United States v. Addonizio

PETITIONER:United States
RESPONDENT:Addonizio
LOCATION:New York State Education Department

DOCKET NO.: 78-156
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 442 US 178 (1979)
ARGUED: Mar 27, 1979
DECIDED: Jun 04, 1979

ADVOCATES:
Frank H. Easterbrook – for petitioner
Leon J. Greenspan – for respondents Whelan and Flaherty
Michael Edelson – for respondent Addonizio

Facts of the case

Question

Audio Transcription for Oral Argument – March 27, 1979 in United States v. Addonizio

Warren E. Burger:

We’ll hear arguments next in United States against Addonizio.

Mr. Easterbrook I think you may proceed whenever you’re ready.

Frank H. Easterbrook:

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

This case involves questions about the allocation of authority to determine how long a convicted prisoner remains in jail.

It presents the question whether a District Court can reduce a lawful sentence if the judge determines that a decision by parole authorities frustrated the judge’s expectations about when the prisoner would be released.

My argument has a number of strands and my presentation may be clearer if I tell you now where I intend to go during the argument.

After stating the case, I will argue three propositions.

First, there has not been any dramatic change in the practices of parole authorities since respondents were sentenced, consequently, no ones expectation should have been frustrated.

My second proposition is that any subjective expectations of the judge that were frustrated in fact were not legitimate expectations because courts never had a right to insist or even expect that the Parole Commission would exercise its discretion in any particular way so that release would take place at a particular time.

The third proposition is that even if judges had some legitimate expectations about the date of release, they are not entitled to insist that the Parole Commission conform its behavior to those expectations.

Potter Stewart:

And is a party a third point even if they had some legitimate expectations, and even if those — and even if there has been a change of policy of the parole board nonetheless?

Frank H. Easterbrook:

Yes and my point then is that there is no collateral remedy for that sort of thing.

That there’s no collateral limit —

Potter Stewart:

And even if you’re mistaken on the first two points, nonetheless?

Frank H. Easterbrook:

Nonetheless, that’s the sense in which I intend to present.

William H. Rehnquist:

Where is the phrase of legitimate expectation come from Mr. Easterbrook?

Is it a property right or liberty right?

Frank H. Easterbrook:

The —

Potter Stewart:

Roth against the United — in Roth.

Frank H. Easterbrook:

— legitimate has been used in Roth.

It’s been used in cases like —

William H. Rehnquist:

You think judges have property rights and liberty rights under Roth?

Potter Stewart:

And their prisoners?

Frank H. Easterbrook:

I don’t want to argue that judges have liberty or property rights under Roth.

They’re not vindicating their own rights, although there is a strong under current in the Third Circuit’s opinion in this case that this case is all about the rights of judges.

That this is about the right of judges to insist on release at a particular time and that it frustrates the legitimate expectations of judges to do anything else.

And in that sense, argument about legitimate expectations and the like responds to what the Third Circuit was talking about.

But I’d like to begin with a short statement of the facts.

Addonizio was the mayor of Newark between 1962 and 1970.

In 1970 he was convicted of 63 counts of extortion, essentially of conspiring with members of organized crime to sell for money his performance of governmental services.

Frank H. Easterbrook:

The maximum sentence on these convictions exceeded 1000 years in jail.

Judge Barlow said that Addonizio had committed, and I quote “Crimes of monumental proportion, the enormity of which can scarcely be exaggerated.”

And he said “These were no ordinary –“

Warren E. Burger:

What was the timeframe in which he expressed that view?

Frank H. Easterbrook:

This was in 1970 Your Honor.

Warren E. Burger:

That’s when he imposed the sentence?

Frank H. Easterbrook:

Yes, when Mayor Addonizio was convicted.

He said these were no ordinary criminal acts but instead were, and I again quote from page 10 of the appendix, “brazen, callous and contemptuous of the law.”

The judge then sentenced Addonizio to 10 years in jail and said not one word about his expectations of release on parole.

The Parole Commission essentially took the judge at his word and concluded that Addonizio was no ordinary criminal.

The Commission decided that because of the magnitude and organized nature of the crimes, Addonizio should serve approximately six years of the 10-year sentence in this case.

At the end of which, he would be released mandatorily on good time credits.

Judge Barlow responded to this decision by reducing the sentence from ten years to five, stating that the Commission’s decision had frustrated his expectation that Addonizio would be released after three to four years.

First, the Commission had decided to hold Addonizio longer, Judge Barlow said it was necessary to reduce his sentence to achieve earlier release.

The cases of Whelan and Flaherty are much the same.

They were officials of Jersey City convicted of 27 counts of extortion, against selling governmental services for private gain.

They were sentenced to 15 years in prison and they sought reduction of their sentences when it appeared that the Parole Commission would hold them for a little more than seven years before they are released.

Judge Biunno denied relief finding that release would frustrate the sentencing intentions of Judge Shaw who imposed the sentence.

William J. Brennan, Jr.:

And who is now deceased.

Frank H. Easterbrook:

And who is deceased.

Judge Barlow was also deceased now.

William J. Brennan, Jr.:

Yes, two weeks ago.

Frank H. Easterbrook:

The Third Circuit affirmed in Addonizio case and reversed in Whelan’s and Flaherty’s, and it gave two principle reasons for holding that district judges have authority to reduce their sentences in response to parole decisions.

First, it said, because judges have almost unlimited authority to set a maximum term in imprisonment, it must follow that the judge’s expectations about the actual time to be served should be vindicated to the fullest possible extent.

A change in the Commission’s approach to release decisions ha thwarted the judge’s ability to achieve release at a particular time the Third Circuit reasoned, and so the only way that judges could vindicate their expectations and achieve release was to shorten sentences.

The second argument that the court gave was that traditional standards of criminal justice reject the imposition of double punishment.

It found double punishment here because both the district judge and the Parole Commission had taken the nature of the offense and its severity into account in making their decisions.

