Marshall v. United States – Oral Argument – October 17, 1973

Media for Marshall v. United States

Audio Transcription for Opinion Announcement – January 09, 1974 in Marshall v. United States
Audio Transcription for Oral Argument – October 16, 1973 in Marshall v. United States

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Warren E. Burger:

We will continue the arguments in Marshall against the United States.

Mr. Hewitt you will have 17 minutes.

James F. Hewitt:

Thanks, Your Honor.

Mr. Chief Justice and may it please the Court.

As we were discussing yesterday it was our position as the Court of Appeals of the District of Columbia held in Hamilton that the two prior felony exclusion operates in effect as a conclusive presumption of an eligibility and that the rational connection between two prior felony convictions.

With no delineation as to the type of conviction, the time of conviction or other circumstances in effect would deprive an applicant who would be otherwise eligible for commitment under the present provisions of Title II from an opportunity to have consideration and a hearing.

Now, this Court last term in the food stamp cases, the Department of Agriculture versus Moreno in effect struck down a provision similar to that which operated as a conclusive presumption thereby preventing a fair hearing of the merits, a person’s eligibility.

I would submit to you Your Honors that that would be basically the same problem here.

This in effect fetters the hand of the trial judge and prevents him from an opportunity to fairly evaluate whether or not the particular addict should be sent to prison for addict treatment or whether he should be sent as a straight offender and subject to whatever rehabilitative treatment might be available.

We feel that the trial judge’s hand should be unfettered.

That this constitutional — this Congressional classification is in effect an irrational one and defeats the legislative purpose of the Act.

It would appear to us that the addict in this particular case, Mr. Marshall did have in effect almost a fundamental right to consideration for fair and effective treatment of his addiction.

As we pointed out yesterday, we’re not talking about —

Warren E. Burger:

Mr. Hewitt excuse me, do you have to go that far or is it enough for the purposes of your case to say that he had a right to put in evidence on the subject to trigger the district judges’ discretion in the matter?

James F. Hewitt:

Yes, Your Honor.

Warren E. Burger:

You don’t claim an absolute right to have rehabilitative treatment and —

James F. Hewitt:

No, Your Honor.

But he certainly had a right to have the judge consider that and in the exercise of a sound judicial discretion determine that this is the type of addict who was likely to be rehabilitated and who may have treatment.

The problem here is that the judge couldn’t do this under the statute.

He was barred.

He was in effect prevented from even an opportunity of considering this man’s background.

Now, it may well be that the Congress has decided to keep hiding criminals out of Title II, but the judge can do that.

He can do that by just simply not exercising his sound discretion and committing him under Title II of the Narcotics Act.

Warren E. Burger:

Does the power of Congress to fix the jurisdiction of Federal Courts constitute any kind of a barrier here to what you’re driving at?

James F. Hewitt:

I think certainly Congress could limit the jurisdiction of the Federal Courts and provide that no addict could be committed for treatment.

But where it has created a class and a class to which Mr. Marshall is a member and then excluded him from the class on the basis of an irrational classification.

It was our position that he has been deprived the due process by virtue of denial of equal protections.

I would have to concede that Congress doesn’t have to give addict treatment to addicts.

It can limit the course of jurisdiction in the area of consideration but it certainly cannot prevent, Marshall the petitioner here, from consideration on the basis of this irrational classification.

Now, the Government seeks to justify this by the expedient explanation of possible subsidiary purpose in the legislation to conserve economic resources.

Audio Transcription for Oral Argument – October 16, 1973 in Marshall v. United States

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James F. Hewitt:

They could’ve made that argument in the Department of Agriculture Food stamp cases that they wanted to limit the number of people eligible for food stamps to save money and thereby justify the classification but it wouldn’t be any more justified in that particular case than it would be here.

Most of the legislative history that the government has cited relates to some apprehensions that Congress had in connection with expanding the existing public health facilities for the Title I, the prosecution in lieu of the Commitment in Law of Prosecution provision for Title III of the voluntary commitment provision.

It would appear from the examination of the legislative history that the Bureau of Prisons was not too concerned with any drain upon their resources.

They have the prisons, the person who is going to go to prison, it’s the question of whether or not he’s going to go and get addict treatment or whether he’s going to go and in effect be deprived of addict treatment or get it only at the whim of the Bureau of Prisons.

