there was, there was, there was no, there was no way for him to predict Morgan and Olds would come down.

His subjective expectation at the time he was sentenced was to serve 15 years followed by a life term.

When he initiated a rule 2726 motion, the multiple punishment that had become exposed under Morgan and Olds was revealed.

And the sentence was lowered from 15 years followed by a life to a term of life imprisonment.

As a term that is authorized by the Missouri legislature.

So, under this Court’s juris–

Antonin Scalia:

Well, I think we are playing games here.

Uh, I think it depends on what you mean by the same offense.

Antonin Scalia:

He was originally sentenced for two different offenses.

Then the Supreme Court of the State said no, you can’t, you can’t prosecute under two different statutes for this one, for this one, uh, offense, and therefore, only the first offense stands.

And his expec… his expectation under that first offense, it seems to me, was 15 years.

Stephen D. Hawke:

–I, uh, I, I must respectfully disagree.

At the time he was sentenced, his subjective expectation was to serve 15 followed by life.

And, even if you were to look at it from the way that you descri… the way that you described it, he could expect to serve, his legitimate expectation would have been to have served 15 years or a life term.

And in this situation, he is going to serve a life term.

Now that fulfills his, uh, any, the objective expectation that you are describing there.

John Paul Stevens:

Mr. Hawke, may I, may I… supposing he had served the full 15 years on the armed robbery conviction and was one year into the life sentence in the time.

The Governor then commuted the life sentence on the ground that, the very ground he did here.

Could then the judge have resentenced him on the already served 15 year sentence, I’m going to change that to life because you expected to serve life anyway?

Stephen D. Hawke:

I do not believe so, Your Honor, because the state statute for attempted robbery set as a maximum sentence 15 years imprisonment.

Uh, the respondent was sentenced maximum term 15 years.

So, uh, I, I don’t, I, in your situation, I do not believe they, that, that the judge could have done that because the sentence would have been in excess of what the, of what the, uh, legislature intended.

John Paul Stevens:

Well, but, see here, isn’t that what it, what happened here?

Did he set aside the, he set aside the, uh, murder conviction or the robbery conviction?

Stephen D. Hawke:

The attempted robbery conviction was what was set aside by the state court.

Anthony M. Kennedy:

The murder conviction remains undisturbed, isn’t that correct?

Stephen D. Hawke:

That is correct.

The cases that are primarily relied upon by the, by the, by the Court of Appeals for the 8th Circuit are cases called Lange and Bradley.

In Lange, I believe that you can read Lange as consistent with the Court’s opinions in Whalen and in Hunter and the other, and, and the other ca… DiFrancesco.

In, in, in the Lange case the defendant was sentenced to a term that was not authorized by the statute.

The sentencer, uh, sentenced the defendant to a term, to a term and to a fine where the statute only authorized a sing…, an alt…, one or the other, a fine or a term imprisonment.

So, Lange certainly stands for the proposition that the sentencer cannot sentence, uh, a defendant to a term greater than what the legislature authorizes.

Bradley, the other case relied upon by the 8th Circuit, is in–

John Paul Stevens:

Well, but Lange stands for more than that.

Because it also says you can’t even sentence him, make him serve a sentence that legislature did authorize if he has already paid the fine or served the other branch of it.

Stephen D. Hawke:

–There is language to that effect in–

John Paul Stevens:

Well, that’s the holding.

Stephen D. Hawke:

–I, I must respectfully disagree with that, Your Honor.

Stephen D. Hawke:

I think that there is language to that effect in Lange, but I believe that language would be dicta.

John Paul Stevens:

Well, what did the case hold, do you think?

Stephen D. Hawke:

I believe that the case hold, holding is the same as in Whalen, DiFrancesco and Hunter, that the sentencer cannot sentence a defendant to a term greater than what the legislature authorized.

John Paul Stevens:

And the reason it was greater is because there were two sentences, only one of which would have been authorized.

Stephen D. Hawke:

That is correct.

John Paul Stevens:

Wasn’t that exactly what was true here?

Stephen D. Hawke:

No, that is not.