Underlying much of the Court of Appeals’ reasoning and all of the arguments of respondents is the contention that in 1973, the parole officials radically changed their approach to making parole decisions.

Until 1973, they thought well behaved prisoners could expect to be released after serving approximately one-third of their sentences.

After November 1973, this was no longer true, they argued.

Frank H. Easterbrook:

Judges had imposed sentences, they thought, in the expectation that there would be release after one-third so that they could achieve and easily predict the date of release simply by sentencing defendants to three times as much as they really wanted them to serve.

And then, when the Commission rudely surprised everyone by changing its policy requiring some people to serve more than a third, the argument runs, judges were entitled to revise their sentences to bring the actual time to be served back in line with what they had in mind to begin with.

The same argument I assume, would apply whenever the Parole Commission changes its policies or its guidelines, a practice that now occurs every six months to every year as a result of hearing some continuing oversight of parole practices.

But this argument really doesn’t hang together.

It fails on a number of points.

It assumes first, that there was a radical change of policy, there was not.

It assumes that judges were entitled to set sentences in a way that achieves definite release dates, they were not.

And it assumes that there’s a statutory source of authority to resentence a defendant if the original plan goes array, there is not.

And I will start with the argument that there has been a radical change in parole criteria sometime between 1970 and the present.

First place to start on that score seems to me is what the statutes that allocate authority between judges and the Commission.

The basic statutes allocating authority are unchanged between 1970 and today.

The principal statutes prohibit judges from setting a minimum term of imprisonment of more than one-third of the maximum.

The consequence of this is that the Commission retains substantial discretion between one-third and the mandatory release date on accumulated good time credits.

Another statute, the statute dealing with probation, prohibits split sentences.

It’s a statute in which Congress is very careful.

When a term of imprisonment is combined with a sentence of probation, the imprisonment component cannot exceed six months, and the effect of this is that a judge can’t divide up release supervision with imprisonment in a way that sets a release date at any distance in the future.

There is another statute, 18 U.S.C. 4218 (d) which provides that release decisions are committed to agency discretion by law, which effectively prohibits any judicial review even on the arbitrary and capricious standard of decisions of the Parole Commission about actual release dates.

And there is one more rule which allocates authority.

This Court held in the Affronti and Murray cases that a judge cannot reduce a sentence after service has commenced even if he discovers that the sentence was a mistake, which was the case in Murray.

That rule has been changed by a federal rule of criminal procedure 35, but only by giving the court authority for 120 days, and the 120 marks the dividing line between the authority of courts and the authority of the Commission under the statutes, all those have remained constant throughout this litigation.

William J. Brennan, Jr.:

Well Mr. Easterbrook may I?

A judge says “The sentence is going to be from three to seven and I want him to remain confined for at least four.”

Frank H. Easterbrook:

A judge could —

William J. Brennan, Jr.:

Can he do that extent impinge upon the authority of the parole?

Frank H. Easterbrook:

Your Honor he could not say three to seven, because three is more than one-third of seven, he could say two to seven for example.

William J. Brennan, Jr.:

Whatever, yes.

Frank H. Easterbrook:

And he could say that he wants the Commission to release him at the end of four years.

Warren E. Burger:

What standing does that advisory utterance have?

Frank H. Easterbrook:

The Commission is now required by statute to consider what the judge says in that respect.

There’s an explicit statue providing that judges can give the Commission recommendations and requiring the Commission to consider them.

William J. Brennan, Jr.:

Well I —

Frank H. Easterbrook:

In that sense its —

William J. Brennan, Jr.:

What I’m trying to get at is, can the judge require that he be — you say it should be two to seven.

Can the judge require the parole board not to release him under that circumstance?

Frank H. Easterbrook:

No, Your Honor he can’t, he has no authority to require him to be held.

William J. Brennan, Jr.:

I understand.

Frank H. Easterbrook:

At the end of one-third of the sentence, the Parole Commission can release him not withstanding the judge’s desires and expectations.

William J. Brennan, Jr.:

Right.

Frank H. Easterbrook:

One of the ironies of this case is that if you credit the Third Circuit’s view that the Commission cannot consider the nature and seriousness of the offense, the Parole Commission would presumably be prohibited from releasing someone early in the sentence on the ground that the crime was trivial and the defendant didn’t deserve to stay in jail.

Because that entire field is prohibited by the Third Circuit’s decision, it cuts both ways.

In any event, the Commission in 1970 at the time of the sentences here faced substantial pressure for change.

It was under criticism from the administrative conference from respected scholars such as Professor Davis and from others, who contended that it was making arbitrary decisions without published standards and so on.

And there was substantial desire on the Commission’s part and the academic and administrative law of community that the Commission do something else.

What it did was to cooperate with the National Council on Crime and Delinquency to study its own procedures.

Persons sat in at hearings that were being conducted by the Commission and tried to figure out what the Commission was doing in fact.

The study found that Commission’s decisions could be explained most adequately if you knew three kinds of things.

If you knew the nature and seriousness of the offense, if you knew his release prospects that is, how likely he was to commit new crimes if released, and if you knew something about his prison behavior.

And of those two, the nature and seriousness of the offense and his release prospects were the most important.

These findings became the basis for the system of guidelines which the Commission adapted in 1973 which allowed you to look up in the table some range of dates, for example 26 to 35 months within which approximately 80% of people of a particular offense seriousness and a particular release prognosis could expect to serve.

What the Commission was trying to do there was to regularize its decisions to prevent what had been perceived as arbitrary erratic and unexplained decisions, and in no small measure to control its own hearing examiners because parole policy is supposed to be made by the commissioners, rather than by the hearing examiners.

And if the Commission didn’t have published criteria, how could the hearing examiners know what to do?

What happened in 1973, at least what the Commission intended happened in 1973, was the that the release criteria that had been used all along become visible and routine, rather than invisible and sporadic.