Warren E. Burger:

Did I understand that you seem to concede the power of Congress to have a distinction which permits the segregation of what you called hardened criminals amendments two, three, four convictions from first offenders who are narcotics addicts?

James F. Hewitt:

Yes, Your Honor.

I think they do if they have a test that — that is fair and certainly a test that is not based upon a conclusive presumption of being a hardened criminal simply by virtue of two prior felony convictions.

What we object to is the fact that these two prior felonies could have been 30 years ago.

They could have been for the most innocuous of offenses and to say that a person is a hardened criminal because 30 years ago he was convicted of theft of mail or forgery of a treasury check to relatively innocuous felonies.

To say that he is a hardened criminal and therefore he is not eligible to treatment in prison as an addict, I think is just certainly irrational and this is our objection.

If there are standards applied to the barring provision reasonably related to the purpose of the legislation, perhaps our position would not be quite so strong but I feel here that what we had basically is a recognition that narcotic addiction is the root cause of a good deal of crime.

There is an effort on the part of Congress to treat addicts by giving them treatment in prison.

And then to say that these objectives will be fulfilled by barring from that very treatment those with criminal records is an irrational conclusion.

In fact, it’s almost absurd and that is certainly our position in this case.

Thank you, Your honor.

Warren E. Burger:

Thank you Mr. Hewitt.

Mrs. Lafontant.

Jewel S. Lafontant:

Mr. Chief Justice and may it please the Court.

In the statement of facts yesterday, petitioner remarked that there was no gun involved in the robbery of the bank.

I do want to bring out, however, that when petitioner entered this bank, he presented a note to a teller who happened to be a moonlighting police officer and that note said I have a gun, I don’t want to hurt anyone just hand over the money.

Petitioner also states that that crime was reduced from a crime of violence because certainly robbery of the bank is a crime of violence and it was reduced to larceny.

Had it not been reduced to larceny, he would have been excluded from the provisions of Title I and Title II as having been found guilty of a crime of violence.

Petitioner contends that the provisions of Title II of the Act which excludes persons with two prior felony convictions from its benefits is unconstitutional under the Equal Protection Clause embodied in the Due Process Clause of the Fifth Amendment.

In his brief, he compares Title III with Title II complaining that a person like himself, a possessor of a two felony conviction record cannot trade his felony.

His third felony conviction for commitment under Title II while a person with three or more felony convictions, in fact any number of felony convictions maybe committed under Title III as long as he has completed all of his prior sentences of conviction and as long as there’s no pending criminal charge against him.

Petitioner argues this classification is arbitrary and unreasonable and has no rational basis.

If we look at the Act, we can say just from a mere cursory reading of it that the purpose is obvious.

This isn’t a case where we have to go to the congressional record, review the hearings, review what all the representatives said although it’s very interesting reading to interpret the Act’s meaning.

The Act is unambiguous and is clear.

It provides for the treatment and rehabilitation of narcotic addicts and in addition provides in Title I and Title II, the commitment for treatment in lieu of penal incarceration.

Audio Transcription for Oral Argument – October 16, 1973 in Marshall v. United States

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Jewel S. Lafontant:

The Act is three-pronged.

The Title I provides for civil commitment in lieu of trial for certain consenting narcotic addicts charged with Federal offenses.

Title II, the one that we’re concerned with today provides for a similar civil commitment in lieu of penal incarceration for narcotic addicts who have already been convicted of a Federal offense.

And Title III provides for civil commitment at the instance of the addict himself or at the instance of the related individual.

And it’s clear from Title III that Congress did not wish to foreclose the multiple offender from treatment for his addiction.

Because under Title III, no person is excluded except the person who has a pending charge against him or who hasn’t completed his sentences under prior convictions.

In other words, a multiple offender can be committed under Title III, to a hospital for treatment for his addiction.

But we must recognized that Title III — that Title III addict doesn’t present any new menace to society.

The prison under Title III is a person who is free in the community already having paid his debt to society.

And when he seeks treatment as an addict, he’s not entering to escape a pending charge or any future punishment.

He sincerely is seeking physical and psychological therapy voluntarily.

Petitioner makes much to do over the fact that a third person can have himself committed under Title III and the fact that the third person can bring him in makes this less than a voluntary act.

But whether or not the request for treatment under Article III is voluntary is really not too important.

The important item is that the addict is already in the community and in seeking help is removing himself from free intercourse with society for hospital treatment.