John Paul Stevens:

There are two sentences, only one of which would have been authorized, because it’s only one offense.

Stephen D. Hawke:

But the amount of time that is authorized by the Missouri legislature is a term of life imprisonment for, for a murder conviction.

The defendant has not been sentenced to any term greater than life imprisonment.

John Paul Stevens:

Why can’t you say the same thing about Lange?

Stephen D. Hawke:

In that situa… in that, in Lange, Your Honor, the defendant was sentenced to a term, uh, to a term of, uh, uh, of, uh, well, to a term and to a fine.

John Paul Stevens:

Right.

Either one of which would have been permissible.

Stephen D. Hawke:

And once he paid the fine, then, then the courts held that, that, that the defendant could not be required to serve prison time.

Now–

John Paul Stevens:

Why is that different from serving 15 years when you are sentenced to both 15 years and life on just one offense?

Stephen D. Hawke:

–The key here, Your honor, I believe, is that the defendant, that the defendant’s time for the attempted robbery charge was credited, once the attempted robbery sentence was vacated.

The time that he had served was credited towards completion of the first-degree murder conviction and sentence.

So, you don’t have multiple punishments here.

You have, you have a single punishment.

This defendant–

John Paul Stevens:

Well, that would be like saying we’ll give you the $10 fine back.

That, it, would they have saved it in Ex parte Lange if they had offered to return the fine?

Stephen D. Hawke:

–Well, that was the situation that the court was faced with in Bradley.

Uh, and–

Byron R. White:

–question, isn’t it?

Stephen D. Hawke:

–They gave an answer to that question that is inconsistent with this Court’s jurisprudence with double jeopardy.

Byron R. White:

Well, but it gave the answer.

The answer was no.

Stephen D. Hawke:

That is gave an answer and an answer that was unsupported by, by case law, except for the dicta in Lange and it provide, it provide, the holding, that particular holding in Bradley has not been followed by this Court since then.

Byron R. White:

It’s never been expressly questioned, has it?

Stephen D. Hawke:

Uh, it has been expressly questioned by the lower courts.

But it has not been, it has not been expressly questioned before this Court until today.

Now, the, the language that you are referring to is the language that says, when an alternative term is, uh, uh, uh, an alternative term of punishment has been completed, then the power to sentence or to punish is over.

Now that does not fit in to this Court’s description of the double jeopardy clause, uh, since, since the Bradley case.

William H. Rehnquist:

Well, may, may not Bradley have rested partly on the, on the statutory idea, too.

That was totally within the federal courts.

That is correct.

And that’s something that, that has struck me about both Lange and Bradley is that it’s a federal court supervising a federal sentence.

In here you have a situation where the state court, uh, heard a claim of multiple punishment.

The state court, the 2726 court examined the amended motion for 2726 relief and vacated the attempted robbery conviction and sentence, with that time being credited towards completion of, of, of the murder sentence.

When you look at the habeas statute, the habeas statute says, whether or not the petitioner is in custody in violation of the constitutional laws or treaties of the United States.

But may I just ask, at the time they vacated the, that, that sentence, had not the Governor already commuted it?

Stephen D. Hawke:

Uh, yes.

He had commuted about a year early.

John Paul Stevens:

So they vacated a sentence that had fully been served at that time.

Stephen D. Hawke:

He, uh, that is correct.

They, they con…, uh, it was vacation of a conviction that had already been served.

That is not unprecedented.

There, in, in Missouri–

John Paul Stevens:

I agree.

It’s exactly like the Ex parte Lange.

It is not unprecedented.

Stephen D. Hawke:

–It’s a situation where Missouri remedies exist where defendants can vacate, uh, convictions that have already been served.

In Missouri procedure we have a procedure called writ of error coram nobis that is exclusively available for petitioners who have already completed service of their sentence.

So it’s not unheard of at all.

Now, and in fact, I believe this Court heard last in, last month a case called Mullain where the Court is considering expanding the scope of federal, uh, of 2254A to include petitioners who have already completed service of their sentences.