There’s substantial confirmation for the Commission’s view of what it was doing.

No one should’ve thought in 1970 that there was presumptive release at the end of one-third of the sentence.

The statute in effect in 1970 which we’ve quoted at note 14 on page 27 of our brief said that the Commission acquired discretion to release someone only if it found two things first.

One was that rehabilitation, or it was a rehabilitation welfare criteria essentially.

And the second dealt with the welfare of society.

The latter, we think, included considerations of general deterrence, just dissert and so on or at least the Commission so interpreted them.

But even if a prisoner could show that he was rehabilitated and that release was not incompatible with the welfare of society, what the statute then provided was “the Commission may in its discretion elect to grant parole.”

In other words, it had absolutely unbridled discretion.

Frank H. Easterbrook:

Nothing in the statute could’ve supported an inference or a belief that there was an entitlement to release after one-third of the sentence.

The Commission, during the period at issue here, repeatedly said that it took offense severity into account, and that’s discussed at pages 51 to 53 of our brief in which we reproduced some of the statements by the chairman of the Commission and the others of the commissioners.

If anyone had a contrary expectation about what the Commission was doing, it was invented.

It wasn’t derived from what the Commission said.

Potter Stewart:

Well Mr. Easterbrook, we were advised some years ago by a public official, pay attention to what we do not to what we say.

Frank H. Easterbrook:

Precisely.

Potter Stewart:

And —

Frank H. Easterbrook:

The Commission’s deeds comported with its words, Mr. Justice Stewart.

Potter Stewart:

Well that’s what I understood.

Frank H. Easterbrook:

In the 1970 Parole Commission by any of a report which collects figures from 1966 to 1970, so a report of the release decisions over that period.

Table 10 of the report, which appears at page 20, describes release decisions and according to the table of all adult prisoners, only 45.5% were ever released on parole.

That is more than half of all adult prisoners were held until mandatory exploration.

Those figures speak I think quite loudly about the absence of any presumption of release at the one-third point.

We’ve also collected at page 47, excuse me, at note 47 of our brief, some data that were assembled by the Commission on Crime and Delinquency, the same Commission that conducted the study that lead to the guidelines.

And those data show that almost, if you can find the sample to first offenders who were sentenced to more than a year, approximately 30% of that group was continued to exploration of the sentence in 1970, that particular year the year of the sentence of Mr. Addonizio.

John Paul Stevens:

Mr. Easterbrook, was it not true at that time if there were a number of narcotics offenders who were ineligible for parole?

Frank H. Easterbrook:

It’s true.

John Paul Stevens:

And how much do they account for on that?

Frank H. Easterbrook:

The data in this brief contain only people who were eligible for release on parole, that’s my understanding.

That’s one reason why the — not only were they excluded but it was also necessary to set — to select the class of prisoners who were serving more than a year, because under statute prisoners sentenced to a year or less are not eligible for parole.

They’re just held and released on good time.

Potter Stewart:

Are there any figures for the first offenders?

Frank H. Easterbrook:

Yes, the first offenders are in the first paragraph in the note of page 47.

The Parole Commission’s published table —

Potter Stewart:

That is on note 47 on page 55?

Frank H. Easterbrook:

Note 47 on page 55 of our brief, first paragraph does try to breakdown into first offenders, distinguishes first offenders from all offenders.

The Parole Commission state, which is at page 20 table 10 of the biannual report for the years in question, does not break it down that way.

You can’t get a breakdown of first offenders in that table.

By looking —

John Paul Stevens:

Mr. Easterbrook, on that footnote 47, how precise is this one-third?

John Paul Stevens:

What’s the certain percentage after one-third and some 61% sometime after one-third?

Well almost two weeks after third or three weeks or how much?

Frank H. Easterbrook:

No, in fact that was pointed out that we haven’t been sufficiently precise by respondent Addonizio.

The data apparently deal with releases within two months of the one-third point.

If you are released within two months of one-third, you’re treated as being released at one-third.

Release is more than two months after one-third are being treated as after one-third.

John Paul Stevens:

I see.

Frank H. Easterbrook:

The reason for the two-month gap is because many people didn’t have their hearings until very close to the one-third point and couldn’t be released for some period afterwards.

John Paul Stevens:

Well, in fact they didn’t have it until after they pass the one-third point, isn’t that right?

Frank H. Easterbrook:

In some —

John Paul Stevens:

The regulation provide that there’s no hearing until the one-third, then you have the hearing and then whatever time it takes to do the paperwork, a lot of people being released.

Frank H. Easterbrook:

That — yes Your Honor that was the reason for the allowance of the two months, yes.

John Paul Stevens:

And this two months enough to take care of everybody who was successful of this first parole hearing?

Frank H. Easterbrook:

The Parole Commission believes it is.

I must examine the data myself.

John Paul Stevens:

But it is correct is it not?

There was a mandatory parole hearing under the regulations in effect and after one-third?

Frank H. Easterbrook:

Yes, there was.

John Paul Stevens:

And it is the —

Frank H. Easterbrook:

With the exception of persons sentenced to under what’s now the V2 sentence.

John Paul Stevens:

Right.

Frank H. Easterbrook:

That is persons who are eligible for parole at the outset.

John Paul Stevens:

And they were even later worked out.

They got a meaningless hearing early in the significant later as the way it worked, at least the Seventh Circuit —

Frank H. Easterbrook:

Some people as the data show got released at the allegedly meaningless first hearing.

They were released almost right away.

John Paul Stevens:

Right.

Frank H. Easterbrook:

In many events because the Commission thought the crime was trivial, and there was a policy of winning them out.

But —

John Paul Stevens:

But in any event there was —

Frank H. Easterbrook:

— that did happen.

John Paul Stevens:

— putting those two aside, there was a regulation which mandated the hearing after one-third of the sentence had been heard.

Frank H. Easterbrook:

There was.

John Paul Stevens:

Approximately.