Petitioner asserts that treatment for an ill person should be guaranteed and that he would like it to be a fundamental right and that the State should provide treatment for all these people.

In Powell versus Texas, Mr. Justice Marshall stated that and I quote, “This Court has never held that anything requires that penal sanctions be designed solely to achieve therapeutic or rehabilitative effects”.

But we’re not even arguing here, the petitioner should not receive treatment.

We do maintain that he has no basic right to trade treatment for commitment.

Petitioner would have us believe that in denying him benefits under Title II that he’s denied all types of treatment.

This is not true.

He’s only being denied the privilege of trading that commitment under Title II for penal incarceration.

I’m advised by the Bureau of Prisons —

William H. Rehnquist:

Mrs. Lafontant, if defendant is given treatment under Title II, if he’s eligible for it, might he be released into the community prior to the probable time he would be released if he were serving a present sentence?

Jewel S. Lafontant:

Yes indeed and that’s a very good point that you’re raising Mr. Justice Rehnquist because I am addressing myself to that even later in the argument but the answer to it is definitely, yes.

I’m advised by the Bureau of Prisons that all addicts in the Federal Prisons are eligible for treatment and do receive treatment.

And the only thing that limits the kind of treatment they get is the lack of resources and sometimes the lack of motivation of the offender himself.

But in all of our Federal institutions we have rehabilitative program set up.

At this time, we have 14 intensified medical programs and by the end of the fiscal year, we expect 16.

However, there is a difference which you have addressed yourself to Mr. Justice Rehnquist that the people committed under NARA are treated somewhat differently from the non-NARA addicts.

The NARA addicts are put into intensified treatment immediately and they are released on an average within 17 months back to the community.

Audio Transcription for Oral Argument – October 16, 1973 in Marshall v. United States

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Jewel S. Lafontant:

Many of them are released within six months of the time they enter the treatment but on the average I’m informed it is 17 months and then they are released into the community with intensive follow-up care.

In response to the inquiry of the Chief Justice, as to whether or not non-NARA addicts are foreclosed from treatment in Federal penitentiaries, the answer is definitely “No”.

We do have rehabilitative treatment in the jails for persons who are serving regular Federal Prison terms and who happen to be in addition, addicts.

They all receive some treatment upon commitment, if no more than when they first get there they are dried out within three days to three weeks.

In fact ,the physiological desire for narcotics has been gotten rid of within three months to six months.

So, they do receive that.

In addition, to that we have —

Well that’s just the result of being locked up in a place where there are no narcotics available, isn’t it?

Jewel S. Lafontant:

One thing is that —

You may call a treatment if you will but that just happens to everybody who gets locked up where there are no narcotics available.

Jewel S. Lafontant:

That would be true but I understand in our Federal Prisons that we have medical doctors who helped these people during their withdrawals periods.

In addition to that, we have counselors who help these people who were not NARA, committed under NARA, to help them in their motivation, also to help them not only get rid of their addiction but actually to get rid of their non-criminal behavior through various social and psychological services that are rendered in the jail.

Warren E. Burger:

But isn’t there a six weeks period of isolation and during which the all incoming prisoners are classified for the wide range of purposes that is, their health condition, their rehabilitation prospects and so forth.

Jewel S. Lafontant:

Yes.

Warren E. Burger:

And is it during this six weeks period that they try to find out what the narcotics situation is, if they have a one?

Jewel S. Lafontant:

They try to find that upon immediate entry which takes up to six weeks but they often find out within the first week whether or not the person is an addict.

First, they ask the offender himself, are you on drugs?

What do you use and are you truly an addict and of course they have to depend a lot upon what the offender tells them also.

But they do have follow up medical treatment as well as psychotherapy in the ordinary Federal Prison.

I’m also advised that in addition to — they set goals for these people as they come in as to whether they can finish high school or finish grade school, try to teach them whether or not they can learn and trade.

All this is started with this person whether or not he is an addict.

But in addition to being an addict, he does get help in that area. And I’m informed the only limitation on it is lack of resources and the lack of motivation of the prisoner himself who may not use the resources that are there.

The intensified treatment, I am told however does not begin until 12 to 18 months before the prisoner is to be released.

So, the person who’s committed under NARA starts getting his intensive treatment immediately 12 to 18 — for 12 to 18 months and then he is to be released into society, whereas the person who has had a longer sentence, the intensified treatment I am told is not begun until he is – till 12 to 18 months before he’s to be released.