So, you know, the, the fact that the, that the, uh, vacation occurred after the commutation I don’t believe is particularly significant and should not be particularly significant.

We shouldn’t say that on Janu…, on June 15 of ’81 the defendant was, could, could get 2726 relief and that on June 17, the day after the commutation, that he couldn’t.

Stephen D. Hawke:

That doesn’t make real good sense.

That’s drawing a line based really on a technicality, uh, because the defendant was entitled to relief from the state court and that’s what he got.

Now, the, the, the technical nature of this situation, the technical reliance upon the, the technical aspect of relying upon Bradley and upon Lange, best is really described well by the dissent from the en banc opinion of the 8th Circuit.

In, when you follow those cases blindly, you’re destroying the intent of the Missouri legislature for this crime of attempted robbery with a murder along with it.

The, the Missouri legislature intends that there be life imprisonment.

You are also destroying the intent of the sentencing judge.

The sentencing judge was showing society’s outrage at the heinous nature of the respondent’s crimes when he sentenced the respondent to 15 years and life imprisonment, the maximum terms, and then ordered them to run consecutively.

Now, if the, if the sentencing judge had not, had done the opposite, if he had set the life term first, we would not be before this Court.

There would not be any problem.

If the sentencing judge had been nice to the defendant, if he had ordered that the terms run concurrently, again, we would not be before this Court.

The, as the opinion below notes, that’s due to just the whim of the 15 year term running first is because, is because it was the first count in the charging document.

Just happen chance.

Happen, happen, happenstance that it occurred that way.

So, really when you are looking at this case, the, the situation is really not like Lange and Bradley as long as you interpret Lange and Bradley as only being consistent with this Court’s jurisprudence in multiple punishment areas.

This defendant today has one conviction.

This defendant has one sentence.

This defendant has only served time since 1973 for the completion of that felony murder sentence.

There is no multiple punishment.

There is no multi–

If I may, I’d like to reserve the remainder of my time for rebuttal.

William H. Rehnquist:

Very well, Mr. Hawke.

Mr. Baldwin?

Springfield Baldwin:

Mr. Chief Justice, may it please the Court:

I think that if the Court sees fit to reverse the United States Court of Appeals for the 8th Circuit, the law of double Jeopardy is going to be about as confused as I think the argument I just heard was.

The facts in this thing are simple.

In fact, I’m amazed that there has been all this commotion over this case.

I think since the Fifth Amendment was adopted, when a man was convicted of what is legally one crime, served one legal, lawful sentence for it, he was entitled to go free.

William H. Rehnquist:

There’s a certain ludicrousness about what happened here, Mr. Baldwin.

Springfield Baldwin:

Mr. Chief Justice–

William H. Rehnquist:

I’m asking you a question.

Springfield Baldwin:

–I beg your pardon, sir.

William H. Rehnquist:

I said, there’s a certain ludicrousness about what happened here, because the man was convicted of attempted robbery.

He was convicted of murder.

He ends up serving a sentence for attempted robbery, seven or eight years, and the 8th Circuit says he’s free under the double jeopardy clause.

Now, that wouldn’t make any sense to an awful lot of people if you just explained it to them.

Springfield Baldwin:

Well, I would say this.

I think one thing that has been completely overlooked in this case so far is the effect of a governor’s commutation of a sentence.

When the Governor commuted the man’s sentence, then the legal position in Missouri and in, I think, the universal law, accord…, at least according to American jurisprudence, is that the man’s legal position is the same as if he had been originally sentenced to that length of time.

Now this Court, in Whalen v. the United States, held that, uh, where there is a felony murder the underlying felony is a lesser-included defense, and unless the legislative body had decided there should be multiple punishment, there should not be one.

It was one crime.

And this man committed one crime.

They call it first-degree murder.

But it is the codification of the old felony murder.

He received the robbery sentence.

He apparently was a very good boy in prison and so forth.

We are not informed as to why the Governor commuted his sentence, but I know from the motions I had to file to get that writ of habeas corpus that he had completed his high school equivalency, had completed, uh, two years of college with grades of A and B.