And is it not true that a significant number of people were released at that hearing?

Frank H. Easterbrook:

Oh yes!

Oh yes, there’s no doubt about that.

It comes tolerably close to 40% or 50% of all prisoners who have a hearing got released right then.

John Paul Stevens:

Yes.

Frank H. Easterbrook:

And that is I think still the case.

John Paul Stevens:

And, I just want — is it your position that the judge could not reasonably anticipate that an offender who had a good institutional behavior would very likely be released at the end of approximately third of the sentence?

Frank H. Easterbrook:

I think in 1970 a judge could reasonably have anticipated that a substantial proportion of all prisoners with good institutional behavior would be released near that time.

The question is whether he could reasonably have expected that the substantial proportion was not simply 50%, 60% or the like, but would include persons like Mr. Addonizio.

John Paul Stevens:

Right.

Frank H. Easterbrook:

And even in 1970 there was, if you can visualize a bell shaped curve, there surely a tail off toward the more serious end.

Somebody has to fit in that tail even in 1970 and the Commission had to have it then as it still does filling that group with persons like Mr. Addonizio whose crimes are really quite severe or are perceived as quite severe by the Commission as well as by the judge.

William J. Brennan, Jr.:

Mr. Easterbrook, if the Government prevails here, does Addonizio have to adjourn the pleading?

Frank H. Easterbrook:

If the Government prevails here, Mr. Justice Brennan, his original 10-year sentence will be restored.

The Commission’s practice has been in cases of this sort, and it has informed me that it will follow the practice here of giving the prisoner another hearing before he is returned to prison.

In many of the cases in which someone —

William J. Brennan, Jr.:

Well didn’t Judge Barlow actually reduce the sentence to time served?

Frank H. Easterbrook:

He did and he had served five years and two months.

William J. Brennan, Jr.:

And you challenge —

Frank H. Easterbrook:

We challenged —

William J. Brennan, Jr.:

— the power to reduce it to time served?

Frank H. Easterbrook:

Yes, Your Honor.

So that if we prevail here, Judge Barlow’s order will be set aside and his sentence restored to 10 years.

The Commission will then —

William J. Brennan, Jr.:

How long has he been out now?

Frank H. Easterbrook:

He has been out for a little more than two years now.

Frank H. Easterbrook:

And in light of that Your Honor —

William J. Brennan, Jr.:

Didn’t I release him at one time or so?

Frank H. Easterbrook:

Your Honor, the — Judge Barlow released him, the Third Circuit ordered him to return to jail and the Supreme Court, by vote of 7 to 2, ordered him released again.

But before the Commission would order him to serve any additional portion of its sentence, it would hold an additional hearing to take into account what’s happened in the two years since he’s been released.

And my understanding of other cases in which district judges have ordered persons to be released and the Commission has then prevailed on appeal in the First and the Eight, and the Eight and several of the other circuits that had had this kind of litigation going on, has been that a substantial number of the persons are not returned to prison but are continued on parole.

That judgment will be for the Commission to make in all three cases here.

But even if I’m wrong in all of this, and if you grant that there was a change in policy, I think it clear from the network of statutes and rules that we have been discussing that Congress gave the Commission the power to establish a parole policy, and that its exercise of a parole policy, its change of parole policy, is not something that can lead to resentencing.

When a prisoner is sentenced, he is subjected to the Commission’s discretion, that’s exactly the meaning of a sentence that gives the Commission authority between the one-third point and the end of the sentence.

A particular use of that discretion is, we submit, not a ground for complaint, even if ten years ago, the Commission would have exercised its discretion in a different way.

A judge can object to the consequences of that kind of change only if he had some legitimate ability to control the time of release.

But it’s exactly that ability to control the time of release that Congress denied the judges.

The Third Circuit’s general view, which is that because judges have absolute control over the maximum time to be served, they must have control over the actual time to be served.

It’s a classic non-secular.

It’s nothing but disagreement with the statutory policy giving one branch of government authority over the maximum and another branch of government authority over the actual time to be served.

It’s almost inevitable that that kind of process is going to produce frustration.

Judges may well believe, and legitimately so, that a particular prisoner should be released after four years.

Given the statutory framework, there is no way he can hand down the sentence saying “Hold this man for four years and then release him.”

The judge must attempt to approximate, but his inability to predict correctly the error and success of approximations is, we submit, not anything that entitles the judge to claim the very power that Congress withheld, the power to set a precise release date.

My final argument is that I could be wrong in that too, and respondents still aren’t entitled to relief.

No statute authorizes a court to review sentences in response to frustration of sentencing judges, even if the frustrations and the judge’s expectations were legitimate.

This Court’s decisions in Affronti and Murray established that courts can not reduce sentences after their service has commenced.

And Rule 35 mitigates that only to the extent that establishing a line of demarcation at 120 days after the judgment, rather than at the beginning of the sentence.

Court of Appeals held that Section 2255 supplies a residual source of authority to revise sentences.

This we think is incorrect.

That very proposition was implicitly rejected in Murray and Affronti, but more than that, the Court of Appeals position overlooks the limits on the scope of collateral review.

As this Court held in Davis, collateral review in nonconstitutional or in cases of nonconstitutional defects is available only when necessary to avoid a miscarriage of justice.

But all that happened here is that respondents lawfully sentenced to substantial terms of imprisonment, had been required to continue service of those terms.

No matter how you look at it, we think, continued service of a lawful term of imprisonment is not a miscarriage of justice.

Respondents here should be treated no differently than other persons who are held in jail after the judge believes they should be released.

There maybe circumstances, for example a religious conversion of a prisoner that would lead a judge to believe that his sentence had become wildly inappropriate.

Frank H. Easterbrook:

And yet it seems clear that the release discretion at that point is entrusted to the Commission or perhaps to the president, rather than to a continuing supervisory authority of the courts.

We think that a court at that point cannot claim to use Section 2255 to produce the result that is otherwise forbidden.

