Mattiello v. Connecticut

PETITIONER:Mattiello
RESPONDENT:Connecticut
LOCATION:Surface Transportation Board at the United States Department of Transportation

DOCKET NO.: 150
DECIDED BY: Warren Court (1969)
LOWER COURT: State appellate court

CITATION: 395 US 209 (1969)
ARGUED: Dec 11, 1968
DECIDED: May 26, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – December 11, 1968 in Mattiello v. Connecticut

Earl Warren:

Number 150, Francis Mattiello appellant versus Connecticut.

Mr. Grosby.

Robert N. Grosby:

Mr. Chief Justice and may it please the Court.

The appellant in this case was arrested in March of 1966 and charged with violation of Section 17-379 Connecticut General Statutes — statute causing the arrest and imprisonment of someone who is in manifest danger of falling into vise or is living a vicious life.

The appellant file a demur to this information on two grounds.

One was that its terms are vague and uncertain in meaning, thereby depriving here of due process; The second ground for demur was that the statute discriminates against certain females; that is unmarried females between the ages of 18 and 21 without basis for its support and thereby denying equal protection.

On the same day, the demur was filed, the State of Connecticut filed a substitute information alleging two additional charges.

One was violation of Section 53-219 of the general statutes that statute entitled “lascivious carriage and fornication”, and Section 53-175 of the statutes which is the disorderly conduct statute, the demur was overruled, the plaintiff pleaded not guilty to all charges elected a trial to the Court was found guilty of 17-379, guilty of 53-219, and not guilty of disorderly conduct.

And her sentence was commitment to the study — the Connecticut State Farm for Women.

I think all parties agree that these sentences were concurrent under applicable Connecticut law.

Hugo L. Black:

How is that work by look to the Connecticut statute and found some difficulty?

Well, I — as far as the city is carriage charge, they maximum term that she could get is two years (Inaudible) arise under the manifest danger although never the statute, she got a free of sentence.

Robert N. Grosby:

That’s right sir.

Hugo L. Black:

And then how they concur it?

Robert N. Grosby:

Except this way that at the time of sentencing, the applicable law was that the sentence on lascivious carriage could also be for three years to the reformatory.

Recent developments particularly the cases we cited in our reply brief, two federal District Court cases and two Connecticut Superior Court cases have held that by compelling a three-year sentence on lascivious carriage, that say discrimination against the female because boys can only be convicted for two years under the applicable statute for boys.

So, that —

Byron R. White:

I understand.

I didn’t know there was a comfortable time to well —

Robert N. Grosby:

And — Well, not with respect to 17-379.

17-379 Your Honor deals only with manifest danger.

Now, 17-360 says that a female over the age of 16 who has been convicted of a misdemeanor and lascivious carriage as a misdemeanor can go to the Connecticut State Farm for three years.

17-390 says that a young boy who is convicted of a misdemeanor can go to the reformatory for two years.

Therefore, subsequent cases —

Byron R. White:

In cases of course as death with situation wherein the boys and girls can be convicted with same thing.

Robert N. Grosby:

Yes, sir.

Byron R. White:

Not so —

Robert N. Grosby:

With respect —

Byron R. White:

You can get something proper than that that you can figure (Inaudible).

Robert N. Grosby:

A man could be convicted of fornication or breach of the peach or disorderly conduct and be sentence to two years to reformatory.

Byron R. White:

— to be raised the rational of these cases?

Robert N. Grosby:

No, sir.

Byron R. White:

Do you think that concurs in the books that direct (Inaudible) cases cited the — or they not be in prison in two years?

Robert N. Grosby:

Yes, sir.

So, two District Courts held in Southern Connecticut Superior Court.

Byron R. White:

They have comfortable term in the same time —

Robert N. Grosby:

Yes, sir.

The young boy convicted of lascivious carriage or fornication could be sentence to two years at the reformatory while a young girl convicted of the same statute could be sentence to three, and these cases in our reply brief said, this is improper and that two is the maximum sentence for girls as well as boys.

So, that it appears that the sentences were no longer concurrent when this new law was developed.

Thurgood Marshall:

Is it clear what sentence, he is now serving?

Robert N. Grosby:

Yes, sir.

We take the position that two years have expired and that if the maximum sentence on lascivious carriage which is two years has expired and the only thing that’s holding her now is her conviction on manifest danger and therefore, we take the position that if you reverse that conviction, she’ll be set at liberty.

Potter Stewart:

I have the impression she was at liberty now.

Robert N. Grosby:

She’s on parole.

Potter Stewart:

On parole?

Robert N. Grosby:

Yes, sir.

What’s the maximum age did the statute —

Robert N. Grosby:

Ah, the lascivious carriage commitment statute as supplied by recent decision as two years.

The manifest danger statute says until age 21.

We do have interpretations and they’re in the record that three years is the maximum on either.

So, that she is liable for the lascivious carriage statute until June 9, 1969 and the lascivious carriage conviction is maximum sentence we feel has expired on June 9, 1968.

Earl Warren:

If the female is 20 years old, what is the maximum sentence?

Robert N. Grosby:

A commitment on manifest danger is until she’s 21 or three years which ever occurs first.

A commitment on lascivious carriage statute is three years but the Court say two years.

Earl Warren:

Of what?

Robert N. Grosby:

The courts have interpreted to mean two years.

Earl Warren:

Two years.

Robert N. Grosby:

Because it’s a discrimination between boys and girls.

Potter Stewart:

A female of any age can be convicted of lascivious carriage I think?

Robert N. Grosby:

Yes, sir.

Potter Stewart:

But manifest danger is only between 16 and 21 and unmarried?

Robert N. Grosby:

Yes, sir.

Oh, I think the Court anticipated the jurisdictional question when you raise the four questions that you asked us to answer in connection with our further jurisdictional statement and to clarify this once again.

We take the position that the sentences are separate sentences that she’s serving her sentence under lascivious carriage and manifest danger at the sentences at once initially were concurrent that her maximum sentence on lascivious carriage has expired and that she is only on parole on a conviction on manifest danger.