Uh, and he is now living with his sister, the school teacher, and is now employed.

Uh, my opponent said there would be no problem if he had only been sentenced to life imprisonment first and not the 15 year sec… not the 15 years first.

That, I submit, is not true.

Because no matter which he had been sentenced to first, when the Governor commutes one of them, he has served one complete, legitimate sentence.

Uh, the concept of Lange, Lange definitely held.

Anthony M. Kennedy:

Well, when a sentence is commuted, why is that, uh, equivalent to having the sentence be served?

You say when the sentence is commuted that he served the sentence.

Springfield Baldwin:

That is true.

Uh, it is–

Anthony M. Kennedy:

Suppose he’d begun, suppose he was serving the sentence for life first and the Governor said, by the way, I’m going to commute your second sentence.

You wouldn’t say that that sentence had been served, would you?

Springfield Baldwin:

–Yes, I would.

Anthony M. Kennedy:

Why?

Springfield Baldwin:

Because the Governor says so.

Springfield Baldwin:

He says his time shall on that sentence shall end as of such and such a date.

Anthony M. Kennedy:

Well, perhaps I don’t understand what a commutation is.

Is a commutation in that respect different than a pardon, I take it?

Springfield Baldwin:

I would believe it is.

I mean,–

Harry A. Blackmun:

Well, in this case it was commuted to time served, wasn’t it?

Springfield Baldwin:

–I think that’s true.

Harry A. Blackmun:

That, that sounds to me, uh, in, as a distinction from a complete pardon.

Springfield Baldwin:

Yes, it was not a complete pardon.

Anthony M. Kennedy:

The effect of it is is that the sentence simply doesn’t have to be served.

Springfield Baldwin:

That’s right.

Harry A. Blackmun:

Mr. Baldwin, how did these commutations come about?

Was this the only case which Governor Bond exercises commutation power or were there a string of them at the same time?

Springfield Baldwin:

I do not know.

Uh, Lange was a case where a man had been stealing mail bags and, uh, the district court sentenced him contrary to the statute to two sentences.

The statute provided he could be fined or imprisoned.

And the judge assessed both against him.

The lawyer ran in and paid the fine.

And the Supreme Court said, the judgment is satisfied.

It was a legitimate alternative penalty of the law and he satisfied, and it’s over.

He’s to be discharged.

A double jeopardy clause, of course, applies to the states as held in Benton v. Maryland by this Court.

And now, that, that, uh, the respondent Larry Thomas has served one legitimate sentence for his felony murder, he is entitled to be discharged.

And I think that’s pretty open and shut.

Now, if you want to abandon that, you are really going to foul up the law of double jeopardy.

And I don’t think anybody is going to know what it means in the future.

Uh, my opponent said that the time that he had served on his 15 year sentence was credited.

Now the Missouri Court of Appeals did say that it had been credited.

But when I read the lower courts, the Missouri Circuit Court’s judgment on a 2726, I did not see where it mentioned that it was crediting that time.

But–

William H. Rehnquist:

Follow up the law–

–We’ll resume there at 1:00, Mr. Baldwin.

0 [Recess.]

Mr. Baldwin, you may continue.

Springfield Baldwin:

–Mr. Chief Justice, may it please the Court:

We have the Lange decision of 115 years ago, and then, uh, the next thing we have is, uh, I think, uh, United States versus Benz, which was to the same effect.

And that was in 1930.

Then we have In re Bradley, which was in 1943.

Bradley, of course, was convicted of a contempt of court for threatening a witness in the corridor of the courthouse, fined and sentenced to jail.

His lawyer paid the fine, and uh, the court said he had satisfied the judgment.

Here, this defendant was charged with robbery, first-degree, and he was charged, I mean, with attempted robbery, and he was charged with felony murder.

He was convicted.

Judgment was entered on two counts, and he could have been sentenced to either one.

And he was sentenced to both.

I see no difference in principle between the fact that there were alternative penalties.

When he served one, he had satisfied the judgment.

And, uh, this kind of law has been the law of this nation, I think, since the beginning.