And this is supposed to be because the experts feel that it’s too early to start an intensified program preparing the inmate for release to society earlier than 12 to 18 months.

It means however that a person who has a 10-year sentence would not be able to go back into society within six months or within 18 months because they would figure his time from the length of his term and figure it back.

While allowing commitment under Title III, Congress did not want the NARA to supersede in all instances the established commitment procedures for all offenders who happen to be additionally narcotic addicts.

They didn’t want persons facing a criminal charge to use the Act to escape punishment.

The Act is created a special benefit for offenders who are also narcotic addicts and in so doing has set up standards of eligibility and as Mr. Justice Blackmun brought out yesterday, that the applicable standard here is one of rationality.

The apparent claims that the standards set up by Congress namely the exclusion of a certain class of convicted felons in unreasonable.

Audio Transcription for Oral Argument – October 16, 1973 in Marshall v. United States

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Jewel S. Lafontant:

What is the nature of the privilege or right created by this Act which grant certain classes of offenders, the option to trade imprisonment for commitment for rehabilitation purposes?

Can the offender trade off his addiction treatment for the rest of his term?

To what extent can Congress set up of standards of eligibility for benefits granted by it?

Congress has said that persons, like a felon who has been convicted of two prior felonies, cannot escape punishment by the mere fact of submission to treatment for his addiction.

The exclusion of the class of addicts to which petitioner belongs does not constitute as to a felony deprivation of due process.

The question of due process was taken care of at the time of his trial.

President Lyndon Johnson in urging the passage of this Act back in 1965 when he addressed Congress, felt that the protection of the public was not only important but was required and he said, “The return of the narcotic and marijuana users to useful productive lives is of obvious benefit to them and to society at large.

But at the same time it is essential to assure adequate protection of the general public.”

William H. Rehnquist:

I understood Mr. Hewitt’s argument Mrs. Lafontant that the — the Fifth Amendment due process which embraces equal protection that is that he was not claiming a violation of due process in general but only of the Bolling versus Sharpe type of due process which embraces the equal protection notions of the Fourteenth Amendment.

That that wouldn’t be taken care of just by giving him a trial, I take it.

Jewel S. Lafontant:

Yes, but I respectfully submit that there’s nothing in this case that would indicate that what Mr. Hewitt is saying is at all true because he is saying because this man is an addict.

He’s entitled to the same treatment as everyone else who happens to be an addict.

There is no constitutional guarantee that addicts are going to have a certain treatment over and above, I mean NARA addicts are to get better treatment than non-NARA addicts.

William H. Rehnquist:

Well, I thought — I thought he pretty well conceded that much in his argument but said that it’s irrational for Congress to say that just because you have two felonies, you can’t get NARA treatment under Title II for which you would otherwise be eligible.

Jewel S. Lafontant:

I would say that for the protection of society, that it was necessary for Congress to set up certain standards and unless these standards are irrational or unreasonable then petitioner is not in a position to complain about lack of due process.

Representative Helstowski at the hearings in 1966 followed up on what President Johnson has — the quote that I just read from President Johnson’s address to the Congress.

He said, the hostile 9167 is not a bleeding heart measure which would result in releasing people into society who are dangerous to others or to themselves.

Neither is it a measure which could be used to make excuses and provide a cover for vicious criminals.

The purpose of this bill is the same as the purposes of the present laws and that is to protect society.

Now, certainly the interest of the public at large.

Yes, the law abiding the non-addict public, if you please, is served by the withholding from society for a period of time prescribed by the Court of repeated offenders and reasonable indeed is a classification which is based upon the need to withhold from free intercourse with society those elements who have offended it, who have committed certain crimes more than a certain number of times.

Was the idea that the double offenders are less likely to be rehabilitated, is that what you’re [Voice Overlap] — ?

Jewel S. Lafontant:

Yes sir.

Some rough judgment like that?

Jewel S. Lafontant:

Some rough judgment like that which is supported by some of the cases which I’d like to go into and is supported by the findings of NARA itself.

Warren E. Burger:

Is it there another factor that is the mixing of first offenders with men who got two, three or four convictions while they’re trying to rehabilitate these offenders with only a single felony?

Jewel S. Lafontant:

Well, certainly I would agree with petitioner that there should be a classification that could keep these hardened criminals apart from the first offender, the youthful offender.

Warren E. Burger:

Well, didn’t Congress have that mind in separating people with more than two felony convictions?