Our brief on the merits that makes three points; the first one was whether manifest danger statute is a penal statute and we cover that because the appellate division of the Circuit Court in its memorandum decided that that is not a penal statute, it’s a remedial statute, and therefore it was not necessary for them to take up the constitutional questions.

We claim that this is a statute that provides for the deprivation of liberty and therefore the due process provisions of the constitution must apply whether Connecticut chooses to call as remedial or penal.

Our second point is that the terms have vise and vicious life rendered that manifest danger statute avoid for vagueness because they fail to avoid the accused.

They steer clear standard of conduct.

Now, we claim that this statute is so vague that an unmarried female of common intelligence must necessarily guess at its meaning, and we claim that the trier of fact has no standard by which the judge a case and there’s no standard by which to charge the jury.

Potter Stewart:

Have there been any Connecticut decisions construing the statute?

Robert N. Grosby:

No, sir, I have not.

I listen to the argument yesterday of the construing by the Illinois Supreme Court of that statute but we have none.

There has been no adjudication and there’s no way that any of our courts have ever set forth a definition of manifest danger falling at the vise or vicious life.

William J. Brennan, Jr.:

Can you think of anything that almost anyone who can be with the vise?

Robert N. Grosby:

I suppose I could Your Honor.

William J. Brennan, Jr.:

What is a (Inaudible)?

Robert N. Grosby:

Well, —

William J. Brennan, Jr.:

Do you think that’s the exact to see vague?

Robert N. Grosby:

Well, we feel that — and you said so in Pitrello that the statute is so vague that no recourse need be made to facts that this is unconstitutionality in toto on its face rather than an application, and we feel that this is a Pitrello.

Byron R. White:

Do you think vise lascivious may — to either go on, could even imagine a situation that would be covered by this provision I guess vise or a vicious life?

Robert N. Grosby:

I do sir.

I may have some personal precollection as to what is vise or vagueness and I’m sure a trial judge would too.

But until there’s a definite definition by a statute or perhaps a construction by of court, I think its void on its face and this is the position that be raise squarely by our demur.

And this is why we presented no facts to the appellate division.

The third point in our brief is that the manifest danger statute applies only to men — only to girls and not to men.

A young man cannot be convicted of his habits of falling into vise or vicious life.

He must first be convicted of a substantive crime and the same with married women in order to be — convicted a married woman must first be convicted of a substantive crime before she could be sent to the reformatory.

We submit that female vises are no more dangerous than male vises and we see and confine no substantial or natural difference germane to the subject, which justify a sexual differentiation.

Hugo L. Black:

How old is the statute?

Robert N. Grosby:

Sir?

Hugo L. Black:

How old is the statute?

Robert N. Grosby:

The statute is 1917.

I think the legislative history has set forth in the states’ brief as an appendix.

Abe Fortas:

The only record that we have here does not include the transcript to what went on that trial, is that right?

Robert N. Grosby:

That’s right sir.

Abe Fortas:

Why is that?

Robert N. Grosby:

But we took the position Mr. Justice that the statute is so patently vague on its face that a recourse to the facts would avail nothing that this is unconstitutionality in toto and not an application.

And that an examination of the facts would serve no use of purpose and this was the issue squarely raised by the demur.

Abe Fortas:

But you plea — she pleaded not guilty to the two counts, uhm?

Robert N. Grosby:

Not guilty to all three counts.

Abe Fortas:

To all three counts and then without a trial, she was — the court found her guilty?

Robert N. Grosby:

No, sir.

She had a trial.

Abe Fortas:

Well, what happened at the trial?

Robert N. Grosby:

Testimony was taken.

Abe Fortas:

Well, why — is there a transcript on that?

Robert N. Grosby:

There is a transcript sir, but we didn’t —

Abe Fortas:

You did not file that in this Court?

Robert N. Grosby:

Nor that we file it but appellate division.

Abe Fortas:

You — there’s a transcript where was not filed even in appellate division on this Court?

Robert N. Grosby:

Yes, sir.

Abe Fortas:

So, we really don’t know what happened here or what the facts are — and you say that we are to consider this as a facially unconstitutional even that — and that we may do that avoid from any reference to the facts.

Robert N. Grosby:

I take that position sir.

This Court did it in Pitrello —

Potter Stewart:

But you’re relying squarely on your demur —

Robert N. Grosby:

Yes, sir.

Potter Stewart:

As you did in the Connecticut Appellate Courts?

Robert N. Grosby:

Yes, sir.

Earl Warren:

Mr. Carroll.

George F. Carroll, Jr.:

Mr. Chief Justice and may it please the Court.

George F. Carroll, Jr.:

There is really no quarrel about the facts as recited by Mr. Grosby.

The state does however wants to — I would do respect correct two things in those facts and that is the age of statute.

53-379 was originally passed in 1905 in substantially its present form and Mr. Grosby’s reference to the states brief in terms of legislative history really was in connection with 17-360 which is the commitment vehicle statute.

So, that the statute really goes back to 1905, the words “manifest danger” falling in to habits of vise, but that’s when they first appear as far as I know in our law.

There is another dispute or — I don’t think it’s really a dispute but it disparity in facts.

This girl was 17 when she was convicted and as I set forth in our brief, her birthday was April 15, 1949 and there’s a great deal of confusion even in the record and in the decision of our appellate division.

I believe they say that she was 18 but that is incorrect.

She was born 1949 convicted in June of 1966.

Potter Stewart:

Why is that do have any importance to that — is that bear on whether or not these are concurrent sentences?

George F. Carroll, Jr.:

I don’t think it does.

No, it does not that Mr. Justice but it may have a bearing in terms of the applicability of the three year maximum provision for the age 21.

Potter Stewart:

Yes.

George F. Carroll, Jr.:

Now, on Section 53-279 which is the statute — I’m sorry, 17-379 which is the statute that’s under appeal here, 17-379 in which are contain the words “manifest danger fall into vise” — habit to vise.

It says until she is 21 —

Potter Stewart:

Yes.

George F. Carroll, Jr.:

— in any unmarried female between 16 and 21, she’ll be committed there until she’s 21, but Section 17-360 which I think we can agree is the actual committing vehicle.