Furthermore, I would really like to emphasize, too, the effect of the Governor’s commutation.

I’d like to make the analogy.

Suppose that there was a federal prisoner.

And under the law that passed, Congress passed, some district court judge had sentenced him to forty years, and two days later the President of the United States, under his power to pardon or reprieve, did one or the other so that the man went free, would the court then say, oh, the trial judge intended he serve 40 years.

Congress intended that he serve 40 years.

We’ll just set that first 40 year sentence aside and we’ll then reinstate it.

That way we get around the President’s pardon or reprieve.

And so it’s only fair that he serve 40 years.

I don’t think you would do that.

Byron R. White:

What if the Supreme Court of Missouri had held in this case that, uh, that, uh, when you have a, uh, felony murder like this, uh, and there’s a, and a jury is instructed that they can find one or the other or both, and the jury comes in and finds both, what if a, what if the Supreme Court of Missouri had decided that, that the, the man could only be sentenced to the life, to life imprisonment?

Springfield Baldwin:

I don’t think it decided that.

I think it–

Byron R. White:

Well, know.

Byron R. White:

But what if it had?

What if it had?

Springfield Baldwin:

–Then he could only be sentenced to life imprisonment–

Byron R. White:

Well, I know.

But then, on the facts of this case, he, he had been sentenced to both and he had served his 15 year sentence.

Don’t you think the, uh, surely then, uh, he could be left in jail on the grounds that uh, uh, the only sentence that he could have been sentenced to, really, was the life.

Springfield Baldwin:

–Well, if the Missouri Supreme Court had decided what you suggest, then it would be, uh, I think, a void sentence to sentence him, uh, for both.

That’s not this case.

Byron R. White:

So the 15 year, the 15 year sentence would just have been void.

Springfield Baldwin:

That’s right.

Byron R. White:

Right.

You don’t think that’s even close to this case.

Springfield Baldwin:

No, I don’t, because it has been the precedent as set in Ex Parte Lange that the sentences in that case, the sentences in, in, uh, in re Bradley, the sentences in United States v. Benz, were voidable, not void.

So, since they were voidable, I do not see any reason that the Governor or Missouri could not commute one of them and when he does so, he has served a complete sentence for his crime.

And that’s the end of it.

I think, too, that–

Antonin Scalia:

Excuse me.

What if he hadn’t finished his 15 years, or, uh, and there had been no commutation?

Springfield Baldwin:

–Then you’re getting in, I believe, to a different class of cases.

There is a class of cases where the defendant has not finished the sentence.

He’s received two sentences.

He should have only received one.

And neither has been completed.

This Court and other federal courts, I don’t know, I think this Court, but I know other federal courts have held the trial judge may then make a choice between the two.

Uh, vacate one and give him the other.

That’s the way I understand it.

William H. Rehnquist:

How much of that is double jeopardy, law, uh, Mr. Baldwin, and how much is just ordinary state criminal law or sentencing law?

Springfield Baldwin:

I believe in those cases that Justice Scalla, I believe, inferentially referred to, that that is double jeopardy law, because I believe the, the defendants in those cases have maintained that the double jeopardy clause was being violated by the court not doing what they wanted.

Whereas, the courts have said, in that situation it’s what the trial judge wants.

So I think double jeopardy has been an issue in those.

Springfield Baldwin:

And, uh, I believe during argument in the court, in the 8th Circuit, I pointed out that the, uh, the Attorney, Assistant Attorney General had, uh, not cited a single case in point on these facts.

And, uh, I don’t think he has yet.

It’s a princi… it’s a legal principal that’s endured, I would believe, for centuries.

And, I don’t know why it should be changed.

If it is true, and I believe it is, that the founding fathers put the first ten amendments in the Constitution to restrain the power of courts and I respectfully submit you should be restrained and affirm the judgment of the 8th Circuit.

I think there’s another reason.

If the Governor of Missouri wanted to commute this man’s sentence, he gave him a present, so to speak.

He may not have realized he was giving him a present, but he gave him one.