And for all of these reasons, we submit, the judgment of the Court of Appeals should be reversed.

John Paul Stevens:

Mr. Easterbrook, was there ever a claim in this case that the Commission change in regulations constituted an ex post — violation of Ex Post Facto Clause?

Frank H. Easterbrook:

There has never been such a claim in this case, Your Honor.

Harry A. Blackmun:

Mr. Easterbrook, did the judge also served refer to Affronti and his opinion at all?

Frank H. Easterbrook:

He did not, nor to Murray.

Harry A. Blackmun:

Was it urged him that the Third Circuit?

Frank H. Easterbrook:

I believe it was Your Honor.

Warren E. Burger:

Mr. Edelson.

Michael Edelson:

Mr. Chief Justice and may it please the Court.

My brother, Mr. Easterbrook gave you some background, factual background in the Addonizio case.

He told you about the indictment.

He added up the cumulative sentence which might have been imposed.

To a certain extent, I think that that goes to the heart of this case.

This was a 15 co-defendant multi count conspiracy trial.

The trial judge sat through a very lengthy trial.

After conviction, the trial judge set a sentence for a particular purpose to achieve a particular end.

In his opinion granting the Section 2255 motion, Judge Barlow said “Yes indeed, I felt Mr. Addonizio was guilty of a very severe offense.”

Warren E. Burger:

That’s putting it mildly, isn’t it, in light of the excoriating statements he made at page 10?

Michael Edelson:

Well, if I may Mr. Chief Justice, in that entire indictment Mr. Addonizio was accused of receiving $4,000.00.

Warren E. Burger:

Well I’m not — I’m concerned with what the judge said about the nature of his offense which he committed by betrayal of trust as the highest elected official of Newark.

Michael Edelson:

Alright, I will —

— that is correct Your Honor, but Judge Barlow also stated at page 9 in the appendix in response to arguments made by trial counsel, Judge Barlow stated “An intricate conspiracy of this magnitude, I suggest to you Mr. Addonizio, could have never succeeded without the then mayor’s approval and participation.”

Warren E. Burger:

And he was the then mayor?

Michael Edelson:

He was the then mayor.

I suggest to Your Honor that the finding of guilt in regard to Mr. Addonizio was the finding that he was the mayor, and as the mayor he bore ultimate responsibility in terms —

Warren E. Burger:

Well are you suggesting that this record doesn’t show that he was in it up to his eyes?

Michael Edelson:

I am suggesting, if Your Honor please, that this record does not show that he was in it up to his eyes.

Warren E. Burger:

But then was an outrageous statement on the part of Judge Barlow make.

Michael Edelson:

Judge — I understand that, yes he — Judge Barlow found it to be extremely severe and as Your Honor said that may be an understatement.

Warren E. Burger:

Yes.

Michael Edelson:

What Judge Barlow has said is clearly set forth, the words are there.

What he intended, his evaluation of the severity of the offense and what he intended to be the punishment based upon his evaluation of the severity of the offense, he has also said very clearly and he has said that in his opinion granting the motion, the Section 2255 motion.

Warren E. Burger:

Don’t you suggest that Judge Barlow was not fully aware that the parole authorities would ultimately take into account what he said in passing on possible parole release?

Michael Edelson:

I suggest to Your Honor that he was in one — he was not aware that the parole board would reevaluate the severity of the offense and take into consideration his statements —

Warren E. Burger:

Well — to reevaluate it, they’re just — it shows very clearly in the record that they didn’t reevaluate it they just took Judge Barlow’s evaluation.

They say at page 11, “As the highest elected official of the City of Newark, you were convicted of an extortion conspiracy in which under color of your official authority, you and your co-conspirators conspired to delay, impede, obstruct and otherwise thwart the construction in the City of Newark in order to obtain a percentage of contract for the privilege of working on city construction projects.”

And because of the magnitude of this crime, the money being $241,000.00 indicated, its effect on the city is very great and so forth.

Now —

Michael Edelson:

Well —

Warren E. Burger:

— the parole board was doing what it should do, namely take into account the total record up to the time of the imposition of the sentence including everything in the presentence report, everything that the sentencing judge said either by way of mitigation or aggravation, isn’t that correct?

Michael Edelson:

If Your Honor please, in reviewing the presentence report and everything said by way of mitigation and aggravation and the weight that they ultimately gave to that review, I suggest to the Court that they were in fact reevaluating the severity of the offense.

Warren E. Burger:

Well I would read the parole board statement as much more moderate than Judge Barlow’s statements, not involving any reevaluation at all.

Michael Edelson:

Well, if Your Honor please, we do at least know that Judge Barlow felt that the punishment which fit the crime and his evaluation of the severity would have been incarceration for a period of three and a half to four years.

That is perfectly clear from what Judge Barlow has said in his motion granting the Section 2255, and his opinion granting them Section 2255 motion.

William H. Rehnquist:

Mr. Edelson, with respect to 2255, did Judge Barlow or the Third Circuit give any explanation for why they thought this was a sentence subject to collateral attack in view of our holdings in Murray and Affronti?

Michael Edelson:

Well neither court addressed Murray and Affronti, but yes they did give reasons why they felt Section 2255 —

William H. Rehnquist:

I’ve read their opinions and I’m amazed frankly that they didn’t even discuss Murray or Affronti.

They had to address other lower court opinion.

Michael Edelson:

Well I — Murray and Affronti, if Your Honor please, did both — if I’m correct did both deal with the interpretation of probation statutes.

And probation is somewhat different than parole, and also in this case what both Judge Barlow and the Third Circuit found was that there was in fact a radical change in the criteria which was applied in parole decision-making after sentence and before parole eligibility, and that was the controlling fact.

William H. Rehnquist:

So did Murray and Affronti suggest that was at all relevant, whether or not there’d been a radical change?