Potter Stewart:

Limits it to a maximum?

George F. Carroll, Jr.:

Limits it to a maximum of three years.

Potter Stewart:

Yes.

George F. Carroll, Jr.:

So, you have a certain dilemma there and in our brief in appendix A, we set forth in Attorney General’s opinion in which he said the numbers of the statutes were different then, but I don’t think there’s any quarrel about this.

If the girl becomes 21 first, then she has to be release or three years.

Potter Stewart:

Elapse —-

George F. Carroll, Jr.:

Which ever is earlier and I set that forth in my brief as an opinion but it’s but — just by the Attorney General’s opinion and I don’t think there’s any real quarrel about that.

Now, in terms — if your question her age would have an effect on that.

In other words, if she’s 17 as I claim she is and she was, she’s born 1949, then her time would be up in three years that when she reach 21.

So, she’d be release in — or she’d be free from parole in June of 1969.

Potter Stewart:

In June of 1969?

George F. Carroll, Jr.:

Yes, sir.

Potter Stewart:

Under the falling into danger?

George F. Carroll, Jr.:

Under the falling into danger.

Potter Stewart:

And she is already free, do you agree with counsel that she is already free under the lascivious carriage?

George F. Carroll, Jr.:

Oh, no Mr. Justice.

Potter Stewart:

You don’t?

George F. Carroll, Jr.:

And that’s our main argument if I may that this conviction and sentence stand an independent state grounds; namely the conviction on lascivious carriage charge under 53-219.

Now, that is — that statute was — she received the concurrent sentence and the sentencing provisions again are under 17-360.

The same sentencing vehicle or the same sentencing maximum sentence, namely the three years are applicable to this girl and she was discharged of which she was convicted lascivious carriage at the same trial was not appealed.

There’s no appeal from that statute.

There’s no habeas corpus involved in it.

And in addition to Mr. Justice White’s noting the fact that there is no comparable statute for men not only of the sentences to different agree maximum sentences are different, but there’s no statute comparable to manifest danger falling into habits of vise for young men.

Byron R. White:

Wasn’t the rational of the Connecticut cases have set the — inspite of the three-year provision that a women could only be held for two years, wasn’t the rational equal protection?

George F. Carroll, Jr.:

It was.

Byron R. White:

And that since men convicted for the same crime could only be held two years — is it illegal to hold the woman three?

George F. Carroll, Jr.:

That’s correct.

Byron R. White:

And your argument is that there is no comparable crime here for the man?

George F. Carroll, Jr.:

And that’s correct Mr. Justice and my argument is more than that.

It’s also that those decisions are not binding here at all.

This statute, 53-219, is not before the Court at all and that’s why under the line of case is cited in the brief, I claim that render for threshold of this whole case, the Court is met by a conviction without infirmity on another statute with the concurrent sentence because there’s nothing here before the Court that says that the limitation on 53-219 conviction is two years as far as — especially as far as young girls between 16 and 21 are concerned.

There’s nothing to that effect before the Court when that girl was sentenced —

Byron R. White:

I know but the claim is that under the Connecticut law no matter what the statute says, the woman can only be held two years.

George F. Carroll, Jr.:

Well, I claim —

Byron R. White:

Isn’t this direct appeal?

George F. Carroll, Jr.:

This is a direct appeal.

Byron R. White:

Yes, and they’re saying that under the applicable Connecticut law as revealed in these cases, this sentence on the lascivious carriage charges not three years, it’s only two because the Connecticut Courts have construed sentences like this to be only two years because of the equal protection law.

George F. Carroll, Jr.:

I take issue with that because of the fact that the highest court of Connecticut is not said so and the fact is that the only —

Byron R. White:

Well, he could certainly make the claim that he can certainly make the claim here which she has that this is a denial of equal protection.

George F. Carroll, Jr.:

He can make the claim that it’s a denial of equal protection but I can make the claim that this convictions stands on the independent state grounds.

The highest court of State of Connecticut has not set that there’s any two-year limitation under Section 53-219 in which she was duly convicted.

William J. Brennan, Jr.:

Well, what’s your independent state ground that no appeal was ever taken —

George F. Carroll, Jr.:

No appeal was ever taken —

William J. Brennan, Jr.:

— from the conviction, is that it, and the conviction on lascivious carriage?

George F. Carroll, Jr.:

Yes, Your Honor and —

William J. Brennan, Jr.:

With no appeal was ever taken when the Connecticut Appellate Court come back conviction, is that your —

George F. Carroll, Jr.:

I don’t understand the question.

William J. Brennan, Jr.:

I’m trying to find out what you mean by independent state ground.

I thought I heard you say that no appeal was ever taken to any Connecticut Appellate Court from the conviction for lascivious carriage, would you say that —

George F. Carroll, Jr.:

I said it.

I say that —

William J. Brennan, Jr.:

Yes, but and therefore, I gather your point is that whatever maybe the case as to two years and three years, this petitioner at least, appellant whatever, is concluded by the failure to appeal by the three-year sentence that was given, is that right?

George F. Carroll, Jr.:

That’s right.

There is been no ruling administratively or otherwise or no decision of the Connecticut Supreme Court then in the case like this with the minor female, 16 — between 16 and 21 convicted of lascivious carriage that the maximum sentence should be anything less than three years.

Byron R. White:

I — all you’re saying is that the cases at the petitioner relies on just didn’t have to be decided under this particular section?

George F. Carroll, Jr.:

And they —

Potter Stewart:

Now, you’re saying more than that, aren’t you?

George F. Carroll, Jr.:

Well, I think yes —

Potter Stewart:

Two or three things more than that?

George F. Carroll, Jr.:

I’m saying more than that.

Byron R. White:

Why — well, isn’t this a direct appeal?

George F. Carroll, Jr.:

This is a direct appeal from the denial of the demur.

William J. Brennan, Jr.:

But you say not —

George F. Carroll, Jr.:

On 53 — excuse me.

William J. Brennan, Jr.:

Well, if I understand you now what you have been saying is that there’s never been an appeal from the conviction for lascivious carriage which carried with it the three-year sentence, if it’s properly called a sentence.