And now you are asked to reach back in time and make the position of the prisoner more onerous.

Now my opponent says, I say that’s a ex post facto type judgment, which is forbidden by the due process clause according to your case of Boule v. City of Columbia.

My opponent says that point was not raised originally and cannot now be raised because it’s a matter of procedural default.

I say that since the judgment of the United States Court of Appeals for the Eighth Circuit was for the prisoner, that I can cite that as a reason to support that judgment.

I don’t think you have to cross-appeal.

I don’t think you have to do anything.

Uh, I mean, just to be absurd, if, uh, it was proposed that you engage in 104 constitutional violations, uh, and I argued, uh, oh, that’s all right because it wasn’t raised in the court below, that’s pretty silly.

Uh, and here it is proposed that you enter an ex post facto judgment which you have said violates due process.

And, uh, I might point out, of course, that the various United States Courts of Appeals have followed these cases of Ex parte Lange, In re Bradley, United States versus Benz, and we have their cases that are right in line.

And you are just going to upset the whole thing if you reverse the United States Court of Appeals for the Eighth Circuit.

Uh, besides, you are going to really be holding the Missouri Governor’s power to commute sentences for nought, because that’s going to be taken away from him.

He no longer has that.

He no longer can say, I served that sentence.

No doubt taking that away from him makes his situation more onerous.

Uh, you pointed out in Weaver versus Graham that when Florida enacted a statute that took away good time, it was an ex post fact statute as far as those prisoners who had earned good time under that, and made their condition more onerous.

And you held it was unconstitutional.

You, uh, had somewhat the same, uh, situation, well, not really, but you had an ex post facto judgment in that Boule versus the City of Columbia.

There two blacks went into a drugstore, sat at a counter where they, or sat in a booth, where they might be served food.

In those days in South Carolina, places were not serving blacks.

And they didn’t actually refer, uh, refuse to serve them.

What they actually did was they asked them to leave.

The statute said that, uh, if you enter upon a landowner’s property without his consent where you have received notice that you shall not enter, then that’s some kind of a crime.

Springfield Baldwin:

And the South Carolina court interpreted this statute to add this additional business which wasn’t in it, that if you are asked to leave, you violated that statute.

And they, you’re, this Court said that’s not so.

That’s an ex post facto judgment.

And that’s that you’re doing when you take this commuted sentence away and say it’s of no effect.

The simple thing is that once in a while, under the Constitution, things happen that courts don’t like.

And I think that there is where you have to decide you’ll be restrained.

So, I would ask that you affirm the judgment.

William H. Rehnquist:

Very well, Mr. Baldwin.

Mr. Hawke, do you have rebuttal?

Stephen D. Hawke:

Mr. Chief Justice, and say it please the Court:

One of the last comments that were made by the respondent was, sometimes the federal Constitution requires courts to do things that the courts don’t like.

If that’s the situation, then perhaps there is a fundamental flaw in what the court is thinking.

The example here is with multiple punishments.

The multiple punishment concept of the double jeopardy clause only prohibits multiple punishment that it, or not, or only prohibits punishment that is not authorized by the legislature.

The, the, the application of Bradley to this situation is what creates the problem.

It’s what created the result of the, of the five judges from the Eighth Circuit.

When you look at Bradley, and when you look at it and, and think that the rule announced in Bradley, that completion of service of alternative sentences precludes the power of the court to punish further, that language, the holding in Bradley, which is dicta from Lange, had no support before Bradley, and has not been followed by this Court since Bradley.

Antonin Scalia:

Mr. Hawke, I suppose your case really depends upon whether that’s really true, that all that the, all that the double jeopardy clause provides for is no more penalty than is authorized by the legislature.

And I’m, I’m, I’m just not sure that’s true.

Uh, again, what do you do about the situation where a judge makes a mistake in sentencing and the fellow serves the sentence and then the judge says, gee, I made a mistake and he sentences him for the rest of what the legislature authorized.

Would you say that double jeopardy clause does not cover that?

Stephen D. Hawke:

The, the situation that you are describing refers to the expectancy of the defendant and a finality of the sentencing process.