Jewel S. Lafontant:

Yes in fact Congressman McClure from State of Illinois presented that point of view before the Congress very clearly because he pointed out that what he was concerned with most and felt that this Act would be concerned with most would be addicts who are primarily, addicts and secondarily, criminals.

He also said that it would be a mistake to mix the hardened criminal with the young, helpless addict that committed only one crime.

Audio Transcription for Oral Argument – October 16, 1973 in Marshall v. United States

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Mrs. Lafontant this is beside the point but did you know is the Institution of Lexington still operating?

Jewel S. Lafontant:

Yes, it is sir.

Are most of the NARA people sent there or Springfield do know this a matter of routine?

Jewel S. Lafontant:

As I understand it now, the NARA people are located primarily at Milan, Michigan, Denver, Connecticut, Terminal Island, California Anderson, West Virginian and Fort Worth, Texas.

Warren E. Burger:

Certainly not Springfield.

Jewel S. Lafontant:

Not Springfield and Lexington evidently is out too although at the time of the passage of this Act Forth Worth and Lexington were the two main institutions.

This Court has so held that it is referring to the multiple offenders has upheld the constitutionality of the habitual offender’s statute in Moore versus Missouri, Graham versus West Virginia.

In the Moore case excluding from People versus Stanley, the Court said, “The punishment for the second is increased because by his persistence in the perpetration of crime, he has evinced state depravity which merits a greater punishment and needs to be restrained by severe penalties than if it were his first offense.”

What year was Moore, Mrs. Lafontant?

Jewel S. Lafontant:

The Graham was 1912, Moore was about 1896.

You haven’t cited that in your brief?

Jewel S. Lafontant:

Yes, Moore is 159 United States 673 and Graham is 224 US 616.

And so important is the offender’s prior history of criminality that most States make a prison whose is convicted of more than two crimes ineligible for probation.

In many states like Wyoming, only first offenders can be granted or even considered for probation.

And on a Federal level we find this is important too.

In the policy statement of the Drug Abuse Manual of April 20th, 1973 issued by the Federal Bureau of Prisons is made clear that previous criminality and seriousness of offenses are reasonable considerations in parole matters.

In Title XXIIX, Section 2.24 reveals that the United States Board of Parole generally considers such factors as an offender’s prior criminal record, the nature in the pattern of his offenses.

Thus, they have been both judicial and legislative determinations of the rationality of the classifications in issue here.

It’s neither irrational nor unreasonable for Congress to find a second time offender presents a greater risk to society than a risk or menace presented by the one time offender.

Even NARA with its carefully selected clientele has concluded that first offenders fair better than repeaters.

In the creation of statutory rights, Congress can define the class of persons that will receive that benefit of the statutorily created right.

What would you mean fair better that they respond — first offender respond more readily to treatment than to multiple offenders?

Jewel S. Lafontant:

Yes sir and there’s a greater degree of success in the community after they’re released from the first offender than from the repeater.

That is in terms of the narcotic addiction.

Jewel S. Lafontant:

Not — as far as narcotic addiction primarily, but even for subsequent crimes because the theory is that most of the people who are convicted under NARA, the only reason they are guilty of a crime is to support that habit which is still questionable whether that’s true or not but that’s the theory they are going on so the figured that if they’ve cured the addict and he doesn’t need to steal in order to support an expensive habit then he can become rehabilitated.

And they have found that the first offender fairs better than the repeater on both counts as an addict and as a criminal.

Well, isn’t this full enterprise an experimental one as yet?

Jewel S. Lafontant:

Yes, as our brief points out, I think more than half of our argument is devoted to the fact that this was a pilot program initiated.

This is the first major Act in this area that has been taken since 1940.

It was recognized that very few people really know much about addiction and the problems and the cures.

Audio Transcription for Oral Argument – October 16, 1973 in Marshall v. United States

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Jewel S. Lafontant:

It was the beginning program, a pilot program they wanted something to be done but at the same time they knew that not only because of lack of resources but because of lack of knowledge, they weren’t willing to open it up to the whole addict public.

They had to start somewhere and in starting somewhere they had to draw classifications also, and this certainly would be a reasonable classification.

Since 1966, many institutions have been built and it has included more and more people even now.

They’ve gone further than just say the hard addict.

They treat people who are on barbiturates and pediments.

But you’re perfectly right, Mr. Chief Justice that it was a pilot program and the line had to be drawn somewhere.