That’s what you’re saying, isn’t it?

And therefore, there can’t be any issue as to that sentence before this Court since it had never been brought before any Connecticut Appellate Court, is that it?

George F. Carroll, Jr.:

Yes, Your Honor.

It should’ve been brought by appeal or by habeas corpus if they want to attack that sentence, but the sentence standards, there’s maximum of three years.

There’s no change in that sentence.

Thurgood Marshall:

Mr. Carroll.

George F. Carroll, Jr.:

Yes, sir.

Thurgood Marshall:

On the statute that she was convicted on and I understand from your brief at page 13, am I correct that you take the position that vise and habits of vise are no more or no less on ambiguous in the word “obscene”, is that position you take?

George F. Carroll, Jr.:

I think that there are at least, that the word “vise” is at least this clear in common language —

Thurgood Marshall:

But no more so than obscene?

George F. Carroll, Jr.:

That’s a hard thing to answer Mr. Justice as a matter of degree.

I —

Thurgood Marshall:

I just want to —

George F. Carroll, Jr.:

I think vise is prefers more clear.

And if I may just to expound from that, a federal case which didn’t involved with criminal conviction but did say about vise that nothing is — well, I’ll paraphrase it, nothing is more clear that promiscuous and uninhibited sexual intercourse is vise that that’s — if anything is vise, that’s it.

And you see here unfortunately, we don’t have the facts before the Court to or the record of the conduct of this young woman to measure against the words of the statute because I think this is a type of statute that in certain cases could be applied in nonconstitutional manner.

It is not unconstitutionally void for vagueness on its face but that the Court should have the benefit of the conduct to measure against the words of the statute.

And after all, isn’t that only logical because the reasons for the statute being void for vagueness and therefore denial of due process are to, primarily that the actor doesn’t know what conduct is proscribed.

Well, I say that the record of this case would reveal that this actor or any actor would know that the conduct would come within the purview of the word “vise”, but not having that before it is another reason.

The state maintains that the Court should not disturb —

Earl Warren:

There’s been proper in this situation to bring the record here?

George F. Carroll, Jr.:

It wasn’t made a part of the record.

You mean the transcript Your Honor of the evidence?

Earl Warren:

No, would’ve there been proper for counsel to put that in the appendix?

George F. Carroll, Jr.:

The Court —

Earl Warren:

— or not under the appellate procedure?

George F. Carroll, Jr.:

Are not the way the appeal was taken, no because it was just an appeal from the overruling of the demur.

Earl Warren:

Yes, that you don’t question whether it should’ve been here or not?

George F. Carroll, Jr.:

Oh, well, yes I do because under our practice in the case that I’ve cited in my brief called State versus Sol is that you cannot — the overrule by a demur to the constitutionality of the statute then proceed to a full trial and be convicted and then appeal the overruling of the demur without any evidence before the Appellate Court.

That’s our law under the case of State versus Sol.

I should add as I did in the brief however that the Court said but anyhow, we’re going to look at the situation because of the constitutional issues that were involved.

But they clearly set forth in the Connecticut law and namely there shouldn’t be here or shouldn’t be in the Connecticut Appellate Court in this form because the demur, having been overruled, then the trial, and then the conviction Mr. defense counsel made a motion dismiss that on the appeal, the record of that trial should be before the Court.

Earl Warren:

The overruling of the demur or the — comes to conviction?

George F. Carroll, Jr.:

The overruling the demur.

Earl Warren:

And what you said that is the practice if you appeal with the overruling of the demur but there been a substantive trial after the overruling the demur that the Appellate Court must have the trial before it?

George F. Carroll, Jr.:

Yes, Your Honor.

Earl Warren:

Well, what I’m interested in, do you question whether the appeal is properly before us in this posture?

George F. Carroll, Jr.:

Yes, I do because —

Earl Warren:

Do you argue that in your brief?

George F. Carroll, Jr.:

Yes, I don’t know if I argue just in the terms that Chief Justice means but I argue with in terms of the state — this Court being unable to pass upon the statute without having before it the facts that were brought out at the trial and were the basis of her conviction under it.

I haven’t —

Earl Warren:

That’s the additional independent state ground isn’t it?

George F. Carroll, Jr.:

Yes, it is but I think Mr. Chief Justice’s point that I have made a procedural argument on that.

I made — I’ve tried to make a substantive argument of it in terms of where’s the Court should consider not having the record before it.

William J. Brennan, Jr.:

Yes, but you said the Court of Appeals I gather that — Connecticut nevertheless — the statute?

George F. Carroll, Jr.:

It did involve —

William J. Brennan, Jr.:

— involve or was not part as a practice of argument.

The trial record before gone the appeal the overruling of the demur, is that right?

George F. Carroll, Jr.:

Yes, and that — the leading —

William J. Brennan, Jr.:

But why would he not, when he able also to do what your advice of?

George F. Carroll, Jr.:

I’m sorry, I’d certainly wouldn’t deny you that prerogative — I would say though, and that’s why I think I cast this more in terms the practical difficulty of applying a statute to a set of facts that are non-existing.

I think Justice Frankfurter said one case is like playing hammer without hammer.

And I think that’s what we have here and I think their statutes are come under free speech restrictions that this Court can look at it and has looked at and said these are patently and on their face unconstitutionally void for vagueness.

But I don’t think this is that kind of statute.

It’s talking about conduct which is not within the constitutionally protected area and I think in that type of case and the cases that I cited in my brief on this point that the Court should have the facts before it, and if it doesn’t that’s fatal.

Abe Fortas:

May I ask you for a quick moment.

May I ask you of the question try to clarify the underlying sentence situation in my mind?

If a woman age 22 were arrested and convicted of the crime of lascivious carriage under your statute, what would be her sentence?

George F. Carroll, Jr.:

Six months maximum.

Abe Fortas:

Now, what happen here is that this moment being under 21, 16 or 17 was convicted of that same crime of lascivious carriage, and your position is that the effective sentence was three years because of the order committing her to the State Farm for women, is that right?

George F. Carroll, Jr.:

Yes, sir.