Antonin Scalia:

That’s right.

And that, that’s, that has nothing to do with the intent of the legislature, though.

Stephen D. Hawke:

The, the Court discussed this in DiFrancesco, and in the situation here, you either have, you have a defendant’s subjective expectation at the time of sentencing that he’s going to serve 15 years followed by a life sentence.

That was his subjective expectation when the sentencing judge announced his intent in sentencing, or announced his sentence.

Do you want to look at some objective in expectation of the defendant?

The defendant’s objective expectation at the time of sentencing was that he would either serve 15 years for the attempted robbery conviction or that he would serve a life term for the murder connected with the attempted robbery.

Now, if you look at that objective expectation that the defendant may have, that’s what’s been fulfilled here.

The defendant is under one conviction for one sentence, life imprisonment.

Stephen D. Hawke:

So, any expecta… ex, uh, expectancy interest by the defendant is not, is not really at issue in this particular case, be it either at a subjective level or at–

Antonin Scalia:

You, you, you may be right about that, Mr. Hawke, but how does that respond to Justice Scalla’s question?

You’re saying that as long as it, it doesn’t defeat his expectations, it’s okay.

But before, you said flatly, that as long as the combined sentences don’t exceed what the legislature was willing to permit, it was all right.

Stephen D. Hawke:

–The discussion, I think in DiFrancesco and in Whalen and in Hunter focus primarily upon the intent of the legislature in the punishment process.

There may be some type of expectancy interest related to the finality of punishment, uh, that you just can’t bring in–

John Paul Stevens:

So, it’s in other words, you do concede that we have to do more than just look at what the maximum sentence the legislature authorizes?

Stephen D. Hawke:

–Uh, that is uncertain.

You can certainly draw, uh, draw that inference from the DiFrancesco case.

Antonin Scalia:

Well, I think maybe you have to look at more than just his expectations plus the legislature’s intent as well.

Suppose the sentencing judge says, i’m going to give you eight years right now.

I’m really not sure that’s going to be enough for you.

I’ll think some more about it, and I may impose, may impose a further sentence down the line.

Do you think that would, uh, be sustainable under the double jeopardy clause?

Stephen D. Hawke:

That’s a hard case, Your Honor.

Antonin Scalia:

Well, it tests whether his expectations are what govern.

I mean, when you’re talking about the double jeopardy clause, you’re talking about a very technical provision.

I mean the fact that it has some fluky consequences doesn’t surprise me any.

It, it is in its nature a technicality.

Stephen D. Hawke:

And in response to that, I do not believe that the Court should, should examine the, uh, the case under the double jeopardy clause in a technical manner.

The Court should look at the purposes behind the double jeopardy clause, uh, in this case be it examining the, uh, making sure the punishment is not exceeding the, uh, the legislature’s intent, and perhaps some expectancy interest.

I don’t think you have to get into any type of expectancy interest in this case, because other under either a subjective or objective, uh, interest in the defendant, would not, is not implicated here.

The process of sentencing is not a, is, it it is a serious subject.

It’s a, it’s an important subject, one of the more important things, perhaps most important thing, that a trial judge, be it at the state court level or at the federal court level, has to do.

And as this Court noted in Bozza, that sentencing should not be transferred into, into a game.

It should not be a situation where, uh, where a technical rule violates the legislative intent or the senator’s intent.

The situation you have in this case, if you affirm the judgment of the Eighth Circuit is that you have transformed the sentencing process into a game.

In particular, a game where the judge didn’t have the rules, the sentencing judge didn’t have the rules of the game until eight years later.

It’s like playing Monopoly without having the rules that Milton Bradley gives you.

It’s just not, it’s just not the way that it should be.

Stephen D. Hawke:

For the reasons stated, the Petitioner respectfully requests that the judgment of the United States Court of Appeals for the 8th Circuit be reversed.

William H. Rehnquist:

Thank you, Mr. Hawke.

The case is submitted.

The honorable court is now adjourned until monday, the 1st of May at ten o’clock.