We respectfully submit that drawing the line at this point was perfectly reasonable and that the Court of Appeals’ opinion should be affirmed.

Thank you.

James F. Hewitt:

If I may respond to some of the Solicitor General’s suggestions, the references in the legislative history to pilot an experimental, I think were aimed directly, for the most part, at Titles I and III.

The concept of having civil commitment in lieu of prosecutions or a voluntary commitment for addicts was a new concept.

We never had it before.

But during the legislative history they discussed the experiences in New York and California with this type of commitment and I certainly don’t think there’s anything new or anything novel or experimental about giving the best treatment that the prison system can to an addict who is imprisoned.

I don’t think, certainly, we can say that this with any great well change.

Is it the fact Mr. Hewitt that if one is eligible, the chances of getting to the streets, if he comes within Title II are better than if he’s not noted in Title II?

James F. Hewitt:

No, your honor.

And this is the fallacy of the Government’s argument.

At the present time, the reason that the addicts are being released in approximately 18 months after they’re committed under Title II is that the only addicts in prison are checks towards male thieves.

No one with any prior records there, no one with a crime of violence is there.

These are fairly moderate sentences that are being given. Probably five years or less since Title II provides that he cannot be sentenced in excess of the maximum that could be imposed.

We’re not talking about bank robbers or kidnappers or people who engaged in violent crimes.

What about the Government’s suggestion that experience has shown that the multiple offender, an addict who gets back in the society is more likely to commit another crime than is the single offender, also an addict who is released.

James F. Hewitt:

I don’t know where that conclusion comes from.

It certainly not my experience and I’ve been in the criminal justice assistant for 13 years.

It depends upon the individual.

It depends upon his propensities other than addiction.

I have found from my experience that the older addict with a longer criminal record is more amenable to rehabilitation than the young kid who is just getting started.

He doesn’t have the maturity and the experience of the older person.

Warren E. Burger:

Mr. Hewitt, would you agree in broad terms that nobody really knows very much about addiction and that there is not even yet any medical certainty that anybody can be fully rehabilitated?

James F. Hewitt:

I would certainly agree that it’s a problem but I hope we have come a long way since 1896 in penal reform.

I certainly hope that we are doing something for addicts in prison.

Audio Transcription for Oral Argument – October 16, 1973 in Marshall v. United States

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James F. Hewitt:

What I can assure you, Your Honors that addicts sentenced to federal prisons do not get treatment unless they are in a NARA program or unless they are one and one of the prisoners that has a program with openings, and there are only 12 of those I understand out of 28. And two, they are one year or 18 months away from parole.

Edward Marshall was sentenced by the district judge to 10 years parole at any time and a specific recommendation in the judgment that he would be given treatments for his addiction and he isn’t getting it, simply because of his prior felony record.

He’s not getting any treatment and he’s an addict in prison.

Did you say there are 12 facilities for this?

James F. Hewitt:

That is my understanding.

Twelve Federal prisons that have available addict facilities out of 28.

Warren E. Burger:

Are those the institutions which they commit Title II?

James F. Hewitt:

I’m not sure that all of them have available facilities for Title II but they do have some type of drug treatment program in existence.

And I think it’s fairly well conceded and the Government’s response to my memorandum in response to their memorandum, in response to the petition for certiorari that where they point out that there only so many institution and that addicts do not get treatment on a straight sentence until the end of their term and only if they’re in an institution where such treatment is available.

Whether this is —

Warren E. Burger:

What do you mean by treatment?

James F. Hewitt:

Treatment keyed as contemplated by Title II of the Act.

Two, addiction is the root cause of the person’s antisocial conduct.

What the medical differences are, I’m not qualified to say.

There must be a different treatment otherwise Congress would not have to pass Title II but at least under Title two and I would point out to Your Honors, that’s not a civil commitment.

The statute itself, the phraseology of Title II says, “commitment for treatment is a commitment to prison.”

The civil commitment is Titles I and III, it’s keyed to psychiatric, psychological treatment to testing and two various type —

Are you telling Mr. Marshall is getting no treatment?

James F. Hewitt:

Not at all.

He was not given — suppose though he were in a facility where treatment is available, and they give it to him?

Would it be any different from what he would get if committed under Title II?

James F. Hewitt:

I don’t know.

I don’t know what available treatment they have for persons serving regular sentences.