Abe Fortas:

But so far as the conviction of the crime of lascivious carriage is concern, the sentence provided by Section 53 whenever it is, is six months, is that right?

George F. Carroll, Jr.:

Yes, sir.

Abe Fortas:

And the three-year hypothesis depends solely upon what is it, Section 17-360?

George F. Carroll, Jr.:

Yes, sir.

Abe Fortas:

And Section 17-360 makes no reference to the crime of lascivious carriage, but provides only as I understand it that the maximum commitment to the State Farm for Women shall be three years, is that right?

Are you relying on the provision in 17-360 that says that the maximum commitment to the State Farm for women shall be three years?

George F. Carroll, Jr.:

I’m relying on 17-360 but the different part of it.

Abe Fortas:

Please tell me what part of it.

George F. Carroll, Jr.:

Persons who maybe committed to this institution, persons who plead guilty to the commission of felonies which this is not, second persons convicted of or who plead guilty to the commission of misdemeanors including prostitution, intoxication, drug using and disorderly conduct.

Abe Fortas:

But not lascivious carriage?

George F. Carroll, Jr.:

No, but that’s — I will take that to mean including, but not eliminating or not being exclusive.

Abe Fortas:

You mean the listing is not exclusive?

George F. Carroll, Jr.:

Yes, sir.

Abe Fortas:

All right, go ahead.

I’m sorry.

Read — I mean say read the rest of that will you please?

George F. Carroll, Jr.:

Yes.

The commission of misdemeanor including the prostitution, intoxication, drug using and disorderly conduct, and third unmarried girls between the ages 16 and 21 or manifest danger falling into habits of vise which was the other — which was the commitment provision for the conviction under Section 17-379.

Abe Fortas:

Well, all right now, tell me in summary if you don’t mind just how — just on what theory keeping those statutory sections in mind you contend that appellant here is serving a three-year sentence as a result of her conviction of the crime of lascivious carriage?

George F. Carroll, Jr.:

Yes, Your Honor.

If I may just take Section 17-379 which was the actual conviction for manifest danger falling to habits of vise, 17-379 says, “Any unmarried female between the ages of 16 and 21 who is in manifest danger of falling to habits of vise or leading the vicious life or who has committed any crime upon the complaint maybe brought before the Court and committed.

And then it goes on to say in effect that she maybe committed to the Connecticut State Farm for Women until she’s 21.

In this Section, it doesn’t mentioned the Connecticut State Farm for Women, but there’s no question that that’s what it’s talking about, the institution that it’s talking about.

So, she’s convicted of 17-379 — she’s convicted of manifest danger under 17-379.

Under 53-219, she’s convicted of lascivious carriage.

And either the words in 17-379 or who has committed any crime or the words that I read before in 17-360, the commission of misdemeanors including prostitution, etcetera, are applicable.

And she has committed under the maximum three-year sentence in 17-360 for the crime of lascivious carriage as well as for the manifest danger falling into vise charge under the two statutes, 53-219 and 17-379.

17-360 says she has to stay there for a maximum of three years including parole.

Abe Fortas:

17-360 says she has to stay there for three years?

George F. Carroll, Jr.:

Well, no.

I should say she just exposed to being there for three years.

That’s the maximum sentence since three years is the maximum sentence.

And there’s confusion in 17-379 which says 21 but as we said earlier I don’t think there’s any question that as to this young lady, 17-360 three-year maximum is applicable because it would be longer than that to make to have her attain 21 and the lesser is applicable.

So, under 17-360, she has a maximum exposure of three years on both the charges of which she was convicted.

Abe Fortas:

This is an extraordinary Chinese puzzle isn’t it?

Hugo L. Black:

Where is the charge?

George F. Carroll, Jr.:

It’s a little — pardon me Your Honor?

Hugo L. Black:

Where is the charge granted in the record indictment or the information or whatever it is?

George F. Carroll, Jr.:

There’s an information in the substitute information in the record and the information that’s applicable is on page — well, its right after page 4 and it’s called the substitute information.

Hugo L. Black:

Now, do you read this as making it the crime for girl to be at manifest danger or contract to the habits of vise?

George F. Carroll, Jr.:

That’s what falling into habits of vise, yes sir.

Hugo L. Black:

Well, how do you prove that by the environment or context?

The fact that she’s living in the city where there are lot of temptation or how could it be proved, that’s all?

That’s just the possibility of what mayhem somebody in the future.

George F. Carroll, Jr.:

It’s a danger, yes.

It’s — the word “danger” —

Hugo L. Black:

She contain, you convict her being in danger?

George F. Carroll, Jr.:

Yes, sir.

William J. Brennan, Jr.:

Well, you have a course of conduct?

George F. Carroll, Jr.:

There’s a course of conduct and if the conduct were before the Court, it would be clear that there’s more than a danger.

Hugo L. Black:

But would it be clear that’s not what the statute say.

George F. Carroll, Jr.:

No.

That’s right.

Hugo L. Black:

Manifest danger?

George F. Carroll, Jr.:

Yes, sir.

Hugo L. Black:

Has the Court ever construed it of being a crime to be in manifest danger to your Supreme Court?

William J. Brennan, Jr.:

No.

Hugo L. Black:

Has it ever construed it at all?

George F. Carroll, Jr.:

No, sir.

Hugo L. Black:

Is there have been in the case to sustain?

George F. Carroll, Jr.:

I — I don’t think there’s been a case that’s all applicable, no.

Hugo L. Black:

But it’s the only case it’s ever been in state since its Title of 95?

George F. Carroll, Jr.:

Oh, no.

There have been convictions on this, but there’s no appellate decision on the statute as far as I know that has any bearing on the problem before us now.

Hugo L. Black:

How do you know there’s been a conviction?

George F. Carroll, Jr.:

I know there’s been a convictions because I have been prosecuting for long time and I know that other prosecutors in fact in their brief, they — the appellant sets forth the use of the statute by prosecutors in the State of Connecticut.

Hugo L. Black:

But this is not for conduct, this is of being in danger.

George F. Carroll, Jr.:

Well, I’m saying Your Honor that the case that I’m referring to are all for conduct, although I have to agree with you.