Michael Edelson:

Well, I would agree that there is a suggestion there, but I also believe that the cases are in fact distinguishable.

I can’t answer for the Third Circuit or Judge Barlow as to why those issues were not addressed in the opinions.

If the Court please, when the sentence of ten years were set, at least what Judge Barlow says he was doing was something very specific.

He was trying to set in accordance with the statutes then in effect, and what was known by sentencing judges a time of incarceration.

Mr. Justice Brennan asked could the judge set a three to seven sentence and say he may not be released until four years.

In 1970, in order for Judge Barlow to have guaranteed that Mr. Addonizio stayed in prison, stayed incarcerated for the three and a half to four years that he intended, he had to give him a 10-year sentence.

But he also had the expectation that when he became eligible for parole under the statute, under 4202, at the one-third point, his eligibility would then be considered based upon his institutional record and the evaluation of the probability of recidivism.

William H. Rehnquist:

But maybe Congress didn’t want to give Judge Barlow the power either to guarantee a minimum or to give him any expectation as to a maximum?

Michael Edelson:

Well I think they did give him the right to guarantee the minimum.

William H. Rehnquist:

By fixing the higher maximum.

Michael Edelson:

That’s correct.

William H. Rehnquist:

Yes.

Michael Edelson:

Because the statute provides when there’s — provided when — and still provides when there is a straight sentence then the inmate is not eligible for parole until he has served one-third of his sentence.

William H. Rehnquist:

But there’s certainly nothing in the sentencing statutes about giving a judge any expectation as to a maximum.

Michael Edelson:

Well, there is nothing — I would agree that there is nothing in the statute.

There was a lot in case law by 1970.

William H. Rehnquist:

In this Court?

Michael Edelson:

Not in this Court, if Your Honor, I don’t — although there were — there are general comments on the philosophy of parole which I assume were shared by trial courts into their expectation of how the parole system worked.

In the Third Circuit, for example, we had the case of —

William H. Rehnquist:

But before we have your —

Michael Edelson:

— of Barry versus United States, excuse me I just wanted to give you this cite.

William H. Rehnquist:

Yes.

Michael Edelson:

The way the court said that the reasonable expectation is the prisoner will serve one-third of the full sentence.

William H. Rehnquist:

Well the fact that the Third Circuit opinions may have given Judge Barlow, who was a district judge in New Jersey an expectation, certainly doesn’t bind us in any way, does it?

Michael Edelson:

If there was such an expectation and if sentences were imposed based upon that expectation, it is our contention that there was a crucial error in the imposition of sentence.

William H. Rehnquist:

Even though this Court had never sustained the Third Circuit’s position?

Michael Edelson:

Yes, even though this Court had never sustained the Third Circuit’s opinion, because there was nothing from this Court to say whether or not there was an expectation other than this Court — there are — there is language in Morrissey versus Brewer for example which is similar to language in many circuit court cases that the object of parole is to release the inmate as quickly as the parole authorities have determined that he has shown rehabilitation and can be put back on the street without the fear of recidivism without —

Warren E. Burger:

Isn’t there another factor that’s added at every level and that is whether in weighing looking at the seriousness and gravity of the crime, the release at that time will disparage and depreciate the administration of justice and undermine the deterrent factor of punishment?

Michael Edelson:

If Your Honor please, that was very specifically added in the 1976 Parole Commission and Reorganization Act, a comparison between 184203 and the present 184206 (a) which sets the criteria shows that first of all, the old criteria did not tell the Parole Commission or parole board at that time, to look at the severity of the offense.

And 4202, I’m sorry, 420 — I was correct at first, 4203 said that if it appears to the parole board from a report by the proper institutional officers or upon application by a prisoner eligible for release on parole that there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws.

And if in the opinion of the board such release is not incompatible with the welfare of society, the board may in its discretion authorize the release of such prisoner on parole.

That, if Your Honor please, should be compared to 4206 (a) today which contains the additional language “if an eligible prisoner has substantially observed the rules of the institutions or institutions to which he has been confined and if the Commission upon considering the nature and circumstances of the offense and history and characteristics of the prisoner determines, that release will not depreciate the seriousness of his offense, or promote disrespect for the law.”

Those words were not in the statute in 1970 they were —

Warren E. Burger:

Would you suppose they were in the minds of people who were experienced in this activity and judges who were imposing sentences?

Michael Edelson:

I —

Warren E. Burger:

There’s nothing new about those concepts.

You find them through the literature on the subject over the last 30 or 40 years.

Michael Edelson:

Judge, I believe that until the new Act, the punishment, retribution, deterrence aspect were covered generally by the sentence imposed.

Parole was not viewed as having a primary or even meaningful secondary purpose in serving those functions.

Parole started out as an ameliorative measure.

Parole started — parole was to a certain extent, the embodiment of the rehabilitation model in the federal system, not sentencing.

Sentencing fully was supposed to take care of this deterrence.

Sentencing fully was supposed to take care of punishment, but parole was not.

Thurgood Marshall:

Are you familiar with any of the sentencing institutes?

Michael Edelson:

I’m not —

Thurgood Marshall:

You never heard them, have you?

In significant federal judges attend on sentencing?

Michael Edelson:

I am familiar with the federal judges attend institutes on sentencing.

I have never attended, I have read some reports and synopsis of things that are said of all the things that I have found published that have taken place at those institutes, I would say that most of the comments of the judges were concerned with their assumption that in fact release was being almost automatically granted.

And our case does not depend upon that.

Severity of the offense was mentioned but our position here is that there was almost a flip flopping of what the criteria were when they were as applied in 1970 and as presently applied and as applied after Mr. Addonizio was sentenced and became eligible for parole.

Warren E. Burger:

Well there certainly was a flip flop by the sentencing judge from the expressions he gave at the time of sentence and the expressions he made when he took his final action.

Michael Edelson:

Well, my time is up by if I may just respond to that?

Warren E. Burger:

Yes.