Fort Worth used to be a public health facility and an answer to Mr. Justice Blackmun’s problem or question, Lexington is a public health facility and to my knowledge, that there maybe a few prisoners serving sentences that are put there for administrative reasons, it is a public health facility and I understand Title I — the East Coast toward Lexington.

We use to send Title I’s in the West Coast to Forth Worth when it was a public health facility but several years ago, when Forth worth was transferred to the Bureau of Prisons, California contract was made with Catholic Charities in San Diego for the commitment of Title I addicts. And I’m frank to admit that our judges were not so anxious to use Title I to send them to San Diego to an outpatient type program.

They haven’t use it nearly as much as we used to it.

Now, the judges will prefer using Title II, the prison type commitment.

If Marshall had got Title II treatment, would he be where he is now?

James F. Hewitt:

No, you honor.

He probably be on Terminal Island.

Audio Transcription for Oral Argument – October 16, 1973 in Marshall v. United States

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James F. Hewitt:

I don’t believe there’s a NARA program at McNeal.

Wouldn’t you be making the same argument if there were no Title II program and Marshall was not getting treatment where he now is but other convicts in other places or even in this prison are getting treatment?

James F. Hewitt:

I wouldn’t be here arguing it because he wouldn’t have a constitutional right to fair treatment being a member of a class just being discriminated against by this classification.

Well, he’s among the class that is excluded from treatment and he’s a member of the class and they deserve treatment as much as the people who are getting treatment.

James F. Hewitt:

And by some prison regulation he is being deprived —

Well, they just have reached the limit of the program.

James F. Hewitt:

Well, I think those are more reasonable, more reasonable problems that they might having connection with who gets into a program by the exercise of discretion by the Bureau of Prison or by the prison authorities.

It may well be that the Congress had vested with them the discretionary power to decide who is going to be in a program and who isn’t on some quantitative basis,we have a different problem but here Marshall is kept out not on the basis of any rational determination by the Court.

Well, that’s your position.

I understand that.

James F. Hewitt:

He is out of it only because of this conclusion, this conclusive presumption that he is a dangerous, vicious criminal on a basis of two prior criminal — two prior felony convictions.

Do I understand you to say, Mr. Hewitt that one in three maybe pilot programs but the legislative history doesn’t indicate that they regard the program under Title II as a pilot one?

James F. Hewitt:

As I read the legislative history, Your Honor, most of the comments were concerning civil commitments under the Title I and II as being a novel approach to the problem.

And that most of the conversation was in connection with this being something new to defer prosecution and to permit an offender to go into a hospital rather than to be prosecuted.

I don’t think that this it is novel to put into the prison system, a narcotic treatment program for addicts.

And this wasn’t that revolutionary.

Title I was a different prosecution, an election by the offenders is new.

It was novel and it was experimental.

And had we had the narcotics treatment programs generally in the Federal Prison system before we ever got Title II?

James F. Hewitt:

Certainly not to the extent.

I think recent legislation has opened up the areas of providing treatment for addicts.

Of course, I would hope that the prisons are trying to teach the root cause of every prisoner’s problem.

If it would be addiction, I would hope they will give him some kind of treatment.

Here, I don’t know what the differences are.

They’re more technical.

But protection of society, I would urge upon the Court, is not the objectives of the Narcotic Addict Rehabilitation Act.

It maybe a noble legislative purpose in other areas but I don’t think that the Solicitor General can rely upon protection of society to justify this classification.

The clear purpose of the Narcotic Rehabilitation Act is to rehabilitate eligible addicts and protection of the society simply has no part in that legislative scheme.

We concede that excluding convicted felons may protect society but certainly it doesn’t further for the purposes of this statute which is to rehabilitate addicts charged with an offense.

William H. Rehnquist:

But doesn’t that though of serve a social purpose and protect society in a long run to rehabilitate addicts?

Audio Transcription for Oral Argument – October 16, 1973 in Marshall v. United States

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James F. Hewitt:

Yes, Your Honor.

I think that there is this ultimate purpose of protecting society by eliminating the addiction.

But I don’t think the purpose of this statute can be in any sense of the word be to protect society by keeping convicted offenders out of the program except indirectly by perhaps trying to rehabilitate more offenders.

What we’re talking about here basically is a scheme, thus designed to accomplish a certain objective and irrational classification that I think rather than furthering the objective certainly defeats a good portion of it.