George F. Carroll, Jr.:

The statute says danger of falling into habits —

Hugo L. Black:

That’s the charge here.

George F. Carroll, Jr.:

Yes, sir.

Hugo L. Black:

And we have to consider it on the basis of whether that’s a good statute can do on it.

George F. Carroll, Jr.:

Well, I wouldn’t —

Hugo L. Black:

And convict somebody of a crime — do you call it a crime to be in danger?

George F. Carroll, Jr.:

I wouldn’t defend the statute at all, Your Honor, if I didn’t believe that to mean a criminal.

A criminal — the criminal conduct had to be invalid, and I think the other words of that statute —

Hugo L. Black:

Criminal is a crime then you placed somewhere where you are in danger, do you kept it to do something wrong?

George F. Carroll, Jr.:

Well, I suppose there are degrees of vise Your Honor.

I don’t think the statute should be or could be properly applied unless the danger had been realized.

Hugo L. Black:

But they don’t fix in the punishment like penalty or fine or imprisonment, they just put them in jail like put a child — the parent will put it in the back room.

George F. Carroll, Jr.:

Oh, well, there’s a maximum —

Hugo L. Black:

— or finally take care and see that she’d not have any danger — being in a danger there after.

George F. Carroll, Jr.:

Well, I don’t think we can avoid the penal nature of this.

That’s the idea, to rehabilitate it.

Hugo L. Black:

I know.

It seems to me like it’s not a crime they way they handle that part, put her in jail just to take care of that and get out of danger.

Of course, you might not be completely out of danger to that.

George F. Carroll, Jr.:

Well, she’s out of there now anyhow, but the fact —

Hugo L. Black:

And why do we have to pass on it is she’s out of the —

George F. Carroll, Jr.:

Well, their point is that she’s on parole and the parole continues until —

Hugo L. Black:

Do you agree that she’s on parole?

George F. Carroll, Jr.:

Yes, she’s on parole I think it —

Hugo L. Black:

Then, it’s not a moot of course.

George F. Carroll, Jr.:

I don’t claim it’s moot, no, but I claim —

Potter Stewart:

But you do claim she’s on parole on a concurrent sentence which has not in no way been attack.

George F. Carroll, Jr.:

— I don’t think that’s technically mootness, but we certainly raise that argument very strongly.

Potter Stewart:

Yes.

Abe Fortas:

Well, we have before us as I understand the two problems.

Abe Fortas:

Let’s see if I get this correct.

First, is this Chinese puzzle of that — of extrapolating the six months sentence for lascivious carriage in to a three months commitment to the State Farm for women, if its three months and we regard that as a sentence and you get an exact identity with the length of the sentence under the danger resulting from being a female statute.

And if that is so, then we have the problem of concurrent sentences because of lascivious carriage conviction is not before us.

Then, if we can consider the raise up solacritor criminal statute, the danger of being a woman in Newhaven of Connecticut, then I suppose that — then we get into the questions that Mr. Justice Black was raising.

Is that a correct analysis of it?

George F. Carroll, Jr.:

That is correct analysis but I don’t think that the sentencing provisions are really not much of the Chinese puzzle.

Maybe I’m going more by practice than by what’s spelled out.

But I think but I think if you read 379 and 360 and 53-219 that there’s no question that she is properly sent there for three years under 53-219.

And these decisions mentioned by counsel, I don’t believe that fact in this case.

And I just — if I may add a word on the vise.

When we’re talking about vise, I think it’s clear from the context of the statute; the other language in the statute that it’s criminal vise — have a vise of smoking cigarettes or all kinds of vises which were used more even incuriously than that of course, but the whole context of this is talking about criminal vise and the type of vise we think of when we think of a vise squad and —

Potter Stewart:

I suppose you have in Connecticut specific criminal statutes and ordinances making illegal that sort of criminal conduct —

George F. Carroll, Jr.:

That’s correct.

Potter Stewart:

The sort hard core conduct that everybody seems to be agreed here is covered by this is also covered by specific criminal statutes, is it not?

George F. Carroll, Jr.:

I think most of the cases that have come up under this would be covered by specific criminal conduct, yes sir.

And I think it’s broader because of the fact that this category of young person was regarded as being in need of particular treatment.

Now this, were drinking involved in the case to this type of drinking may not have — on her part may not have fit a specific criminal crime — criminal offense in Connecticut, but she was at the time of 16-year-old girl drinking wine while this other business is going on.

That particular conduct which was in the record, I mean the testimony.

Abe Fortas:

What’s a juvenile statute — what’s the upper limit on the age for juvenile court proceedings in Connecticut?

George F. Carroll, Jr.:

16 Your Honor, except that between 16 and 18, the adult court can refer them if they think they are amenable to juvenile court jurisdiction.

Abe Fortas:

So that — but would this young woman had been — would the juvenile court of the naval day excise jurisdiction over this young woman?

George F. Carroll, Jr.:

Not unless she was referred by the Court that heard this case prior to the Court hearing.

Abe Fortas:

So that court could have refer her and then she could’ve been taking care of under the juvenile court statute until she was 21?

George F. Carroll, Jr.:

Yes, that court could have it, but the court had background of reasons why it didn’t.

Hugo L. Black:

Do you know whether there have been any convictions to charge with danger of becoming a cigarette smoker?

George F. Carroll, Jr.:

No, Your Honor.

Hugo L. Black:

You mentioned that.

George F. Carroll, Jr.:

Yes, I mentioned that as vise perhaps —

Hugo L. Black:

A form of vise.

George F. Carroll, Jr.:

Yes, sir.

Hugo L. Black:

And I presume a lot of people could agree with you.

George F. Carroll, Jr.:

But I don’t —

Hugo L. Black:

That’s being a form of vise from which a person should be protected.

George F. Carroll, Jr.:

Well, presently isn’t —

Hugo L. Black:

What?

George F. Carroll, Jr.:

A person presently is not protected from that particular vise by legislation, and this particular kind of vise that we’re talking about here we maintain, does protect society and a young lady such as this one by criminal sanctions or queasy criminal sanctions.