Michael Edelson:

I don’t think there was a flip-flop at all.

I think he was entirely consistent.

He found that the mayor of the city had ultimate responsibility for what he felt was a horrendous crime and he fashioned a specific sentence to deal with that.

The change in the parole guidelines changed the import of that sentence radically.

Thank you.

Warren E. Burger:

Very well.

Mr. Greenspan.

Leon J. Greenspan:

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

I represent former mayor Whelan and former councilman Flaherty from the City of Jersey City, New Jersey.

They too were sentenced under the, what’s commonly known as the federal extortion statute for selling to the public in general, whoever was willing to buy, their favors in government.

Unlike Mr. Addonizio, Messrs. Whelan and Flaherty were not connected with organized crime and also unlike Addonizio, they were sentenced to 15 years rather than 10 years.

Also unlike Addonizio, there was a tax problem that was connected to the Whelan and Flaherty case which was resolved by a plea of guilty and the imposition of a sentence to be run concurrently with the 15-year sentence.

Also unlike Addonizio, unfortunately Judge Shaw as presiding in a much higher court, he passed away.

Leon J. Greenspan:

Thereafter, an application was made in the District Court for the district of New Jersey and it was referred to Judge Biunno who was presented with the problem of ascertaining under the Third Circuit rule, what was the expectation of Judge Shaw at the time that he passed the 15-year sentence?

I would submit to this Court that regardless of what my brother, the Solicitor General has to say, he is after the fact attempting to ascertain what was the fact in 1970 and prior to 1970 with regard to the expectations of sentencing judges at the time that his sentence was passed upon any prisoner or any convict before a judge.

And under the rule of U.S. versus Barry, the courts themselves enunciated the fact that it was commonly known that after one-third of the service of the sentence imposed the prisoner would be released unless there were factors that were present at that time to determine that he should not be released.

And I take the position that under the statutes as they were then in existence, and as they would be applicable today that they only shifted not so that it was now upon the parole board or the Parole Commission to have a burden of proof as to why a prisoner should not be released once he had served the one-third of the sentence.

The statute that was in effect then was the statute that my clients were sentenced under and they had every right to expect that if the met the criteria, as they did, that they would be released at the end of one-third.

And Judge Shaw had every right to expect because that is what he had in his mind at the time that he sentenced the two individuals simply because that was what was in the minds of all the judges who were sentencing prisoners at that time, because that’s what the judges said in their mind and it says so in U.S. versus Barry.

William H. Rehnquist:

Do you think Judge Shaw’s right survives his death?

Leon J. Greenspan:

It’s not a question to Judge Shaw’s rights.

It’s the question of the rights of individuals under the Constitution to be protected from an impingement upon the powers of the judiciary by the powers of the executive.

All that the judge is doing at the time that he passes his sentence, or in this case at the time that he acts under 2255 to correct or modify a sentence is to vindicate the rights that are inherent in the individual to be sentenced to a term of years that is no more than the judge wanted him to serve at the time.

Now, if the Third Circuit uses language that the judge was frustrated, that it’s vindicating the judicial function, all its saying is that it’s vindicating the rights of individuals to have the judiciary determine how long they’re going to serve when it was the judiciary that passed the sentence.

William H. Rehnquist:

Well where do you find those rights, you find them on acts of Congress, don’t you?

Leon J. Greenspan:

No sir.

All that Congress does is set up the courts, the powers that the courts are inherent in the Constitution.

William H. Rehnquist:

You mean a judge could impose whatever sentence he wanted after a guilty verdict regardless of what Congress had said about it?

Leon J. Greenspan:

No, sir.

What the Congress does is pass a maximum under which the court can — is required to act, that’s the legislative function is to determine the limitations.

Once the judge passes a sentence which are within the limitations, that is not for the executive to say, unless the court wishes to pass on to a certain degree its rights in pronouncing the sentence to the executive to determine.

Now, you have a statute that says, yes the judge can make a sentence, pass a sentence that will say “We are going to sentence you to the discretion of the Attorney General, or to the discretion of the Parole Commission” but that’s not the case here.

You have a classic balance of power problem, one that I haven’t seen before this Court before, and that is where does the powers of the judiciary to vindicate not its rights but the rights of the individuals stop and where does the power of the executive begin.

I do not agree with the Solicitor General that at magically at the end of 120 days, the courts have no power whatsoever to see what’s happening.

I don’t believe there’s any magic in that 120 days, and I do believe that 2255 was put there specifically for the purpose not of vindicating a right of a judge, but of upholding the right of a judge to vindicate the rights of the individual.

Harry A. Blackmun:

What is you explanation then of the federal rule, you must have some explanation of it?

Leon J. Greenspan:

Rule 35?

Harry A. Blackmun:

Yes.

Leon J. Greenspan:

I think that Rule 35 deals with entirely different proposition, and that’s not the proposition we have before us.

I think that 2255 deals with, and if I may attempt to explain in this fashion with what is probably the court form knows.

Harry A. Blackmun:

Well I don’t want to know what your explanation is of 2255, tell me what the explanation is of Rule 35 which you say is such a different proposition.

Leon J. Greenspan:

If the judge has made a mistake, if something has happened where the judge for one reason or another, wants to do something different then Congress has given the judge the authority to change his sentence for whatever reason or no reason the way I see Rule 35.

However, 2255 is entirely different where a mistake has been made in a nature of a coram nobis type of a problem where something has happened which is a question of fact which was unavailable or unaware to the — at the time that whatever happened, happened.

Leon J. Greenspan:

Then 2255 comes in, I — excuse me?

Byron R. White:

What about Affronti and Murray?

Leon J. Greenspan:

Affronti and Murray have absolutely nothing to do with this.

Byron R. White:

I know, that’s why I would expect you to say that why not?

They just say that the judge can’t — has any power once the sentence has begun to change his probation ruling?

Leon J. Greenspan:

Well, all I could say about —

Byron R. White:

Don’t they say that?