We were taking the position that this is almost a conclusive presumption that prevents the trial judge from exercising his discretion.

It may well be that Marshall could be determined by the trial judge not suitable for treatment.

Upon an examination of his background, the judge might determine that the felonies, prior felonies were not drug related.

They were violent felonies and show him to be bad man and not give him the treatment.

But he isn’t escaping punishment if he’s committed to prison for addict treatment.

He could be kept up to 10 years when his parole was within the discretion of the Board, I’m sure they are not going to let him out until he’s ready to go on the street.

He goes into a Board of Parole supervised after care program.

He’s certainly not escaping punishment

.Those policies in the legislative history are aimed more at Title I and there’s a great deal of confusion about conservation of available resources and so forth.

Civil commitment is the terms that was thrown about.

This is not a civil commitment.

It’s a penal commitment and this is not a novel program.

It is a change in a concept of penal reform.

Warren E. Burger:

Quite a number of statutes in states and I think there’s some in the Federal which make it mandatory for particular sentence after either one conviction or two convictions that takes the discretion from the sentencing judge in the same way, does it not?

James F. Hewitt:

It certainly does, Your Honor.

Warren E. Burger:

And in the Federal system, is there not a requirement that there will be a five year minimum after the second conviction?

James F. Hewitt:

Some offenses, yes, Your Honor. But the purpose of that statute is to impose a harsh punishment on certain types of offenders, in that case drug pushers is reasonably related to that purpose.

The punishment — here the object is not punishment, it’s simply rehabilitation and this exclusion does not accomplish that purpose.

Well, can’t it be argued though that as to people and your client’s position the choice of Congress was to punish rather than to rehabilitate by excluding?

James F. Hewitt:

If that’s the purpose, Your Honor, then the classification should be set aside because it is not reasonably related to the purpose of the statute.

Punishment is not the purpose.

Well, I think it can be — certainly, the Solicitor General contends that so far as those who are excluded, the choice of Congress was in favor of punishment rather than rehabilitation.

James F. Hewitt:

There’s nothing in the legislative history of the stated purpose that would indicate there was any desire.

So, this means they’re clear on the face of the statute to exclude them from the program?

James F. Hewitt:

In order to punish them?

Well, that’s what would follow.

Audio Transcription for Oral Argument – October 16, 1973 in Marshall v. United States

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James F. Hewitt:

Well, I think it is certainly beyond the stated purpose of the statute.

There’s nothing to support any intention upon Congress to punish addicts because of a prior criminal record.

Certainly, they are being punished by being deprived of addict treatment that other similarly situation would be entitled to.

But I certainly don’t think that this furthers any legitimate legislative objective.

So, this is not a penal statute imposing punishment for any offense.

He’s being punished indirectly.

Everyone who is deprived of a constitutional right is being punished —

Excuse me, what’s the purpose of the exclusion?

James F. Hewitt:

I don’t think it has any purpose, Your Honor.

That’s why we are here —

But in the United States, it does have a purpose.

James F. Hewitt:

They say the purpose —

Namely to a —

James F. Hewitt:

Conserve available resources.

To limit the — [Voice Overlap]

[Voice Overlap] to leave this particular class to the ordinary processes of the criminal law?

James F. Hewitt:

They can only —

Because this special class of defendant proposing a greater hazard, that’s what the Government says.

I didn’t — the same way, I’d agree with them.

James F. Hewitt:

But that cannot be justified when the purpose of the statute is the rehabilitation of offenders because there’s no rational relationship between punishment and the context of this statute and rehabilitation of narcotic addicts.

Warren E. Burger:

Could you have as a premise that these people are similarly situated but is the man with three or four felony convictions in the same situations as a person who has never had any prior convictions?

James F. Hewitt:

But for that exclusion he would be, Your Honor.

He would be a member of an eligible class but for the prior felonies.

Warren E. Burger:

Well then we come back to the proposition of whether it’s a reasonable classification for Congress to make, I guess don’t we?

James F. Hewitt:

Yes, Your Honor and I’d say that this is not reasonable as the Government says it is because it’s related to a legitimate purpose of the statute and that it conserves available resources and it’s our position that that’s not sufficient.

Warren E. Burger:

Mr. Hewitt, you came here at our request by the appointment of this Court and we thank you for your assistance not only to your client but your assistance to the Court.

Thank you.

James F. Hewitt:

Thank you, Your Honor.

Warren E. Burger:

The case is submitted.