Hugo L. Black:

But what I won’t getting it is why quite certain cigarettes smoking — we consider the vise under here for which the person will be sentence when danger becoming a cigarette smoker?

Earl Warren:

Correction, that’s a question.

George F. Carroll, Jr.:

I try to think of the answer Judge.

Earl Warren:

Oh, I see.

Thurgood Marshall:

Mr. Carroll —

George F. Carroll, Jr.:

I didn’t realize that, may I — excuse me Mr. Justice.

Thurgood Marshall:

Mr. Carroll, — oh, excuse Chief.

Earl Warren:

He’s going to answer Justice Black’s question.

George F. Carroll, Jr.:

I’m still trying to come up with something to answer that.

Well, Your Honor, it could come to that.

Hugo L. Black:

Has it been in the statute?

George F. Carroll, Jr.:

A statute could be pass.

I don’t know whether it would be —

Hugo L. Black:

I’m not — pass — how about this statute.

George F. Carroll, Jr.:

Under this statute?

Hugo L. Black:

Yes.

George F. Carroll, Jr.:

No, because I think that the other words of the statute make it clear that this is criminal vise and habits of vise.

Hugo L. Black:

But which other words in the statute say that couldn’t be — vise.

George F. Carroll, Jr.:

When read in context, it says that to me and I point that out —

Hugo L. Black:

I don’t see why it couldn’t.

George F. Carroll, Jr.:

Well, here’s what I said in that respect.

The word “vise” must be read in the context of the general statutory scheme and injuncts the position to the phrase “or who has committed any crime” which is in this statute.

Hugo L. Black:

But that’s a separate thought.

George F. Carroll, Jr.:

It’s a —

Hugo L. Black:

Or who has committed any crime.

George F. Carroll, Jr.:

Or you know — yes, sir.

Hugo L. Black:

For the first time of course is being subjected to temptation of falling in the vise such as cigarette smoking.

George F. Carroll, Jr.:

Well, it’s a matter of interpretation.

I claim the only fair interpretation of the statute is that its criminal vise that it’s talking about because otherwise you could take —

Hugo L. Black:

But the word “vise” is not limited criminal —

George F. Carroll, Jr.:

Your Honor, it certainly isn’t and it applies into much more in aqueous things in cigarette smoking.

My vise is that I don’t hear the alarm clock in the morning or something to that effect, that could be a vise and —

Hugo L. Black:

Well, it will be bad to be charge of being attempted that way, wouldn’t it?

George F. Carroll, Jr.:

Certainly would but I think that that the only fair construction —

Hugo L. Black:

As a matter of fact, you realize or into the vise of having a definite meaning.

It doesn’t have any boundaries then going what people think.

George F. Carroll, Jr.:

Well, I made it clear that it has a very broad meaning, but I also would like —

Hugo L. Black:

For you here?

George F. Carroll, Jr.:

For everyone?

Hugo L. Black:

Yes.

George F. Carroll, Jr.:

Broad, broad, but I also like to make it clear that I think the only fair construction of this statute is that its criminal vise it’s being —

Hugo L. Black:

Why couldn’t they write one that’s limited to that?

Why should to be trying people, trying — danger falling into vise and it covers of thousand different things to a thousand different people?

George F. Carroll, Jr.:

Well, if the Court had before the conduct of the person, it could judge couldn’t it whether or not that was the type of vise he could constitutionally be proscribed?

Hugo L. Black:

Well, I don’t know.

George F. Carroll, Jr.:

I don’t mean to ask you the question —

Hugo L. Black:

Yes, the sky is the limit under this statute.

George F. Carroll, Jr.:

Well, I think the statute — you’d start with the assumption, Your Honor, that the statute should be construe so that if reasonably possible, its constitutionality should be upheld and I don’t think that’s very difficult with this type of statute.

Hugo L. Black:

But could we do that here?

George F. Carroll, Jr.:

Well, I don’t think you should get to that Your Honor.

I don’t think you should get to that.

Hugo L. Black:

No, we have to get to it.

They here challenging on our grounds in vague.

George F. Carroll, Jr.:

But I think —

Hugo L. Black:

Unconstitutional vague and —

George F. Carroll, Jr.:

Yes, sir.

But I think because this conviction stands on independent state grounds and because you don’t have the —

Hugo L. Black:

Well, what independent state then?

George F. Carroll, Jr.:

The conviction under the other statute.

Hugo L. Black:

Well, do you mean there’s another — that’s the one you were talking to Justice Fortas?

George F. Carroll, Jr.:

Yes, sir.

Hugo L. Black:

That’s pretty long way in this.

George F. Carroll, Jr.:

That other statute?

Hugo L. Black:

Yes.

George F. Carroll, Jr.:

It’s a long way from it sir?

Hugo L. Black:

Isn’t it?

George F. Carroll, Jr.:

No, it’s a lot like it.

Hugo L. Black:

It’s what?

George F. Carroll, Jr.:

It’s a lot like it, its lascivious carriage its call.

Hugo L. Black:

Oh, it’s called what?

George F. Carroll, Jr.:

Lascivious carriage.

Hugo L. Black:

Carriage?

George F. Carroll, Jr.:

Carriage, demeanor, comportment.

Hugo L. Black:

What is it against the law, is it a crime to have a lascivious carriage?

George F. Carroll, Jr.:

It’s a claim to — the carriage in the sense of —

Hugo L. Black:

Excuse me, pardon me?

George F. Carroll, Jr.:

— of comportment or demeanor.

That’s an interest thing.

Hugo L. Black:

Demeanor, walking for —

George F. Carroll, Jr.:

Well, it would have to conduct.

Hugo L. Black:

Well, that’s a conduct.

George F. Carroll, Jr.:

Walking is — lascivious lewd want them type of conduct is what is meant.

Hugo L. Black:

Of course, there’s somebody want lascivious?

It’s not for that the balance of reasoning —

George F. Carroll, Jr.:

No, I’m thinking about that in terms of the question, but that statute is under —

Hugo L. Black:

But many of them subject to conviction by them —

George F. Carroll, Jr.:

There might well be, but that statute is not being attacked here.