Leon J. Greenspan:

Sure but that doesn’t apply here, simply because Affronti and Murray assumed that the judge had changed his mind, that the judge wants to do something different than what he wanted to do before.

Byron R. White:

Well it does, yes, he certainly does and I thought you said that 2255 would be available for the judge to —

Leon J. Greenspan:

No sir, I didn’t say that.

I said 2255 would be available in situation where the judge has passed a sentence based upon a set of facts, he precede him at that time and which were the facts that were in existence.

And in this case, I would say the state of the law would be a fact that was in existence at that time.

2255 is available so that the judge can say “Now wait a minute, I don’t want something to happen today that’s different than what I wanted to happen before.”

Byron R. White:

What if the judge discovered some facts, what if the probation officer came in and said “I gave you a very bad report last year, this fellow should have really gone on probation, instead he is in prison for five years.”

And the judge says “What do you mean?”

He gives him some facts he didn’t have, and the judge says “if I had known that, I’d put him on probation.”

And the probation officer says “Well this is that argument in the Supreme Court last week, you’ve got power under 2255 to effect a different result based on facts you didn’t know.”

Leon J. Greenspan:

If Your Honor please, I don’t know that that wouldn’t be a good rule, but I’m not arguing that rule.

I’m arguing something entirely different.

I’m arguing that where the judge had an intention where the facts were the facts at that point and nothing is changed, except that somebody else wants to treat it differently then 2255 applies.

I don’t know that 2255 wouldn’t apply under the fact pattern which you’ve described to me.

I would suggest that it would.

Byron R. White:

Well you’d have to do something about the — about Affronti, wouldn’t you, and Murray?

Leon J. Greenspan:

In that case, I certainly would but not in the case that I argue here today.

I say Affronti and Murray just have no place in this argument and I believe that your brother in the Third Circuit so believed to be going to say they didn’t even discuss it.

I would suggest that we’re dealing with a question of wherever you have a question as to who has to have the final word in a conflict between two co-equal branches of government that I believe that is the judiciary that has to have the final word, unless there’s a clear statutory or constitutional mandate that the judiciary does not have the final word.

Otherwise, you’re going to have a situation which has been described as a judicial frustration but it’s not really a judicial frustration, although the judge may feel himself frustrated.

What is a frustration of the rights of the individual who is before the judicial system, who is seeking to have the expectation that was pronounced upon him, vindicated?

Now, I can not accept any ruling which would say that if a judge has pronounced a sentence based upon the state of the law as it was then, under the facts as he precedes them to be as they were then that the executive department can say “Well I’m sorry judge, we have decided that the sentence that you gave was not severe enough.

We’re going to change that sentence.”

Leon J. Greenspan:

Now there is no implicit or inherent right in the executive department to do that.

There is the implicit or inherent right in the judicial system to see that when a sentence is passed that the expectation of the judge was vindicated, because it is the expectation of the judge that should be vindicated at this point and not the expectation of the executive department.

Warren E. Burger:

How can the judge at that stage have any idea how the prisoner is going to conduct himself in prison over a period of three or five years into the future?

Leon J. Greenspan:

He can’t and that’s precisely why the only discretion that’s invested in the executive department under that set of sort of circumstance is, is to determine whether or not he is adapted to the prison life, whether there is going to be recidivistic tendencies, and whether the other criteria which are set forth in the statutes and the regulations are met.

Warren E. Burger:

You mean the parole board can not take into account the nature of the crime?

Leon J. Greenspan:

Absolutely not.

Simply because, in my judgment would be a violation of the constitutional prohibition against double jeopardy.

You would be unconstitutionally enhancing the amount of time that individual is going to serve after the judge has already said “I’m sentencing you to this sentence because of the severity of the crime.”

And now the Parole Commission is going to say “Well, now that you’ve been sentenced because of the severity of the crime, we’re going to keep you longer because of the severity of the crime.”

They just doesn’t hang.

Warren E. Burger:

Not longer than what?

Leon J. Greenspan:

Excuse me sir?

Warren E. Burger:

Longer than what?

Leon J. Greenspan:

Longer than the expectation of the judge in sentencing because of the severity of the crime.

Now at that time it was one-third, I —

Thurgood Marshall:

So the Parole Commission is just a rubberstamp?

Leon J. Greenspan:

No, it’s not just a rubberstamp.

I think that the — that if this Court were to hold that there was no right in the judge under 2255, the judge would be a rubberstamp.

It would be the judge who’d say “I’m going to pass this sentence and I don’t know what’s going to happen.”

Thurgood Marshall:

That’s not — well I just have one — I didn’t say a word about the judge did I?

Leon J. Greenspan:

No, you didn’t Your Honor, that was my own language, but that’s what I would learn from that.

I think that we’re dealing with a very, very narrow, narrow issue which is getting even narrower, and that is the question of what happens to sentences that were passed before 1973 when the individual is not released according to what the expectation of the court was at the time that the sentenced was passed.

As the years go by, we’re not going to be dealing with many more of these cases.

I think that if there’s a constitutional issue before this Court is merely just where does the rights of the judiciary ends, and where does the rights of the executive begin.

And I cannot see it in the 128-line, there has to be some sort of an overlap where there is some sort of a concurrent jurisdiction.

And we’ve argued that in brief and we have specifically narrowed it in our brief.

Now amicus is filed a brief which purports to argue that certiorari was improvidently granted, I would adopt that argument.

And I will not devote any more of my time to it I believe it’s well written in that brief.

I would just close by saying that this Court many years ago in the Morton Salt case, came to the conclusion that executive officers can not usurp judicial functions nor prevent the court from exercising such functions.

If this Court were to permit the Parole Commission under the peculiar facts in this case to hold in prison Messrs. Whelan and Flaherty any longer than the time that they’ve already served, I would submit that they have usurped the judicial function and that they should not be permitted to do so.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.