Hugo L. Black:

Well, this has nothing to do with it.

George F. Carroll, Jr.:

It does only insofar as it’s the sentence arising from it provides an independent state ground for the validity of this conviction in sentence in the other one.

Thurgood Marshall:

The only point I have Mr. Carroll was that there are no decisions in Connecticut interpreting the statute.

George F. Carroll, Jr.:

No, sir.

I think Mr. Grosby —

Thurgood Marshall:

So that in fact, it’s up to the trial judge who happens to try the case to decide whether this in vise or not or whether time of the statute or not without any guidelines at all.

George F. Carroll, Jr.:

Except that the statute provides, yes sir.

Earl Warren:

Very well.

George F. Carroll, Jr.:

Thank you.

Earl Warren:

Mr. Grosby.

Robert N. Grosby:

Mr. Chief Justice and members of the Court.

We do have a procedure in our state whereby the appellee has the right to present evidence to the Appellate Court so that the state did have enough opportunity in this case to present the record of the transcript to the Appellate Court have they chose, in which case would be before you.

Mr. Carroll also said that the sole case requires evidence.

We take issue with that.

We claim that the sole case has decided by our Supreme Court was a constitutionality case with respect to application and not in toto as we claim here.

Mr. Justice Black indicated whether there were any decisions under this or any cases under this statute and in our appendix, we indicate that between eight years of 1961 to 19 —

Earl Warren:

What page is that in the appendix, what page?

Robert N. Grosby:

Appendix to our brief.

There’s only one appendix page 21.

We indicate that there are 560 cases since 1961.

Hugo L. Black:

How many?

Robert N. Grosby:

560.

148 of which were committed to the Connecticut State Farm.

256 guilty findings 179 null in pros, 54 not guilties and some referral to the juvenile court and some bind over this to the Superior Court.

Potter Stewart:

What about parole to the sole case, I notice that the opinion of your appellate division sets up and I’m reading — I’m looking now at pages 14 and 15 of the brown appendix; sets out the rules of the sole case at some length, and says on page 15 the rule stated in the sole case with I think it is precision and particularity were ignored by the appellant in case before us, then goes on to say but we do not rest our decision on that ground alone which would imply to me that the decision is rested alternatively on that ground and that would be inadequate state ground, would it not?

Robert N. Grosby:

No, sir.

The — we say that the appellate division opinion was in error subsequent to the Mattiello case —

Potter Stewart:

Well, but that’s a matter of Connecticut law whether or not was an error, isn’t it?

Robert N. Grosby:

Yes, sir.

Potter Stewart:

It’s not a matter for us?

Robert N. Grosby:

That’s right.

Mr. Justice, there’s one other item I’d like to take up and that is the question of independent state ground.

We were bound —

Earl Warren:

Before you get that subject, may I ask you what is the character of this institution that this young woman went to.

It’s a farm for women, is that a juvenile camp or is that for women of all ages?

Robert N. Grosby:

It’s for women of all ages.

Earl Warren:

And of all kinds of crime?

Robert N. Grosby:

But there is segregation.

In other words, a woman convicted on manifest danger falling into vise would be separated from other felons or misdemeanors who were sentenced to that —

Earl Warren:

But it is a criminal institution?

Robert N. Grosby:

Yes, sir.

Potter Stewart:

Appendix B of the appellee’s brief seems to set out the legislative history behind the creation of this institution, is it that 1917?

Robert N. Grosby:

Yes, sir.

Potter Stewart:

As a progressive in light of advance and penology in Connecticut?

Robert N. Grosby:

Yes, sir.

Hugo L. Black:

In practice, is this statute use as a method of convicting women of prostitution?

Robert N. Grosby:

I think not.

I think that on prostitution cases, they used the prostitution statute.

Hugo L. Black:

That is a crime?

Robert N. Grosby:

Yes, sir.

The independent state grounds —

Abe Fortas:

Well, what sort of people are caught up under this statute then if they are not prostitutes?

Robert N. Grosby:

Young girls who have been found in parked cars with the young men, young girls who run away from home, those are the situations I dealt with, I’ve had about four of them and Mr. Harbro has had about four or five of them; one presently on appeal before the Connecticut Supreme Court.

Abe Fortas:

Well, most jurisdictions, those are handled by — under the juvenile court procedures?

Robert N. Grosby:

That’s true sir.

Abe Fortas:

But here, they — is it customary or unusual for the Adult Courts to refer cases like this under the age of 18 or whatever it is to the juvenile court?

Robert N. Grosby:

I think they we’ve shown in our appendix that only 47 of the 560 or 8.4% are referred juvenile court in the period from 1961 to 1967.

Robert N. Grosby:

We were bound by the Connecticut law and the cases which are not in our brief of Lyford versus Torkington, 115 Connecticut 600, Renick versus Wakka, 4 Connecticut’s superior at 259, and 4 Connecticut’s superior 436 in Vina versus Wakka, 17 Connecticut Supplement 365 from attacking the lascivious danger statute.

This is the independent state grounds of problem and we felt that the first time that we could’ve don’t this was when your decision was announced in Payton versus Roe, although Payton versus Roe does not appear to be a concurrent situation, and yet it might be that the Payton versus Roe doctrine quite supersedes someday.

The case is suggested as still being the lower and Mr. Carroll’s brief on page 6 that is the Hirohashi and the Pinkerton matters for several reasons.

Assuming for a moment which we don’t concede that the lascivious danger situation is still three years, we claim it’s two.

But assuming that it’s three, we think there’s a compelling reason to consider an appeal or habeas corpus on one concurrent sentence.

This might have to do with period of probation, the period of parole, it might have to do in getting a job even if this girl have to serve three years in lascivious carriage.

If she was convicted of manifest danger of falling into vise, this could have some effect on her future job holding ability or an effort to get a job.

And I think perhaps your Payton versus Roe case is one that may we reopen this whole situation on independent state ground.

William J. Brennan, Jr.:

You mean on apparent sentence?

Robert N. Grosby:

Yes, sir.

Thank you.

Earl Warren:

Very well.